Wednesday, April 19, 2017
Judge John T. Noonan, Jr., RIP
My Mirror of Justice colleague and Villanova prawf Patrick Brennan posted over there that Judge John T. Noonan, Jr., of the Court of Appeals for the Ninth Circuit, has passed away at the age of 90. I was blessed with the chance to learn from him, and to get to know him reasonably well. (He visited my law school, during my first year, to speak about the then-current-and-controversial proceedings surrounding and leading to the execution of Robert Alton Harris.) He was not only a thoughtful and conscientious judge, and a prolific and prominent scholar; he was a really and inspiringly good and faithful person. If you've never read Persons and Masks of the Law (here), check it out. Requiescat in pace.
Monday, March 27, 2017
Monday Morning with Larry (Alexander)
This morning was fun. Classes were prepared, in-box was manageable, meetings were cancelled. So, I spent a few hours with a stack of papers that Larry Alexander had sent a little while back. I don't know how Larry manages to write so much so well, but he does. Check out, e.g., "Is Wrongful Discrimination Really Wrong?" (here); "Brexit and the Future of Liberal Democracy" (here); "Hard Incompatibilism, and the Rejection of Moral Responsibility: A Skeptical Look at an Optimistic Account" (here); and "Against Equality" (here).
Friday, January 27, 2017
Mark Roche on "Realizing the Distinctive University" . . . or law school?
My Notre Dame colleague, Prof. Mark Roche, has a new book out, Realizing the Distinctive University: Visions and Values, Strategy and Culture. It is noted, here, in the Chronicle of Higher Education. Here's a bit:
But distinctive institutions don’t have to be religious, single sex, or historically black, he says; and they don’t have to have wed "intellectual vigor and nonconformity" like, say, Reed College, or have a signature honors program like the one at Swarthmore College. Rather, they can emulate some of the many strengths of American higher education, and they can reap benefits from its shortcomings, such as its indifferent record in serving underrepresented racial, ethnic, and socioeconomic groups: "You can say, OK, where is there an objective gap, something important that needs to be addressed?"
I'm reminded of the theme that then-Dean John Garvey proposed, a few years ago, during his tenure as President of the AALS: "Institutional Pluralism" (and that I blogged about a few times -- here, here, and here -- at the time). I think Garvey was right then, and Roche is right now, that we need more of this in higher education. I worry, though, that we are moving towards less. Check out Roche's book.
Thursday, December 22, 2016
"The Spiritual Crisis of the Modern Economy"
I don't agree with everything in this piece by Victor Tan Chen, but I think it makes a number of plausible, challenging claims -- echoing, in places, things that Rusty Reno has been saying at First Things, that Murray, Putnam, and Vance have highlighted in their recent books, and that our own Paul Horwitz has blogged about. It is particularly worth a read, maybe -- as we're grading law-school exams, writing recommendation letters, etc. -- by those of us who are privileged/blessed to work in institutions that play such a large role in driving the competitive, exhausting meritocracy and in providing the credentials, merit-badges, and networks that are increasingly required for access to the upward mobility, social status, and the cognitive and other elites. Here's just a bit:
One possible answer . . . is the notion of grace—a stance that puts forward values that go beyond the “negatives” of the narrow secular creed and connect with individuals of diverse political viewpoints, including those hungry for more in the way of meaning than the meritocratic race affords. . . .
The concept of grace comes from the Christian teaching that everyone, not just the deserving, is saved by God’s grace. Grace in the broader sense that I (an agnostic) am using, however, can be both secular and religious. In the simplest terms, it is about refusing to divide the world into camps of deserving and undeserving, as those on both the right and left are wont to do. It rejects an obsession with excusing nothing, with measuring and judging the worth of people based on everything from a spotty résumé to an offensive comment.
. . . At the same time, grace reminds the well-educated and well-off to be less self-righteous and less hostile toward other people’s values. Without a doubt, opposing racism and other forms of bigotry is imperative. There are different ways to go about it, though, and ignorance shouldn’t be considered an irremediable sin. Yet many of the liberal, affluent, and college-educated too often reduce the beliefs of a significant segment of the population to a mash of evil and delusion. . . .
Really, though, the people who could learn from grace are the prosperous and college-educated, who often find it hard to empathize with those . . . who live outside their sunny, well-ordered worlds. When people are not so intent on blaming others for their sins—cultural and economic—they can deal more kindly with one another. Grace is a forgiving god.
Wednesday, December 14, 2016
"Professors or Pundits"
I received an announcement about this new volume, edited by my Political Science colleague at Notre Dame, Prof. Michael Desch, called "Public Intellectuals in the Global Arena: Professors or Pundits." The book grew out of a conference, held at Notre Dame in 2013 and sponsored by our Institute for Advanced Study. Our own Paul Horwitz was one of the presenters, and I had the pleasure of providing a short response to his paper, "The Blogger as Public Intellectual."
I wonder, Paul, if your thoughts on the subject are what they were in the Spring of 2013?
Friday, November 18, 2016
Remarks on "The Future of Religious Liberty" at the Federalist Society's National Lawyers Convention
I participated yesterday in a panel discussion on "RFRA and the Future of Religious Liberty" at the Federalist Society's annual National Lawyers Convention. After noting that recent events had dramatically undermined any confidence one might have in my ability to say anything useful about "the future", I briefly discussed "one big-picture idea, two reasons for cautious optimism, and three causes for concern."
The big-picture idea (such as it is) was this: In any society where there is (a) religious and moral diversity and (b) an active, regulatory welfare state, there will -- necessarily -- be conflicts and tensions between (i) duly enacted, majority-supported, generally applicable laws and (ii) some citizens' religious beliefs and exercise. What Justice Jackson called "the uniformity of the graveyard" is not an attractive way to manage these conflicts and tensions; the toleration-and-accommodation strategy, however, is. RFRA-type laws are, in my view, effective and workable mechanisms for carrying out the latter strategy and so, yes, I think such laws are and should be part of the "future of religious liberty."
The two "reasons for cautious optimism": First, the (unanimous) Hosanna-Tabor case shows that the Court recognizes that religious freedom is not entirely about "balancing interests" but also imposes, in some contexts, real limits on the government's ability -- even when its pursuing important goals like reducing employment discrimination -- to interfere with individuals' and institutions religious decisions. Second, as the (unanimous) Holt case (among many others) illustrated, outside of a few well-known cases (e.g., Storman's) and hot-button-issues (e.g., wedding ventors), religious-liberty claimants are very often winning. The Becket Fund, etc., and the Department of Justice, do a lot of good work.
Next, three causes for concern -- that is, three demographic, cultural, and sociological facts and trends, or three things about the culture (and "law is downstream from culture") that were true before and are still true after the election: (1) the "rise of the nones" presents the danger that fewer people will see themselves as having a "stake" in the religious-freedom issue (when, in fact, we all -- whether or not we are religious -- do); (2) the relative decline in the role and footprint of religious institutions and communities (whether because of scandals, or atomizing individualism, or something else) reduces a sense of solidarity and makes it more difficult for people to resist incursions on religious liberty when they threaten; and (3) the increasing willingness of the government to shrink the civil-society space and to expand the "public" sector, by leveraging its licensing, accrediting, spending, grant-making, taxing, contracting, and social-welfare functions -- that is, by using conditions in addition to regulations to affect non-state actors' practices.
Then followed a lively discussion!
Tuesday, November 01, 2016
"Neither of the Above"
In case anyone's interested: I wrote for Commonweal a few months ago an admittedly hand-wringing, opportunistically laden with "Hamilton" references, non-expert (HT: Paul Horwitz!) "conservative's lament" about the upcoming presidential election. The events of the intervening weeks haven't really changed, but seem instead to have confirmed, my gloomy views.
Tuesday, October 04, 2016
Dean Phil C. Neal, R.I.P.
Former University of Chicago Law School Dean Phil C. Neal, an antitrust expert, litigator, and law firm founder whose ability to cut through complexity earned him a reputation as a deft problem-solver, died Tuesday night. He was 97.
I was particularly interested in this (taken from the same post):
After law school, Neal served for two years as a law clerk to Justice Robert H. Jackson of the US Supreme Court. In spring 1945, Jackson permitted Neal to leave his clerkship a few months early because he had the opportunity, through the intercession of Justice Felix Frankfurter, to assist Department of State official Alger Hiss in his work as secretary general of the United Nations organizing conference.
