PrawfsBlawg

Pithy graduation exhortation

This morning, at the graduation-day prayer service organized by the Notre Dame Law School Class of 2012, one of the readings was from Micah:  "[D]o justice and [] love goodness, and to walk humbly with your God."

Best wishes and congratulations to all the new law-school graduates!

Skyscrapers in D.C.

When I was a kid, in Anchorage, I was giddy with excitement and flush with pride when we got (what seemed like) two bona fide skyscrapers -- big glass boxes, each more than 20 (!!) stories high. 

When arcane baseball stats just weren't enough, I would memorize lists of "the ___ tallest buildings in _____," and I once did a school presentation of some kind on Philadelphia's (then) practice of not allowing buildings taller than the William Penn statue.  Goofy, I know . . .

Anyway, all this might explain why this piece, in Slate, caught my eye.  If the (non-church) skyscraper is a kind of American invention -- a hallmark of great cities like Chicago and New York -- then Washington, D.C., is kind of an American anomaly, no?  I guess that, despite my youthful skyscraper geekery, I have always liked the way D.C. looks (and not because I have any ideologically motivated desire to somehow elevate government buildings over commercial ones).  But, the piece makes me wonder if I'm wrong.  If D.C.'s somewhat "parisian" look increases businesses' rents and tourists' hotel expenses, is it worth it?  How would we know?   

"In the Whirlwind"

I received from the library today my hot-off-the-presses copy of my teacher Robert Burt's new book, In the Whirlwind.   I'm really looking forward to it.  Here's some blurb-age:

God deserves obedience simply because he’s God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God’s authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.

In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God’s relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.

Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.

On teaching Criminal Law again . . . and getting stoked

It's probably not on par with finding one's long-lost "rad-ass hoodie" (warning:  This Onion News Network clip has some bad words), but pushing my way back into the rotation for teaching first-year Criminal Law next year has me stoked.  Although I don't write in the area, I have always found teaching the subject to students in their first year (at Notre Dame, their first semester) of law school incredibly rewarding and fun. 

Anyway, here's a bleg for Prawfs readers and bloggers:  I would welcome thoughts and suggestions for changing, or even re-working, the traditional first-year Criminal Law class, based on your experiences in recent years, involving new books, teaching cases, outside readings and materials, films and clips, subjects, etc.  (An example:  Because I have used Joshua Dressler's book, I've always spent a lot of time on necessity, on justification and excuse, etc., and current events certainly put these questions at center-stage.  Another:  I worry that I have not "done enough," in my class, to get students thinking about "criminology" and "criminal justice," as opposed to "criminal law."  What do you all do?)

Thoughts?    

The mandate, conditioning the environment, and "The Myth of Judicial Activism"

As I read today's (to me) depressingly predictable op-ed by E.J. Dionne, in which -- in what seems to me a pretty obvious attempt to "condition the environment," and pre-fab some outrage, by invoking Bush v. Gore, Citizens United, etc. -- he anticipatorily accuses the Court's "conservatives" of "activism" for seeming to consider invalidating the insurance-mandate aspect of the Affordable Care Act, I was reminded of Kim Roosevelt's book, from a few years ago, The Myth of Judicial Activism.  (Kim and I discussed his book, and the "activism" charge, here, at the PENNumbra site.)

I genuinely don't know what the Court will do with the mandate, and I'm not sure what I think the right answer is to the question, "Does the Constitution, correctly understood, authorize Congress to enact it?"  (I do think the question is interesting and important and hard, and I am sure that Dahlia Lithwick is wrong in thinking that the question's answer is obvious and that only low politics and hackery could explain a Court ruling that the answer is "no.")  I also think that not many people -- not E.J. Dionne and not most other critics of the Court's "conservatives" -- really oppose "judicial activism," and so I can only sigh at his concluding charge that "a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. "  (Is Dionne a big fan of stricter standing doctrines?  Did he lament Boudmediene, or Roper?)   

