Friday, October 31, 2014
A "Call for Annotations" from The Green Bag
Call for Annotations: “The Adventure of the Norwood Builder”
Our annual Almanac & Reader always has three main features: (1) exemplary legal writing, (2) chronologies of interesting moments in law and language, and (3) entertaining tidbits relating to some theme that we hope you will enjoy. The theme for the 2015 Almanac is “The Adventure of the Norwood Builder” – a Sherlock Holmes mystery set in 1894 and published in 1903. One of the tidbits will be a freshly annotated edition of the story, based on the 1905 U.S. edition in The Return of Sherlock Holmes. (It is available on our website.)
How to submit an annotation: Email us a Word document with the passage from “Norwood Builder” that you want to annotate, and the annotation included as either (a) a footnote to your document if the annotation is just text or (b) a separate attachment if the annotation is an image (photograph, chart, or whatever). If your annotation involves assertions of fact or law, include citations to – and quotations from – appropriate authorities. Thus, for example, it is not enough to say, “The will drafted by McFarlane was invalid because English law in 1894 required two disinterested witnesses and he had only one.” What law? What did it say? Where are the cases supporting your interpretion? Do any go the other way? Similarly, if “the Anerley Arms was a going concern in 1894,” we will need to see some record or contemporaneous report of its operations in 1894. You get the idea: We are giving “Norwood Builder” the law review treatment.
Each point of annotation should add to the reader’s understanding or enjoyment of the story, including but not limited to its legal aspects.
We will give credit where it is due: Annotations to our edition of “Norwood Builder” will appear as footnotes and illustrations. Each footnote will identify by name the author of that note. Each illustration’s caption will identify by name the contributor of that image.
Length limit: There is no length limit, but please be reasonable.
Deadline: Finished works must be received at firstname.lastname@example.org by December 24, 2014.
Criteria: We will select works for publication based on how useful, interesting, well-researched, well-written, and good-spirited they are.
Friday, October 17, 2014
Religious accommodations and legal pluralism
In this piece, ("Religious accommodation's roots in legal pluralism"), Columbia's Prof. Katherine Franke writes that "one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme." She also writes, later in the piece, "the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority."
Now, for me -- unlike Katherine, it seems -- to identify something's roots in "legal pluralism" is, generally speaking, to pay that something a compliment! (I recommend, by the way, Prof. Victor Muniz-Fraticelli's new book, The Structure of Pluralism.) But, put that general matter aside: Although Madison's Memorial and Remonstrance certainly takes seriously the authority of "sources exogenous to the secular legal system itself," I don't think that our accommodation-through-exemption regime in the United States really reflects or constitutes a "threat to the idea of state power" or even to the idea of "singular legal authority." In practice, and in most of the arguments for religious accommodation, it seems to me, the conversations and litigation happen in terms of interest-balancing, toleration, benevolence, getting-along, etc.
It is true that -- for some of us, anyway -- the idea that the state's authority is both bounded and non-singular is important and worth operationalizing through constitutional doctrines like the ministerial exception and decisions like Kedroff (more on that here). But again, most requests for religious exemptions, in practice, look and sound to me much more like requests (or pleas) for toleration and for the state to stay its hand, moderate its approach, and endure a little inconvenience in order to reduce unnecessary pain to certain citizens with religious objections to complying with otherwise generally applicable laws.
We could hear, for example, Mr. Holt as making some kind of jurisdictional claim about the state's lack of authority to regulate the length of Muslim prisoners' beards and, to be sure, he is (at least implicitly) claiming that to the extent the relevant non-political authority's commands conflict with the political authority's, he believes the former authority's are the ones that, for him, control. But, within the confines of our religious-liberty legal regime, he is simply invoking one of the political authority's valid and binding laws (RLUIPA) in support of his claim that another of the political authority's binding and valid policies (the prison-grooming regulation) can, all things considered, be modified in application in this particular case, and therefore should. It seems to me that there is nothing -- to borrow Katherine's word -- particularly "radical" about that.
Monday, October 13, 2014
Adverbs and the Law
One of the many fun things about teaching Criminal Law to first-years is playing around with the different uses and meanings of all the mens rea terms -- adverbs (nearly) all. (I admit, I try to get them to at least appreciate the colorful, pre-MPC terms like "wantonly", "abandoned and malignant", "depraved indifference", etc.). The other day -- prompted at least in part by the debate in Hobby Lobby about "substantially" -- the Wall Street Journal noticed that, whatever our composition teachers might tell us is good writing, "maligned" adverbs live on in the law and in court cases interpreting criminal statutes ("Why Adverbs, Maligned By Many, Flourish in the American Legal System"). (By the way, count me among those who think that Justice Kennedy carries adverb-adversion too far.) Here's a bit:
No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”
Not everybody, however, looks askance at the part of speech. Indeed, there is at least one place where the adverb not only flourishes but wields power—the American legal system.
Adverbs in recent years have taken on an increasingly important—and often contentious—role in courthouses. Their influence has spread with the help of lawmakers churning out new laws packed with them. . . .
Sunday, October 12, 2014
With apologies to Property and Land Use prawfs . . .
. . . for introducing them to what I imagine will be a huge time-suck: A quick way to get comparative info about any and every ZIP code. (On the off chance that you ever get tired of the SSA's "Popular Baby Names" site . . ..) (My ZIP code is lower-income, younger, and denser than the median. There are a lot of other things one could say about it, on Notre Dame home-game weekends . . ..)
Thursday, September 25, 2014
"Conscience and Community: Understanding the Freedom of Religion"
Here's a short piece I did for the Cornerstone blog, which is a project of the Berkley Center's Religious Freedom Project. A taste:
“Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets—and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” “Religion” is famously difficult (some would say “impossible”) to define and the distinction between “religion,” on the one hand, and “culture,” “tradition,” “identity,” and “politics” is much more contested than clear. The idea that it is only, or even primarily, an “individual experience” is relatively new on the scene. In any event, it seems clear that “religion” involves more than—even if it certainly does involve—the commitments, values, beliefs, professions, and practices of particular persons. It also involves—and it is exercised both by and through—communities, families, associations, societies, authorities, and institutions. . . .
The piece is consonant, in places, with Paul's book, which -- as was noted here -- John Inazu has recently and very thoughtfully reviewed.
Monday, September 15, 2014
(Still) more on "The Freedom of the Church"
Over at the Law & Liberty blog, they ran a short essay of mine in which I set out the short-version of some claims I've been making in recent years about the freedom of religion and "the freedom of the church." They also solicited and posted some very thoughtful reactions to the piece by Paul Horwitz, Don Drakeman, and John Inazu. And now, here is my (grateful) reply. With respect to my friend and co-Prawf Paul, a bit:
Paul Horwitz – whose important book, First Amendment Institutions, has both shaped and challenged my thinking about the subject under discussion – is right to remind readers that “religious institutionalism” is “not necessarily a libertarian position”; it does not require or even invite “disdain for the state”; it is does not reflect or imply “complete skepticism about or outright hostility to government.” It does, I think, necessarily involve (as Horwitz says) the ungrudging acceptance – indeed, the welcoming – of non-state authorities and of occasional “incongruence” (to borrow Nancy Rosenblum’s term) between, on the one hand, the rules that govern and the goals that move the liberal state and, on the other, the practices and values of non-state groups, communities, associations, and institutions. As my colleague, Robert Rodes, has put it, there is a “nexus” between religious and political authorities that involves both cooperation and contestation, mutual support and resistance.
Horwitz underscores another point (one that I also tried to make in a short paper called, “Church, State, and the Practice of Love”: To endorse the “freedom of the church” or “church autonomy” “is hardly the same as insisting that these institutions can never err. Autonomy involves the right to make central choices, not the assurance that the right choices will always be made.” He continues: “[T]he committed institutionalist must be an active observer and critic of these institutions, urging them to do the right thing (as he or she understands it) whether or not they are legally obliged to do so.” Absolutely. The “freedom of the church” claim is that the state’s authority is limited, that other authorities exist and operate, and that – all things considered – pluralism is conducive to human flourishing. It is not the (easily falsifiable) claim that non-state authorities, or religious institutions specifically, never act badly.
Monday, August 18, 2014
Dean Frank Wu on Rethinking Law School
There has not been, in the recollection of anyone now living, a similar set of challenges for law schools. As with all such situations, however, leaders must spot the issues. We are in danger. We should not deny that.
I welcome the opportunity. We must cooperate -- bench, bar, teachers, students -- to take apart the system and put it back together again better.
Among other things, Dean Wu suggests that legal education should be re-worked to look and function more like medical education (a point that others, including my former colleague, Vincent Rougeau, now dean at Boston College, have also made).
I think that Dean Wu is right to underscore and emphasize what he calls the "maldistribution of lawyers" and also the "cost structure of legal education" and the crisis of "student loan debt." I do regret, though, what seemed to me to be his endorsement of a criticism that, in my view, is (for the most part) a straw man. After noting that the "century-old case method is transitioning towards skills training," he says "[t]he analysis of appellate decisions remains integral to the first year courses, but it would amount to an incomplete education at best" and contends critically that "some law school graduates" -- unlike medical-school graduates -- have engaged in "book learning alone."