He joined the faculty at Stanford Law School in 1948 after working at a law firm in San Francisco for several years. While at Stanford, Neal introduced Justice Jackson to the student who would become his final law clerk. This meeting, which took place in Neal’s office in the summer of 1951, ultimately resulted in Jackson offering a clerkship to William H. Rehnquist. As it turned out, Rehnquist was one of two future US Supreme Court justices whom Neal taught at Stanford; the other was Sandra Day O’Connor.
In his first book about the Court, The Supreme Court: How It Was, How It Is, Rehnquist dedicates a lot of the first chapter (which I've always thought was a really endearing read) to his clerkship interview, the trip out to Washington, and the first few weeks on the job:
A large element of luck seemed to have entered into my selection as Justice Jackson's law clerk. . . . [A]s fate would have it, Justice Jackson came to dedicate the new Stanford Law School building in the summer of 1951, when I was attending my second summer session. Phil Neal, my administrative-law professor, had himself clerked for Justice Jackson several years before. Shortly before Justice Jackson was due to arrive for the dedication ceremonies, Professor Neal asked me if I would be interested in clerking for the justice; the suggestion came to me out of the clear blue sky, but I naturally said that I would be. . . .
It cannot be difficult to imagine the fear and trembling with which I approached the interview. . . I first tried to bone up for my meeting with the justice by reading some of his opinions, and by trying to steep myself in constitutional law. After a few hours, however, I decided that it was utterly futile[.] . . . [Justice Jackson's] pleasant and easygoing demeanor at once put me at ease. . . I genuinely enjoyed listening to [his] anecdotes, but somehow I felt I should be doing more to make a favorable impression on him. . . . I walked out of the room sure that in the first few minutes of our visit he had written me off as a total loss.
I know the feeling! In any event, I'm grateful to Prof. Neal. R.I.P.
Monday, September 12, 2016
"Freedom Of, For, From, and In Religion: Differing Dimensions of a Common Right?"
This past weekend, I attended a fascinating, rich conference at St. Hughes College, Oxford, that was organized by the International Consortium for Law and Religion Studies (ICLARS). The theme was "Freedom Of/For/From/In Religion: Differing Dimensions of a Common Right?" (more info here). Here's the conference blurb:
Freedom of religion or belief (FoRB), once considered to be the “first” freedom, has become a controversial right. In particular, the practical possibility of implementing FoRB in impartial ways are increasingly questioned. Critics argue that FoRB cannot deliver what it promises: an equal share of freedom for people of different or no religion. Further, it is claimed that the right of FoRB, as it is regulated in international and constitutional law, is intrinsically biased because it reflects its Western and Christian origins.
Part of the problem is due to the fact that FoRB is a complex notion, including different dimensions that require careful consideration. Freedom of religion or belief, as a right recognized for every human being, is the first dimension, but not the only one. Freedom from religion, that is the right to live one’s life without being compelled to perform religious acts, is another and freedom for religion, which concerns the institutional side of this right (what was once called “libertas ecclesiae”) is a third dimension that demands consideration. Finally, freedom in religion concerns the rights that the faithful (and sometimes not so faithful) are entitled to enjoy within their religious communities.
Besides the fact that the conference gave me an excuse to re-visit some of my favorite pubs from my undergraduate days, it was rewarding and fascinating to hear papers, and hear about experiences and impressions, from scholars, lawyers, and activists from outside North America and Europe. Doing so puts some things in perspective, both because others were dealing with very different issues (e.g., bans on conversions and proselytism) and because they were dealing with similar issues (e.g., religious exemptions) but in different ways. I also thought the "four pronouns" device suggested in the theme was really insightful and provocative. (My own paper was called "Freedom For Religion: (Yet) Another View of the Cathedral." Not exactly original, I know . . . .) Hats off to Cole Durham, Brett Scharffs, and Donlu Thayer, of BYU, for organizing an excellent event.
University of Michigan Law School Society of Fellows
This new program might be of interest to Prawfs readers:
The University of Michigan Law School, in connection with the longstanding Michigan Society of Fellows (MSOF), now welcomes applications for a highly competitive interdisciplinary fellowship for aspiring legal academics (whether currently completing a degree, conducting postgraduate research, clerking, practicing, teaching, or otherwise engaged in law related activity). The application deadline is Tuesday, September 27, 2016, 1:00 PM EDT.
The Michigan Society of Fellows selects 8 fellows from over 900 applicants nationwide to join the Society, and to affiliate as a junior (non-tenure track) member of the faculty with one of the University’s departments or professional schools (including the University of Michigan Law School). The fellowship is offered for a term of three years (to begin in September 2017), although fellows affiliated with the Law School may go on the academic job market during the fall of their second fellowship year.
The fellowship provides a unique opportunity for aspiring academics to develop and produce high level scholarship in a supportive and intellectually challenging environment within the Society, the Law School, and the wider University community. Fellows will also begin to develop their teaching skills in a substantive area of the law while availing themselves, as desired, of Michigan’s pioneering Center for Research and Learning on Teaching. The strong focus of the fellowship is on research and the production of significant scholarship. Teaching obligations are minimal. The fellowship comes with a stipend of $55,000 per year plus participation in the University’s benefits programs. It is supported by the Ford Foundation, the Horace H. and Mary Rackham Funds, and the Andrew W. Mellon Foundation.
- See more at: https://chroniclevitae.com/jobs/0000329437-01#sthash.stt8P1HL.dpuf
Thursday, August 25, 2016
The University of Chicago letter regarding "free exchange of ideas"
You can see here (and all over the interwebs) a letter from the Dean of Students at the University of Chicago to that university's incoming first-year students. I wonder, have any law schools sent similar letters (or, letters covering the same issues) to incoming first-year law students? Should they? If so, what should they say?
For my own part, I do talk to students in Criminal Law, at several points during the semester, about the fact that the cases and materials we'll be reading do sometimes involve very difficult facts and that the materials and the questions they raise could very well be, for a variety of reasons, painful to read. I urge respectful conversation and argument, but also invite students to speak with me if they have any concerns about talking in class about particular materials or about attending class on a particular day. This kind of thing doesn't strike me as a "trigger warning," but maybe I'm misunderstanding what is meant, in the Chicago letter or generally, by that term.
Friday, August 19, 2016
On reaching "adulthood" in law teaching
Our new first-years are being "oriented" today, and it hit me that this is the 18th time that's happened since I started law teaching. So, I guess that means I get to vote, or get drafted, or rent a car (but not drink) in law-teaching land. (It also hit me that I've been teaching longer than some of the new undergraduates who are moving in this weekend have been alive, but that's too much to take in . . ..) I'm not sure what this milestone means with respect to, for example, the conversation about what students should call professors (I'm pulling for "eminencia"!) -- but I'm pretty sure it means that all "Seinfeld" references (and, who are we kidding?, "Sopranos" references too) have to be shelved.
Have a great semester, everyone!
Thursday, July 14, 2016
Some reflections on, and reactions to, Prof. Wolterstorff's "Mighty and the Almighty"
A few years ago, the Program on Church, State & Society at Notre Dame Law School hosted a day-long roundtable conversation on Prof. Nicholas Wolterstorff's then-pretty-new short book on political theology, The Mighty and the Almighty. It was really engaging, and brought together a great group of historians, theologians, philosophers, and prawfs. Each participant wrote up a short reaction/reflection paper -- a kind of "admission ticket" -- and now (finally?) they are all out in print. Here, in Vol. 4 of the Journal of Analytic Theology are papers by Marc DeGirolami, Chris Eberle, Kevin Vallier, Paul Weithman, and Terence Cuneo (and a response by Nick). And here, in the Journal of Law and Religion, are the contributions of Robert Audi, Jonathan Chaplin, Dana Dillon, Brad Gregory, John Inazu, Anna Bonta Moreland, Michael Moreland, Mark Noll, and Gladden Pappin. The book, and the tickets, are -- like the man says -- "highly recommended"!
Wednesday, July 06, 2016
A short take on churches' tax exemptions
This might be timely, given our recent commemoration of the July 4 tax revolt! Here's a short piece of mine, just out in U.S. Catholic, on the question of churches' tax exemptions. A bit:
. . . But our tradition of exempting churches and religious institutions from taxes is justified and important. The separation of church and state is not a reason to invalidate or abandon these tax exemptions but is instead a very powerful justification for retaining them.