I know there are some principled and consistent Thayerians out there -- some write for this blog -- but they do not seem thick on the ground.  It seems to me that what most of us (for better or worse) want and praise is a Court that strikes down government actions we think are bad and upholds ones that we think are good; that what we lawyers probably should want and praise is a Court that invalidates laws that are actually (and pretty clearly) unconstitutional (good or bad) and reasonably applies the rest (good or bad); and that complaints about "activism" are more often political-rhetoric moves than the conclusions of arguments.  If the Constitution gives Congress the power to impose the mandate, then of course the Justices should "defer to those elected to make [that] law[]"; but if it (pretty clearly) doesn't, then they should not.  No? 

Religious Freedom and (and in) Institutions

Here is a short chapter, called "Religious Freedom and (and in) Institutions," which I contributed to a just-published volume, Challenges to Religious Liberty in the Twenty-First Century" (Cambridge 2012), edited by my colleague Gerard Bradley:

This paper is a contribution to a volume of essays dealing with a range of contemporary challenges – challenges posed by new questions, and by new forces -- to religious liberty. It considers the role that religious communities, groups, and associations play – and the role that they should they play – in our thinking and conversations about religious freedom and church-state relations. And, its primary claim is that the values and goods that the First Amendment’s Religion Clauses embody and protect are well served by a civil-society landscape that is thick with churches (and mediating institutions and associations of all kinds) and by legal rules that reflect their importance. These institutions contribute in distinctive ways to the reality of religious freedom under law.

Much more interesting is the fact that Kent Greenawalt and Steven Smith also contributed chapters.  Check it out!

Stanley Fish, "Failing Law Schools", and Institutional Pluralism

Here, in the New York Times.  Fish writes that "Tamanaha’s analysis pretty much tracks [David] Segal’s, but his book is more ambitious in its scope and puts statistical flesh on the bones of Segal’s polemic."  I'd be surprised, given what I've read from Brian, if the book really track's Segal's pieces, which I thought were burdened by the tired "law schools focus too much on theory instead of teaching really useful things, like _____" critique.  But, it seems to me that both Fish and Brian are spot-on in directing heavy criticism at the role played in legal education by the ABA and U.S. News (and on how these entities perform that role). 

This caught my attention:

And the solution? In a word, differentiation. Don’t let the A.B.A. and U.S. News call the tune. Instead, take a good look at the educational landscape, at the market, at the costs, at the demographics and come up with a flexible system that matches law school graduates to needs: “Research oriented schools will remain as they are. Practice-oriented schools will be staffed by experienced lawyers; … research institutions will be staffed by scholars mainly engaged in research; other schools will be staffed by both types.” Different strokes for different folks.

This strikes me as a good and important point, but maybe we can (channeling Paul Horwitz?) push the point further:  Not only the ABA, but also the AALS and the academy generally, should welcome and encourage what John Garvey a few years ago called "institutional pluralism" in legal education.  This would involve, among other things, appreciating the role and purpose of distinctively religious law schools.  A few years ago, Madisonian.net hosted a forum on law schools, and I contributed this post, also on "institutional pluralism":

. . . this might not be the forum for thinking-out-loud about what a “Catholic law school” should be, what precisely should be its distinguishing features, etc.  In my view, the project of building such a law school — an engaged, open, critical, and distinctively Catholic law school — is not an exercise in nostalgia, reaction, or retrieval.  The project is, in my view, a new one.

It’s also, I think, an exciting and worthy one, and I’m inclined to think that it should be regarded as such by the legal academy generally, not just by co-religionists and the like.   It is not just “not a bad thing”, it is a good thing, that there be distinctive law schools.  Our commitments to diversity need not, and should not, lead us to insist on homogenization at the level of institutions.  Quite the contrary — the same commitments that push us to respect and learn from diversity in many academic settings might also push us — and the AALS, and the ABA — to stay our hand from requiring that each institution look and act in precisely the same way.

