Wednesday, September 20, 2017

Some misguided defenses of Sen. Feinstein's questioning of judicial nominee

Cross-posted from Mirror of Justice, and (sort of) following up on Paul's post . . .

During the last few weeks, a number of (very) prominent scholars and academic figures -- Fr. John Jenkins, Chris Eisgruber, William Galston, Lawrence Tribe, Noah Feldman, etc. -- have forcefully demonstrated that several senators crossed the line, during the recent hearings in the Senate's Judiciary Committee, when questioning (my colleague) Prof. Amy Barrett, who has been nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit.  A few legal scholars have stepped up to defend the senators -- including Geoffrey Stone, Eric Segall, and Erwin Chemerinsky -- but (as others have shown in great detail) these defenses have rested entirely on incomplete or inaccurate accounts of what the senators actually said.

Also surprising, and disappointing, have been the reactions of some Catholic commentators, including Michael Sean Winters, of Distinctly Catholic, and the editors at Commonweal.  In my view, these reactions reflect a failure to engage directly with what actually happened at the hearing.  Read the linked-to pieces for yourself.  Then, consider these thoughts of mine, for what they are worth:

 - (1) It was not inappropriate, and it is not inappropriate, for senators to question judicial nominees (Catholic or not -- if they ask only Catholics, that's a problem!) about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role.  It is also appropriate to ask a nominee about his or her scholarly work, including work regarding the relationship between a judge's faith and his or her judicial obligations.  This kind of questioning does not violate the "No Religious Tests"  Clause of the Constitution.

 - (2) It is inappropriate (or worse, it is embarrassing) for senators to rely on activist groups' willful misrepresentations of a nominee's (20 year old, co-authored) law-review article as the basis for repeated (as in, over and over and over . . . ) charges regarding the nominee's views.  In Barrett's case, multiple senators -- again, clearly relying on interest groups' talking points -- accused the nominee of saying X when, in fact, she had said not-X.  This questioning persisted even after Barrett corrected the misunderstanding/misrepresentation.

 - (3) Some senators' questions were merely tedious and uninformed (e.g., those of Sen. Hirono) or grandstanding and nasty (e.g., those of Sen. Franken).  The questions of Sen. Durbin and (in her second round) Sen. Feinstein, however, were different.  Contrary to the suggestions of the authors mentioned above, these senators did not limit themselves to appropriate questions -- the kind that could be asked of any nominee, not only a Catholic one -- about the relationship between a judge's faith and her judicial work and obligations.   Rather, Sen. Feinstein said this:

Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that is of concern when you come to big issues that large numbers of people have fought for for years in this country.

This is not an appropriate question.  (Nor was Sen. Durbin's "are you an orthodox Catholic?")  This is reminiscent of Know-Nothing and Blanshardian anti-Catholicism.  It's what was done to Al Smith and John F. Kennedy.  Although Barrett had repeatedly, clearly, and unequivocally provided the correct and reasonably expected answer -- e.g., "it is not the role of an Article III federal judge to substitute his or her religious commitments for the positive law when deciding cases" -- Sen. Feinstein said (my words, not hers) "I don't believe you, because of what I've heard about your [Roman Catholic] faith commitments."   Sen. Feinstein's critics are right; her defenders are wrong.  The senators would not have asked -- and the senators' defenders would not have tolerated -- repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they have).  The double-standard here -- to quote Sen. Feinstein -- "[speaks] loudly." 

Posted by Rick Garnett on September 20, 2017 at 08:03 PM in Rick Garnett | Permalink | Comments (0)

Tuesday, September 19, 2017

Call for Papers: "Religious Violence and Extremism"

Call For Papers
The Journal of Law, Religion and State - International Conference
Religious Violence and Extremism
28-30 May 2018


In recent years, religious violence and extremism have become an increasingly present
phenomenon on the public stage, not only growing in impact, but also spreading to many
new parts of the world. In this conference, we seek to discuss these phenomena from a
variety of legal perspectives, considering the role of law, religion and state both in
facilitating violence and extremism and countering it as well.

Our intention is to explore the legal origins and consequences of these phenomena in a
broad sense, assessing not only state law and religious law, but also the social conditions
and goals that the law reflects or emerges in response to. Moreover, we also hope to
consider the concept of religious extremism not simply as attendant to violence, but also as
its own independent phenomenon with which the state must contend. Here some of the
topics we invite participants to address:

 Analysis of religious violence and extremism (the phenomena in general and specific
incidents as well)

 Definition and classification of both religious violence and religious extremism

 What is the relationship between religious freedom and religious extremism?

 Does religious extremism justify restrictions on religious freedom (education,
expression or association) and how does/should the state conceptualize principled
limitations on religious freedom in light of religious extremism?

 How should we distinguish between a deeply religious lifestyle and extremist
religious activity?

 What are the (legal) measures states should take against radicalization of religion,
and in what cases? (e.g., avoiding support, cancellation of tax exemptions,
banning/criminalizing certain activities)

 How can the state manage conflicts—and provide political resolutions—at holy sites
that serve, at times, as loci for both religious fervour and religious extremism?
Faculty of Law JOURNAL OF LAW, RELIGION AND STATE

Faculty of Law

 Can law, the state and/or religious leaders and institutions leverage the resources
within various faith traditions to respond to religious extremism and violence? If yes,
then: how should this be done?

 Should the law and the state treat religiously-motivated crimes in a different way
than other crimes?

 What are the interpretive strategies religions take (or should take) in order to void
radicalization and how can they impact the legal and political strategies of the state?

The conference will be held at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel, from
the late afternoon of Monday, 28 May 2018 until the late afternoon of Wednesday, 30 May
2018.

We encourage academic scholars from all parts of the world and from diverse religious
backgrounds to submit proposals on the topics outlined above, and similar topics as well.

An abstract of 500 (max.) words should be sent to jlrs@biu.ac.il no later than November 10,
2017. Please indicate academic affiliation and attach a CV. The conference committee will
review all submissions and notify applicants of papers of its decisions by Friday, 15
December 2017. The participants will be required to submit a first (full) draft of their papers
at least four weeks before the conference so as to enable all participants to prepare for the
conference discussions.

All participants will be provided three days of hotel accommodation and board during the
conference.

After the conference, participants will have the opportunity to revise and finalize their
papers in order to submit them for publication in JLRS. The articles will be published in the
Journal of Law Religion and State subject to blind peer review.

The organizing committee:

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Prof. Rex Tauati Ahdar, Faculty of Law, Otago University, New Zealand
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

JLRS website: http://www.brill.com/publications/journals/journal-law-religion-and-state

Posted by Rick Garnett on September 19, 2017 at 11:26 AM in Rick Garnett | Permalink | Comments (1)

Saturday, September 09, 2017

Eisgruber and Jenkins on nominees' faith and senators' questions

Following up on Paul's recent post, two open letters by university presidents Chris Eisgruber (Princeton) and Fr. John Jenkins (Notre Dame) might be of interest.

Posted by Rick Garnett on September 9, 2017 at 06:56 PM in Rick Garnett | Permalink | Comments (0)

Monday, July 24, 2017

Inazu responds to Horwitz's review of "Confident Pluralism"

A few days ago, Paul posted his review - "Positive Pluralism Now" (U. of Chicago Law Review) -- of Prof. John Inazu's still-recent book, Confident Pluralism.  What follows is a guest-post response, by John, to that review:

Is Pluralism a Good Thing? 

Paul Horwitz has written a thoughtful and engaging review of my book, Confident Pluralism, for the University of Chicago Law Review.  Paul is an ideal interlocutor, having written widely about pluralism and the First Amendment.  I have a few comments in response, most of which have to do with his definition of pluralism. 

Paul notes that the term “pluralism” is “susceptible of multiple understandings—and to one big distinction: between pluralism as purely descriptive and pluralism as a good in itself.”  I tend to think of the “big distinction” somewhat differently: there is pluralism as a fact of the world (let’s call this Definition 1) and there is pluralism as a political response to that fact of the world (let’s call this Definition 2).  One can have normative views (positive or negative) about either of these meanings of pluralism. . . .

[More after the jump]

Paul calls himself a “positive pluralist” and suggests that positive pluralists seek “a shift away from thinking about pluralism as a fact to be managed . . . and toward a view of pluralism as a positive value and a good in itself.”  He suggests that I may be, or at least should be, a fellow traveler.   But I’m not so sure, in part because I’m unclear about what Paul means by pluralism being “a good in itself.”

Let’s start with Definition 1.  If positive pluralists view pluralism as a fact of the world as a “good in itself,” then I am not a positive pluralist.  As I write in the introduction to Confident Pluralism:

Not all of our differences are problematic. Most of us think some difference is good, that this variety of perspective makes life more interesting. I think the world is a better place because I pull for the Duke Blue Devils and some of my friends cheer for lesser basketball teams. March Madness would be less interesting if everybody liked Duke and nobody cheered against them. We might reach a similar conclusion about beauty, taste, and humor. Some of these differences enrich our lives. Some of them lead to sharper thinking and greater creativity.

On the other hand, most of us do not think that all difference is good. We can all name things that we think the world would be better off without. This is especially true when it comes to our moral beliefs. We might prefer a society in which everyone agreed about what counts as a justifiable homicide, a mean temperament, or a good life. To complicate matters, we also disagree over the nature of our disagreements, and over how much disagreement is a good thing. Moreover, at least some of our most important beliefs cannot be reconciled with one another. It cannot be the case that the act of abortion is both morally acceptable and morally intolerable. It cannot be the case that God exists and that God does not exist. And these differences matter far more than basketball allegiances.

My normative views about Definition 1 also come through in my characterizations of tolerance (which “does not impose the fiction that all ideas are equally valid or morally harmless”) and humility (which “should not be mistaken for relativism” and “leaves open the possibility that there is right and wrong and good and evil”) (pp. 88-89). 

Here’s another way to make the point: I would be perfectly content if everyone in the world were persuaded to share my views of right and wrong, good and evil, and ultimate things.  That doesn’t mean that I think everyone should hold all of my views about everything.  As I mentioned above, I think that some beliefs and preferences do not implicate morally significant questions.  And on some morally significant questions, I lack the information or wisdom to have reached a view with confidence.  But there are at least some questions about which I think I hold the correct view, enough to orient my life around the implications that follow from that view.  Because I believe the correct answers to these questions matter a great deal, and that they matter ultimately for everyone, I do not think that different views about them is a good thing.  In other words, at least with respect to many of our differences, I think Definition 1 is normatively bad—the fact of our deep differences is indeed a “problem to be managed,” rather than a “good in itself.” 