The Supreme Court’s precedents and popular opinion have been shaped, for better or worse, by Thomas Jefferson’s figure of speech about “a wall of separation.” This saying has often been misunderstood and misused. Still, Jefferson’s metaphor points to an important truth: In our tradition, we do not banish religion from the public square and we have not insisted on a rigid, hostile secularism that confines religious faith to the strictly private realm. We do, however, distinguish between political and religious institutions. They can productively cooperate without unconstitutional entanglement. . . .
. . . A political community like ours, that is committed to the freedom of religion and appropriately sensitive to its vulnerability, takes special care to avoid excessively burdening these institutions or interfering in their internal, religious matters. It’s not simply that churches’ contributions to the public good make them deserving of a tax-exempt status; it’s that, given our First Amendment, secular power over religious institutions is and should be limited. Governments refrain from taxing religious institutions not because it is socially useful to “subsidize” them but because their power over them is limited—and because “church” and “state” are distinct.
The point of church-state “separation” is not to create a religion-free public sphere. It is, instead, to safeguard the fundamental right to religious freedom by imposing limits on the regulatory—and, yes, the taxing—powers of governments. After all, as Daniel Webster famously argued in the Supreme Court (and the great Chief Justice John Marshall agreed) the power to tax involves the power to destroy, and so we have very good reasons for exercising that power with care—especially when it comes to religious institutions.
Tuesday, June 14, 2016
An Interview with Fr. (Prof.) Robert J. Araujo, S.J.
As Prawfs readers with way better memories than mine might remember, I mentioned last year that my friend and Mirror of Justice colleague, Robert J. Araujo, S.J. - a longtime law teacher and legal scholar at a number of institutions -- had passed away. Recently, thanks to the folks at the New England Jesuit Oral History Program, I got hold of this interview, conducted not long before Fr. Araujo's death, with Fr. Paul Kenney, S.J. Among (many) other things, Fr. Araujo reflected on his experiences with law-blogging. It might be of interest.
Tuesday, June 07, 2016
John Inazu responds to Mark Tushnet on "Confident Pluralism"
[Note: Professor John Inazu has written the following response to Professor Mark Tushnet's three posts about John's new book, Confident Pluralism: Surviving and Thriving Through Deep Difference]
Confident Pluralism, Expressive Association, and “Tone”
Mark Tushnet has a series of posts on Balkinization commenting on my new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I appreciate Mark’s engagement with the book. And I appreciate the opportunity to offer this response as a guest post on Mirror of Justice.
Before I turn to Mark’s critiques, I’ll briefly situate the main arguments of the book. Confident Pluralism insists that our shared existence is not only possible, but also necessary. Instead of the elusive goal of unity, I suggest a more modest possibility: that we can live together in our “many-ness.” That prescription includes both a legal and a personal dimension. The two are interrelated. Silencing other viewpoints may begin with personal antipathy, but it ends with legal prohibition—a refusal to extend the protections of the law to one’s adversaries, and ultimately, an effort to turn the law against them.
The legal dimension of Confident Pluralism focuses on three areas: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The personal dimension of Confident Pluralism aspires toward tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (including protests, strikes, and boycotts); and (3) our relationships across difference.
Mark’s first post addresses my critique of the Supreme Court’s expressive association doctrine. His second post explores the implications of my constitutional argument for association with the oft-raised but important hypothetical of the racist restaurant. His third post criticizes the “tone” of my civic argument for tolerance, patience, and humility. I’ll comment first on Mark’s third post, which goes much more to the core of the book than his first two posts.Tolerance, Patience, and Humility
Mark’s third post criticizes what he calls the “tone” of my book. He writes: “Most of [Confident Pluralism’s] argument appears to be directed at intolerant, arrogant, impatient secular liberals—although formally speaking, he addresses intolerant, arrogant, impatient religious conservatives as well.” Mark concludes his post by writing: “Tolerance, patience, and humility are good things, of course, but urging them only on secular liberals is not.”
I think the best response here is to leave it to other readers to decide whether my argument is slanted in the way Mark suggests. My hunch is that most readers, regardless of their ideological priors, will disagree with his characterization.
I do not mean to suggest that I wrote the book from a “view from nowhere.” I have all kinds of personal beliefs that affect how I think and how I see the world. Take, for example, the two most significant constitutional issues that I address in the book: the right of association and the public forum. Most of my views about associational autonomy lean conservative, and most of my views about the public forum (including public protest) lean liberal.
In the chapter focused on speech as a civic practice, my critique of the “hurtful insult” is directed mostly at conservatives and my critique of the “conversation stopper” is directed mostly at liberals (though it is not difficult to think of cross-cutting examples for each of these). And when it comes to the aspirations of tolerance, humility, and patience, I tend to think, and tried to explain, that conservatives are more likely to resist the aspiration of tolerance and liberals are more likely to resist the aspiration of humility—but that both are needed to pursue a more confident pluralism.
Throughout the book, I do my best to name hypocrisy or inconsistency when I see it. For example, when it comes to the expressive nature of for-profit corporations, I express disappointment with both progressives and conservatives: “Many progressives were quick to defend Mozilla’s moral expression (and that of large corporations like Apple in the debate over Indiana’s religious freedom law) but view Hobby Lobby’s claims less favorably. Conversely, conservatives who ardently defended Hobby Lobby were quick to critique Mozilla and Apple. Whatever conclusion we reach as a society about the expressive and moral claims of for-profit corporations, it ought to apply across the ideological spectrum.”
Mark’s post raises some specific examples that emerged mostly after I completed the manuscript. On the subject of recent religious liberty legislation, I agree with Mark that most proposed laws have been neither carefully drafted nor narrowly focused, an argument that I made last fall in an essay coauthored with Michael McConnell and Rick Garnett. With respect to the so-called bathroom laws, I have criticized the North Carolina legislation and I have pushed back on overly dismissive arguments by religious conservatives. I do think, however, that some of the policy implications of transgender laws in other facilities and other circumstances are more complicated than Mark suggests.
Mark assumes a polarized binary between “secular liberals” and “religious conservatives” that I do not adopt in the book. For example, Mark references a story about some hate mail I received after I wrote about protests in Ferguson, Missouri. Mark assumes that the letter came from a “religious conservative.” But nothing in the story hints at the sender’s religious disposition, or whether the sender is liberal or conservative. (Indeed, I know nothing about the sender except for his temperament and his apparent dissatisfaction with my writing.)
I worry that Mark has assumed a “culture wars” mentality that sees only two sides. The shortcoming of that approach is that it forces an alignment of contested issues with ideologies that oversimplifies the views of many if not most people in this country. There are secular liberals and religious conservatives. There are also secular conservatives and religious liberals and all kinds of other combinations in between. And many people hold views on individual issues that, once aggregated, would not fit neatly into any of these labels.
I wrote in the introduction to Confident Pluralism that the goal of the book “is not to settle which views are right and which views are wrong. Rather, it proposes that the future of our democratic experiment requires finding a way to be steadfast in our personal convictions, while also making room for the cacophony that may ensue when others disagree with us.” That goal does not mean we will be able to engage with everyone who disagrees with us. I am unlikely to respond to the person who sent me hate mail. But I do hope to engage meaningfully with many of the people whose paths I cross. That includes colleagues, near and far, many who disagree with me on contested cultural and legal matters.
In the best cases, those encounters allow us to discover common ground in spite of profound disagreement. That is, for example, what I hope my colleague, Marion Crain, and I accomplished in our article “Re-Assembling Labor.” It is also, I trust, why scholars as diverse as Jason Mazzone, Tabatha Abu El-Haj, Ash Bhagwat, Tim Zick, Rob Vischer, and Steve Morrison have taken a renewed interest in the First Amendment’s right of assembly—perhaps because they find common ground in a constitutional principle despite deep differences on other matters.
Let me turn now to some of the more granular doctrinal arguments in Mark’s first two posts, which address my critique of the Court’s expressive association doctrine. (I should note that the section on expressive association inConfident Pluralism summarizes a more extensive argument that I make in my first book, Liberty’s Refuge: The Forgotten Freedom of Assembly.)