Garvey fleshes out a number of reasons — reasons that I find persuasive — why we might think that institutional pluralism in the academy is a good thing.   It seems to me that we ought not to resist, but instead should welcome, not only law schools that have focused on serving underserved populations, or law schools with a particular strength in a specific subject-matter area (for example, Lewis & Clark in environmental law), or even law schools with a particular animating point-of-view (Law & Economics at George Mason?), but also law schools that are distinctive in being meaningfully animated by a shared — even if contested — religious tradition.

 

"Government and its Rivals"

A (long) while ago, in this essay, "The Story of Henry Adams's Soul:  Education and the Expression of Association(s)," I wrote: 

[W]e not only speak through associations and rely on mediating institutions for the civic space in which to engage in such expression, but we are also . . . spoken to and formed by them.  Indeed, this is one reason why associations are able to play their structural role, described above, as society’s hedgerows.  It is not only that they are concentrations or blocs of political power, which can be marshalled against that of the state; they are also the state’s competitors in the arena of education and formation.  . . . 

[T]he state competes with the mediating institutions of civil society, and its expression competes with that of associations, for the privilege of educating.  The freedom of expressive association, then, is not only the freedom enjoyed by individuals of expressing themselves through their associations, but also the freedom of associations to serve and speak as rival sources of values and loyalties.

I "heard" Ross Douthat making a similar point the other day, in the New York Times, in this piece (which I thought was very thoughtful but which quite a few commenters seemed not to like), "Government and its Rivals," which addresses the recent decision by HHS to require most religious institutions and employers to provide coverage, in their health-care plans, for contraceptives.  He noted, among other things, that:

When government expands, it’s often at the expense of alternative expressions of community, alternative groups that seek to serve the common good. Unlike most communal organizations, the government has coercive power — the power to regulate, to mandate and to tax. These advantages make it all too easy for the state to gradually crowd out its rivals. The more things we “do together” as a government, in many cases, the fewer things we’re allowed to do together in other spheres.

Sometimes this crowding out happens gradually, subtly, indirectly. Every tax dollar the government takes is a dollar that can’t go to charities and churches. Every program the government runs, from education to health care to the welfare office, can easily become a kind of taxpayer-backed monopoly.

But sometimes the state goes further. . . .

Paul Horwitz, author of the soon-to-be-groundbreaking First Amendment Institutions, and John Inazu, whose Liberty's Refuge is already out and burning up the charts, might (along with other Prawfs readers) have some helpful thoughts and reactions here. 

Lateral hiring news at The Faculty Lounge

Over in The Faculty Lounge, Dan Filler is, once again, tracking the latest in lateral moves.  Help him keep his list current and accurate!

McGinnis, Mangas, and Rodriguez on "Killing the Law Schools"

In the Wall Street Journal, John McGinnis and Russell Mangas suggest "killing" (not really) the law schools as a way to increase the number of attorneys and lower legal fees.  At his new "Word on the Streeterville" blog, now-Dean Dan Rodriguez of Northwestern responds: 

. . . What would this reform do to legal education generally?  Not much good, from my perspective.  The legal profession is becoming considerably more, rather than less, complex over time.  Appeals to, as they write, the “ancient common law” is rather quaint.  There is, to be sure, a core and a canon which every well-trained lawyer should have exposure to, and two years may do the trick.  But there is much beyond this core, as lawyers grappling with a technologically sophisticated, globally interdependent, socially and economically diverse legal and business world well appreciate.  Lawyers tell us in the academy that we are not doing enough to get our students ready to practice.  They insist on greater skills training, more clinical experience, more integrated law/business curricula, and opportunities within the post-graduate structure to gain on-the-job practical experience through internships and externships.  And what McMangas has on offer is tossing that aside to be replaced with two years worth of presumably in-class exposure to the “ancient common law” and a few additional goodies.  Leave aside the self-interest of the professiorate.  That’s not what lawyers tell us that they need. . . .