Let’s turn to Definition 2, which is pluralism as a political response to the fact of our differences.  More specifically, Definition 2 is a set of political arrangements that maximizes our ability to live peacefully given the fact of our deep differences.  Paul suggests that positive pluralists should be “forthright about advocating pluralism for its own sake, rather than as a kind of conflict resolution device.”  If this is right, then I am not a positive pluralist under Definition 2, either.  Pluralism “for its own sake” sounds like a positive pluralist would find Definition 2 intrinsically valuable.  My view is that Definition 2 is instrumentally valuable as what Paul calls “a kind of conflict resolution device” (or more precisely, conflict management, or conflict mitigation).     

One reason that I find instrumental value to Definition 2 is that I doubt we will overcome our deep differences short of transcendent intervention.  And left to our own devices, the method of engagement across difference matters to me.  Like many people, I prefer persuasion over coercion, even if that preference decreases the short-term likelihood of reducing the aspects of Definition 1 that I think are normatively bad.  And I am generally wary of state power, based both on my own family’s history (to which Paul alludes in his review) and the influence of intellectual mentors, including the theologian Stanley Hauerwas (whose connections to the law I explore in this volume of Law & Contemporary Problems).

Note that both the positive pluralist and I can view Definition 2 pluralism as normatively good.  For example, Paul writes that positive pluralists of an earlier era “saw smaller groups and institutions within the nation as having a value of their own, rather than wanting to set universal rules that would had a final victory to one side or the other.”  And he suggests that positive pluralism “moves away from . . . an overly state-centered approach to our social and political structures” and encourages “the possibility that the ‘official’ legal versions of these values do not apply everywhere or with equal strength or meaning in different legal and non-legal contexts.”  I think that both of these political arrangements are instrumentally valuable insofar as I believe that both of them facilitate our ability to live together across our deep differences.  But I would not characterize either as “a good in itself.”  I advocate for strong protections for the private groups of civil society, but not because I think the diversity of beliefs and practices represented in those groups is a good thing.  To the contrary, I think some of the private groups of civil society are terrible, and I think the world would be better off without them.  But I also think we need something like confident pluralism as a kind of mutual nonaggression pact.  I’m worried about the people in power, whoever they are, and whether they are closer to “my side” or “the other side.”  And I think a great strength of our country has been its capacity to check the people in power and work to persuade rather than coerce those with whom we disagree.   That doesn’t mean we always get it right.  Like Paul, I recognize that Definition 2 pluralism has at times been abused in the course of the American political experiment.  But I prefer it to other political alternatives.

There’s much more to Paul’s review, and I encourage you to read the whole thing.

Posted by Rick Garnett on July 24, 2017 at 11:51 PM in Rick Garnett | Permalink | Comments (3)

Tuesday, July 11, 2017

Horwitz & Smith on accommodation, pluralism, religion, and disagreement

Two new (to me!) papers to read this morning:  Here is Paul Horwitz reviewing John Inazu's recent bookConfident Pluralism, and here is Steve Smith's contribution -- "Against Civil Rights Simplism:  How Not to Accommodate Competing Legal Commitments" -- to a conference at Yale last January.

Posted by Rick Garnett on July 11, 2017 at 07:58 AM in Rick Garnett | Permalink | Comments (0)

Thursday, June 29, 2017

R. Kozel, "Settled Versus Right: A Theory of Precedent"

I'm pleased to share the news that the new book by my friend and colleague, Randy Kozel -- Settled Versus Right:  A Theory of Precedent -- is available now from Cambridge University Press.   (Among other things, the cover is great!).  Here's the blurb:

In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel's account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.

It's been a real treat talking with and learning from Randy about these matters over the past few years.  Congratulations!

Posted by Rick Garnett on June 29, 2017 at 09:26 AM in Rick Garnett | Permalink | Comments (0)

Wednesday, April 19, 2017

Judge John T. Noonan, Jr., RIP

My Mirror of Justice colleague and Villanova prawf Patrick Brennan posted over there that Judge John T. Noonan, Jr., of the Court of Appeals for the Ninth Circuit, has passed away at the age of 90.  I was blessed with the chance to learn from him, and to get to know him reasonably well. (He visited my law school, during my first year, to speak about the then-current-and-controversial proceedings surrounding and leading to the execution of Robert Alton Harris.)  He was not only a thoughtful and conscientious judge, and a prolific and prominent scholar; he was a really and inspiringly good and faithful person.  If you've never read Persons and Masks of the Law (here), check it out.  Requiescat in pace.

Posted by Rick Garnett on April 19, 2017 at 06:15 PM in Rick Garnett | Permalink | Comments (3)

Monday, March 27, 2017

Monday Morning with Larry (Alexander)

This morning was fun.  Classes were prepared, in-box was manageable, meetings were cancelled.  So, I spent a few hours with a stack of papers that Larry Alexander had sent a little while back.  I don't know how Larry manages to write so much so well, but he does.  Check out, e.g., "Is Wrongful Discrimination Really Wrong?" (here); "Brexit and the Future of Liberal Democracy" (here); "Hard Incompatibilism, and the Rejection of Moral Responsibility:  A Skeptical Look at an Optimistic Account" (here);  and "Against Equality" (here).

Posted by Rick Garnett on March 27, 2017 at 01:12 PM in Rick Garnett | Permalink | Comments (0)

Friday, January 27, 2017

Mark Roche on "Realizing the Distinctive University" . . . or law school?

My Notre Dame colleague, Prof. Mark Roche, has a new book outRealizing the Distinctive University:  Visions and Values, Strategy and Culture.  It is noted, here, in the Chronicle of Higher Education.  Here's a bit:

But distinctive institutions don’t have to be religious, single sex, or historically black, he says; and they don’t have to have wed "intellectual vigor and nonconformity" like, say, Reed College, or have a signature honors program like the one at Swarthmore College. Rather, they can emulate some of the many strengths of American higher education, and they can reap benefits from its shortcomings, such as its indifferent record in serving underrepresented racial, ethnic, and socioeconomic groups: "You can say, OK, where is there an objective gap, something important that needs to be addressed?"

I'm reminded of the theme that then-Dean John Garvey proposed, a few years ago, during his tenure as President of the AALS:  "Institutional Pluralism" (and that I blogged about a few times -- here, here, and here -- at the time).  I think Garvey was right then, and Roche is right now, that we need more of this in higher education.  I worry, though, that we are moving towards less.  Check out Roche's book.   

Posted by Rick Garnett on January 27, 2017 at 01:57 PM in Rick Garnett | Permalink | Comments (0)

Thursday, December 22, 2016

"The Spiritual Crisis of the Modern Economy"

I don't agree with everything in this piece by Victor Tan Chen, but I think it makes a number of plausible, challenging claims -- echoing, in places, things that Rusty Reno has been saying at First Thingsthat Murray, Putnam, and Vance have highlighted in their recent books, and that our own Paul Horwitz has blogged about.  It is particularly worth a read, maybe -- as we're grading law-school exams, writing recommendation letters, etc. -- by those of us who are privileged/blessed to work in institutions that play such a large role in driving the competitive, exhausting meritocracy and in providing the credentials, merit-badges, and networks that are increasingly required for access to the upward mobility, social status, and the cognitive and other elites.  Here's just a bit: 

One possible answer . . . is the notion of grace—a stance that puts forward values that go beyond the “negatives” of the narrow secular creed and connect with individuals of diverse political viewpoints, including those hungry for more in the way of meaning than the meritocratic race affords. . . .

The concept of grace comes from the Christian teaching that everyone, not just the deserving, is saved by God’s grace. Grace in the broader sense that I (an agnostic) am using, however, can be both secular and religious. In the simplest terms, it is about refusing to divide the world into camps of deserving and undeserving, as those on both the right and left are wont to do. It rejects an obsession with excusing nothing, with measuring and judging the worth of people based on everything from a spotty résumé to an offensive comment.

. . . At the same time, grace reminds the well-educated and well-off to be less self-righteous and less hostile toward other people’s values. Without a doubt, opposing racism and other forms of bigotry is imperative. There are different ways to go about it, though, and ignorance shouldn’t be considered an irremediable sin. Yet many of the liberal, affluent, and college-educated too often reduce the beliefs of a significant segment of the population to a mash of evil and delusion. . . .

Really, though, the people who could learn from grace are the prosperous and college-educated, who often find it hard to empathize with those . . . who live outside their sunny, well-ordered worlds. When people are not so intent on blaming others for their sins—cultural and economic—they can deal more kindly with one another. Grace is a forgiving god.

Posted by Rick Garnett on December 22, 2016 at 11:37 AM in Rick Garnett | Permalink | Comments (0)

Wednesday, December 14, 2016

"Professors or Pundits"

I received an announcement about this new volume, edited by my Political Science colleague at Notre Dame, Prof. Michael Desch, called "Public Intellectuals in the Global Arena:  Professors or Pundits."  The book grew out of a conference, held at Notre Dame in 2013 and sponsored by our Institute for Advanced Study.  Our own Paul Horwitz was one of the presenters, and I had the pleasure of providing a short response to his paper, "The Blogger as Public Intellectual."

I cannot find a linkable copy of Paul's chapter, but here's a Prawfs post I did at the time.  (How meta is that?!)  Brad DeLong also blogged a detailed response to Paul.

I wonder, Paul, if your thoughts on the subject are what they were in the Spring of 2013?

Posted by Rick Garnett on December 14, 2016 at 02:58 PM in Blogging, Rick Garnett | Permalink | Comments (0)

Friday, November 18, 2016

Remarks on "The Future of Religious Liberty" at the Federalist Society's National Lawyers Convention

I participated yesterday in a panel discussion on "RFRA and the Future of Religious Liberty" at the Federalist Society's annual National Lawyers Convention.  After noting that recent events had dramatically undermined any confidence one might have in my ability to say anything useful about "the future", I briefly discussed "one big-picture idea, two reasons for cautious optimism, and three causes for concern."  