Mark defends the Court’s distinction between “expressive” and “non-expressive” associations as one of the “second-order rules whose justification lies in the fact, or hope, that a system implementing those rules will actually achieve better compliance with the first-order norms than a system in which courts attempt to enforce only the first-order norms.”
There are two problems with Mark’s argument. The first is that we have little evidence that the second-order formulation actually parses the first-order norms better than an undifferentiated right of association. The Supreme Court first recognized a right of association in its 1958 decision, NAACP v. Alabama. The doctrine quickly destabilized around the Court’s attempts to distinguish between the NAACP (which it wanted to protect) and the Communist Party of the United States (which it did not want to protect). It is not clear how a second-order formulation would have better honored first-order norms given the Court’s disparate treatment of Communists and civil rights workers.
The Court first introduced the second-order formulation of expressive association (alongside a separate right of “intimate association”) in its 1984 decision, Roberts v. United States Jaycees. Since then, it has held that private civic groups (like the Jaycees) are expressive but unprotected against gender antidiscrimination norms, that the Boy Scouts are expressive and protected against sexual-orientation antidiscrimination norms, and that a skating rink is “non-expressive.” Lower courts have concluded that motorcycle clubs, fraternities, fight clubs, nudist colonies, and other groups are all “non-expressive.”
It’s hard to see how these distinctions hold up. As I argue in the book, the category of non-expressive association “obscures the fact that all associative acts have expressive potential: joining, gathering, speaking, and not speaking can all be expressive.” For this reason, “it becomes very difficult, if not impossible, to police this line apart from the expressive intent of the members of the group. And many groups that might at first blush seem to be non-expressive could in fact articulate an expressive intent.” (I also note in the book, and in an article on Virtual Assembly, that the distinction between expressive and non-expressive becomes even more precarious once we consider its online applications.)
The second problem with Mark’s second-order argument is his assertion that “the Court’s distinction between expressive and non-expressive associations was motivated by a concern that ordinary commercial enterprises would invoke the right to justify policies of racial (and, later, other) discrimination.” I don’t think that’s right. The closest we get to that view is Justice O’Connor’s concurrence in the Jaycees’ case, a view that has never been adopted by a majority of the Court.
Even if Mark were right about the Court’s view, the two second-order formulations are not interchangeable—“commercial” is not an adequate proxy for “non-expressive.” Many commercial associations are “expressive” and some noncommercial associations are “non-expressive.” Hobby Lobby is expressive when it takes a position on birth control, and Delta Airlines is expressive when it threatens to boycott Arizona over the state’s religious freedom legislation. Conversely, both a gay social club and a Christian prayer group arguably fall short of the Court’s definition of “expressiveness,” even though both groups are clearly noncommercial.
One could, of course, adopt a pragmatic distinction between commercial and noncommercial associations. Andy Koppelman has called this view a “neo-libertarian” approach to the right of association, which he attributes to a diverse group of scholars including Michael McConnell, David Bernstein, Dale Carpenter, Richard Epstein, John McGinnis, Michael Paulsen, Nancy Rosenblum, and Seana Shiffrin. I find the distinction insufficient insofar as it leaves open the possibility of powerful monopolies emerging from within the noncommercial category. In Liberty’s Refuge, I propose a line between commercial and noncommercial associations that also accounts for the monopoly situation in the noncommercial context (a position for which Richard Epstein has criticized me).
In short, I agree with Mark about the pragmatic line-drawing; I just don’t think expressive association gets us there. But all of this is a bit beside the point when it comes to Confident Pluralism. The primary claim of the book with respect to the right of association—and the one that I wish Mark had focused on a bit more—is that current doctrine insufficiently protects the private groups of civil society—the very groups that we most need to live out confident pluralism.
The Racist Restaurant
Mark’s second post raises the oft-made but important hypothetical of the racist restaurant owner who appeals to the right of expressive association to exclude non-white customers. As I’ve already suggested, my own pragmatic view is that the right of association (or what I prefer to think of as the right of assembly) should not extend to commercial associations. That knocks out the different versions of Mark’s hypothetical, so let me turn to the harder case that I address in the book, the racist private school. Schools present a much harder and more interesting question than restaurants (in the latter example, I agree with Mark that antidiscrimination laws should prevail).
It seems in this instance that courts have made plausible distinctions on the level of social policy. When it comes to race-based discrimination against African Americans in the wake of widespread and damaging practices of the Jim Crow South, the schools have lost. When it comes to any other kind of discrimination (including other forms of race-based discrimination), the schools have typically prevailed. That is not to deny that people suffer real and tangible harms from discrimination on the basis of other characteristics, including gender and sexual orientation (which is one reason that I support a pragmatic line-drawing between commercial and noncommercial associations under which the former would not be protected under the right of association).
The Intended Audience of Confident Pluralism
In closing, I’d like to return to Mark’s third post and clear up one final point: it was never my intention to write to “intolerant, arrogant, impatient secular liberals,” any more than it was my intention to write to intolerant, arrogant, and impatient conservatives. The people who have already made up their minds and demonized “the other side” are unlikely to persuaded by my book, even if they happen to come across it. The people I am trying to reach are those who are predisposed to be more charitable to one another, even in the midst of deep and intractable disagreement. They are the people who are open to reasonable arguments, and willing to listen to different perspectives. To my good fortune, based on my interactions with him, Mark Tushnet is one of them.
Thursday, May 12, 2016
More on Tushnet on candor, the "culture wars", and taking a "hard line"
Like Paul, I read with interest -- and, in my own case, I was both provoked and taken aback by -- Mark Tushnet's recent post at Balkinization on "abandoning defensive crouch liberal constitutionalism." Although, like Mark, I look forward to a day when legal advocates and scholars don't have to read the entrails of, or purport to admire, Justice Kennedy's prose, I don't share Mark's enthusiasm for the substantive results and doctrinal changes he hopes (and I glumly assume) are on the way. (Mark wants to see more Brennan and Marshall; I'd rather see more Rehnquist and Roberts. We agree, though, that Casey was "wrong the day it was decided"!)
That said, and as someone who admires Mark's work and has cherished his mentorship, I regret that he wrote this, with respect to the so-called "culture wars" and the current religious-accommodations fights:
. . . My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) . . .
Mark has followed up his post with a new one, in which he reports that a number of readers, bloggers, commenters, etc., reacted very negatively:
Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).
He then goes on to say that what he means by "taking a hard line" is refusing to support broad, RFRA-type accommodations for the conservatives who have lost the "culture wars" and being very cautious about even more specific and narrow exemptions.
I wish, though, that rather than dismissing as snark-worthy the negative reaction to his invocation of the "hard line" taken after World War II and the Civil War -- i.e., the "hard line" taken against the supporters, enablers, and managers of two genocidal and racist empires, or against traitors fighting for slavery -- he had instead said that he got a bit carried away and that the comparison was inapt and inflammatory. His follow-up post represents, it seems to me, more of an adjustment to what he said in the first than a re-statement. In the follow-up, after all, he indicates some openness to some (limited, contained) accommodations and compromises, but the original post is reasonably read as rejecting even those (just as, presumably, the "hard line" taken with respect to Japan and Germany didn't include, and shouldn't have included, much openness to them):
. . . I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won. . . .
As I see it, if someone on what he calls in his posts "their side" had employed similar rhetoric, many would (understandably) have pushed back hard against the wisdom and merits of making a comparison that unsurprisingly was heard by some as an invocation of denazification or the IMTFE as helpful guides for dealing with one's defeated ideological opponents. In this case, Godwin's Law kicked in at the outset and the comparison, I think, undermined the possibility of Mark's post being part of a real conversation about the extent to which (if at all) religious actors may or should be accommodated going forward, if it really is the case that the "culture wars" have ended (or, perhaps, they've morphed -- with the campaigns of Trump and Sanders -- into something very different). . . .
. . . Which reminds me: I also think I might have a different understanding than Mark does about what, exactly, the "culture wars" were or are, and whether it makes sense to see them primarily as a "scorched earth" offensive (as opposed to, say, a series of limited-success defensive efforts, against Murphy Brown, W.A.S.P., "Hot, Sexy, & Safer," etc.) by conservatives. But that's a matter for another post, and I should probably re-read the original James Davison Hunter "Culture Wars" book first. . . .