Rodriguez has also posted a detailed reply by McGinnis and Mangas.  Thoughts?  Certainly, there are loads of smart undergraduates who could, without the assistance of an increasingly expensive law-school education, pass a bar exam after an undergraduate law course and competently provide a range -- though not the full range -- of legal services.  And, since I'm inclined to think that more than a few of the standards and regulations that are imposed (by the A.B.A. and the A.A.L.S.) on law schools as a condition of producing bar-eligible lawyers are homogenizing, heavy handed, simplistic, misguided, and/or products of special-interest lobbying, rather than careful responses to the demonstrated needs of students, clients, and the profession, I see some appeal to the McGinnis / Mangas call for a "more flowers blooming" market.  On the other hand . . . 

What do you think? 

Olin-Searle-Smith Fellowships for would-be Prawfs

I thought some readers might be interested in the Federalist Society's Olin-Searle-Smith Fellowships for "top young legal thinkers the opportunity to spend a year working full time on writing and developing their scholarship with the goal of entering the legal academy."  Some super-able relatively junior prawfs have been launched by these Fellowships.  More information here.

Court unanimously embraces the ministerial exception in Hosanna-Tabor

I confess, I expected the usual "decision in late June," but I'll certainly take this:  In an opinion for a unanimous Court, Chief Justice Roberts ruled in Hosanna-Tabor that the Constitution requires a ministerial exception, and that the exception applied in that case.  Importantly, the Chief Justice rejected the idea -- it "misses the point," he said -- that a religious institution must assert a "religious reason" for an employment decision in order to trigger the Constitution's limits on government involvement in the selection of ministers.  Also very important, I think, was the Court's clear rejection both of the Sixth Circuit's "count up the hours" approach to identifying "ministers" and its emphasis on the fact that the teacher in this case had "job duties" that "reflected a role in conveying the Church's message and carrying out its mission."  In other words, the exception is clearly not limited to ordained clergy.

Many of us have blogged often about the case and the questions it raises.  I'm sure the conversation will continue.  Suffice it to say (for now) that, in my view, this decision is important, correct, and welcome.

UPDATE:  Here's my insta-punditry, at USA Today, about the case:

At a time when the elected branches of government seem divided and dysfunctional, and when candidates in primary elections struggle to magnify every disagreement, it was nice of the Supreme Court, led by Chief Justice John Roberts, to remind us today that clear, efficient, consensus, and correct decisions about things that really matter are still possible . . .

Holiday cards, former students . . . and The Circle of Life

I'm one of those tree-killing, self-indulgent people who imagines that sending out 3"X 7" Christmas cards with "smiling family in front of the year's best backdrop" pictures is actually a welcome and meaningful way of maintaining relationships with friends and aquaintances, old and new.  Facebook, twitter, e-mail, postage-hikes, and increased environmental awareness notwithstanding . . . I can't stop. 

This year, I was particularly struck by the fact that some of the similar (though, of course, more tasteful and engaging) cards I received from former students revealed that, well, they are doing really interesting things, forming and nurturing growing families, and maybe (like me) aging a bit.

I worry that this sounds patronizing, and I hope it doesn't.  The point is not, "Awww, the little dears!"  Instead, for me, there's something, well, nice about being reminded that these former students of mine, who have become my friends, are closer, in a way; they have joined me in the business -- the vocation -- of integrating life, work, family, community.  Once, I was (or, I tried to be) their teacher; now, we are in this together.  I know this sounds awfully Lion King / Circle-of-Life-ish but . . .  oh well.  Happy Hol(y)days.

Burt, "In the Whirlwind"

My teacher Robert Burt (Yale Law School), has published a new book called "In the Whirlwind:  God and Humanity in Conflict."  Here is the blurb:

God deserves obedience simply because he’s God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God’s authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.