The "transition" Dean Wu describes is clearly underway, but it seems to me that it has been for decades (and it has involved adding lots of enriching things -- not only skills training and clinical work -- to the "century old case method"). It's been a long time, I think, since anyone thought "the analysis of appellate decisions" alone could make for a "complete" legal education or since more than a handful of law-school graduates were trained through "book learning alone." The "law schools teach nothing of practical relevance or worth" charge is out there, I realize, but I continue to think it is significantly overstated. (And, to be clear, to say this is not to say anything about the extent to which "skills training" should be emphasized or incorporated more than it is at present.)
Wednesday, July 02, 2014
Inazu on Justice Ginsburg's dissent . . . and CLS v. Martinez
Justice Ginsburg’s Hobby Lobby dissent criticizes the majority for failing to distinguish between a community of believers of the same religion and other forms of communities: “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”
But, as my friend and fellow prawf John Inazu, observes, one could level a similar critique of the majority opinion in Christian Legal Society v. Martinez. In that opinion, Justice Ginsburg rejected the distinctive claims of the Christian group -- that is, the group's claim that leadership in the group should be limited to those who embrace the group's views and commitments -- in favor of an “all-comers” policy that required all student groups -- including communities made up of believers in the same religion -- to accept any student who wanted to join, regardless of that student’s beliefs or practices. Isn't it fair to say that groups that want to maintain their distinctive faith-commitments (or philosophical or ideological commitments) and practices are different than those that do not? In Martinez, it seemed to some of us that the "Court shut this key difference from sight."
For more on Justice Ginsburg's CLS opinion (including a response to the argument that it was a "subsidy" case), check out this article by Inazu.
Tuesday, June 24, 2014
Purdy on our "anti-democratic court"
Prof. Jed Purdy (Duke) (Go Devils) has a piece at The Daily Beast called "God Save the United States from this Anti-Democratic Court." (Ann Althouse writes about it, here.) He asks, among other things, "[s]hould a self-respecting democracy have a Supreme Court like ours, with the power to overturn democratic legislation?" In response to this question, Purdy observes, "[m]ore and more progressive observers are not so sure." (But see, e.g., Geoffrey Stone, "Do We Need the Supreme Court," here.)
It's an important question, for sure, and while I'm at best a faint-hearted and selective Thayerian, I'm sympathic to -- or at least think that I should be -- the answer Jeremy Waldron gave, a few years ago in The Core of the Case Against Judicial Review (That is, "pretty much no.") The problem with Purdy's piece -- or, perhaps, the problem with me -- is that it is really hard for me to avoid the reaction, "Well, it appears to me that progressive observers, like most of the rest of us, like judicial review when they think courts get the right answer and dislike it when they think courts get the wrong answer. Justice Breyer, for example, thinks it's really important to defer to legislative judgments, except when state legislatures enact school-choice programs." Purdy quotes Rob Hunter’s recent conclusion that “judicial interference with democracy” should become “unthinkable," but I guess I'm skeptical that progressives, or Purdy, really want to unthink all "judicial interferences with democracy." Few Court decisions have been as "anti-democratic" as, say, Roe v. Wade or Engel v. Vitale, but I suspect Erwin Chemerinsky's new book, The Case Against the Supreme Court (which Purdy mentions) will not criticize these rulings.
Don't get me wrong, my hands are not clean here: I've suggested that the Court should be very deferential and hands off when it comes to the Establishment Clause but also that Hosanna-Tabor was about as right as a Court decision can be. And, it could be that my snark is unfairly directed at Purdy's piece, since he does say:
For this reason, it’s the rare radical democrat who will denounce the Supreme Court right down the line. Whatever they think of the Court’s other decisions, progressives will generally celebrate without reservation on the all-but-certain day when the Court established marriage equality nationwide. Most Americans think of the Constitution as being ultimately on their side, and identify the Constitution with the Supreme Court. When they agree with the Court’s decision, they tend to think the country has been called back to its best self. When they disagree, they tend to think there has been a regrettable, maybe terrible, mistake.
So . . . what? Maybe this latest uptick of expressed frustration with the strangeness of a state of things in which the Answers to Big Questions are provided by Justice Kennedy is just a reprise of the popular-constitutionalism conversation, or the inquiry into whether there really is such a thing as "judicial activism" (See, e.g., Kermit Roosevelt's book), or the call for "neutral principles", or the celebration of the "passive virtues", or . . . . I'm not sure. I feel confident, though, that few if any of us -- despite what we might wish we could honestly say we want -- really want the Court to be entirely inert or unflinchingly "democratic."
Thursday, May 08, 2014
"Religious pluralism, social unity, and the judicial role"
Following up on Paul's posts (here and here and here) and Howard's (here), here is my contribution to the SCOTUSblog symposium on the Town of Greece case. The main point of the post, I suppose, is to express regret (again) about the prominent role played in the dissenting opinions by the "political divisiveness along religious lines" argument. Here is a bit:
[T]he Court’s constitutional charge to “say what the law is” in Establishment Clause cases should not be understood to include addressing and answering what Justice Breyer said was “[t]he question in this case” – namely, whether the town “did too much . . . to promote the ‘political division along religious lines’ that ‘was one of the principal evils against which the First Amendment was intended to protect.’” Justice Kagan similarly called for sensitivity to religious beliefs’ “ever-present potential to both exclude and divide” and framed the Court’s task in terms of identifying and preventing “religiously based divisiveness.” In so doing, she echoed a recurring theme in Justice Breyer’s writings about the Religion Clauses’ “basic purposes”: “They seek,” he said in his Van Orden v. Perry concurrence, “to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike” and – in his Zelman v. Simmons-Harris dissent – to “protect[t] the Nation’s social fabric from religious conflict.” And, in his 2006 book Active Liberty, he argued that judges’ obligation to help “create a framework for democratic government” warranted this social-fabric-management approach to public-religion cases and acknowledged that their duty to police the arena of politics and policy for unsettling threats of faith-related discord could require them to “interpret the [Religion Clauses] more broadly than the Framers might have thought likely.” . . .
It is not clear, though, why our political, cultural, and other “divisions” – which are as inevitable as they are real – should be relevant to the legal question whether a particular policy is constitutionally permissible. . . .
To be clear, I think Paul is right to say that, in some cases, and contrary to the generalized assurances provided by Justice Kennedy, legislative-prayer and similar public-religion cases involve actions and statements that are probably intended to "divide, not to solemnize." Paul also says that "the most effective forces in counteracting this use of legislative prayer for deliberately divisive political purposes will be the supporters of legislative prayer, who have an obligation to condemn this kind of behavior, and not its general opponents" and I agree here, too (though I do not count myself as a "supporter of legislative prayer"). My claim is a limited one: Although a rule against religious establishments seems to me a good way to avoid "political divisiveness along religious lines," courts should not answer questions about what the Establishment Clause permits or prohibits by asking whehter or not a policy or program is associated with, or is predicted to cause, or is observed to be accompanied by such "divisiveness."
Saturday, May 03, 2014
On "turning 40"
I just finished (well, almost -- my students are taking their exams) teaching my 40th law-school class: Criminal Law - 9, Constitutional Criminal Procedure -5, Constitutional Law - 7, Freedom of Speech - 5, The First Amendment - 4, Freedom of Religion - 5 (once as a mini-course in Israel), Catholic Social Thought and the Law - 3, The Death Penalty - 1, The American Jury - 1. (Thankfully, this "40" milestone looks to be much less complicated, and a much happier occasion, for me than it was for Paul Rudd's and Leslie Mann's characters in "This is 40.")
It's easy to report that I still love law-teaching and continue to regard the chance to participate in the development and launching of my students' vocations as a huge blessing. My students have been great (and they've been patient as I get slower and slower on the basketball court). The trickier task, "at 40," is to figure out, and honestly assess, whether or not I have improved as a teacher -- or, even if I have, if I have as much as I could and should have.
Sure, I know the material better than I did the first few times around. I'm more comfortable than I was at first with not knowing the answer to a good question, and with being challenged, and with having to correct myself, and with needing to apologize for a mistake. I've changed books and classes often enough that, I think, I've pretty well avoided the danger of the "same old notes, same old script, same old class" problem. I think I've managed to lose the nervousness while retaining the enthusiasm. So far so good.
That said, if I'm honest about it, I wonder if I could or should have done more. My courses proceed pretty much as they always have in the non-seminar classes -- a mix of review, lecture, discussion, "soft-Socratic" questioning, and looking ahead. I draw some things on the board, but have only used PowerPoint (or other digital tools and resources) on a handful of occasions and not, I think, very effectively. I've assigned and used a lot of secondary materials and scholarship to supplement casebooks, but have probably not done enough to bring in current events, relevant material from other disciplines (say, sociological or psychological material in Criminal Law). I evaluate students -- that is, I write and grade exams -- in pretty much the same way I did in 1999. For the most part, I have not incorporated experiential-learning or clinical assignments and exercises into my courses.
I'm not inclined to think that "change" is an imperative, or that it's always good, but . . . maybe I should have changed more? Maybe that happens at 50 . . . .