Monday, April 25, 2016
NOMOS LVI ("American Conservatism") is out
NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy." Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented. Get your copy here! My own contribution, "The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism," is included. Here is the abstract:
A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.
That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.
Many thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!
Friday, April 22, 2016
Criminal Law Class Materials Request - Update
Back in January, I imposed on the Prawfs community for some suggestions about materials for a few stand-alone class sessions I was hoping to integrate into my standard first-year Criminal Law course:
A Criminal Law class-materials requestConsulting the blawg-oracle: I'm doing something new (for me!) in my first-year Criminal Law course, and I would welcome very much some help. I made some cuts in my usual coverage, and freed up three classes (75 mins each) for what I'm describing as "special" or "current debates" topics. I was thinking of (1) the "mass incarceration" phenomenon; relatedly (2) the "overcriminalization" debate; and (3) policing. As we all know, each of these topics could take up an entire course (and more) and I'm proposing to put together simply a 30-pages or so handout for each, for the purpose of just one in-class discussion (although, of course, these topics come up, in other contexts, throughout the semester).Take it away! Revise my syllabus!
Thursday, April 21, 2016
Alta is (still) for skiers
A few years ago, I noted here on Prawfs an equal-protection / "animus" challenge that had been filed against Alta Ski Area's (a/k/a "Heaven on Earth") skiers-only policy. The Tenth Circuit has ruled against "Wasatch Equality" on state-action grounds. Here is the opinion.
Sunday, April 17, 2016
Laptops in class (again)
For those of you who are keeping (as I am) a file or folder for the increasing number of pieces covering the "laptops in the classroom" issue, here's another item, from Weekend Edition.
Thursday, April 14, 2016
"Drunk Outlines": Marbury v. Madison
Wednesday, March 16, 2016
SCOTUS, religion, and age
As are, I assume, millions of others, I'm "watching" the live-blog of the Judge Garland nomination thanks to SCOTUSblog. Two quick, non-substantive observations: First, unless I'm remembering incorrectly, there has not been a Protestant nominated to the Supreme Court in 25 years (Justice Souter was nominated in 1990.) If Judge Garland were confirmed, it would continue to be the case -- as it has been since Justice Kagan joined the Court in 2010 -- that the Court is made up entirely of Catholics and Jews (and graduates of Harvard and Yale). Fascinating. Imagine what, say, John Adams would have said! Second, as others have noted, Judge Garland is the oldest nominee since Lewis Powell, almost 45 years ago.
Thursday, February 25, 2016
Conference Announcement: "Louis D. Brandeis: An Interdisciplinary Perspective"
Touro Law Center and the Jewish Law Institute are hosting a national conference, Louis D. Brandeis: An Interdisciplinary Retrospective. More than thirty judges, lawyers, and scholars, representing a broad range of disciplines and hailing from around the United States, will explore topics that include, among others: Brandeis's groundbreaking work as a lawyer and a scholar; his commitment to his Jewish heritage; his historic appointment to the Supreme Court nearly one hundred years ago; and his jurisprudence on the Court.
Sunday, February 21, 2016
Frank Pasquale on Law Schools' "double binds"
For the past few years, I had the pleasure of serving on the Editorial Board of the Journal of Legal Education with Prof. Frank Pasquale (Maryland), who was kind enough to share with me a paper he and I discussed, called "Synergy and Tradition: The Unity of Research, Service, and Teaching in Legal Education." Here's the SSRN abstract:
Most non-profit law schools generate public goods of enormous value: important research, service to disadvantaged communities, and instruction that both educates students about present legal practice and encourages them to improve it. Each of these missions informs and enriches the others. However, technocratic management practices menace law schools’ traditional missions of balancing theory and practice, advocacy and scholarly reflection, study of and service to communities. This article defends the unity and complementarity of law schools’ research, service, and teaching roles. (For those short on time, the chart on pages 45-46 encapsulates the conflicting critiques of law schools which this article responds to.)
Like The Man says, "highly recommended."
Sunday, February 14, 2016
Justice Scalia and the Blaine Amendments
Following up on Josh's post: For about 20 years, I've been hoping for -- and sometimes trying to contribute to to bring about -- a Court decision to the effect that the "Blaine Amendment"-type provisions in state constitutions (which, in my view, needlessly discriminate against religious institutions) violate the Constitution of the United States. The currently soon-to-be-argued Trinity Lutheran case appeared to be a decent candidate for a case that would produce such a decision. However, given the votes of Justices Breyer and Ginsburg in Locke v. Davey and Zelman, it seems likely that they'll endorse the lower-court opinion in that case (which allowed to Missouri deny an "application for a grant of solid waste management funds to resurface a playground on church property").
Wednesday, February 03, 2016
Bibas on "The Decline of Mercy"
Over at First Things, Prof. Stephanos Bibas - whose "The Machinery of Criminal Justice" I really enjoyed -- has a review of this book, "The Decline of Mercy in Public Life," by Alex Tuckness and John Parrish. Bibas concludes with this:
Justice requires discretion as well as rules, and it can coexist with mercy.
When our laws deny this truth, they grow mechanistic and inhumane. Strenuously squelching arbitrariness simply drives discretion underground (say, from judges and juries to prosecutors) or forces everyone into the same Procrustean bed. Exalting rights and censoring empathy can be heartless toward criminal defendants and debtors. Government social programs risk crowding out charitable expressions of love that remind ourselves that the poor are our brethren and we are all our brothers’ keepers. And all of these rule-based, bureaucratic approaches miss opportunities to inculcate the virtue of mercy in our hearts as well as in our children’s. Government cannot mirror Christian teaching, particularly in a pluralistic country. But it can leave more room for Christian insights to leaven rules with mercy, compassion, and love.
I shared the review with my CrimLaw students and thought it might be of interest to CrimPrawfs, too! And, I am reminded that our dear friend and colleague, Dan Markel, published an article early in his career -- in 2004 -- called "Against Mercy."
Thursday, January 21, 2016
A Criminal Law class-materials request
Friday, January 15, 2016
A symposium on Levy's "Rationalism, Pluralism, and Religious Freedom"
Here's my contribution to a symposium (there are a half-dozen others, too), hosted by the Bleeding Heart Libertarians site, on Jacob Levy's wonderful new book, Rationalism, Pluralism & Freedom (buy your copy here). A bit:
. . . Jacob is right, it seems to me, to highlight, within the “liberal understanding of freedom,” the “pluralist emphasis on the freedom found within and protected by group life against the power of the state.” He is on firm ground when he insists that “[t]here is no social world without loss” and that “[s]ometimes we will not be able to have the morally best degree of freedom of association and the morally best degree of protection against local tyranny.” And, he correctly reminds us that “[w]e cannot . . . simply point to the moral loss suffered by some relatively powerless or disadvantaged person within an association, religion, or cultural group and conclude that the group constitutes a local tyranny that must be dissolved or overruled by the state.”
He is right about all this, I think, not because religious institutions (or other non-state associations) never act wrongly or never inflict hurt and harm. They do (sometimes), just as liberal states do (sometimes). As I see it—and Jacob’s book is helping me to think harder and, I hope, better about the matter—the liberal practice of respecting the rights of religious and other associations’ distinct, even if non-liberal, practices is not merely a matter of “governance best practices” or a strategy about how to allocate scarce enforcement or litigation resources. Instead, the practice reflects the fact that a (good) liberal, constitutional government accepts—and not grudgingly—as given the fact that reasonable people, associations, institutions, and communities disagree reasonably about things that matter. Such a government is not merely resigned, but resigned comfortably, to the “crooked timber of free society.” . . .
Friday, December 18, 2015
A contribution to the SCOTUSblog symposium on the Little Sisters of the Poor
The good folks over at SCOTUSblog are hosting a symposium on the Little Sisters case, this term's religious-freedom challenge in the Supreme Court to the contraception-coverage mandate. Here is my contribution, "Integrity, Mission, and the Little Sisters of the Poor." A bit:
. . . What the Little Sisters and the other religious non-profits have done is simply invoked the protection of a near-unanimously enacted federal statute that reflects the longstanding values of our own (and any decent) political community and the foundations of human-rights law. The administration’s response, the Supreme Court’s response, and our response should not be resentment or disdain but a genuine willingness to ask, “well, why not?” We should spend less time interrogating, second-guessing, or criticizing as impertinent their assertion of religious-freedom rights and more time considering, in an open-minded way, whether it is possible – perhaps with a bit of effort and flexibility – to accommodate them.