In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God’s relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.

Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.

Looks fascinating!

"Our Boggling Constitution" wins! Congrats to Paul!

The Green Bag has honored Paul Horwitz's "Our Boggling Constitution:  or, On Taking Text Really, Really Seriously" (which appeared in Constitutional Commentary) as one of 2011's pieces of "exemplary legal writing."  The short, and very funny, piece is here: 

 This light essay takes a jaunty two-step beyond textualism and beyond intra-textualism, and offers a new approach to constitutional interpretation: intra-intra-textualism. Just as textualism involves taking the whole text of the Constitution seriously, and intra-textualism involves taking the words of the Constitution seriously, so intra-intra-textualism proposes that we take the letters of the Constitution seriously. Inspired by Boggle, and by the various text-twist type games I can't seem to stop playing on my Iphone, intra-intra-textualism, or "Our Boggling Constitution," argues that if the words of the Constitution have authoritative interpretive meaning, then so must its letters -- especially when they are jumbled together and rearranged. Besides offering new sources of legitimacy, flexibility, and professional advancement, Boggling Constitutionalism, unlike most other theories of constitutional interpretation, is also fun for the whole family. This humor piece, which was initially published anonymously, is a nominee in the Green Bag Almanac & Reader's list of exemplary legal writing over the past year.

Complaints about law schools as efforts to shift costs to law schools

Just a quick thought on the David Segal piece, following up on Matt's and Michael's posts:  First, I think we are all sensitive to the fact that a great many of our students and recent graduates are anxious about the job market for lawyers and about the heavy weight of student-loan debts, and articles like Segal's reflect (even if they also exploit) that justifiable anxiety.  And, one does not have to be the scam-blogger to think that those of us who are blessed with the opportunity to teach and write about law have a moral obligation to prioritize the task of reducing (even though we cannot eliminate) that anxiety, in every way that we can.

That said, I thought the Segal piece was, at the end of the day, off-base.  It has its true, and truthy, moments, but it seems to take as its starting point a claim about legal eduation that is clearly false, namely, that there is something new about the fact that law schools do not produce graduates who are, at graduation, practicing lawyers, but instead produce graduates who have been comprehensively trained and pushed (we hope) to "think like lawyers."  There never was a time, though -- or, there hasn't been a time since Langdell, etc. -- when recent graduates were "practice ready" and, if anything, today's graduates are the beneficiaries of more practical and experiential opportunities than were available before law professors got side-tracked by "chin stroking" scholarship.

I think that what's going on here is not that courageous voices-of-reform are urging a return to a better time of more "practical" legal education -- a time before those gosh-darn crits and economists forgot about the need of the bench and bar for more useful treatises -- but is instead that law-firm partners, confronted with the fact that clients are no longer willing, as they long were, to pay for the work of young associates (and thereby both subsidize the apprenticeship of those young lawyers and enable partners to take home more money than their own billables would warrant), are finding it convenient to take advantage of the anxieties caused by the economy (and perhaps also by the publicly-subsidized over-production of lawyers) and to dress up as "calls for reform" their efforts to shift the work (and costs) of training and apprenticeship -- work that was always more theirs than the law school's -- to law schools.

In other words, in the spirit of "not letting a crisis go to waste," I think this piece is (yet) another example of dressing up familiar (and often self-interested) complaints about legal education as insightful and brave calls for urgently needed reform.  We are in a recession, and our law schools are producing more lawyers than, it appears, the legal sector is able (or willing) to absorb.  This is a problem, but it has nothing to do with what's in law-review articles.

Get your "First Amendment Stories"!

Shamelessness ahead:  First Amendment Stories (Foundation 2011), edited by Andrew Koppelman and some guy named Garnett, is out and available.  Buy yours today, here.  It would make a wonderful ____ gift for, well, anyone.  The stories of 17 of the Court's most interesting and important free-speech and religious-freedom cases and controversies -- from the Sedition Act to the Ten Commandments and football-prayer and lots of ones in between -- are explored in depth by a diverse group of First Amendment scholars, including Prawfs' own Paul Horwitz and guest-blogger Scott Moss.  As Larry Solum might say:  "Highly recommended" and "[buy] it [whether or not] it's hot"!