The big-picture idea (such as it is) was this:  In any society where there is (a) religious and moral diversity and (b) an active, regulatory welfare state, there will -- necessarily -- be conflicts and tensions between (i) duly enacted, majority-supported, generally applicable laws and (ii) some citizens' religious beliefs and exercise.  What Justice Jackson called "the uniformity of the graveyard" is not an attractive way to manage these conflicts and tensions; the toleration-and-accommodation strategy, however, is.  RFRA-type laws are, in my view, effective and workable mechanisms for carrying out the latter strategy and so, yes, I think such laws are and should be part of the "future of religious liberty."

The two "reasons for cautious optimism":  First, the (unanimous) Hosanna-Tabor case shows that the Court recognizes that religious freedom is not entirely about "balancing interests" but also imposes, in some contexts, real limits on the government's ability -- even when its pursuing important goals like reducing employment discrimination -- to interfere with individuals' and institutions religious decisions.  Second, as the (unanimous) Holt case (among many others) illustrated, outside of a few well-known cases (e.g., Storman's) and hot-button-issues (e.g., wedding ventors), religious-liberty claimants are very often winning.  The Becket Fund, etc., and the Department of Justice, do a lot of good work.

Next, three causes for concern -- that is, three demographic, cultural, and sociological facts and trends, or three things about the culture (and "law is downstream from culture") that were true before and are still true after the election:  (1) the "rise of the nones" presents the danger that fewer people will see themselves as having a "stake" in the religious-freedom issue (when, in fact, we all -- whether or not we are religious -- do); (2) the relative decline in the role and footprint of religious institutions and communities (whether because of scandals, or atomizing individualism, or something else) reduces a sense of solidarity and makes it more difficult for people to resist incursions on religious liberty when they threaten; and (3) the increasing willingness of the government to shrink the civil-society space and to expand the "public" sector, by leveraging its licensing, accrediting, spending, grant-making, taxing, contracting, and social-welfare functions -- that is, by using conditions in addition to regulations to affect non-state actors' practices.

Then followed a lively discussion!

Posted by Rick Garnett on November 18, 2016 at 12:40 PM in Religion, Rick Garnett | Permalink | Comments (0)

Tuesday, November 01, 2016

"Neither of the Above"

In case anyone's interested:  I wrote for Commonweal a few months ago an admittedly hand-wringing, opportunistically laden with "Hamilton" references, non-expert (HT: Paul Horwitz!) "conservative's lament" about the upcoming presidential election.  The events of the intervening weeks haven't really changed, but seem instead to have confirmed, my gloomy views.    

Posted by Rick Garnett on November 1, 2016 at 09:30 AM in Rick Garnett | Permalink | Comments (0)

Tuesday, October 04, 2016

Dean Phil C. Neal, R.I.P.

From the University of Chicago Law School:

Former University of Chicago Law School Dean Phil C. Neal, an antitrust expert, litigator, and law firm founder whose ability to cut through complexity earned him a reputation as a deft problem-solver, died Tuesday night. He was 97.

I was particularly interested in this (taken from the same post):

After law school, Neal served for two years as a law clerk to Justice Robert H. Jackson of the US Supreme Court. In spring 1945, Jackson permitted Neal to leave his clerkship a few months early because he had the opportunity, through the intercession of Justice Felix Frankfurter, to assist Department of State official Alger Hiss in his work as secretary general of the United Nations organizing conference.

He joined the faculty at Stanford Law School in 1948 after working at a law firm in San Francisco for several years. While at Stanford, Neal introduced Justice Jackson to the student who would become his final law clerk. This meeting, which took place in Neal’s office in the summer of 1951, ultimately resulted in Jackson offering a clerkship to William H. Rehnquist. As it turned out, Rehnquist was one of two future US Supreme Court justices whom Neal taught at Stanford; the other was Sandra Day O’Connor.

In his first book about the Court, The Supreme Court:  How It Was, How It Is, Rehnquist dedicates a lot of the first chapter (which I've always thought was a really endearing read) to his clerkship interview, the trip out to Washington, and the first few weeks on the job:

A large element of luck seemed to have entered into my selection as Justice Jackson's law clerk. . . .  [A]s fate would have it, Justice Jackson came to dedicate the new Stanford Law School building in the summer of 1951, when I was attending my second summer session.  Phil Neal, my administrative-law professor, had himself clerked for Justice Jackson several years before.  Shortly before Justice Jackson was due to arrive for the dedication ceremonies, Professor Neal asked me if I would be interested in clerking for the justice; the suggestion came to me out of the clear blue sky, but I naturally said that I would be. . . .

It cannot be difficult to imagine the fear and trembling with which I approached the interview. . .  I first tried to bone up for my meeting with the justice by reading some of his opinions, and by trying to steep myself in constitutional law.  After a few hours, however, I decided that it was utterly futile[.] . . .  [Justice Jackson's] pleasant and easygoing demeanor at once put me at ease. . .   I genuinely enjoyed listening to [his] anecdotes, but somehow I felt I should be doing more to make a favorable impression on him. . . .  I walked out of the room sure that in the first few minutes of our visit he had written me off as a total loss.

I know the feeling!  In any event, I'm grateful to Prof. Neal.  R.I.P.

 

Posted by Rick Garnett on October 4, 2016 at 03:38 PM in Rick Garnett | Permalink | Comments (0)

Monday, September 12, 2016

"Freedom Of, For, From, and In Religion: Differing Dimensions of a Common Right?"

This past weekend, I attended a fascinating, rich conference at St. Hughes College, Oxford, that was organized by the International Consortium for Law and Religion Studies (ICLARS).  The theme was "Freedom Of/For/From/In Religion:  Differing Dimensions of a Common Right?" (more info here).  Here's the conference blurb:

Freedom of religion or belief (FoRB), once considered to be the “first” freedom, has become a controversial right. In particular, the practical possibility of implementing FoRB in impartial ways are increasingly questioned. Critics argue that FoRB cannot deliver what it promises: an equal share of freedom for people of different or no religion. Further, it is claimed that the right of FoRB, as it is regulated in international and constitutional law, is intrinsically biased because it reflects its Western and Christian origins.

Part of the problem is due to the fact that FoRB is a complex notion, including different dimensions that require careful consideration. Freedom of religion or belief, as a right recognized for every human being, is the first dimension, but not the only one. Freedom from religion, that is the right to live one’s life without being compelled to perform religious acts, is another and freedom for religion, which concerns the institutional side of this right (what was once called “libertas ecclesiae”) is a third dimension that demands consideration. Finally, freedom in religion concerns the rights that the faithful (and sometimes not so faithful) are entitled to enjoy within their religious communities.

Besides the fact that the conference gave me an excuse to re-visit some of my favorite pubs from my undergraduate days, it was rewarding and fascinating to hear papers, and hear about experiences and impressions, from scholars, lawyers, and activists from outside North America and Europe.  Doing so puts some things in perspective, both because others were dealing with very different issues (e.g., bans on conversions and proselytism) and because they were dealing with similar issues (e.g., religious exemptions) but in different ways.  I also thought the "four pronouns" device suggested in the theme was really insightful and provocative.  (My own paper was called "Freedom For Religion:  (Yet) Another View of the Cathedral."  Not exactly original, I know . . . .)  Hats off to Cole Durham, Brett Scharffs, and Donlu Thayer, of BYU, for organizing an excellent event.

Posted by Rick Garnett on September 12, 2016 at 03:35 PM in Rick Garnett | Permalink | Comments (0)

University of Michigan Law School Society of Fellows

This new program might be of interest to Prawfs readers:

The University of Michigan Law School, in connection with the longstanding Michigan Society of Fellows (MSOF), now welcomes applications for a highly competitive interdisciplinary fellowship for aspiring legal academics (whether currently completing a degree, conducting postgraduate research, clerking, practicing, teaching, or otherwise engaged in law related activity). The application deadline is Tuesday, September 27, 2016, 1:00 PM EDT.

The Michigan Society of Fellows selects 8 fellows from over 900 applicants nationwide to join the Society, and to affiliate as a junior (non-tenure track) member of the faculty with one of the University’s departments or professional schools (including the University of Michigan Law School). The fellowship is offered for a term of three years (to begin in September 2017), although fellows affiliated with the Law School may go on the academic job market during the fall of their second fellowship year.

The fellowship provides a unique opportunity for aspiring academics to develop and produce high level scholarship in a supportive and intellectually challenging environment within the Society, the Law School, and the wider University community. Fellows will also begin to develop their teaching skills in a substantive area of the law while availing themselves, as desired, of Michigan’s pioneering Center for Research and Learning on Teaching. The strong focus of the fellowship is on research and the production of significant scholarship. Teaching obligations are minimal. The fellowship comes with a stipend of $55,000 per year plus participation in the University’s benefits programs. It is supported by the Ford Foundation, the Horace H. and Mary Rackham Funds, and the Andrew W. Mellon Foundation.

- See more at: https://chroniclevitae.com/jobs/0000329437-01#sthash.stt8P1HL.dpuf

Posted by Rick Garnett on September 12, 2016 at 12:00 PM in Rick Garnett | Permalink | Comments (0)

Thursday, August 25, 2016

The University of Chicago letter regarding "free exchange of ideas"

You can see here (and all over the interwebs) a letter from the Dean of Students at the University of Chicago to that university's incoming first-year students.  I wonder, have any law schools sent similar letters (or, letters covering the same issues) to incoming first-year law students?  Should they?  If so, what should they say?

For my own part, I do talk to students in Criminal Law, at several points during the semester, about the fact that the cases and materials we'll be reading do sometimes involve very difficult facts and that the materials and the questions they raise could very well be, for a variety of reasons, painful to read.  I urge respectful conversation and argument, but also invite students to speak with me if they have any concerns about talking in class about particular materials or about attending class on a particular day.  This kind of thing doesn't strike me as a "trigger warning," but maybe I'm misunderstanding what is meant, in the Chicago letter or generally, by that term.

Posted by Rick Garnett on August 25, 2016 at 04:22 PM in Rick Garnett | Permalink | Comments (5)

Friday, August 19, 2016

On reaching "adulthood" in law teaching

Our new first-years are being "oriented" today, and it hit me that this is the 18th time that's happened since I started law teaching.  So, I guess that means I get to vote, or get drafted, or rent a car (but not drink) in law-teaching land.  (It also hit me that I've been teaching longer than some of the new undergraduates who are moving in this weekend have been alive, but that's too much to take in . . ..)  I'm not sure what this milestone means with respect to, for example, the conversation about what students should call professors (I'm pulling for "eminencia"!) -- but I'm pretty sure it means that all "Seinfeld" references (and, who are we kidding?, "Sopranos" references too) have to be shelved.