Some religious employers, of course, have been accommodated by the administration. Religious houses of worship, and some affiliated institutions, have been exempted from the contraception-coverage mandate. The Little Sisters, however – like many religious hospitals, schools, universities, and social-welfare agencies – are engaged in the world. They heal, teach, serve, and employ some who do not share their religious faith, but theirs is nevertheless a religious mission. They aspire to carry out this mission, just as many of us aspire to live our lives, with integrity and character. The preventive-services mandate, they say, thwarts this aspiration by changing – indeed, by hijacking – their relationships with their employees.
This claim about the character-distorting and integrity-undermining nature of the mandate – including the limited “accommodation” that the administration has provided – should not be difficult to understand. . . .
Check out also the other posts from (so far!) Erin Hawley, Chip Lupu, Bob Tuttle, Leslie Griffin, Helen Alvare, Marcia Greenberger, John Bursch, Fred Gedicks, and Lyle Denniston.
Monday, December 07, 2015
50 Years Ago Today: The Declaration on Religious Freedom
On Dec. 7, 1965, Pope Paul VI promulgated Dignitatis Humanae, the Second Vatican Council's Declaration on Religious Freedom, "on the right of the person and of communities to social and civil freedom in matters religious." Here're the opening lines:
A sense of the dignity of the human person has been impressing itself more and more deeply on the consciousness of contemporary man,and the demand is increasingly made that men should act on their own judgment, enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty. The demand is likewise made that constitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations.
The Declaration and its anniversary were the subject of a really good conference, organized and hosted by the Notre Dame Law Review, a few weeks ago. John Garvey, the President of the Catholic University of America (and the former dean of the Boston College Law School) gave the keynote.
Thursday, December 03, 2015
"I am an Artisanal Attorney"
Are you tired of large corporate law firms making the same cookie cutter litigation? Do you fondly remember a time when quality mattered in law suits, when there was art and craftsmanship in every court motion filed, when company records were drafted using the traditional methods and tools? If you have become dissatisfied with mass-produced legal representation, stop by my scriveners shop; for I am an artisanal attorney. . .
Monday, November 23, 2015
"Of Foxes, Hedgehogs, and . . . Law School"
My former colleague, Dan Myers -- who is now the Provost of Marquette University -- has an essay in the Fall 2015 issue of the Marquette Lawyer called "Of Foxes, Hedgehogs, and Marquette Law School." He writes, among other things, that "[l]aw schools, like most academic divisions, have a natural tendency to operate more like hedgehogs than foxes, and this tendency is reinforced by an administrative structure that sets the law school in a somewhat peripheral functional location at a university. . . . It is incumbent on law schools to resist and to find ways of becoming more vulpine in their activities and reach."
Dan makes a good point about the potential of administrative (or even simply geographical) matters to "reinforce" "more like hedgehogs" practices. At the same time, I think there's a fair bit about legal education, legal scholarship, and the legal enterprise itself that has a "natural tendency" in the opposite direction. My impression is that, sometimes, this latter "natural tendency" is stunted not by anything inherent in or interior to the enterprise of law schools but instead by expectations in Universities' central administrations or other units that law schools should become less "vulpine" -- that is, more siloed, specialized, and heavily invested in specific methodologies.
Dan's piece points to some good things going on at Marquette and he expresses his support for them and their fox-like potential. I wonder, though, if part of the project of "find[ing] ways of [helping law schools] becom[e] more vulpine in their activities and reach" is to let them be themselves?
Tuesday, October 27, 2015
Prof. Paulsen's reprint "letter"
Prof. Michael Paulsen (St. Thomas) gave me permission to post his (I thought) awesome "reprint cover letter (with apologies to Jackson Browne and Glen Frey):
Thursday, October 22, 2015
Fr. Robert Araujo, S.J., R.I.P.
I had the pleasure of learning from, blogging with, and being inspired by Fr. Robert Araujo, S.J. -- a gentle interlocutor, a caring teaching, a careful teacher, a good priest -- for more than ten years. Those Prawfs readers who also had the chance to read Fr. Araujo's posts at Mirror of Justice know that -- whether or not one agreed with him -- he was a model of civil and thoughtful engagement with questions that matter.
If you didn't know him, I'd encourage you to re-read the inspiring "goodbye" he posted, at MOJ (here ), last August, when he went into hospice care. And for those unfamiliar with his story, and with the range of his scholarship, here is the link to his faculty web page at Loyola. Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May he rest in peace.
Friday, October 09, 2015
"The Rise of Corporate Religious Liberty": Pre-order yours today!
This book, "The Rise of Corporate Religious Liberty" -- to which I contributed this chapter on "The Freedom of the Church" -- can be preordered (in paperback, even!) now. Just in time for Alascattalo Day!
The book was edited with skill and heroic patience (toward me) by Micah Schwartzman, Zoe Robinson, and Chad Flanders. More than a few Prawfs guests and bloggers are among the contributors, who include Sarah Barringer Gordon, Paul Horwitz, Nelson Tebbe,Douglas Laycock, Christopher C Lund, Liz Sepper, Frederick Gedicks, Ira Lupu, Robert Tuttle, Robin West, Jessie Hill, and Mark Tushnet.
Here is the abstract for my chapter:
This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article responds to several leading lines of criticism and attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
Thursday, September 03, 2015
Chief Justice William H. Rehnquist
Ten years ago today, I got a phone call from my friend Janet, the old Chief's assistant, telling me that Chief Justice Rehnquist had died. Here's the short thing I wrote for Slate that day, remembering him and the experience of working for him. A bit:
. . . During my clerkship year, the chief, my co-clerks, and I played tennis together weekly at a public, outdoor court near Capitol Hill. (We played on the same day that the week's "cert memos," analyzing petitions filed by those seeking review of their cases, were due, so—more than a few times—clerks played without having slept.) We took turns driving and buying a new can of balls. I was the chief's doubles partner that year, and I several times beaned him with my hopelessly chaotic serves. One day, I am ashamed to admit, after yet another double-fault, I slammed my racket to the ground and yelled an extremely unattractive expletive. My co-clerks looked across the net at me in horror. The chief, though, didn't turn around. He just slowly bent over, put his hands on his knees, and started laughing. . .
The chief was a lawyer's lawyer. He taught and inspired me, and all of his clerks, to read carefully, to write clearly, and to think hard. He will, quite appropriately, be remembered as one of the few great chief justices. For me, though, William Rehnquist is more than a historic figure and a former boss. Today, thanks in no small part to him, I have a great job: I get paid to think, research, and write about things that matter and to teach friendly and engaged students about the law. I will always be grateful. And I hope that the deluge of political spin to come will not drown out what Americans should remember about the chief: He was a dedicated public servant, committed to the rule of law and to the court. He regarded himself as the bearer of a great trust and of a heavy obligation of stewardship. In my judgment, he was faithful to that trust, and he fulfilled that obligation.
Sunday, August 16, 2015
Submission angsting: Fall 2015
Here is the Fall 2015 "Submission angsting" post (and comments).
Thursday, August 06, 2015
Prof. Robert A. Burt
I was very sorry to learn that Yale Law School Prof. Robert A. Burt ("Bo") passed away on August 3. Here is a bit from Yale's announcement (quoting Prof. Anthony Kronman):
"The range of Bo's interests and accomplishments is startling enough. But what is more amazing still is that all of his writings express Bo's unfaltering belief in the value of conversation, dialogue and the continuing struggle to find common ground, and an abiding suspicion of authoritarianism in all its forms, whether it be a doctor's imperious prescription, or the Supreme Court's deaf assertion of power, or even God's declaration that he need not explain himself to anyone at all."
Kronman continued, "Bo's humane resistance to the reliance on mere power and his insistence that every type of authority, human or divine, is an interactive achievement, is the theme of all his writings. It represents the enduring achievement of this noble human being. It is there in his work for all to see. Still, I miss the man himself, and count his friendship among the best things that have ever happened to me."