Friday, April 25, 2014
Movsesian on "Religion's Social Goods"
Over at First Things, Prof. Mark Movsesian has a post called "Religion's Social Goods," which is a response to the "growing number of legal scholars [who] question whether a justification exists for protecting religion as its own category." (You know who you are!) Mark offers, as an argument (that he thinks can and should appeal to nonbelievers) for treating religion-as-such as "special", the following:
Here’s one such argument. Religion, especially communal religion, provides important benefits for everyone in the liberal state—even the non-religious. Religion encourages people to associate with and feel responsible for others, to engage with them in common endeavors. Religion promotes altruism and neighborliness, and mitigates social isolation. Religion counteracts the tendencies to apathy and self-centeredness that liberalism seems inevitably to create.
In my view, what Mark says here about "religion" is, generally speaking, true and it provides, in many cases, a good reason for accommodating, supporting, and respecting the practice of "religion." At the same time (as Mark acknowledges), "religion" does not always do these things and other forms of commitment and association can provide these goods (sometimes, even if we think not as often) as "religious" ones. So, from the perspective of those who are asking "is religion special?", it might seem that Mark has provided a reason not so much for treating "religion" as special as for treating commitments and associations and activities as special if, when, and to the extent that they provide these "important benefits." And, increasingly (as Mark notes), many think the harms that "religion" is said (accurately or not) to cause weigh pretty heavily against the benefits that it (often, even generally) provides.
Again, I agree that religious (and other) associations often provide these benefits. I also think, though, that the justifiability (and, in our legal order, the requirement) of treating "religion" as "special" probably has as much to do with certain things that I take to be true (but that not everybody does) about human persons and human dignity and the limits on (legitimate) political authority.
By the way . . . if you are interested in law-and-religion, the Center for Law and Religion Forum which Mark and several of his St. John's colleagues run is an invaluable resource. "Follow [them] on Twitter!", etc., etc.
Wednesday, March 26, 2014
"Lost Classroom, Lost Community"
I am delighted to report that the latest book by Prof. Nicole Stelle Garnett (and her co-author, my friend and colleague Prof. Margaret Brinig) is out (and available for purchase!) The book is "Lost Classroom, Lost Community: Catholic Schools' Importance in Urban America, and it's published by the University of Chicago Press. Here's a blurb from the Press:
In the past two decades in the United States, more than 1,600 Catholic elementary and secondary schools have closed, and more than 4,500 charter schools—public schools that are often privately operated and freed from certain regulations—have opened, many in urban areas. With a particular emphasis on Catholic school closures, Lost Classroom, Lost Communityexamines the implications of these dramatic shifts in the urban educational landscape.
More than just educational institutions, Catholic schools promote the development of social capital—the social networks and mutual trust that form the foundation of safe and cohesive communities. Drawing on data from the Project on Human Development in Chicago Neighborhoods and crime reports collected at the police beat or census tract level in Chicago, Philadelphia, and Los Angeles, Margaret F. Brinig and Nicole Stelle Garnett demonstrate that the loss of Catholic schools triggers disorder, crime, and an overall decline in community cohesiveness, and suggest that new charter schools fail to fill the gaps left behind.
This book shows that the closing of Catholic schools harms the very communities they were created to bring together and serve, and it will have vital implications for both education and policing policy debates.
Congrats to Nicole!
Tuesday, March 18, 2014
The new experiential-learning requirement
I gather, from Brian Leiter and Paul Caron that the ABA Council of the Section on Legal Education has voted to (among other things) require six (not fifteen) credits of experiential learning of all students. Mary Lynch calls this a "small step" but a step in "the right direction." (My own view, for what it's worth, is closer to Brian's.) Here (thanks to Prof. Lynch) is the language of the relevant new standard:
“one or more experiential course(s) totaling at least six credit hours. An experiential course must be a simulation course, a law clinic, or a field placement. To satisfy this requirement, a course must be primarily experiential in nature and must:
(i) integrate doctrine, theory, skills, and legal ethics, and engage students in
performance of one or more of the professional skills identified in Standard
(ii) develop the concepts underlying the professional skills being taught;
(iii) provide multiple opportunities for performance; and
(iv) provide opportunities for self-evaluation.”
Whatever we think of the merits of this new requirement, it appears that most law schools will have to make some changes -- in some cases, adding and staffing new experiential courses and in others, perhaps, simply changing their graduation requirements -- to comply with it.
Are there new, creative, "outside the box" things that schools and faculties might try? The standard is not entirely open-ended, of course: An experiential course must be "a simulation course, a law clinic, or a field placement." Still, this would seem to leave enough room to create offerings that depart from, even as they build on, the experiential offerings and models with which we're most familiar: direct-service clinics, simulated negotiations, mock-trial and moot-court courses, externships in local (or not-local) prosecutors' and public defenders' offices, etc. Brian has reminded readers that "no law school in the United States is actually equipped to offering 'experiential' learning adequate to the full range of careers lawyers pursue" so it would seem that coming into compliance, in a way that actually helps our students and does not simply protect schools' accreditation, could be a challenge. What do you think most law schools will do, given the new requirement? What could they -- we -- do?
Friday, March 14, 2014
Big Mountain Jesus saved . . . for now
I visited the University of Montana School of Law in beautiful Missoula earlier this week, to talk with students and give a public presentation on religious freedom and the Constitution. (Thanks to Anthony Johnstone for the hospitality!). Since I was out there anyway, I decided to do some (ahem) field work, and visit "Big Mountain Jesus," up at Whitefish Mountain Resort (which happened to have recently been gifted with more than two feet of fresh snow). Here is a picture:
The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.
In 2010, The Madison, Wisconsin-based Freedom From Religion Foundation would demand that the Forest Service not renew the permit. While initially agreeing, public outcry led the service to reconsider.
In February 2012, FFRF sued to have Big Mountain Jesus removed from the government owned property.
"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."
He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."
Wednesday, February 12, 2014
Prof. Alan Brownstein on this Term's church-state cases
Those of us in the First Amendment area know well that Prof. Alan Brownstein (UC-Davis) is among the most thoughtful and insightful -- as well as the most decent and charitable -- scholars now working. He shared with me the following reflection on religious freedom and the different reactions to the church-state cases before the Court this year. As they say, "read the whole thing":
I have been working in the church-state area for 25 years but I don’t think I have ever felt quite as out of synch with my colleagues in the academy as I do this year. Two important church-state cases will be decided by the Supreme Court this term: the Town of Greece case dealing with the offering of state-sponsored prayers before town board meetings and the Hobby Lobby case involving a RFRA challenge to the Affordable Care Act’s contraceptive mandates.
I don’t suggest that either dispute is particularly easy to resolve. But I do think that both cases raise serious religious liberty issues. As a matter of law and a recognition of social reality, I think the plaintiffs in both cases raise serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, I think there are important parallels between the two cases. In particular, some of the arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case.
Apparently, very few church-state scholars and commentators, including many of my colleagues that I greatly admire and respect, share my perspective. Instead, commentary seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to what I am about to write), most liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs’ claims in Hobby Lobby and related cases. Conversely, most conservative commentators see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs’ claims in Town of Greece. Of course, there may be a good reason why I am odd man out. Maybe I’m just plain wrong to see parallels between these two cases. But I worry that political and cultural polarization is making it harder for all of us to see and appreciate the legitimate concerns of claimants who from one perspective or the other are on the wrong side of the culture war dividing line. And I think the protection of religious liberty is undermined if we only choose to protect it when nothing that we value personally is at stake.
Again, generally speaking, liberals especially value gender equity and see universal access to medical contraceptives as an important public health and woman’s rights concern. For liberals, protecting religious liberty in a situation which even risks the burdening or sacrifice of these interests is hard to do. Conservatives value government sponsored religious activities such as state sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as particularly costly. Put simply, if we expect other people to bear what they experience as real and significant costs to protect religious liberty, we have to be prepared to demonstrate that we are willing to accept costs to interests that we value as well. But In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little if any weight to the religious liberty interests of the Town of Greece claimants.
Let me give some specific examples. In vernacular terms, both liberals and conservatives raise an incredulous, “What can they possibly be complaining about” question in one case or the other. In Hobby Lobby, the suggestion seems to be that in the context of the case, there is no reason to think that the plaintiffs’ rights are abridged. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement decisions. Being in commerce and employing hundreds or thousands of people means that a lot is going to happen in your business that other people control. That the way the world is and how it has to be. In Town of Greece, the argument is that town board meetings necessarily involve exposure to a lot of expression from both board members and the public. If you attend the meeting, you will have to sit through a lot of speech that you find objectionable. That’s the way the system works. Learn to live with it.
I think the answer here to the “What can they possibly be complaining about” question in both cases is simply that religion is different. A commitment to religious liberty means that burdens relating to religion are evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct the owner or manager’s religion prohibits requires a different analysis than other regulatory burdens receive. Having to sit through a state sponsored prayer is different than having to sit through a discussion of the municipal budget. What is key here is that if religious liberty claims deserve attention in one of these contexts, regardless of the way things generally work, religious liberty claims deserve respect in both contexts.