Have a great semester, everyone!

Posted by Rick Garnett on August 19, 2016 at 10:08 AM in Rick Garnett | Permalink | Comments (5)

Thursday, July 14, 2016

Some reflections on, and reactions to, Prof. Wolterstorff's "Mighty and the Almighty"

A few years ago, the Program on Church, State & Society at Notre Dame Law School hosted a day-long roundtable conversation on Prof. Nicholas Wolterstorff's then-pretty-new short book on political theology, The Mighty and the Almighty.  It was really engaging, and brought together a great group of historians, theologians, philosophers, and prawfs.  Each participant wrote up a short reaction/reflection paper -- a kind of "admission ticket" -- and now (finally?) they are all out in print. Here, in Vol. 4 of the Journal of Analytic Theology are papers by Marc DeGirolami, Chris Eberle, Kevin Vallier, Paul Weithman, and Terence Cuneo (and a response by Nick).  And here, in the Journal of Law and Religion,  are the contributions of Robert Audi, Jonathan Chaplin, Dana Dillon, Brad Gregory, John Inazu, Anna Bonta Moreland, Michael Moreland, Mark Noll, and Gladden Pappin.  The book, and the tickets, are -- like the man says -- "highly recommended"!  

Posted by Rick Garnett on July 14, 2016 at 04:51 PM in Rick Garnett | Permalink | Comments (0)

Wednesday, July 06, 2016

A short take on churches' tax exemptions

This might be timely, given our recent commemoration of the July 4 tax revolt! Here's a short piece of mine, just out in U.S. Catholic, on the question of churches' tax exemptions.   A bit:

. . . But our tradition of exempting churches and religious institutions from taxes is justified and important. The separation of church and state is not a reason to invalidate or abandon these tax exemptions but is instead a very powerful justification for retaining them.

The Supreme Court’s precedents and popular opinion have been shaped, for better or worse, by Thomas Jefferson’s figure of speech about “a wall of separation.” This saying has often been misunderstood and misused. Still, Jefferson’s metaphor points to an important truth: In our tradition, we do not banish religion from the public square and we have not insisted on a rigid, hostile secularism that confines religious faith to the strictly private realm. We do, however, distinguish between political and religious institutions. They can productively cooperate without unconstitutional entanglement. . . .

. . . A political community like ours, that is committed to the freedom of religion and appropriately sensitive to its vulnerability, takes special care to avoid excessively burdening these institutions or interfering in their internal, religious matters. It’s not simply that churches’ contributions to the public good make them deserving of a tax-exempt status; it’s that, given our First Amendment, secular power over religious institutions is and should be limited. Governments refrain from taxing religious institutions not because it is socially useful to “subsidize” them but because their power over them is limited—and because “church” and “state” are distinct.

The point of church-state “separation” is not to create a religion-free public sphere. It is, instead, to safeguard the fundamental right to religious freedom by imposing limits on the regulatory—and, yes, the taxing—powers of governments. After all, as Daniel Webster famously argued in the Supreme Court (and the great Chief Justice John Marshall agreed) the power to tax involves the power to destroy, and so we have very good reasons for exercising that power with care—especially when it comes to religious institutions.

Posted by Rick Garnett on July 6, 2016 at 03:14 PM in Rick Garnett | Permalink | Comments (0)

Tuesday, June 14, 2016

An Interview with Fr. (Prof.) Robert J. Araujo, S.J.

As Prawfs readers with way better memories than mine might remember, I mentioned last year that my friend and Mirror of Justice colleague, Robert J. Araujo, S.J. - a longtime law teacher and legal scholar at a number of institutions -- had passed away.  Recently, thanks to the folks at the New England Jesuit Oral History Program, I got hold of this interview, conducted not long before Fr. Araujo's death, with Fr. Paul Kenney, S.J.  Among (many) other things, Fr. Araujo reflected on his experiences with law-blogging.  It might be of interest. 

Posted by Rick Garnett on June 14, 2016 at 03:18 PM in Rick Garnett | Permalink | Comments (0)

Tuesday, June 07, 2016

John Inazu responds to Mark Tushnet on "Confident Pluralism"

[Note: Professor John Inazu has written the following response to Professor Mark Tushnet's three posts about John's new book, Confident Pluralism: Surviving and Thriving Through Deep Difference]

Confident Pluralism, Expressive Association, and “Tone”

Mark Tushnet has a series of posts on Balkinization commenting on my new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I appreciate Mark’s engagement with the book. And I appreciate the opportunity to offer this response as a guest post on Mirror of Justice.

Before I turn to Mark’s critiques, I’ll briefly situate the main arguments of the book. Confident Pluralism insists that our shared existence is not only possible, but also necessary. Instead of the elusive goal of unity, I suggest a more modest possibility: that we can live together in our “many-ness.” That prescription includes both a legal and a personal dimension. The two are interrelated. Silencing other viewpoints may begin with personal antipathy, but it ends with legal prohibition—a refusal to extend the protections of the law to one’s adversaries, and ultimately, an effort to turn the law against them.

The legal dimension of Confident Pluralism focuses on three areas: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The personal dimension of Confident Pluralism aspires toward tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (including protests, strikes, and boycotts); and (3) our relationships across difference.

Mark’s first post addresses my critique of the Supreme Court’s expressive association doctrine. His second post explores the implications of my constitutional argument for association with the oft-raised but important hypothetical of the racist restaurant. His third post criticizes the “tone” of my civic argument for tolerance, patience, and humility. I’ll comment first on Mark’s third post, which goes much more to the core of the book than his first two posts.

 Tolerance, Patience, and Humility

Mark’s third post criticizes what he calls the “tone” of my book. He writes: “Most of [Confident Pluralism’s] argument appears to be directed at intolerant, arrogant, impatient secular liberals—although formally speaking, he addresses intolerant, arrogant, impatient religious conservatives as well.” Mark concludes his post by writing: “Tolerance, patience, and humility are good things, of course, but urging them only on secular liberals is not.”

I think the best response here is to leave it to other readers to decide whether my argument is slanted in the way Mark suggests. My hunch is that most readers, regardless of their ideological priors, will disagree with his characterization.

I do not mean to suggest that I wrote the book from a “view from nowhere.” I have all kinds of personal beliefs that affect how I think and how I see the world. Take, for example, the two most significant constitutional issues that I address in the book: the right of association and the public forum. Most of my views about associational autonomy lean conservative, and most of my views about the public forum (including public protest) lean liberal.  

In the chapter focused on speech as a civic practice, my critique of the “hurtful insult” is directed mostly at conservatives and my critique of the “conversation stopper” is directed mostly at liberals (though it is not difficult to think of cross-cutting examples for each of these). And when it comes to the aspirations of tolerance, humility, and patience, I tend to think, and tried to explain, that conservatives are more likely to resist the aspiration of tolerance and liberals are more likely to resist the aspiration of humility—but that both are needed to pursue a more confident pluralism.

Throughout the book, I do my best to name hypocrisy or inconsistency when I see it. For example, when it comes to the expressive nature of for-profit corporations, I express disappointment with both progressives and conservatives: “Many progressives were quick to defend Mozilla’s moral expression (and that of large corporations like Apple in the debate over Indiana’s religious freedom law) but view Hobby Lobby’s claims less favorably. Conversely, conservatives who ardently defended Hobby Lobby were quick to critique Mozilla and Apple. Whatever conclusion we reach as a society about the expressive and moral claims of for-profit corporations, it ought to apply across the ideological spectrum.”

Mark’s post raises some specific examples that emerged mostly after I completed the manuscript. On the subject of recent religious liberty legislation, I agree with Mark that most proposed laws have been neither carefully drafted nor narrowly focused, an argument that I made last fall in an essay coauthored with Michael McConnell and Rick Garnett. With respect to the so-called bathroom laws, I have criticized the North Carolina legislation and I have pushed back on overly dismissive arguments by religious conservatives. I do think, however, that some of the policy implications of transgender laws in other facilities and other circumstances are more complicated than Mark suggests.

Mark assumes a polarized binary between “secular liberals” and “religious conservatives” that I do not adopt in the book. For example, Mark references a story about some hate mail I received after I wrote about protests in Ferguson, Missouri. Mark assumes that the letter came from a “religious conservative.” But nothing in the story hints at the sender’s religious disposition, or whether the sender is liberal or conservative. (Indeed, I know nothing about the sender except for his temperament and his apparent dissatisfaction with my writing.)

I worry that Mark has assumed a “culture wars” mentality that sees only two sides. The shortcoming of that approach is that it forces an alignment of contested issues with ideologies that oversimplifies the views of many if not most people in this country. There are secular liberals and religious conservatives. There are also secular conservatives and religious liberals and all kinds of other combinations in between. And many people hold views on individual issues that, once aggregated, would not fit neatly into any of these labels.

I wrote in the introduction to Confident Pluralism that the goal of the book “is not to settle which views are right and which views are wrong. Rather, it proposes that the future of our democratic experiment requires finding a way to be steadfast in our personal convictions, while also making room for the cacophony that may ensue when others disagree with us.” That goal does not mean we will be able to engage with everyone who disagrees with us. I am unlikely to respond to the person who sent me hate mail. But I do hope to engage meaningfully with many of the people whose paths I cross. That includes colleagues, near and far, many who disagree with me on contested cultural and legal matters.

In the best cases, those encounters allow us to discover common ground in spite of profound disagreement. That is, for example, what I hope my colleague, Marion Crain, and I accomplished in our article “Re-Assembling Labor.” It is also, I trust, why scholars as diverse as Jason Mazzone, Tabatha Abu El-Haj, Ash Bhagwat, Tim Zick, Rob Vischer, and Steve Morrison have taken a renewed interest in the First Amendment’s right of assembly—perhaps because they find common ground in a constitutional principle despite deep differences on other matters.

Expressive Association

Let me turn now to some of the more granular doctrinal arguments in Mark’s first two posts, which address my critique of the Court’s expressive association doctrine. (I should note that the section on expressive association inConfident Pluralism summarizes a more extensive argument that I make in my first book, Liberty’s Refuge: The Forgotten Freedom of Assembly.)  