Letters of recommendation, and gratitude

A few months back, I received the file that "my" judge had kept on me.  It contained our correspondence, before and after the clerkship, and a few other snippets and photos that I imposed on him over the years.  It also contained the letters of recommendation that my professors and law-firm supervisors had submitted on my behalf.  Reading those letters, I was (not to sound too melodramatic or cheesy) really overcome with gratitude to those who wrote them.  Putting aside the fact that, in accord with tradition, they made me sound better than I was or am, I was struck by the fact, or reminded again of the fact, that it is primarily because of others' help, encouragement, pushing, and -- yes -- generous writing of rec-letters that I am enjoying the work that I so enjoy now.  I cannot pay these folks back, but I was, after reading through the file, reminded of the importance of "paying it forward."

 

Smith on "Freedom of Religion or Freedom of the Church?"

As Paul mentioned, the other day, one of the papers that was presented at the (excellent) "Matters of Faith" conference at Alabama was Steve Smith's Freedom of Religion or Freedom of the Church?  You can get a version of the paper on SSRN (here).  Here is the abstract:

This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church - a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church - both the institutional church and the inner church - came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.

My first reaction to this (as per usual, for Steve) fascinating paper, and to Steve's presentation at Alabama, was "crap.  What's left for me to say, for the 30 years or so until I retire?  Time to re-tool as a Third Amendment scholar . . ."  Thinking about it more, at the conference and on the plane home, I asked myself what the implications for judicial doctrine and practice would be, were the First Amendment to be understood (as I think I think it should be) along the lines Steve suggests.  Three come to mind: 

First, the Religion Clauses -- specifically, the "secular purpose" requirement -- would no longer have a job to do in identifying the constitutional limits on morals legislation.  There are, certainly, such limits, and should be, but the enterprise of finding them would not involve trying to identify and categorize as either "religious" or "secular" the purposes or motives that were thought to produce that legislation.

Second, the Supreme Court's Smith decision would be, pretty much, right, at least when it comes to exemptions for religiously motivated conduct from otherwise religion-neutral and (truly) generally applicable laws.

Third, the project of evaluating symbolic expression by governments and public officials would be taken from "endorsement test"-wielding judges and given to citizens, acting in and through politics, and (I hope) taking seriously the demands of civic friendship, and plain old common decency, in a diverse political community.

Anyway, check out the paper.

Religiously Affiliated Law Schools reception at AALS hiring conference

For all current and aspiring law faculty who are attending the upcoming hiring conference, here (thanks to Tim Zinnecker and "The Faculty Lounge") is the information about this year's reception sponsored by the Religiously Affiliated Law Schools and the AALS Law and Religion section.  I am not going to the conference this year, but have always enjoyed this reception in the past.

Berg et al. on "Religious Freedom, Church-State Separation, and the Ministerial Exception"

Tom Berg, Carl Esbeck, Kim Colby, and I co-authored an amicus brief , on behalf of Prof. Eugene Volokh and a diverse range of religious groups, in support of the Hosanna-Tabor school, whose case is being argued in the Supreme Court tomorrow.  We also contributed a streamlined version of the brief to the Northwestern University Law Review Colloquy; the paper is not available yet at Colloquy, but it is available here, on SSRN.  Here's the abstract:

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism – the project of protecting political freedom by marking boundaries to the power of government – has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects – as ours does – both the importance of, and the distinction between, the spheres of political and religious authority is one in which the fundamental rights of all are more secure. A government that acknowledges this distinction, and the limits to its own reach, is one that will more consistently protect and vindicate the liberties of both individuals and institutions.