Or consider more focused and sophisticated arguments. Some liberal commentators argue that the burden on religious liberty in cases like Hobby Lobby is too indeterminate to justify requiring the government to take any steps that might alleviate it. For example, an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may decline to continue to offer a health insurance plan to its employees. The employer will have to pay a penalty for doing so but that payment will probably be far less than the savings it incurs by ending employee health care benefits. True, there may be other costs associated with discontinuing employee health insurance coverage. But it is unclear whether and in what circumstances those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty.
It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have negative consequences on worker morale and the retention of employees. Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. I would characterize this argument as questioning whether a risk of adverse consequences constitutes a cognizable burden on religious liberty. The employer does not know what will happen if it protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer’s worry can hardly be characterized as mere speculation.
I think the claimants in Town of Greece identify very similar risk based burdens on their religious liberty in their coercion arguments. They worry that the town board members they will be petitioning for support or assistance will be alienated by the claimants’ refusal to stand, bow their heads, or otherwise participate in state sponsored prayers at the beginning of the board meeting. Of course, no one knows whether board members will be alienated or whether they will allow their feelings about claimants not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are there.
I think significant risk of adverse consequences, that is, reasonable grounds for worrying about adverse consequences, should be understood to burden protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on religious liberty deserve recognition and justify steps to alleviate them. In Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on religious liberty should be recognized and steps taken to alleviate them. I think the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases.
Another criticism of plaintiffs’ claims focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior or that support for such behavior may be attributed to them. These concerns transcend material support and emphasize the expressive dimension of being associated with unacceptable conduct. I think these concerns are captured in the Catholic idea of “scandal.” Liberals dismiss claims based on complicity as being too attenuated. Concerns about misperception are also deemed insignificant since they can be so easily remedied by the religious nonprofit publicly proclaiming its opposition to the conduct at issue.
A similar problem with misperception, indeed I suggest an arguably more powerful example of it, arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what I call a “we” prayer rather than an “I” prayer. The member of the clergy offering the prayer purported to be speaking to G-d in the name of the audience and the community. Sitting silently by, much less standing or bowing one’s head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. I consider this to be as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in my judgment, if either misperception argument deserves to be taken seriously, the misperception arguments in both cases deserve to be taken seriously.
Here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases but seem unconcerned about the claimants in Town of Greece. In the contraceptive mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government’s requirements. In Town of Greece, however, by publicly disassociating oneself from the offered prayers at the town board meeting, dissenters expose themselves to the risk of closed ears to their petitions and adverse decisions on matters before the board. The risk of adverse consequences is increased by their attempts to avoid misperception and misattribution.
I know, of course, that Town of Greece is a constitutional law case and the contraceptive mandate litigation primarily involves statutes and public policy. Thus, one might plausibly argue that town board prayers are constitutional, while also insisting that as a public policy matter they are a bad idea or at least have to be carefully structured in ways to minimize their coercive impact. I don’t see conservatives making this argument, however. They seem to ignore the burden on religious liberty both for constitutional and policy purposes.
I think there are other arguments to support my suggestion that people who take religious liberty seriously should be respectful of plaintiffs’ claims in both Town of Greece and Hobby Lobby (and related contraceptive mandate cases). But this blog post is long enough.
My key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case. But it does reflect a willingness to take such claims seriously even when we are uncomfortable in doing so.
Thursday, January 30, 2014
The Hobby Lobby amicus briefs
The Becket Fund for Religious Liberty has collected them all, here. There are a bunch, and lots of profs (and prawfs) are in the mix. (I'm on this one, which is a response to the main argument set out in this one.) We'll see!
Friday, January 24, 2014
Steven Smith's "The Rise and Decline of American Religious Freedom"
Oh, happy day . . . my actual copy of Prof. Steven Smith's latest book, The Rise and Decline of American Religious Freedom arrived yesterday. I read it in draft, before, and -- entirely apart from the wonderfully engaging prose -- I think it's a must read for anyone interested in the law-politics-society-faith-religion thing. Here's a bit from the Amazon blurb:
Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.
As Andy Koppelman puts it, on the back cover, this is "one of the most important books on religious liberty in years." (No doubt this was one of the others he had in mind!)
Thursday, December 05, 2013
RFRA, HHS, and Hobby Lobby
I have a short opinion piece in today's Los Angeles Times about the Hobby Lobby case, which the Court has agreed to hear and which involves a RFRA challenge by a for-profit business to the HHS contraception-coverage mandate. (Apologies for the piece's somewhat overwrought headline, which I didn't write!). My basic point is this:
The Religious Freedom Restoration Act reaffirmed an idea that is deeply rooted in America's history and traditions — namely, that politics and policy should respect and, whenever possible, make room for religious commitments and conscientious objections. True, religious liberty is not absolute, and, in a pluralistic society like ours, not all requests for exemptions and accommodations can, or should, be granted. Some religious liberty lawsuits will, and should, fail, but not simply because they involve what happens at work on Monday and not what happens in services on the Sabbath.
I should note that I do not deal in the piece with the argument -- pressed eloquently (natch) in this Slate essay by Nelson Tebbe and Micah Schwartzman -- that it would violate the Establishment Clause to accommodate, under RFRA, an employer like Hobby Lobby. I do not agree that it would, in part for reasons set out by Eugene Volokh here.
Saturday, November 16, 2013
"It was 20 years ago today . . ." (Happy Birthday to RFRA)
My friend and colleage Tom Berg has a post -- the title of which I have ripped off here -- noting that today is the 20th anniversary of the signing into law of RFRA. Here is the post:
On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA), which requires that the federal government meet the demanding test of showing a compelling interest before it imposes a substantial burden on sincere religious exercise. A recent event at the Newseum in Washington DC commemorated the anniversary and assessed the future of religious freedom in America. A lot has happened in 20 years. A number of states passed their own versions of RFRA; Congress, responding to a Supreme Court decision, applied the same compelling-interest test to state and local zoning laws and prison regulations; and most recently the statute moved to center stage in providing corporations and individuals with legal arguments for exemption from the HHS contraception mandate. But in the throes of the HHS fight and other culture-wars issues, it is worth remembering what President Clinton said about religious freedom as he signed the legislation:
... We are a people of faith. We have been so secure in that faith that we have enshrined in our Constitution protection for people who profess no faith. And good for us for doing so. That is what the first amendment is all about. But let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another’s faiths, fight to the death to preserve the rights of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.
A few remarks about that quote. The President noted in his remarks the overwhelming consensus behind RFRA back in 1993: a 97-3 vote in the Senate, a simple voice vote in the House; the lead co-sponsors were Ted Kennedy and Orrin Hatch. That consensus has greatly shrunk in recent years, mostly because of the polarizing culture-wars issues that have led many people to treat "religion" as a largely conservative phenomenon, a threat to liberal and progressive values. (See here and here for criticisms of that framing of the issue, presenting reasons why in our polarized society, so-called progressives and so-called conservatives should protect each others' claims of conscience against government interference even though they disagree with each other so sharply.)
Notice the implications of President Clinton's remarks for these matters. First, RFRA protects people of all religious views, all of whom may at point be restricted in their faith by one of the many laws in our complex society. Let's recover the sense of "fight[ing] to the death for the rights of [all] American[s]," whatever their faith, to practice their convictions without disproportionate or unnecessary burdens. Second, President Clinton emphasized that religious freedom does not mean freedom in the catacombs. Religious groups and individuals should be able to follow their values without unnecessary legal restriction not just in houses of worship, but in civil society--in schools, charitable activities, and the workplace--and to bring those values "to the table of American discourse."
In 1993 virtually every member of Congress agreed with those remarks and with the legislation. In 2013, that consensus has shrunk. But we can hope, and make prudent and ecumenical arguments to try to ensure, that enough Americans still agree with it to preserve a solid future for religious freedom.
(HT: for the post title, to Paul McCartney; for the link to the Newseum event, to Kim Colby of the Christian Legal Society; for the booklet on RFRA that includes Clinton's signing statement, the Baptist Joint Committee on Religious Liberty)
I should confess, I suppose, that -- unlike Tom (and most other supporters of RFRA) -- I think (nervously) that Smith is probably right, i.e., that the First Amendment probably does not authorize judicially created exemptions from generally applicable, non-discriminatory laws that implicate religiously motivated conduct. (More here on that.) All the more reason, it seems to me, to welcome RFRA-type legislation at both the state and national levels.
Thursday, November 07, 2013
An exchange among law-and-religion scholars about exemptions and marriage
It is, obviously, a "hot topic" whether and to what extent religious institutions and believers should be accommodated through exemptions from antidiscrimination laws (and regulation more generally). This question runs through, for example, the conversation about the so-called "ministerial exception" and also and increasingly comes up (see, for example, this paper by Doug Laycock and Tom Berg) in the context of drafting legislation regarding the legal recognition of same-sex marriage.
A few days ago, over at the Volokh Conspiracy, a group of prominent scholars (Dale Carpenter, Andy Koppelman, Doug Ne'aime, Chip Lupu, and Bill Marshall) put up a post addressing the then-pending same-sex-marriage law in Illinois and arguing that "recognizing same-sex marriage creates no distinct legal conflict justifying resolution in a same-sex marriage bill" and that "even if one thought that same-sex marriage might newly erode religious freedom through anti-discrimination law, the amendment proposed by the religious-liberty scholars is far too broad."