Mark defends the Court’s distinction between “expressive” and “non-expressive” associations as one of the “second-order rules whose justification lies in the fact, or hope, that a system implementing those rules will actually achieve better compliance with the first-order norms than a system in which courts attempt to enforce only the first-order norms.”

There are two problems with Mark’s argument. The first is that we have little evidence that the second-order formulation actually parses the first-order norms better than an undifferentiated right of association. The Supreme Court first recognized a right of association in its 1958 decision, NAACP v. Alabama. The doctrine quickly destabilized around the Court’s attempts to distinguish between the NAACP (which it wanted to protect) and the Communist Party of the United States (which it did not want to protect). It is not clear how a second-order formulation would have better honored first-order norms given the Court’s disparate treatment of Communists and civil rights workers.

The Court first introduced the second-order formulation of expressive association (alongside a separate right of “intimate association”) in its 1984 decision, Roberts v. United States Jaycees.   Since then, it has held that private civic groups (like the Jaycees) are expressive but unprotected against gender antidiscrimination norms, that the Boy Scouts are expressive and protected against sexual-orientation antidiscrimination norms, and that a skating rink is “non-expressive.” Lower courts have concluded that motorcycle clubs, fraternities, fight clubs, nudist colonies, and other groups are all “non-expressive.”

It’s hard to see how these distinctions hold up. As I argue in the book, the category of non-expressive association “obscures the fact that all associative acts have expressive potential: joining, gathering, speaking, and not speaking can all be expressive.” For this reason, “it becomes very difficult, if not impossible, to police this line apart from the expressive intent of the members of the group. And many groups that might at first blush seem to be non-expressive could in fact articulate an expressive intent.” (I also note in the book, and in an article on Virtual Assembly, that the distinction between expressive and non-expressive becomes even more precarious once we consider its online applications.)

The second problem with Mark’s second-order argument is his assertion that “the Court’s distinction between expressive and non-expressive associations was motivated by a concern that ordinary commercial enterprises would invoke the right to justify policies of racial (and, later, other) discrimination.” I don’t think that’s right. The closest we get to that view is Justice O’Connor’s concurrence in the Jaycees’ case, a view that has never been adopted by a majority of the Court.

Even if Mark were right about the Court’s view, the two second-order formulations are not interchangeable—“commercial” is not an adequate proxy for “non-expressive.” Many commercial associations are “expressive” and some noncommercial associations are “non-expressive.” Hobby Lobby is expressive when it takes a position on birth control, and Delta Airlines is expressive when it threatens to boycott Arizona over the state’s religious freedom legislation. Conversely, both a gay social club and a Christian prayer group arguably fall short of the Court’s definition of “expressiveness,” even though both groups are clearly noncommercial.

One could, of course, adopt a pragmatic distinction between commercial and noncommercial associations. Andy Koppelman has called this view a “neo-libertarian” approach to the right of association, which he attributes to a diverse group of scholars including Michael McConnell, David Bernstein, Dale Carpenter, Richard Epstein, John McGinnis, Michael Paulsen, Nancy Rosenblum, and Seana Shiffrin. I find the distinction insufficient insofar as it leaves open the possibility of powerful monopolies emerging from within the noncommercial category. In Liberty’s Refuge, I propose a line between commercial and noncommercial associations that also accounts for the monopoly situation in the noncommercial context (a position for which Richard Epstein has criticized me).

In short, I agree with Mark about the pragmatic line-drawing; I just don’t think expressive association gets us there. But all of this is a bit beside the point when it comes to Confident Pluralism. The primary claim of the book with respect to the right of association—and the one that I wish Mark had focused on a bit more—is that current doctrine insufficiently protects the private groups of civil society—the very groups that we most need to live out confident pluralism.

The Racist Restaurant

Mark’s second post raises the oft-made but important hypothetical of the racist restaurant owner who appeals to the right of expressive association to exclude non-white customers. As I’ve already suggested, my own pragmatic view is that the right of association (or what I prefer to think of as the right of assembly) should not extend to commercial associations. That knocks out the different versions of Mark’s hypothetical, so let me turn to the harder case that I address in the book, the racist private school. Schools present a much harder and more interesting question than restaurants (in the latter example, I agree with Mark that antidiscrimination laws should prevail).

It seems in this instance that courts have made plausible distinctions on the level of social policy. When it comes to race-based discrimination against African Americans in the wake of widespread and damaging practices of the Jim Crow South, the schools have lost. When it comes to any other kind of discrimination (including other forms of race-based discrimination), the schools have typically prevailed. That is not to deny that people suffer real and tangible harms from discrimination on the basis of other characteristics, including gender and sexual orientation (which is one reason that I support a pragmatic line-drawing between commercial and noncommercial associations under which the former would not be protected under the right of association).

The Intended Audience of Confident Pluralism 

In closing, I’d like to return to Mark’s third post and clear up one final point: it was never my intention to write to “intolerant, arrogant, impatient secular liberals,” any more than it was my intention to write to intolerant, arrogant, and impatient conservatives. The people who have already made up their minds and demonized “the other side” are unlikely to persuaded by my book, even if they happen to come across it. The people I am trying to reach are those who are predisposed to be more charitable to one another, even in the midst of deep and intractable disagreement. They are the people who are open to reasonable arguments, and willing to listen to different perspectives. To my good fortune, based on my interactions with him, Mark Tushnet is one of them.

Posted by Rick Garnett on June 7, 2016 at 02:04 PM in Rick Garnett | Permalink | Comments (0)

Thursday, May 12, 2016

More on Tushnet on candor, the "culture wars", and taking a "hard line"

Like Paul, I read with interest -- and, in my own case, I was both provoked and taken aback by -- Mark Tushnet's recent post at Balkinization on "abandoning defensive crouch liberal constitutionalism."  Although, like Mark, I look forward to a day when legal advocates and scholars don't have to read the entrails of, or purport to admire, Justice Kennedy's prose, I don't share Mark's enthusiasm for the substantive results and doctrinal changes he hopes (and I glumly assume) are on the way.  (Mark wants to see more Brennan and Marshall; I'd rather see more Rehnquist and Roberts.  We agree, though, that Casey was "wrong the day it was decided"!)  

That said, and as someone who admires Mark's work and has cherished his mentorship, I regret that he wrote this, with respect to the so-called "culture wars" and the current religious-accommodations fights:

. . . My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) . . .

Mark has followed up his post with a new one, in which he reports that a number of readers, bloggers, commenters, etc., reacted very negatively:  

Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).

He then goes on to say that what he means by "taking a hard line" is refusing to support broad, RFRA-type accommodations for the conservatives who have lost the "culture wars" and being very cautious about even more specific and narrow exemptions.    

I wish, though, that rather than dismissing as snark-worthy the negative reaction to his invocation of the "hard line" taken after World War II and the Civil War -- i.e., the "hard line" taken against the supporters, enablers, and managers of two genocidal and racist empires, or against traitors fighting for slavery -- he had instead said that he got a bit carried away and that the comparison was inapt and inflammatory.  His follow-up post represents, it seems to me, more of an adjustment to what he said in the first than a re-statement.  In the follow-up, after all, he indicates some openness to some (limited, contained) accommodations and compromises, but the original post is reasonably read as rejecting even those (just as, presumably, the "hard line" taken with respect to Japan and Germany didn't include, and shouldn't have included, much openness to them):

. . . I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won. . . .

As I see it, if someone on what he calls in his posts "their side" had employed similar rhetoric, many would (understandably) have pushed back hard against the wisdom and merits of making a comparison that unsurprisingly was heard by some as an invocation of denazification or the IMTFE as helpful guides for dealing with one's defeated ideological opponents.  In this case, Godwin's Law kicked in at the outset and the comparison, I think, undermined the possibility of Mark's post being part of a real conversation about the extent to which (if at all) religious actors may or should be accommodated going forward, if it really is the case that the "culture wars" have ended (or, perhaps, they've morphed -- with the campaigns of Trump and Sanders -- into something very different). . . .

. . . Which reminds me:  I also think I might have a different understanding than Mark does about what, exactly, the "culture wars" were or are, and whether it makes sense to see them primarily as a "scorched earth" offensive (as opposed to, say, a series of limited-success defensive efforts, against Murphy Brown, W.A.S.P., "Hot, Sexy, & Safer," etc.) by conservatives.  But that's a matter for another post, and I should probably re-read the original James Davison Hunter "Culture Wars" book first. . . .

Posted by Rick Garnett on May 12, 2016 at 01:46 PM in Rick Garnett | Permalink | Comments (0)

Monday, April 25, 2016

NOMOS LVI ("American Conservatism") is out

NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy." Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented.  Get your copy here!  My own contribution, "The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism," is included.  Here is the abstract:

A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.

That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[]…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.

Many thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!

Posted by Rick Garnett on April 25, 2016 at 10:38 AM in Rick Garnett | Permalink

Friday, April 22, 2016

Criminal Law Class Materials Request - Update

Back in January, I imposed on the Prawfs community for some suggestions about materials for a few stand-alone class sessions I was hoping to integrate into my standard first-year Criminal Law course:

A Criminal Law class-materials request

Consulting the blawg-oracle:  I'm doing something new (for me!) in my first-year Criminal Law course, and I would welcome very much some help.  I made some cuts in my usual coverage, and freed up three classes (75 mins each) for what I'm describing as "special" or "current debates" topics.  I was thinking of (1) the "mass incarceration" phenomenon; relatedly (2) the "overcriminalization" debate; and (3) policing.  As we all know, each of these topics could take up an entire course (and more) and I'm proposing to put together simply a 30-pages or so handout for each, for the purpose of just one in-class discussion (although, of course, these topics come up, in other contexts, throughout the semester).
Take it away!  Revise my syllabus!
Because some people asked for a report-back, I'm imposing again!  I ended up doing three special classes, one on Solitary Confinement, one on Policing, and one on Overcriminalization.  
 
For the Solitary Confinement session, we watched the Frontline documentary, "Solitary Nation" and read (a) the opinion and order in Peoples v. Anucci; (b) A. Gawande's "Hellhole," and (c) A. Cohen's review of "Solitary Nation", "Creating Monsters."  For the "Policing" section, we looked at excerpts of the recent report of the President's Task Force on Policing and watched part of a Brookings panel on that report.  And, for "Overcriminalization", we watched part of the Kozinski / Wilkinson debate on Criminal Justice reform that the Cato Institute hosted as well as parts of Kozinski's paper, "Criminal Justice 2.0." 
 