Bo was a gentle, thoughtful, caring, generous, and deeply good man. He was also my teacher, mentor, and friend. I first "met" Bo in the pages of Prof. Joseph Goldstein's strange, but fascinating and provocative, Criminal Law casebook , in which his brief in the Michigan case of Kaimowitz v. Michigan Department of Mental Health -- which involved experimental psychosurgery on a prisoner -- was excerpted. He became for me, over the course of many conversations, a few classes, and my reading of several of his books, including The Constitution in Conflict, a model and an always-welcome challenge. Like many others, I learned so much from him. He shaped profoundly (but don't blame him!) what I think of as my academic vocation. He set, and lived, a standard for teacher-scholars that I wish I could meet.
The Yale Law School was fortunate, and many hundreds of YLS graduates are blessed, to have known, worked with, and learned from Robert Burt. May the memory of this righteous one be a blessing.
Wednesday, August 05, 2015
Submission angsting: Fall 2015
Well, given that the Christmas and Chanukah decorations and the Winter Starbucks flavors now kick in just after Halloween, I suppose it's no surprise that early August is already a bit late for the traditional Prawfs Fall submissions angsting thread.
So let the angsting commence.
If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.
Monday, July 27, 2015
Call for Papers: "Doing Justice Without Doing Harm"
Call for Proposals
“Doing Justice without Doing Harm”
Pepperdine University School of Law, Malibu, California
March 11-12, 2016
We hope you will join us for the conference discussed below. Mark your calendar, submit a proposal, and forward this message to blogs, list serves, and people who might be interested. Speakers already confirmed include the following:
Barbara E. Armacost, Professor of Law, University of Virginia School of Law.
Rabbi Elliot Dorff, Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy, American Jewish University
Brian Fikkert, Professor of Economics and Community Development and the founder and President of the Chalmers Center for Economic Development at Covenant College.
Richard W. Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, Notre Dame Law School
Gary Haugen, founder and president of International Justice Mission.
Richard H. Sander, economist and Professor of Law, UCLA School of Law
Nicholas Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology at Yale University and Senior Research Fellow in the Institute for Advanced Studies in Culture at the University of Virginia
Their topics and bios are at the end of this message.
Justice is a central theme in most secular and religious moral traditions, though there are significant disagreements about its content. As Alasdair McIntyre has asked, “Whose Justice?” During some periods of history there has been great optimism that the world was moving in a more just direction, generally followed by periods of great injustice and great disillusionment. (We seem now to be experiencing the latter.)
Our conference themes have ancient roots—“do justice” (Micah 6:8) and “do no harm” (Hippocrates). The first theme is a call to do justice and to serve a hurting world. What do our traditions say about justice to the 21st century? What are the great injustices and causes of suffering in our world? How might they be addressed by individuals, religious congregations, NGOs, and governments?
A second theme (raised powerfully in Steve Corbett and Brian Fikkert’s book “When Helping Hurts”} will be how individuals, groups, and laws might avoid doing harm as we attempt to do good. Attempts to help can generate dependence or harm bystanders. The work of governments and NGOs can undercut local institutions like religious congregations and businesses that might address local problems. Laws can have unintended consequences that do greater harm than good. We need to make a difference, but to do so wisely.
Please join us for the conversation. Panels of academics and people from a wide variety of organizations will address theory and practice--what works and what does not work.
Questions to be addressed might include:
- What do our secular and religious traditions teach about justice and its place in the 21st century?
- What is the relationship between justice and love?
- How can the law best be used to promote the ideals of justice.
- What is social justice and what is its relationship with other forms of justice?
- What are the greatest injustices in our world and what can we do about them?
- What are the greatest injustices in our neighborhoods and what can we do about them?
- What are examples of attempts to help the poor which have harmed them?
- How can attempts to do justice lead to injustice?
- How might we help those in the greatest need without harming them?
If you would like to present a paper or organize a panel that fits within this broad range of themes, please submit your proposal by September 15, 2015 via email email@example.com. Proposals should be two pages maximum and should include a short abstract and a bio.
If you have questions about the substance of the conference, contact Bob Cochranrobert.firstname.lastname@example.org or Michael Helfandmichael.email@example.com For questions about the details of the conference, contact Jenna Anderson firstname.lastname@example.org or (310) 506-6978.
For information on the conference as it becomes available and to view details of past conferences, see:
The conference will be co-sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and its Glazer Institute for Jewish Studies.
All our best,
Bob Cochran & Michael Helfand
Robert F. Cochran, Jr.
Louis D. Brandeis Professor of Law and
Director, Herbert and Elinor Nootbaar
Institute on Law, Religion, and Ethics
Michael A. Helfand
Associate Professor of Law and
Associate Director, Glazer Institute for Jewish Studies
Pepperdine University School of Law
24255 Pacific Coast Highway
Malibu, California 90263-4611
Sunday, July 19, 2015
Complicating the "Trolly Problem"
I had thought the Trolly Problem and its many, many variation was becoming yesterday's news but . . . not so fast. This piece in Wired and this one in Popular Science (HT: Gizmodo, here) suggest that the coming of robot-cars and the matter of their programming might add new life to the question. Maybe a film, "Droids on the Mignonette"? If only Brian Simpson were still among us . . .
Monday, July 13, 2015
The "Limits of Religious Liberty": Complicity and Dignity
A few days ago, in the NYT Magazine, Emily Bazelon had this piece, What Are the Limits of "Religious Liberty"? Among other things, Emily gave a nice shout-out to Profs. Reva Siegel and Douglas NeJaime, who have this new article in the Yale Law Journal, "Conscience Wars: Complicity-Based Conscience Claims in Religion in Politics." I was a participant in a conference at which this paper was presented, a little over a year ago -- here's what I said -- and think it's definitely an important read. I also think, though, that some of its primary claims are unconvincing. I recommend that those who read it consider also reading, among other things, Marc DeGirolami's essay, "Free Exercise by Moonlight," which engages helpfully the claims I have in mind.
The Siegel & NeJaime article covers a lot of ground. Among other things, they contend that "complicity-based" conscience claims are distinctive, and raise special concerns, "because accommodating claims of this kind has the potential to inflict material and dignitary harms on other citizens. . . . Complicity claims focus on the conduct of others outside the faith community. Their accommodation therefore has potential to harm those whom the claimants view as sinning." (The quoted language is from the SSRN abstract.)
It does not seem to me, though, that B is necessarily wronged or demeaned by A's determinations that (a) B's conduct or proposed conduct is or would be immoral and (b) actions and intentions of A that would create culpable complicity with B's conduct should be avoided. Certainly, it's possible for these determinations to be communicated in an insulting or demeaning way. And, a determination by A that "B is not the kind of person with whom I want to interact" or "B is unworthy of my interacting with her" could raise, I think, the concerns NeJaime and Siegel raise. The paper argues, though, that even implicitly calling an act or omission immoral, or a "sin," insults, demeans, and wounds the dignity of the actor. This sweeping claim seems hard to square with our practices and policies. (Marc DeGirolami has more on this point, here.)
Relatedly, it strikes me as misguided to insist that the law necessarily demeans or insults B by accommodating (to the extent it is reasonably possible) A's religiously-based desire not to be complicit in what A believes to be B's wrong. Even if A's moral judgment is, we think, itself wrong or unattractive, the government's accommodation of A's religiously based conclusion is not an endorsement of that conclusion, but only of the general desirability of accommodating, to the extent possible, religious commitments and exercise. What's more, if a law demeans when it allows an exemption for religious complicity-claimants, then why does it not demean when it mandates, without exemption, the cooperation to which the claimants object? That is, why shouldn't the law from which the exemption is, for complicity-avoiding reasons, being sought (say, a law requiring pharmacists to provide an abortion-causing drug) be regarded by the exemption-seeker as imposing on her a "dignitary harm", i.e., the harm of having one's moral commitments and reasoning not only rejected-on-balance, but also disapproved and found wanting?
I question the premise that inquiring into one's moral responsibility for -- or, one's complicity in -- another's act and, as part of that inquiry, evaluating the morality of that act, involves any "demeaning" of the other. Again, if it amounts to "demeaning" -- and, more specifically, if it amounts to causing a "dignitary harm" that triggers, as some have argued, Establishment Clause limits -- another person to conclude that that other person has engaged in an act that is wrong and so to decide to avoid complicity with that act then we'll have to reexamine a whole lot more than particular applications of RFRA-type laws.