Today, two other groups (Tom Berg, Doug Laycock, Michael Perry, Carl Esbeck, Ed Gaffney, Chris Lund, Robin Fretwell Wilson, Bruce Ledewitz, and me) put up this response at Mirror of Justice, explaining the need for accommodation and defending the proposal at issue. Both posts, in addition, contain links to longer letters that were submitted to legislatures. The response concludes with this:
Carpenter describes his group as scholars "who support both protecting religious liberty and recognizing the marriages of same-sex couples." To reiterate, our two groups of scholars also include supporters of same-sex marriage (as well as a variety of views on that issue). We too are seeking to give room to both equality and liberty, which should complement rather than be at war with each other. We are seeking a "live and let live" solution for same-sex couples and religious traditionalists—but "live and let live" requires more than highly uncertain protection for religious liberty under pre-existing laws. Just as same-sex couples seek to live out their identity not only in private but through the social institution of marriage, religious believers seek to live out their identity not only in churches but in their faith-based service activities and their daily lives. Minimizing the exemptions in a same-sex marriage bill marginalizes those believers and will result in continuing, unnecessary conflicts that may well harden resistance to marriage recognition among a significant number of people. But same-sex marriage with strong exemptions allows both sides to live out their deepest commitments.
I think it is fair to say that, while the disagreements are substantial and important, real and significant respect and friendship exist among all the signers of both letters.
Wednesday, November 06, 2013
Stanford's (interesting and important) religious-liberty clinic
Brian Leiter comments, here, on a piece that ran in the New York Times a while back about Stanford's new religious-liberty clinic. While I disagree with Brian regarding his characterization of the Becket Fund for Religious Liberty's and the Templeton Foundation's support for the clinic as "dubious" or "right wing," and also disagree with his view that our practice of (sometimes) accommodating religious believers through exemptions from otherwise generally applicable laws is immoral, I think he is quite right to push back hard on the idea that clinic is justified as some kind of special favor to conservatives, or Republicans, or whatever. Brian writes:
Most surprising of all is how Lawrence Marshall, director of clinical legal education at Stanford, describes it:
"The 47 percent of the people who voted for Mitt Romney deserve a curriculum as well,” said Lawrence C. Marshall, the associate dean for clinical legal education at Stanford Law School. “My mission has been to make clinical education as central to legal education as it is to medical education. Just as we are concerned about diversity in gender, race and ethnicity, we ought to be committed to ideological diversity.”
So the academic rationale for this clinic is that Romney voters need a law school clinic, on the bizarre assumption, I guess, that the only people seeking religiously based exemptions from laws are Republicans.
Yes, Prof. Marshall is right to remind those who profess commitments to diversity that ideological diversity matters too. But, it is wrong -- it is not fair to the clinic's faculty, students, supporters, and clients -- to frame and defend it as a consolation prize to the "47 percent who voted for Mitt Romney." Many (I hope!) among that 47 percent are happily to engage in experiential learning that involves service to the poor and to immigrants, say, just as (I hope!) many among those who voted for President Obama see the importance of (sometimes) accommodating religious minorities who are burdened by duly enacted generally applicable laws.
Monday, November 04, 2013
A response to Prof. Stone: The justices' "revealing" hiring practices
In this piece, Prof. Geof Stone proposes that a "difference between conservative and liberal justices" is that
"the conservative Justices are determined to spend their time with pre-cleared conservative law clerks. . . . Whereas the more liberal justices were clearly interested in exposing themselves to a range of different viewpoints and having the positions challenged, the conservative justices went way out of their way to ensure that their law clerks were already in sync with their judicial ideology."
In support, Geof points to and characterizes as "revealing" the fact that "[o]f the 20 law clerks appointed this Term by the five conservative Justices . . . or an astonishing 90 percent -- clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices . . . clerked last year for a Democratic-appointed judge."
Let's put aside questions about whether the Republican appointees for whom the "liberal" justices' clerks worked were or are "conservatives" and about how representative this Term's hiring is of the justices' practices over time. And, let's take it as given that almost any and every justice, at least sometimes, takes into account whether a clerkship applicant's worldview, outlook, philosophy, etc., "fits" well with his or her own. Still: Each of the clerks that Geof is talking about, regardless of the party of the President who appointed the Court of Appeals judge for whom he or she clerked, had a resume, a work history, several recommendations, a publication history, a variety of life experiences, etc., and so is not reducible to his or her judge's partisan affiliation.
In order to say with any confidence that "conservative" justices are hiring who they hire in order to avoid encountering a variety of views (or, for that matter, that the liberal justices were doing what they do in order to encounter such views), or even whether such isolation is a by-product of what they are doing, it seems we would need to know a lot more about these clerks -- as, presumably, the justice who hired them did -- than the party of the President who appointed his or her judge. Who knows? Maybe the numbers to which Geof points simply suggests that Republican-appointed "feeder" judges are more willing to hire "liberal" clerks (and to support their applications to the justices) than Democratic-appointed judges are willing to hire and support "conservatives"? Again, it seems we need to know more before we can confidently make the ideological cocooning charge.
(In keeping with the saying that "data" is the plural of "anecdote," here is some more data: One of my co-clerks for Chief Justice Rehnquist was a brilliant and engaging center-left graduate of the University of Chicago who clerked for a Republican appointee and who had been strongly recommended by a "conservative" professor. For one of his co-clerks, he was stuck with me, a "conservative" who had done anti-death penalty work, whose recommenders were "liberal" academics, and who had been blessed with the chance to clerk for a truly great judge, appointed by President Carter.)
Geof makes some other points, about credentialling and patronage, that raise interesting but (I think) different questions.
Tuesday, October 29, 2013
Call for Papers: 5th Annual Religious Legal Theory Conference
This year, the Religious Legal Theory conference is being hosted by John Witte and the (wonderful) Center for the Study of Law and Religion at Emory. The theme is "A Global Conversation: Exploring Interfaith and International Models for the Interaction of Religion and State," and it's being held on Feb. 24 & 25, 2014. More info is available here. Here's a bit from the conference description:
Law and religion share an underlying structure built on commandments and corresponding commitments. They also share a space in the formal regulation of a person’s daily life. Oftentimes they attempt to legislate in the same specific areas, and oftentimes they come to different
final conclusions, or to similar conclusions, but for very different reasons. It is often said that law gives religion its structure, and religion gives law its spirit; law encourages devotion to order and
organization, while religion inspires adherence to both ritual and justice. Law and religion influence each other in many different ways, but at some level they must establish formal
rules for their interactions. This conference aims to explore how law, embodied in the state, manages and frames its relationship with religion, and how religions internally manage and frame their relationships with the state.
Monday, October 28, 2013
Burger & Nixon chatting about pornography, busing, and aging congressmen
A friend sent me a link to the tape of a January 1973 phone conversation between President Nixon and Chief Justice Burger. So far as I can tell, Nixon and was simply returning Burger's "Happy New Year!" call. They talk for a bit about the Court's then-pending pornography case (Miller, I assume?) and Nixon also asks if there are any other big cases brewing. He asks about busing, but not -- interestingly! -- about another case decided in January of 1973 that was a pretty big deal.
In the course of an exchange about aging justices and members of Congress, the Chief Justice notes that the "young" one who had recently joined the Court was "a real star."
Friday, October 04, 2013
How many disputes is "too many" for the Court?
According to this report ("Kennedy Says Too Many Disputes Left for Court"), Justice Anthony Kennedy recently shared with a group at the University of Pennsylvania his view that "any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy." He added, "I just don't think that a democracy is responsible if it doesn't have a political, rational, respectful, decent discourse so it can solve these problems before they come to the court."
Let's resist the temptation to snark a bit about the strangeness of these words coming from a member of the Court who has not seemed, over the past several decades, particularly squeamish about judicial supremacy and all that. One the one hand, I agree, sort of, with what the Justice said, though I suspect that if I'm honest with myself (ed.: Why do that?) I am, like most people, probably guilty of thinking that the "right amount" of Court-resolved serious questions is an amount that corresponds with the number of such issues I believe the Court has resolved correctly. On the other hand, I am not sure it's right that even a decent, functioning democracy of the most ideal type should be expected to "solve" or "resolve" the kind of questions I suspect Justice Kennedy has in mind, if by "solve" he means "identify the Correct Solutions" to these problems or the "Right Answers" to these questions. Certainly, such a decent, functioning democracy could, after plenty of "political, rational, respectful, decent discourse", take a vote regarding the solution or answer, but I'm assuming Justice Kennedy doesn't think that "high-quality discourse plus majority vote" should put the Court out of the judicial-review business. So . . . what is he saying, exactly?