The students *seemed* to enjoy these units -- if only as breaks between inchoate crimes and defenses! -- but we'll see what the evaluations say!
 
Thanks again for all the help.

Posted by Rick Garnett on April 22, 2016 at 03:03 PM in Criminal Law, Rick Garnett | Permalink | Comments (0)

Thursday, April 21, 2016

Alta is (still) for skiers

A few years ago, I noted here on Prawfs an equal-protection / "animus" challenge that had been filed against Alta Ski Area's (a/k/a "Heaven on Earth") skiers-only policy.  The Tenth Circuit has ruled against "Wasatch Equality" on state-action grounds. Here is the opinion.  

 

Posted by Rick Garnett on April 21, 2016 at 11:27 AM in Rick Garnett | Permalink | Comments (3)

Sunday, April 17, 2016

Laptops in class (again)

For those of you who are keeping (as I am) a file or folder for the increasing number of pieces covering the "laptops in the classroom" issue, here's another item, from Weekend Edition.

Posted by Rick Garnett on April 17, 2016 at 10:36 AM in Rick Garnett | Permalink | Comments (0)

Thursday, April 14, 2016

"Drunk Outlines": Marbury v. Madison

Some students of mine had some fun with what could be -- who knows? -- the sequel to the Hamilton! craze:  The "drunk outlined" version of the Election of 1800 and Marbury. Above the Law, take note!

Posted by Rick Garnett on April 14, 2016 at 03:48 PM in Rick Garnett | Permalink | Comments (3)

Wednesday, March 16, 2016

SCOTUS, religion, and age

As are, I assume, millions of others, I'm "watching" the live-blog of the Judge Garland nomination thanks to SCOTUSblog.  Two quick, non-substantive observations:  First, unless I'm remembering incorrectly, there has not been a Protestant nominated to the Supreme Court in 25 years (Justice Souter was nominated in 1990.)  If Judge Garland were confirmed, it would continue to be the case -- as it has been since Justice Kagan joined the Court in 2010 -- that the Court is made up entirely of Catholics and Jews (and graduates of Harvard and Yale).  Fascinating.  Imagine what, say, John Adams would have said!  Second, as others have noted, Judge Garland is the oldest nominee since Lewis Powell, almost 45 years ago.

Posted by Rick Garnett on March 16, 2016 at 12:19 PM in Rick Garnett | Permalink | Comments (0)

Thursday, February 25, 2016

Conference Announcement: "Louis D. Brandeis: An Interdisciplinary Perspective"

Touro Law Center and the Jewish Law Institute are hosting a national conference, Louis D. Brandeis: An Interdisciplinary Retrospective. More than thirty judges, lawyers, and scholars, representing a broad range of disciplines and hailing from around the United States, will explore topics that include, among others: Brandeis's groundbreaking work as a lawyer and a scholar; his commitment to his Jewish heritage; his historic appointment to the Supreme Court nearly one hundred years ago; and his jurisprudence on the Court.

  
Speakers will include The Honorable Kermit Lipez, United States Court of Appeals for the First Circuit; Lance Liebman, former Dean of Columbia Law School and former Director of the American Law Institute; Kenneth Elzinga, Robert C. Taylor Chair in Economics at the University of Virginia; Hasia Diner, Paul S. and Sylvia Steinberg Professor of American Jewish History and Director of the Goldstein-Goren Center for American Jewish History at New York University; and Fred Lawrence, former President of Brandeis University.
 
More info is available here.

Posted by Rick Garnett on February 25, 2016 at 01:19 PM in Rick Garnett | Permalink | Comments (0)

Sunday, February 21, 2016

Frank Pasquale on Law Schools' "double binds"

For the past few years, I had the pleasure of serving on the Editorial Board of the Journal of Legal Education with Prof. Frank Pasquale (Maryland), who was kind enough to share with me a paper he and I discussed, called "Synergy and Tradition:  The Unity of Research, Service, and Teaching in Legal Education."  Here's the SSRN abstract:

Most non-profit law schools generate public goods of enormous value: important research, service to disadvantaged communities, and instruction that both educates students about present legal practice and encourages them to improve it. Each of these missions informs and enriches the others. However, technocratic management practices menace law schools’ traditional missions of balancing theory and practice, advocacy and scholarly reflection, study of and service to communities. This article defends the unity and complementarity of law schools’ research, service, and teaching roles. (For those short on time, the chart on pages 45-46 encapsulates the conflicting critiques of law schools which this article responds to.)

Like The Man says, "highly recommended."

Posted by Rick Garnett on February 21, 2016 at 04:21 PM in Rick Garnett | Permalink | Comments (12)

Sunday, February 14, 2016

Justice Scalia and the Blaine Amendments

Following up on Josh's post:  For about 20 years, I've been hoping for -- and sometimes trying to contribute to to bring about -- a Court decision to the effect that the "Blaine Amendment"-type provisions in state constitutions (which, in my view, needlessly discriminate against religious institutions) violate the Constitution of the United States.   The currently soon-to-be-argued Trinity Lutheran case appeared to be a decent candidate for a case that would produce such a decision.   However, given the votes of Justices Breyer and Ginsburg in Locke v. Davey and Zelman, it seems likely that they'll endorse the lower-court opinion in that case (which allowed to Missouri deny an "application for a grant of solid waste management funds to resurface a playground on church property").

Posted by Rick Garnett on February 14, 2016 at 06:37 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0)

Wednesday, February 03, 2016

Bibas on "The Decline of Mercy"

Over at First Things, Prof. Stephanos Bibas - whose "The Machinery of Criminal Justice" I really enjoyed -- has a review  of this book, "The Decline of Mercy in Public Life," by Alex Tuckness and John Parrish.  Bibas concludes with this:

Justice requires discretion as well as rules, and it can coexist with mercy.

When our laws deny this truth, they grow mechanistic and inhumane. Strenuously squelching arbitrariness simply drives discretion underground (say, from judges and juries to prosecutors) or forces everyone into the same Procrustean bed. Exalting rights and censoring empathy can be heartless toward criminal defendants and debtors. Government social programs risk crowding out charitable expressions of love that remind ourselves that the poor are our brethren and we are all our brothers’ keepers. And all of these rule-based, bureaucratic approaches miss opportunities to inculcate the virtue of mercy in our hearts as well as in our children’s. Government cannot mirror Christian teaching, particularly in a pluralistic country. But it can leave more room for Christian insights to leaven rules with mercy, compassion, and love.

I shared the review with my CrimLaw students and thought it might be of interest to CrimPrawfs, too!  And, I am reminded that our dear friend and colleague, Dan Markel, published an article early in his career -- in 2004 -- called  "Against Mercy."  

 

Posted by Rick Garnett on February 3, 2016 at 10:44 AM in Criminal Law, Rick Garnett | Permalink | Comments (0)

Thursday, January 21, 2016

A Criminal Law class-materials request

Consulting the blawg-oracle:  I'm doing something new (for me!) in my first-year Criminal Law course, and I would welcome very much some help.  I made some cuts in my usual coverage, and freed up three classes (75 mins each) for what I'm describing as "special" or "current debates" topics.  I was thinking of (1) the "mass incarceration" phenomenon; relatedly (2) the "overcriminalization" debate; and (3) policing.  As we all know, each of these topics could take up an entire course (and more) and I'm proposing to put together simply a 30-pages or so handout for each, for the purpose of just one in-class discussion (although, of course, these topics come up, in other contexts, throughout the semester).
 
Take it away!  Revise my syllabus!

Posted by Rick Garnett on January 21, 2016 at 12:30 PM in Criminal Law, Rick Garnett | Permalink | Comments (8)

Friday, January 15, 2016

A symposium on Levy's "Rationalism, Pluralism, and Religious Freedom"

Here's my contribution to a symposium (there are a half-dozen others, too), hosted by the Bleeding Heart Libertarians site, on Jacob Levy's wonderful new book, Rationalism, Pluralism & Freedom (buy your copy here).   A bit:

. . . Jacob is right, it seems to me, to highlight, within the “liberal understanding of freedom,” the “pluralist emphasis on the freedom found within and protected by group life against the power of the state.” He is on firm ground when he insists that “[t]here is no social world without loss” and that “[s]ometimes we will not be able to have the morally best degree of freedom of association and the morally best degree of protection against local tyranny.” And, he correctly reminds us that “[w]e cannot . . . simply point to the moral loss suffered by some relatively powerless or disadvantaged person within an association, religion, or cultural group and conclude that the group constitutes a local tyranny that must be dissolved or overruled by the state.”

He is right about all this, I think, not because religious institutions (or other non-state associations) never act wrongly or never inflict hurt and harm. They do (sometimes), just as liberal states do (sometimes). As I see it—and Jacob’s book is helping me to think harder and, I hope, better about the matter—the liberal practice of respecting the rights of religious and other associations’ distinct, even if non-liberal, practices is not merely a matter of “governance best practices” or a strategy about how to allocate scarce enforcement or litigation resources. Instead, the practice reflects the fact that a (good) liberal, constitutional government accepts—and not grudgingly—as given the fact that reasonable people, associations, institutions, and communities disagree reasonably about things that matter. Such a government is not merely resigned, but resigned comfortably, to the “crooked timber of free society.” . . .

Posted by Rick Garnett on January 15, 2016 at 04:22 PM in Rick Garnett | Permalink | Comments (0)

Friday, December 18, 2015

A contribution to the SCOTUSblog symposium on the Little Sisters of the Poor

The good folks over at SCOTUSblog are hosting a symposium on the Little Sisters case, this term's religious-freedom challenge in the Supreme Court to the contraception-coverage mandate. Here is my contribution, "Integrity, Mission, and the Little Sisters of the Poor."  A bit:

. . . What the Little Sisters and the other religious non-profits have done is simply invoked the protection of a near-unanimously enacted federal statute that reflects the longstanding values of our own (and any decent) political community and the foundations of human-rights law. The administration’s response, the Supreme Court’s response, and our response should not be resentment or disdain but a genuine willingness to ask, “well, why not?” We should spend less time interrogating, second-guessing, or criticizing as impertinent their assertion of religious-freedom rights and more time considering, in an open-minded way, whether it is possible – perhaps with a bit of effort and flexibility – to accommodate them.