In addition, I don't think it's entirely right to say that "complicity claims focus on the conduct of others outside the faith community." As I see it, when we talk about "complicity" (see, for example, the Model Penal Code's treatment) we are asking about the extent to which one person is morally responsible, or morally blameworthy, by virtue of her own conduct and state-of-mind, for the conduct of another. The accomplice's responsibility -- her state of mind and her assistance, encouragement, or facilitation -- is, I think, at least as much the "focus" of the inquiry as the action done or the harm caused by the other. (And, again, it seems to me that the character, worth, dignity, or identity of the other need not be part of the inquiry at all.) True, the reason we care about the accomplice's responsibility is usually because we have identified someone else's wrong -- or, more precisely, a harm caused or wrong done or wrong attempted by someone else -- but the focus remains, I think, is on the accomplice. (Sometimes, we even conclude that an actor is morally responsible for another's wrongful act or harm caused although the other is, for one reason or another, not blameworthy for that act or harm.
In any event, read Siegel and NeJaime, and also read DeGirolami. I remain, for what it's worth, concerned that the emerging focus on the "third-party harms" and "dignitary harms" said to be caused by legislative accommodations of religion threatens to excessively constrain our ability to vindicate the fundamental right to religious liberty in our context of increasing regulatory activity, dissensus, and diversity.
Thursday, July 09, 2015
What to read the summer before law school?
Michael Krauss (George Mason) has some suggestions in the WaPo, here. (I was happy to see the shout-out for my former colleague Pat Schiltz's article on "being a happy member of an unhappy profession.) A while back, when I was an associate dean, I put together a similar list for our incoming first years at Notre Dame. (My list, like Krauss's, included The Bramble Bush, but I couldn't resist adding John Noonan's Persons and the Masks of the Law.).
What would be on your list?
Sunday, July 05, 2015
"The Constitutional Legacy of William Rehnquist"
It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.
Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.
A great summer gift -- or, a not-very-effective paperweight -- for the lawyers and law students in your life!
Tuesday, June 23, 2015
Thomas More's advice for bloggers
Yesterday, for some, was the feast day of St. Thomas More (patron saint of lawyers and statespersons). It turns out, he was also pretty prescient w/r/t social media. Here is some advice from him for bloggers!
An excerpt from a letter of St. Thomas More to Erasmus, written on the 14th of June, 1532:
Congratulations, then, my dear Erasmus, on your outstanding virtuous qualities; however, if on occasion some good person is unsettled and disturbed by some point, even without making a sufficiently serious reason, still do not be chagrined at making accommodations for the pious dispositions of such men. But as for those snapping, growling, malicious fellows, ignore them, and, without faltering, quietly continue to devote yourself to the promotion of intellectual things and the advancement of virtue.
(HT: Ryan Patrico).
Monday, June 15, 2015
Joseph Vining on the thought of John Noonan
Joseph Vining has posted (here) a short paper called "Reading John Noonan," which is forthcoming in the Villanova Law Review. The abstract is short-and-sweet:
John Noonan is a giant in American law and legal practice -- a distinguished legal historian and a true judge. His reflections on the nature of law have a special importance. This essay is a comment on basic elements in his thought.
And, check out the keywords:
jurisprudence, slavery, universality of value, development and change, morality, history, person, legal person, individual, equity practice, human rights, utilitarianism, positivism, humanism
Wednesday, May 27, 2015
"Should Washington Try to Change Religious Beliefs?"
. . . The idea that public authorities and officials should take editorial aim at certain religious beliefs and revise them to better serve the government's needs should make Americans uneasy. It seems to conflict with foundational and constitutional commitments, with James Madison's famous assertion that religion is "wholly exempt" from the "cognizance" of "civil society," and with Thomas Jefferson's insistence that the "legitimate powers of government" don't extend to religious views because "it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket," he quipped, "nor breaks my leg."
In fact, though, governments do care — even if they do not always admit it — about what religious people believe and what religious leaders teach. . . .
Religious freedom under law is an accomplishment, one that is both relatively new and always vulnerable. It is vulnerable precisely because it is often inconvenient to political authorities and officials. The constitutional rules that governments are supposed to keep out of religious disputes and stay away from religious questions are good ones, but it is important to remember that they cut strongly against what they have always done and probably always will try to do. And so, if we value religious liberty and freedom of conscience, we will be on guard not only against overt change-campaigns like China's but also against nudges, temptations, and bribes from our own leaders.
Monday, May 11, 2015
Governments do not simply encounter religious beliefs and teachings, they also do and seek (without always admitting it) to shape and manage them, their content, and their development. A recent reminder: Hillary Clinton was in the news recently when she said, in a speech, that "deeply seated religious beliefs" "will have to be changed" in order to secure broader abortion rights and access to reproductive health care and contraception.
Another: this story ("China orders Muslim shopkeepers to sell alcohol, cigarettes, to 'weaken' Islam") shows a modern government seeking, for its own purposes, to weaken the hold of religious beliefs on its subjects by, in part, undermining those beliefs. Here's a bit:
Chinese authorities have ordered Muslim shopkeepers and restaurant owners in a village in its troubled Xinjiang region to sell alcohol and cigarettes, and promote them in “eye-catching displays,” in an attempt to undermine Islam’s hold on local residents, Radio Free Asia (RFA) reported. Establishments that failed to comply were threatened with closure and their owners with prosecution.
Facing widespread discontent over its repressive rule in the mainly Muslim province of Xinjiang, and mounting violence in the past two years, China has launched a series of “strike hard” campaigns to weaken the hold of Islam in the western region. Government employees and children have been barred from attending mosques or observing the Muslim fasting month of Ramadan. In many places, women have been barred from wearing face-covering veils, and men discouraged from growing long beards.
Both stories, it seems to me, are reminders that claims about government "neutrality" with respect to religion are as much aspirational as historical or descriptive. Governments care about religious beliefs and always have. Our constitutionally expressed hope is that we can meaningfully constrain our authorities from doing what, as authorities, they could be expected to do, i.e., manage the content of religion for their own purposes (which might, of course, be entirely good purposes).
It's worth remembering, I think, that governments are not limited to heavy-handed tactics like China's -- licensing requirements, accreditation standards, spending conditions, and (as we have been reminded recently) tax exemptions are also available to good, liberal, constitutional governments. I explored this idea, a decade or so ago, in this article, "Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine":
Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when "civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents "hazards" of its own, and its premises - if uncritically embraced - can subtly distort our constitutional discourse.
This Article provides a careful and close examination of the statement's premises and implications, and concludes that, far from being a "purely ecclesiastical concern," the content of religious doctrineand the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be "neutral" with respect to religion's claims and content. As this Article shows, the content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate - that is, to transform - religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and, therefore, in the "development," of religious doctrine - an interest that they will, if permitted, quite understandably pursue - that authentic religious freedom is so fragile.
UPDATE: Prof. Steve Lubet sends me this note (and gave permission for me to add it to the post):
My question is whether you have seen a transcript of the Hillary Clinton speech that you characterize as “managing religion.” I have not seen one (and I am not sufficiently motivated to listen to the 22 minute video), but I think it is likely inaccurate that she was suggesting that “attitudes have to be changed” by the government. You are reading a lot into the words “to be.” It is at least as plausible, I think, to assume she meant that attitudes will simply have to change – as social attitudes often do – on their own, before there is widespread acceptance of reproductive rights.
Clinton does not, as far as I can tell, identify the change agent. Lumping such a statement along with Chinese government coercion is, I think, quite a stretch.
Monday, May 04, 2015
The Conference Manifesto
At the New York Times "The Stone" page is Christy Wampole's "The Conference Manifesto." The "manifesto" opens with this:
We are weary of academic conferences.
We are humanists who recognize very little humanity in the conference format and content.
We have sat patiently and politely through talks read line by line in a monotone voice by a speaker who doesn’t look up once, wondering why we couldn’t have read the paper ourselves in advance with a much greater level of absorption.
We have tried to ignore the lack of a thesis or even one interesting sentence in a 20-minute talk.
Our jaws have hung in disbelief as a speaker tries to squeeze a 30-minute talk into a 20-minute slot by reading too fast to be understood. . . .
Ouch. Read the whole thing.