Monday, September 30, 2013
Thoughts on the Court's new legislative-prayer case
I had this contribution, "Legislative Prayer and Judicial Review", to the symposium on the Town of Greece case that the folks at SCOTUSBlog are hosting. (Go here for a list of all the very-worth-reading contributions, including ones by Prawfs-alums Jessie Hill and Nelson Tebbe.) Here's a bit:
. . . In my view, the court of appeals got it wrong and the Town’s before-meeting prayers are permissible solemnizations rather than an unlawful establishment. What is happening in the Town of Greece is consistent with what has been happening at public meetings since our country’s – and our Constitution’s – beginnings. “Establishments” of religion do exist in the world, but this is not one. Town officials did not purport to draft, let alone to enforce, a religious creed and the government inviting voluntary “chaplains of the month” to pray at a meeting is not very much like the government imposing a prayer-book on churches. “Coercing” religious activity is unconstitutional and unjust, but to characterize the Town’s policy as “coercive” is to expand the both the idea of coercion and the power of judges dramatically and unmanageably.
The Town of Greece case, though, is interesting not only for what it could tell us, going forward, about the Court’s First Amendment doctrines and precedents, about the place of religious expression in the public square, and about the extent to which secular governments may acknowledge their citizens’ religious convictions. The case also provides, I think, a good opportunity for reflection about the role and power of the Supreme Court and about the nature and practice of judicial review in a constitutional democracy like ours. . . .
What we do and why we do it
A few days ago, Matt put up a thoughtful post about the ABA Task Force Report on "The Future of Legal Education." Because Chief Justice Randall Shepard, the chair of the committee that produced the report, spoke the other day at Notre Dame Law School on the topic, I took the opportunity to re-read it, and with the benefit of Matt's post.
I agree with Matt that "there is not consensus that the content and quality of legal education has failed to educate attorneys for their work, or that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis. To make these much more contestable claims, there needs to be data and analysis to back it up." And, like him, I was struck by the following assertion in the Report:
- "People are generally risk-averse. Organizations, which are composed of people, tend to be conservative and to resist change. This tendency is strong in law schools (and higher education generally), where a substantial part of the organization consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments." (p. 15)
The last sentence resonates, I realize, with many who are angry at what they regard as a law-school scam, and I suppose no one would deny that there are some people who fit that last sentence's description who work in higher education. But, as someone who has spent a number of years on a law school's Appointments Committee, and met hundreds of incredibly talented young lawyers and scholars "on the market," it seems to wrong to say - let alone to report confidently, without data -- that a "substantial" number of those on law school faculties have "sought out" positions in legal education "because" those positions "reside largely outside market- and change-driven environments."
Still, even if the claim strikes me as too-quick, there is no denying, again, that it resonates, and it is hard to say to someone for whom it resonates "well, it shouldn't! You need to feel differently!" Instead, I think someone like me -- i.e., someone who looks at his colleagues and sees (for the most part) people who care about the formation and education of students, about the good of the profession, and about the importance to human well-being of the legal enterprise and who are engaged and excited by ideas and exchanges with students and colleagues alike -- has to ask, "o.k., why is it the case -- what have we said and done or failed to say and do -- that a distinguished ABA committee thinks this hasty udgment is spot on and that many students, recent graduates, prospective students, and practicing lawyers think the same?"
My thought here, to be clear, is not, "geez, we pampered law profs need to do some better, image-improving messaging"; it is (I hope) more sincere and self-critical. This sentence in this report suggests that we are failing to communicate -- that is, to express through what we say and do in our teaching and writing -- why we were drawn to and why we are committed to (what many of us see as) our vocations, because -- again -- I don't think it is the case for very many that the answer to this "why?" was or is "to avoid market forces or change."
Tuesday, September 03, 2013
A closer look at the Milgram Experiments
The other day, I heard this NPR interview with Gina Perry, the author of a new-ish book, "Behind the Shock Machine: The Untold Story of the Notorious Psychology Experiments," and was intrigued. My Criminal Law professor, Joe Goldstein, used the experiments in our unusual (but really fun) introductory course, as part of a discussion about consent and human-subjects research.
I have not read Perry's book (yet), but it sounds like she's established that Milgram was pretty set all along on reaching his "regular people will do really bad things if told to by an authority figure" (or, as this reviewer put it, his "most of us are potential Nazis") conclusions and troublingly uninterested in the possibility that his subjects could have been harmed by their experiences. Here's a bit, from a review in MacLean's:
To start with, Milgram was—in layman’s terms—nuts. He began the shock tests without any clear theory of what he was aiming to prove, and had to cobble it together afterwards, some of which he gleaned from a pamphlet entitled, “How to Train Your Dog.” He refused to consider that many people took it as a given that the stated aim of any psychological test was never its true purpose: A large proportion of the volunteers simply didn’t believe Yale would allow people to administer potentially fatal shocks. Among those who did accept what Milgram told them, far fewer than the 65 per cent he claimed actually continued to up the voltage. Worst of all, for fear the truth would leak out to other prospective volunteers, Milgram refused to fully debrief his subjects, many of whom were haunted for years by guilt at what they thought they had done.
If any readers have had a chance to read the book, I'd welcome and appreciate reactions.
Thursday, August 29, 2013
When former students return as hiring-committee members
Several times in recent weeks I enjoyed a (for me) new experience (but one that I know many other law-profs have had) -- former students (in these cases, students I taught during my first semester, in the Fall of 1999) were back on campus for on-campus interviews and meetings with current students. I felt, well, (a) old ("Good Lord, was I teaching law in the 90s?"), (b) humble ("I cannot believe they let me teach law to this guy -- I didn't have a clue what I was doing. Thank God it worked out for him!"), (c) proud ("Dang, this person seems happy in her vocation, and is thriving! If I had anything to do with that . . . cool!"), and (d) grateful (both to the former students from coming by and re-connecting and to all those who made it possible for me to be in the position of helping with the students' education and formation).
Wednesday, August 14, 2013
Jean Bethke Elshtain (R.I.P.) and the Limits of Politics
Jean Bethke Elshtain, "one of the nation’s most prominent and provocative thinkers on religion, political philosophy, and ethics, died Sunday following a major cardiac incident earlier this summer. She was 72." (HT: UChicagoNews). Emma Green suggests, at The Atlantic, that "her greatest legacy of barrier breaking was her serious intellectual commitment to including God in discussions of politics."
"Her joint appointment in political science and the divinity school at [the University of] Chicago was truly unusual," said Erik Owens, a professor at Boston College who worked with Elshtain when she was his dissertation adviser. "Religion was not taken seriously enough as a proper subject of study by political scientists through most of her career, and political science was equally suspect in most divinity schools. She helped to bring these two disciplinary guilds into conversation with one another. This may be one of her greatest legacies as a professional academic."
I was fortunate to have the chance to work with Dr. Elshtain in connection with the "New Science of Virtues" project at the University of Chicago, and had a welcome opportunity to read a lot of her writing preparing a paper for the "Engaged Mind" conference series, at the University's Divinity School, which honored and explored her work. She was generous and gracious, as well as challenging and provocative. I was, and remain, a big fan.
Author and journalist Michael Sean Winters, who blogs at The National Catholic Reporter, included some nice quotes from Elshtain's "Augustine and the Limits of Politics" in this post. For me, for some reason, this one stood out:
False pride, pride that turns on the presumption that we are
the sole and only ground of our own being; denying our birth from the body of a
woman; denying our utter dependence on her and others to nurture and tend to
us; denying our continuing dependence on friends and family to sustain us;
denying our dependence on our Maker to guide and to shape our destinies, here
and in that life in the City of God for which Augustine so ardently yearned,
is, then, the name Augustine gives to a particular form of corruption and human
deformation. Pridefulness denies our multiple and manifold dependencies and
would have us believe that human beings can be masters of their fates, or
Masters of the Universe as currently popular super-heroes are named….Every
‘proud man heeds himself, and he who pleases himself seems great to himself.
But he who pleases himself pleases a fool, for he himself is a fool when he is
pleasing to himself,’ Augustine writes. . .
Thursday, August 08, 2013
Prof. Craig Bradley, R.I.P.
I learned today the sad news that Prof. Craig Bradley (Indiana University-Bloomington) died yesterday. I met Prof. Bradley, when I was clerking, in 1997 -- he was one of then-Associate Justice Rehnquist's law clerks in the mid-1970s (and later edited a volume of essays called "The Rehnquist Legacy"). He was -- from the beginning and always -- helpful, supportive, and kind. For years, Craig wrote and published helpful and concise analyses of the Court's Criminal Law and Criminal Procedure decisions for Trial magazine (here is an example) and he gave me lots of good advice when I first started teaching in those areas.
You can go here, to the IU website, and read and post remembrances of Craig. R.I.P.
Tuesday, August 06, 2013
Lithwick on corporations and religious freedom
This piece by Dahlia Lithwick ("All Corporations Go to Heaven") is -- like so much of what she writes -- entertaining and snappily written, but also (in my view) mistaken in places. Read it for yourself but, for what they're worth, here are two thoughts of mine:
First, it does not seem helpful to describe the issue presented in the Hobby Lobby case as whether "CEOs can impose their religious convictions on the people who work for them." The word "impose" suggests, it seems to me, some kind of coercion -- an effort to require another person to affirm what one affirms or to live in accord with one's religious obligations. Lithwick (like the many others who frame the issue this way) uses "impose" to mean (I think) "act in accord with their own religious convictions, or run their business in accord with those convictions, in such a way that third parties are affected in some way." But third-parties are "affected" by the exercise of legal and constitutional rights all the time. Certainly, no employee of Hobby Lobby is, or would be, required by virtue of their employment to affirm what the "CEO" believes or to live his or her own life in accord with the CEO's religious convictions. The employee would, of course, be affected by those convictions (because he or she would not get free contraception) and the question is whether the government has a sufficiently weighty reason -- one that is weighty enough to justify burdening religious exercise -- for preventing it.