Some religious employers, of course, have been accommodated by the administration. Religious houses of worship, and some affiliated institutions, have been exempted from the contraception-coverage mandate. The Little Sisters, however – like many religious hospitals, schools, universities, and social-welfare agencies – are engaged in the world. They heal, teach, serve, and employ some who do not share their religious faith, but theirs is nevertheless a religious mission. They aspire to carry out this mission, just as many of us aspire to live our lives, with integrity and character. The preventive-services mandate, they say, thwarts this aspiration by changing – indeed, by hijacking – their relationships with their employees.

This claim about the character-distorting and integrity-undermining nature of the mandate – including the limited “accommodation” that the administration has provided – should not be difficult to understand. . . .

Check out also the other posts from (so far!) Erin Hawley, Chip Lupu, Bob Tuttle, Leslie Griffin, Helen Alvare, Marcia Greenberger, John Bursch, Fred Gedicks, and Lyle Denniston.

Posted by Rick Garnett on December 18, 2015 at 09:35 AM in Rick Garnett | Permalink | Comments (0)

Monday, December 07, 2015

50 Years Ago Today: The Declaration on Religious Freedom

On Dec. 7, 1965, Pope Paul VI promulgated Dignitatis Humanae, the Second Vatican Council's Declaration on Religious Freedom, "on the right of the person and of communities to social and civil freedom in matters religious."  Here're the opening lines:

A sense of the dignity of the human person has been impressing itself more and more deeply on the consciousness of contemporary man,and the demand is increasingly made that men should act on their own judgment, enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty. The demand is likewise made that constitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations.

The Declaration and its anniversary were the subject of a really good conference, organized and hosted by the Notre Dame Law Review, a few weeks ago.  John Garvey, the President of the Catholic University of America (and the former dean of the Boston College Law School) gave the keynote.

Posted by Rick Garnett on December 7, 2015 at 11:27 AM in Religion, Rick Garnett | Permalink | Comments (0)

Thursday, December 03, 2015

"I am an Artisanal Attorney"

This has been making the rounds, but I get "Portlandia"-level giggles (returning January 2016!) each time I read it.  Here's the opening:

Are you tired of large corporate law firms making the same cookie cutter litigation? Do you fondly remember a time when quality mattered in law suits, when there was art and craftsmanship in every court motion filed, when company records were drafted using the traditional methods and tools? If you have become dissatisfied with mass-produced legal representation, stop by my scriveners shop; for I am an artisanal attorney. . .

 

Posted by Rick Garnett on December 3, 2015 at 04:07 PM in Rick Garnett | Permalink | Comments (0)

Monday, November 23, 2015

"Of Foxes, Hedgehogs, and . . . Law School"

My former colleague, Dan Myers -- who is now the Provost of Marquette University -- has an essay in the Fall 2015 issue of the Marquette Lawyer called "Of Foxes, Hedgehogs, and Marquette Law School."  He writes, among other things, that "[l]aw schools, like most academic divisions, have a natural tendency to operate more like hedgehogs than foxes, and this tendency is reinforced by an administrative structure that sets the law school in a somewhat peripheral functional location at a university. . . .  It is incumbent on law schools to resist and to find ways of becoming more vulpine in their activities and reach."  

Dan makes a good point about the potential of administrative (or even simply geographical) matters to "reinforce[]" "more like hedgehogs" practices.  At the same time, I think there's a fair bit about legal education, legal scholarship, and the legal enterprise itself that has a "natural tendency" in the opposite direction.  My impression is that, sometimes, this latter "natural tendency" is stunted not by anything inherent in or interior to the enterprise of law schools but instead by expectations in Universities' central administrations or other units that law schools should become less "vulpine" -- that is, more siloed, specialized, and heavily invested in specific methodologies.  

Dan's piece points to some good things going on at Marquette and he expresses his support for them and their fox-like potential.  I wonder, though, if part of the project of "find[ing] ways of [helping law schools] becom[e] more vulpine in their activities and reach" is to let them be themselves?  

Posted by Rick Garnett on November 23, 2015 at 02:13 PM in Rick Garnett | Permalink | Comments (2)

Tuesday, October 27, 2015

Prof. Paulsen's reprint "letter"

Prof. Michael Paulsen (St. Thomas) gave me permission to post his (I thought) awesome "reprint cover letter (with apologies to Jackson Browne and Glen Frey):

 

Paulsen song

Posted by Rick Garnett on October 27, 2015 at 01:03 PM in Rick Garnett | Permalink | Comments (1)

Thursday, October 22, 2015

Fr. Robert Araujo, S.J., R.I.P.

I had the pleasure of learning from, blogging with, and being inspired by Fr. Robert Araujo, S.J. -- a gentle interlocutor, a caring teaching, a careful teacher, a good priest -- for more than ten years.  Those Prawfs readers who also had the chance to read Fr. Araujo's posts at Mirror of Justice know that -- whether or not one agreed with him -- he was a model of civil and thoughtful engagement with questions that matter.

If you didn't know him, I'd encourage you to re-read the inspiring "goodbye" he posted, at MOJ (here ), last August, when he went into hospice care.  And for those unfamiliar with his story, and with the range of his scholarship, here is the link to his faculty web page at Loyola.  Eternal rest grant unto him, O Lord, and let perpetual light shine upon him.  May he rest in peace.

Posted by Rick Garnett on October 22, 2015 at 09:19 AM in Rick Garnett | Permalink | Comments (1)

Friday, October 09, 2015

"The Rise of Corporate Religious Liberty": Pre-order yours today!

This book, "The Rise of Corporate Religious Liberty" -- to which I contributed this chapter on "The Freedom of the Church" -- can be preordered (in paperback, even!) now.  Just in time for Alascattalo Day!  

The book was edited with skill and heroic patience (toward me) by Micah Schwartzman, Zoe Robinson, and Chad Flanders.  More than a few Prawfs guests and bloggers are among the contributors, who include Sarah Barringer GordonPaul HorwitzNelson Tebbe,Douglas LaycockChristopher C LundLiz SepperFrederick GedicksIra LupuRobert TuttleRobin WestJessie Hill, and Mark Tushnet.

Here is the abstract for my chapter:

This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article responds to several leading lines of criticism and attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.

The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.

Posted by Rick Garnett on October 9, 2015 at 02:30 PM in Rick Garnett | Permalink | Comments (0)

Thursday, September 03, 2015

Chief Justice William H. Rehnquist

Ten years ago today, I got a phone call from my friend Janet, the old Chief's assistant, telling me that Chief Justice Rehnquist had died.  Here's the short thing I wrote for Slate that day, remembering him and the experience of working for him.  A bit:

. . . During my clerkship year, the chief, my co-clerks, and I played tennis together weekly at a public, outdoor court near Capitol Hill. (We played on the same day that the week's "cert memos," analyzing petitions filed by those seeking review of their cases, were due, so—more than a few times—clerks played without having slept.) We took turns driving and buying a new can of balls. I was the chief's doubles partner that year, and I several times beaned him with my hopelessly chaotic serves. One day, I am ashamed to admit, after yet another double-fault, I slammed my racket to the ground and yelled an extremely unattractive expletive. My co-clerks looked across the net at me in horror. The chief, though, didn't turn around. He just slowly bent over, put his hands on his knees, and started laughing. . .

The chief was a lawyer's lawyer. He taught and inspired me, and all of his clerks, to read carefully, to write clearly, and to think hard. He will, quite appropriately, be remembered as one of the few great chief justices. For me, though, William Rehnquist is more than a historic figure and a former boss. Today, thanks in no small part to him, I have a great job: I get paid to think, research, and write about things that matter and to teach friendly and engaged students about the law. I will always be grateful. And I hope that the deluge of political spin to come will not drown out what Americans should remember about the chief: He was a dedicated public servant, committed to the rule of law and to the court. He regarded himself as the bearer of a great trust and of a heavy obligation of stewardship. In my judgment, he was faithful to that trust, and he fulfilled that obligation.

Posted by Rick Garnett on September 3, 2015 at 09:35 AM in Rick Garnett | Permalink | Comments (0)

Sunday, August 16, 2015

Submission angsting: Fall 2015

Here is the Fall 2015 "Submission angsting" post (and comments).

Posted by Rick Garnett on August 16, 2015 at 10:57 AM in Rick Garnett | Permalink | Comments (0)

Thursday, August 06, 2015

Prof. Robert A. Burt

I was very sorry to learn that Yale Law School Prof. Robert A. Burt ("Bo") passed away on August 3.  Here is a bit from Yale's announcement (quoting Prof. Anthony Kronman):

"The range of Bo's interests and accomplishments is startling enough. But what is more amazing still is that all of his writings express Bo's unfaltering belief in the value of conversation, dialogue and the continuing struggle to find common ground, and an abiding suspicion of authoritarianism in all its forms, whether it be a doctor's imperious prescription, or the Supreme Court's deaf assertion of power, or even God's declaration that he need not explain himself to anyone at all."

Kronman continued, "Bo's humane resistance to the reliance on mere power and his insistence that every type of authority, human or divine, is an interactive achievement, is the theme of all his writings. It represents the enduring achievement of this noble human being. It is there in his work for all to see. Still, I miss the man himself, and count his friendship among the best things that have ever happened to me."

Bo was a gentle, thoughtful, caring, generous, and deeply good man.  He was also my teacher, mentor, and friend.  I first "met" Bo in the pages of Prof. Joseph Goldstein's strange, but fascinating and provocative, Criminal Law casebook  , in which his brief in the Michigan case of Kaimowitz v. Michigan Department of Mental Health -- which involved experimental psychosurgery on a prisoner -- was excerpted.  He became for me, over the course of many conversations, a few classes, and my reading of several of his books, including The Constitution in Conflict, a model and an always-welcome challenge.  Like many others, I learned so much from him.  He shaped profoundly (but don't blame him!) what I think of as my academic vocation.  He set, and lived, a standard for teacher-scholars that I wish I could meet. 

The Yale Law School was fortunate, and many hundreds of YLS graduates are blessed, to have known, worked with, and learned from Robert Burt.  May the memory of this righteous one be a blessing.

Posted by Rick Garnett on August 6, 2015 at 01:13 PM in Rick Garnett | Permalink | Comments (0)

Wednesday, August 05, 2015

Submission angsting: Fall 2015

Well, given that the Christmas and Chanukah decorations and the Winter Starbucks flavors now kick in just after Halloween, I suppose it's no surprise that early August is already a bit late for the traditional Prawfs Fall submissions angsting thread.  