The “ministerial exception,” at issue in Hosanna-Tabor, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Because any worthwhile account of religious freedom would respect the authority of religious communities to select freely their own clergy, ministers, teachers, and doctrines, any such account must include something like the ministerial-exception rule. Reasonably constructed and applied, this rule helps civil decision-makers to avoid deciding essentially religious questions. In addition, and more importantly, it protects the fundamental freedom of religious communities to educate and form their members. Although the exception may, in some cases, block lawsuits against religious institutions and communities for discrimination, it rests on the overriding and foundational premise that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law’s corrective reach. The civil authority – that is, the authority of a constitutional government – lacks “competence” to intervene in such questions, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdiction.

Teaching Prohibition in Constitutional Law

Last Spring, as I was teaching my first-year Constitutional Law course, I was listening to Daniel Okrent's very engaging book, "Last Call:  The Rise and Fall of Prohibition."  In many ways -- some of which I'd appreciated before, and others I hadn't -- the book's subject connected interestingly with the big questions and themes of the first-year course (which, at Notre Dame, focuses on "structure").  I had so many occasions to refer to the book in class, I started to worry that my students were getting the idea that I am obsessed with alcohol and its regulation.

A few years ago, Eugene Volokh and others helped me to appreciate the ways in which the Second Amendment can serve as a "teaching tool" in Constitutional Law.  It strikes me that the experience with Prohibition - how it came about, what it tells us about constitutional amendments and grassroots political movements, how it connects with questions about the census, redistricting, federalism, and the Fourth Amendment, etc. - could serve, similarly, as a teaching tool or vehicle.  Have any Prawfsblawg readers or bloggers taught Prohibition, or used it as a lens through which to look at the Constitution and constitutional law?  Any suggestions about how it could be done?

The "Lawless" law-clerk-hiring process

Today's edition of the New York Times has an article about the law-clerk-hiring process called "Judges Compete for Law Clerks on a Lawless Terrain."  "Lawless" or not, I know that I'm finding the terrain increasingly difficult to read, navigate, and guide.  The combination of "the Plan" and OSCAR was, if I remember correctly, supposed to make the hiring process more regular, orderly, and transparent -- for the benefit of judges, faculty, and students alike -- but those hopes do not seem to have been realized.

For those of us who follow, and participate in, the process, I suppose there was nothing new in the piece (though I was struck by the fact that -- counting only electronic submissions to federal judges -- there were about 382,000 applications filed last year).  We already knew, for example, that many judges are interviewing and hiring law-school graduates (as opposed to rising third-year students) "off plan", that some judges schedule, and then cancel, interviews, and so on.

What is to be done?  I have no idea.  I know that my colleagues in our Career Development Office and on the faculty do what they can to gather all available information about what particular courts and judges are doing, and maybe, in the end, that's all we can do.  (Given, however, the extent to which judges are moving off-plan, and given the difficulties in the law-jobs market more generally, I don't see how a school can justify complying with any "Plan"-imposed requirements that they not assist students who apply "early.")  

I sympathize somewhat with Judge Kozinski's well known (and quoted in the piece) hostility to "cartels" in and close regulation of law-clerk hiring, but I guess I sympathize more with those students to whom we have to say, when they come to us for advice on how and when to apply for clerkships, that we just don't know.  These positions are such wonderful, life-changing opportunities; it seems a shame that the process for securing them is increasingly so mysterious as to be exclusionary. 

I'd welcome others' thoughts . . . and advice!    

UPDATE:    I noticed Dan's post, right after I posted this.  As per usual, he's a quicker-thinker than I am!

Questions by students for prospective prawfs

A law student I know is serving as the student member of his law school's Faculty Appointments Committee, and asked me to ask others:  "What would you like to be asked by students in an interview?  Think about this in the context of a day full of deans and professors -- what haven't you talked about by the end of the day that students should know about and factor into a hiring decision?"