A second thought: Although I realize that our doctrines and the relevant statutory language put us on this track, it does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?" The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm." The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have). It's a command to the government: Don't violate "the freedom of speech"; don't burden the "exercise of religion."
It is obvious that some regulations of corporations violate "the freedom of speech." And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization. It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment. Whether or not they do depends, again, on a variety of factors (e.g., the presence of denominational line-drawing or discriminatory intent, the feasibility of accommodation, etc.).
Wednesday, July 24, 2013
Garnett on "The Freedom of the Church"
I've posted on SSRN a paper that I did for a wonderful conference, last Fall, at the University of San Diego's Institute for Law and Religion. on "The Freedom of Church." (Paul Horwitz's excellent paper, from the same conference, called "Freedom of the Church Without Romance," is available here.) I've been thinking, for several years now (starting, probably, with this article), about the (very old) idea of the "freedom of the church" -- its content, its justifications, its contemporary relevance, etc. Others have, too (and better), and this latest paper is an effort to respond, at least in part, to some of the important questions and challenges that have been raised, especially by Rich Schragger and Micah Schwartzman. Anyway, the paper is called "'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense." Here is the abstract:
This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." 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 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.
Three short pieces (by lawprawfs) on Windsor in Commonweal
Commonweal magazine has posted short pieces by Michael Perry, Marc DeGirolami, and me commenting on various aspects of the Windsor and Perry decisions. The contribution of Michael Perry ("Right Decision, Wrong Reason") contends that the Court should not have relied on assertions regarding the "animus" behind or the bad motives driving DOMA and should instead have invalidated the challenged provision on the ground that it violates a general right to "moral freedom." The piece by me ("Worth Worrying About?") considers the implications for religious freedom of the line of reasoning in Justice Kennedy's Windsor opinion. And, in "Why Standing Matters," Marc DeGirolami explains (and defends) the Court's justiciability doctrines.
Wednesday, June 26, 2013
AMK's adverb avoidance
Way back in the Disco years, when I was a law clerk, there was an ongoing joke going around that Justice Kennedy really didn't like adverbs of the "-ly" variety, that he would go to some lengths to avoid using them, and that his clerks sometimes have fun trying to sneak them past him. So, I had to smile at this line from his Perry dissent -- "Those errors necessitate this respectful dissent" -- and this one: "These are the premises for this respectful dissent." (Ed.: That's the best you can do for commentary on today's cases? Lame.)
Thursday, June 06, 2013
Immovable ladders, the Church of the Holy Sepulchre, and property rightsThis piece, from Slate, by "Atlas Obscura," is wonderful. Was "Andy" striking back at the heavy hand of status-quo bias, trespassing, stealing, occupying, or -- like that French archeologist in Raiders of the Lost Ark, messing with things best left alone?
Berman on "Alexander's Genius", purpose, and effects
Mitch Berman has posted on SSRN an essay called "Alexander's Genius," in which he praises, and takes on, "one of the most creative, penetrating, and wide-ranging legal theorists working today." (Nice!) The "principal critical target of the essay is Alexander’s contention (a contention that he has pressed both alone and with Saikrishna Prakash) that extreme partisan gerrymandering does not violate the U.S. Constitution."
I read the essay with interest, not only because I think Mitch and Larry are really interesting and smart, but also because I am attracted to the "Alexanderian" position, which Mitch criticizes, that legislative outputs should matter more then legislative inputs -- at least when it comes to judicial design and use of constitutional doctrine. As I understand Mitch's essay, he doesn't rule out the possibility of this position being correct in some contexts. Instead, his point seems to be that, in some contexts, there are good (deontological and consequentialist) reasons to embrace purpose-based rules. Check it out!
Wednesday, May 29, 2013
On "Moving On"
I really enjoyed, and was challenged by, Stanley Fish's recent "Opinionator" column, "Moving On." I have a lot of books, at home and in the office, and (I confess!) I like having a lot of books . . . in piles, on shelves, across the desk, in one of those wheel-cart things. I write in them (imagining ludicrously that I or someone else will someday be curious about my in-the-margins reactions) and just cannot buy the idea that Kindles and Audible.com are substitutes. Yes, I know, this "like" of mine reveals both an insecurity and a less-than-commendable showoffyness. Still, like the Facebook group that "judges you when you use bad grammar", I cannot pretend that I don't judge when I'm in a house with no books. And, giving them away -- even ones I didn't like -- has always been kind of hard.
Fish reports, though, that, after getting rid of a whole bunch of his own (heavily annotated, I assume!) books, he "felt nothing":
In the hours and days following the exodus of the books I monitored myself for a post-mortem (please excuse the hyperbole) reaction. Would I feel regret? Nostalgia? Panic? Relief? I felt nothing. What should have been a momentous event barely registered as I moved on to what seemed the more important task of choosing a new carpet. I was reminded of what a colleague who had left a university after 23 years replied when I asked him if it was difficult to do. He said, “It was like checking out of a motel.”
Really? "Nothing"? That's striking. And, I think, impressive. To be able to look at piles of notes, and annotated books and articles, and "to do" files, and shelves with banker-boxes labelled with various laughably-over-ambitious project-names, and "say," as Fish reports having said:
What I saw on the shelves was work to which I would never return, the writings of fellow critics whom I will no longer engage, interpretive dilemmas someone else will have to address. The conversations I had participated in for decades have now gone in another direction (indeed, in several other directions), and I have neither the time nor, if truth be told, the intellectual energy required to catch up. Farewell to all that. So long, it’s been good to know you. I’m sure you’ll do fine without me.
This strikes me as very . . . "healthy", and not just because Fish is, he says, moving toward retirement. The fact that the "conversations" in which we are (or imagine we are, or aspire to be) participating were happening before us, and will go on after us, and are probably indifferent to (most of) us is a tough one for academics to confront, I think. After all, we are required to assert confidently and often the novelty and importance of our interventions in these conversations. And, it seems fair to say, Fish's actually have been pretty important. He can still say, so long, it’s been good to know you. I’m sure you’ll do fine without me. Again, impressive.
Tuesday, May 28, 2013
Hey, look . . . there's an administrative state!This WaPo piece by Jonathan Turley ("The rise of the fourth branch of government") was welcome (because it will be seen, I suspect, by at least some of my students as adding some plausibility to my own suggestions in class that the place and role of the "administrative state" in our constitutional structure raise tricky questions) but also kind of funny: "The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding. We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government." Whoa . . . who knew?
Monday, May 20, 2013
More on the Town of Greece
Following up on Paul's post, just a few quick thoughts (for now): First, I agree entirely with Paul that his book, and Chris Lund's excellent article, are must-reads on this subject. Since Chris is visiting at Notre Dame next year, I look forward to learning a lot from him about this case.
Next -- and proving true, I guess, Paul's predictions about disagreements-among-friends -- I think it would be a good thing if the possibility Eugene Volokh raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass. I think the criticisms directed at that test in Steven Smith's 1987 article had and have force.
Finally, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context. Yes, this context is an anomalous one and, yes, Marsh was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea. For reasons I mention in this very short piece, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try. Better, it seems to me, to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.
Monday, May 13, 2013
Mike Wallace interviews Justice Douglas on free expression (1958)If, like me, you need excuses throughout the day to take short breaks from grading, this video -- an interview by Mike Wallace of Justice Douglas (about expression, speech, censorship, and "our freedoms" more generally) from May of 1958 -- is an intriguing watch. It was basically about his The Right of the People.
Tuesday, May 07, 2013
"Constitution USA" with Peter Sagal"Constitution USA" (more here) premieres tonight, on your local PBS station. It's hosted by Peter Sagal, of "Wait Wait . . . Don't Tell Me!", and includes bits with a number of law profs (including me, I'm afraid -- that's a whole lotta bald!) about speech, federalism, civil rights, religious liberty, and lots of other things. I've seen some clips, and the show looks to be a lot of fun! Check it out, tell your students, etc., etc.
Tuesday, April 23, 2013
"The Blogger as Public Intellectual": A fun conversation with Paul Horwitz
Notre Dame's Institute for Advanced Study is hosting this week an interesting conference on "public intellectuals" and, this morning, the featured paper was from our own Paul Horwitz, whose topic was "The Blogger as Public Intellectual." (For one blogospheric reaction to his presentation, go here.) Paul was, as per usual, interesting and thoughtful, and I hope he'll post his paper, or a summary of it, soon.
I was the "commenter" (or "commentator"?) who followed Paul and I spent most of my time talking about and reflecting on my experience with my "other" blog, "Mirror of Justice." And, here's some of what I said:
What “stand outs” in my mind, about the “Mirror of Justice” effort – in addition to its relatively distinctive subject-matter – is that it is both a “group” blog and one whose contributors disagree strongly about a lot of pretty important things . . .