Keep your eyes open for the Great Bird and . . . let the wild rumpus start!  Or, in the more helpful words of our own Howard Wasserman and Danny Markel:

So let the angsting commence.

If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.

Posted by Rick Garnett on August 5, 2015 at 09:19 AM in Rick Garnett | Permalink | Comments (471)

Monday, July 27, 2015

Call for Papers: "Doing Justice Without Doing Harm"

Call for Proposals

“Doing Justice without Doing Harm”

Pepperdine University School of Law, Malibu, California

March 11-12, 2016

 

We hope you will join us for the conference discussed below.  Mark your calendar, submit a proposal, and forward this message to blogs, list serves, and people who might be interested. Speakers already confirmed include the following: 

 

Barbara E. Armacost, Professor of Law, University of Virginia School of Law.

Rabbi Elliot Dorff, Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy, American Jewish University

Brian Fikkert, Professor of Economics and Community Development and the founder and President of the Chalmers Center for Economic Development at Covenant College.

Richard W. Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, Notre Dame Law School

Gary Haugen, founder and president of International Justice Mission.

Richard H. Sander, economist and Professor of Law, UCLA School of Law

Nicholas Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology at Yale University and Senior Research Fellow in the Institute for Advanced Studies in Culture at the University of Virginia

 

Their topics and bios are at the end of this message.   

 

Justice is a central theme in most secular and religious moral traditions, though there are significant disagreements about its content.  As Alasdair McIntyre has asked, “Whose Justice?”  During some periods of history there has been great optimism that the world was moving in a more just direction, generally followed by periods of great injustice and great disillusionment.  (We seem now to be experiencing the latter.) 

 

Our conference themes have ancient roots—“do justice” (Micah 6:8) and “do no harm” (Hippocrates).  The first theme is a call to do justice and to serve a hurting world.  What do our traditions say about justice to the 21st century?  What are the great injustices and causes of suffering in our world?  How might they be addressed by individuals, religious congregations, NGOs, and governments? 

 

A second theme (raised powerfully in Steve Corbett and Brian Fikkert’s book “When Helping Hurts”} will be how individuals, groups, and laws might avoid doing harm as we attempt to do good.  Attempts to help can generate dependence or harm bystanders.  The work of governments and NGOs can undercut local institutions like religious congregations and businesses that might address local problems.  Laws can have unintended consequences that do greater harm than good.  We need to make a difference, but to do so wisely.

 

Please join us for the conversation.  Panels of academics and people from a wide variety of organizations will address theory and practice--what works and what does not work. 

 

Questions to be addressed might include: 

-           What do our secular and religious traditions teach about justice and its place in the 21st century? 

-           What is the relationship between justice and love?

-           How can the law best be used to promote the ideals of justice.

-           What is social justice and what is its relationship with other forms of justice? 

-           What are the greatest injustices in our world and what can we do about them? 

-           What are the greatest injustices in our neighborhoods and what can we do about them?

-           What are examples of attempts to help the poor which have harmed them?

-           How can attempts to do justice lead to injustice?

-           How might we help those in the greatest need without harming them? 

 

If you would like to present a paper or organize a panel that fits within this broad range of themes, please submit your proposal by September 15, 2015 via email tojenna.anderson@pepperdine.edu. Proposals should be two pages maximum and should include a short abstract and a bio.  

If you have questions about the substance of the conference, contact Bob Cochranrobert.cochran@pepperdine.edu or Michael Helfandmichael.helfand@pepperdine.edu  For questions about the details of the conference, contact Jenna Anderson jenna.anderson@pepperdine.edu or (310) 506-6978

For information on the conference as it becomes available and to view details of past conferences, see:

http://law.pepperdine.edu/nootbaar/annual-conference/

The conference will be co-sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and its Glazer Institute for Jewish Studies. 

 

All our best,

Bob Cochran & Michael Helfand

Robert F. Cochran, Jr.

Louis D. Brandeis Professor of Law and

Director, Herbert and Elinor Nootbaar

      Institute on Law, Religion, and Ethics

 

Michael A. Helfand

Associate Professor of Law and

Associate Director, Glazer Institute for Jewish Studies

 

Pepperdine University School of Law

24255 Pacific Coast Highway

Malibu, California 90263-4611

Posted by Rick Garnett on July 27, 2015 at 04:08 PM in Rick Garnett | Permalink | Comments (3)

Sunday, July 19, 2015

Complicating the "Trolly Problem"

I had thought the Trolly Problem and its many, many variation was becoming yesterday's news but . . . not so fast.  This piece in Wired and this one in Popular Science (HT:  Gizmodo, here) suggest that the coming of robot-cars and the matter of their programming might add new life to the question.   Maybe a film, "Droids on the Mignonette"?  If only Brian Simpson were still among us . . .     

Posted by Rick Garnett on July 19, 2015 at 05:03 PM in Criminal Law, Rick Garnett | Permalink | Comments (0)

Monday, July 13, 2015

The "Limits of Religious Liberty": Complicity and Dignity

A few days ago, in the NYT Magazine, Emily Bazelon had this pieceWhat Are the Limits of "Religious Liberty"?  Among other things, Emily gave a nice shout-out to Profs. Reva Siegel and Douglas NeJaime, who have this new article in the Yale Law Journal, "Conscience Wars:  Complicity-Based Conscience Claims in Religion in Politics."  I was a participant in a conference at which this paper was presented, a little over a year ago -- here's what I said -- and think it's definitely an important read.  I also think, though, that some of its primary claims are unconvincing.  I recommend that those who read it consider also reading, among other things, Marc DeGirolami's essay, "Free Exercise by Moonlight," which engages helpfully the claims I have in mind.  

The Siegel & NeJaime article covers a lot of ground.  Among other things, they contend that "complicity-based" conscience claims are distinctive, and raise special concerns, "because accommodating claims of this kind has the potential to inflict material and dignitary harms on other citizens. . . .  Complicity claims focus on the conduct of others outside the faith community.  Their accommodation therefore has potential to harm those whom the claimants view as sinning."  (The quoted language is from the SSRN abstract.)  

It does not seem to me, though, that B is necessarily wronged or demeaned by A's determinations that (a) B's conduct or proposed conduct is or would be immoral and (b) actions and intentions of A that would create culpable complicity with B's conduct should be avoided.  Certainly, it's possible for these determinations to be communicated in an insulting or demeaning way.  And, a determination by A that "B is not the kind of person with whom I want to interact" or "B is unworthy of my interacting with her" could raise, I think, the concerns NeJaime and Siegel raise.  The paper argues, though, that even implicitly calling an act or omission immoral, or a "sin," insults, demeans, and wounds the dignity of the actor.  This sweeping claim seems hard to square with our practices and policies.  (Marc DeGirolami has more on this point, here.)

Relatedly, it strikes me as misguided to insist that the law necessarily demeans or insults B by accommodating (to the extent it is reasonably possible) A's religiously-based desire not to be complicit in what A believes to be B's wrong.  Even if A's moral judgment is, we think, itself wrong or unattractive, the government's accommodation of A's religiously based conclusion is not an endorsement of that conclusion, but only of the general desirability of accommodating, to the extent possible, religious commitments and exercise.  What's more, if a law demeans when it allows an exemption for religious complicity-claimants, then why does it not demean when it mandates, without exemption, the cooperation to which the claimants object?  That is, why shouldn't the law from which the exemption is, for complicity-avoiding reasons, being sought (say, a law requiring pharmacists to provide an abortion-causing drug) be regarded by the exemption-seeker as imposing on her a "dignitary harm", i.e., the harm of having one's moral commitments and reasoning not only rejected-on-balance, but also disapproved and found wanting?   

I question the premise that inquiring into one's moral responsibility for -- or, one's complicity in -- another's act and, as part of that inquiry, evaluating the morality of that act, involves any "demeaning" of the other.  Again, if it amounts to "demeaning" -- and, more specifically, if it amounts to causing a "dignitary harm" that triggers, as some have argued, Establishment Clause limits -- another person to conclude that that other person has engaged in an act that is wrong and so to decide to avoid complicity with that act then we'll have to reexamine a whole lot more than particular applications of RFRA-type laws.  

In addition, I don't think it's entirely right to say that "complicity claims focus on the conduct of others outside the faith community."  As I see it, when we talk about "complicity" (see, for example, the Model Penal Code's treatment) we are asking about the extent to which one person is morally responsible, or morally blameworthy, by virtue of her own conduct and state-of-mind,  for the conduct of another.  The accomplice's responsibility -- her state of mind and her assistance, encouragement, or facilitation -- is, I think, at least as much the "focus" of the inquiry as the action done or the harm caused by the other.  (And, again, it seems to me that the character, worth, dignity, or identity of the other need not be part of the inquiry at all.)  True, the reason we care about the accomplice's responsibility is usually because we have identified someone else's wrong -- or, more precisely, a harm caused or wrong done or wrong attempted by someone else -- but the focus remains, I think, is on the accomplice.   (Sometimes, we even conclude that an actor is morally responsible for another's wrongful act or harm caused although the other is, for one reason or another, not blameworthy for that act or harm.

In any event, read Siegel and NeJaime, and also read DeGirolami.  I remain, for what it's worth, concerned that the emerging focus on the "third-party harms" and "dignitary harms" said to be caused by legislative accommodations of religion threatens to excessively constrain our ability to vindicate the fundamental right to religious liberty in our context of increasing regulatory activity, dissensus, and diversity.

Posted by Rick Garnett on July 13, 2015 at 02:53 PM in Rick Garnett | Permalink | Comments (0)

Thursday, July 09, 2015

What to read the summer before law school?

Michael Krauss (George Mason) has some suggestions in the WaPo, here.  (I was happy to see the shout-out for my former colleague Pat Schiltz's article on "being a happy member of an unhappy profession.)  A while back, when I was an associate dean, I put together a similar list for our incoming first years at Notre Dame.  (My list, like Krauss's, included The Bramble Bush, but I couldn't resist adding John Noonan's Persons and the Masks of the Law.).  

What would be on your list?   

Posted by Rick Garnett on July 9, 2015 at 03:08 PM in Rick Garnett | Permalink | Comments (22)