Our hope, when we started – and when we very deliberately assembled Catholic law professors from a variety of disciplines and from across the political spectrum – was the same one that University admissions officials cite when they do their work, namely, that the diversity would enrich the conversations that took place. It did, and it has . . . but we’ve also fought a lot . . . Our arguments are, almost always, fairly regarded as “fights among friends”, but they happen “in front of” strangers, which is a bit unsettling (at least for me). They flare up and are resolved “in public” – the sharp elbows are thrown, and the sincere apologies extended, “in public.”
And so, over the years, I’ve come to think of our role less in terms of “providing for the world a coherent Catholic legal theory”, and also less in terms of contributing to (or imposing on) the world various pieces of “public intellectualism.” Instead, . . . I’ve tended to think about what we do more in terms of “modelling.”
It seems to me that what we provide, or offer (or fail to provide or offer) to readers is not so much the discrete work product of a dozen “public intellectuals” as a conversation – an illustration or example – that is, depending on the day, more or less edifying and productive. When I’m blogging now (and this was not always true), I’m thinking not so much of “my own” readership, the way I might if I were a regular columnist for the Washington Post, as I am of my students, and my fellow bloggers’ students, who might be thinking hard about what it means to have a vocation in the law and to aspire to integrate that vocation with one’s religious faith and traditions.
Whether we on the blog are talking or arguing about the election, or immigration reform, or the philosophical anthropology underlying and animating the law of torts, I find myself these days thinking less about the importance of persuading as about the “way the conversation is going.” Don’t get me wrong: My fellow bloggers and I have views (often strong views) and we all want, I am sure, for those who disagree with us to yield to our superior arguments. (We’re lawyers, after all.) Still, and without being too polly-annish or precious, I have found myself in recent years more focused on the community-building and community-maintenance dimension of my blogging than on its evangelical or propagandizing aspects.
I hope no one thought or thinks that my point was that MOJ is somehow more of a "community" than is Prawfs or other group blogs -- that's not it. It was, instead, just that my own experiences over there have, over the years, prompted me to think differently about the blog's "mission" and about what I'm doing over there, and maybe over here, too ("albeit in a boring way until recently"). I have to admit, I worry more about the times I fall (well) short in terms of the "modelling" thing than I do about whether or not X reader changes his or her mind after reading my 143rd post on the ministerial exception!
Monday, April 22, 2013
"What Is a Person?"
On Friday, at Notre Dame Law School, I had the pleasure of participating in a really interesting interdisciplinary roundtable-conference, which was generously organized by Prof. David Opderbeck of Seton Hall (and, this semester, of Notre Dame). One of the presentations was by (and several of the discussion-sessions were about) Christian Smith, who presented the basic argument of his fascinating book, What is a Person? Rethinking Humanity, Social Life, and the Moral Good from the Person Up (Chicago 2010). How cool, to write -- and (it seems to me, so far) to pull off! -- a book with that title! (Not to give too much away, but . . . a person is "a conscious, reflexive, embodied, self-transcending center of subjective experience, durable identity, moral commitment, and social communication who -- as the efficient cause of his or her own responsible actions and interactions -- exercises complex capacities for agency and intersubjectivity in order to sustain his or her own incommunicable self in loving relationships with other personal selves and with the nonpersonal world.")
Thursday, April 18, 2013
Intellectual diversity and institutional pluralism
Over at Balkinization, Mark Tushnet has a few posts commenting and reflecting on a recent event at Harvard Law School, "Intellectual Diversity and the Legal Academy." He notes, in one place, that "what’s striking about the political spectrum in law schools is that it ranges from the center-left, with a handful of outliers to the left, to the rather
conservative right." My own sense is that it would be more accurate to see any "rather conservative" law professors as being "outliers" in the same way that those whom Mark regards as truly "left" are, but I suppose there's no way around the fact that the labels used say as much about the labeler as they do about the labeled, and so I won't dwell on this point.
What really grabbed my attention, though, was Mark's observation in passing that "[i]t’s not at all clear to me that, given across-institution diversity, there’s a
problem with the market in legal education. So, maybe the complaint isn't that
there's not enough across-institution diversity." I think Mark's right to highlight the distinction between cross-institutional and intra-institutional diversity; it's one that is important to keep in mind in this and many other contexts. (So, for example, some of us think that "all comers" rules for recognized student groups mistakenly sacrifice diversity among groups for diversity within groups.) A few years ago, then-Dean John Garvey made this the theme of his tenure as Chair of the AALS, and I blogged about his "institutional pluralism" focus here and elsewhere (and here and here). We might worry, as we think about the "failing law schools" problem, that there's too much (AALS- and ABA-imposed?) sameness among law schools, and not just of the ideological kind.
I agree with Mark that the problem -- and, perhaps unlike him, I do think that it is a reality and a problem -- of a lack of ideological diversity within law schools' faculties and student bodies can be addressed, if not entirely alleviated, by more institutional diversity -- by a genuine market in student bodies and faculties. For such a market to really address the lack-of-intellectual-diversity problem of, though, it seems that there would need to be meaningful institutional diversity (along ideological as well as other lines) among the very top law schools and while I think there is some, there's probably not enough for the kind of market Mark is thinking about.
I'd note, finally, that - thinking about the fact that the "conservative" schools Mark identified are all schools with a religious character or affiliation -- I think we need to be careful about equating a school's distinctive religious character with a "conservative" ideological character. A Catholic law school, for example, might have more than the typical number of students and faculty who support closer regulation of abortion, but that same school might also have more than the typical number of students and faculty who are skeptical of certain forms of libertarianism or who support an arguably inefficiently (by some measures) generous level of social-welfare programming.
Tuesday, April 16, 2013
Goodbye to all that: Rotating out of the Associate Dean job
In a few months, I'll be wrapping up my time (four years) as Associate Dean, and handing things over to a (more capable!) colleague. And -- in part, no doubt, in order to avoid actually completing several Associate-Dean-related projects -- I've been reflecting a lot on how things went, what I learned, what I could or should have done differently, etc. On balance, for sure, I've enjoyed the experience. There are costs -- less writing-time and more meetings-time! -- but there's a non-trivial amount of psychic income that (for me) comes with feeling like one has helped (or even tried to help) an institution that one cares about move in the right direction.
At present, my main "takeaway" is that the associate-deanship has been a humbling (even when not humiliating) experience: I know more about all the impressive things my colleagues are doing; I know a lot better than I did before how much I don't know about legal education, law schools, and law faculties; I know with crystal-clarity how over-confident I was, 5 years ago, that the right steps to take, with respect to all kinds of questions, were clearly see-able and easily do-able. In a way, it's nice -- but in another way, it's a bit immobilizing -- that this new-ish appreciation coincides with all the navel-gazing and hand-wringing inspired by the current "crisis." I think I have some plausible -- even good -- ideas about what nature of the problem, and about some of the steps we might take in response but . . . I have a now-healthier sense of how likely it is that there's more to the problem, and the steps, than I realize.
Thursday, April 11, 2013
Judge Posner on exclaustration and the Constitution
Over at The Volokh Conspiracy, Eugene Volokh has the story about the Seventh Circuit's recent and fascinating decision about the alleged defamation involved in calling someone a "fake nun." Here's a bit from the (I think correct, for reasons I wrote about here) decision:
A secular court may not take sides on issues of religious doctrine. The district judge in this case has ruled that a federal jury shall decide whether Patricia Fuller is a member of a Roman Catholic religious order, though if the jury decides that she is it will be rejecting the contrary ruling of the religious body (the Holy See) authorized by the Church to decide such matters.
A secular court must be allowed to decide, however, whether a party is correct in arguing that there is an authoritative church ruling on an issue, a ruling that removes the issue from the jurisdiction of that court.... But once the court has satisfied itself that the authorized religious body has resolved the religious issue, the court may not question the resolution....
I wonder, though, if my friend Michael Helfand (Pepperdine) has a different view? See his great paper, "Litigating Religion," here.
Friday, April 05, 2013
Two bald guys figure out the Establishment Clause in 30 secondsHere's a short clip from an upcoming PBS documentary, "Constitution USA with Peter Sagal", in which I very . . . efficiently explain (what I think is) the "right way to understand" the separation of church and state. (Another way to describe the video, I suppose, would be to say that it presents "two very bald guys wandering around a courtyard.")
Sunday, March 03, 2013
A symposium on Fleming & McClain's "Ordered Liberty"
Over at Concurring Opinions, there is a very interesting "symposium" going on about Linda McClain and Jim Fleming's important new book, Ordered Liberty. My own first contribution, called "Mutual Adjustment as Merely Congruence Delayed" is here. Among other things, I wrote:
At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so. But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.
So, a more focused thought on a particular part of the book: In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.” Fair enough — these case do indeed illustrate these struggles. But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.” That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions. To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.
- See more at: http://www.concurringopinions.com/archives/2013/03/mutual-adjustment-as-merely-congruence-delayed.html#sthash.MbEEWvpx.dpuf
Jim and Linda respond to me, here. Time to get to work on a reply!