Thoughts?

"Liberal Whateverism" in The Agnostic Age

My friend and colleague, Chris Smith -- a sociologist of American religion (and other things) here at Notre Dame -- has an opinion piece up at HuffPo in which he discusses the phenomenon of what he calls "liberal whateverism", an "outlook [which] reacts against sectarian conflict by dramatically discounting the claims of religion.  The more aggressive side of this view asserts that religion per se is pernicious and should be eliminated or radically privatized. The more accommodating side says religion is fine as a personal lifestyle commodity, but that religious inclinations are ultimately arbitrary and should not be taken too seriously." 

Paul's thorough response to Rob Vischer's review of The Agnostic Age is, among other things, a reminder that agnosticism of the kind Paul presents in his book is not (or need not be) "whateverism."  Paul, it seems to me, can easily agree with Smith's conclusion: 

I think we need to reject both sectarian conflict and liberal whateverism and commit ourselves instead to an authentic pluralism. Genuine pluralism fosters a culture that honors rather than isolates and disparages religious difference. It affirms the right of others to believe and practice their faith, not only in their private lives but also in the public square -- while expecting them to allow still others to do the same. Authentic pluralism does not minimize religious differences by saying that "all religions are ultimately the same." That is false and insipid. Pluralism encourages good conversations and arguments across differences, taking them seriously precisely because they are understood to be about important truths, not merely private "opinions." It is possible, authentic pluralism insists, to profoundly disagree with others while at the same time respecting, honoring, and perhaps even loving them. Genuine pluralism suspects the multi-cultural regime's too-easy blanket affirmations of "tolerance" of being patronizing and dismissive. Pluralism, however, also counts atheist Americans as deserving equal public respect, since their beliefs are based as much on a considered faith as are religious views and so should not be automatically denigrated. . . .

Public-school teaching "like Jesus Christ himself" . . . and a new paper on public-employee speech

The Wall Street Journal reported recently that the Florida public-school teacher who had been suspended for posting on Facebook comments indicating his displeasure at New York's decision to extend legal recognition to same-sex marriages has been re-instated.  This news, though, is followed by this: 

But the school district will separately investigate whether  Buell may have violated the constitutional separation of church and state, according to the Sentinel.

. . . On his school webpage, Buell wrote that he tries to “teach and lead my students as if Lake Co. Schools had hired Jesus Christ himself,” the Sentinel reports.

His syllabus also said: “I teach God’s truth, I make very few compromises. If you believe you may have a problem with that, get your schedule changed, ’cause I ain’t changing!” On a separate document, he also said the classroom was his “mission field.” . . .

Now, I believe strongly that education involves (inescapably) the formation of students' beliefs, commitments, loves, and loyalties, and I also believe that children and families have a right to select educational environments that pervasively reflect their own religious commitments.  I also think that public employees, like the rest of us, have the right to participate in "the public square" as religious believers, if they are religious believers.  All that said, I have to confess to being a bit put off by this teacher's syllabus. 

Even if he regards his vocation as an educator as one that should be carried out in a manner consistent with, and even infused by, his Christian commitments, it seems to me that a line is crossed when a high-school teacher frames his or her project -- on the syllabus -- in such a confrontational way.

Anyway, this event connects up generally with the "speech in public schools" and "speech by public employees" issues, which I always enjoy teaching:  What "counts" as "school speech," and for (what seems to be) the reduced constitutional protections that such speech enjoys?  When is speech by a "public employee" the government's, and when is it hers, for purposes of the reduced protections that public employees' speech gets?  And so on . . .

As it happens, my colleague, Randy Kozel, has an interesting paper on SSRN (and under submission to law reviews!), "Free Speech and Parity," on public-employee speech.

This Article provides a new model for addressing the theoretical deficiency that has persisted for nearly half a century. The proposal flows naturally from the Court’s unequivocal rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a consequence of that rejection, the bare fact of government employment is no longer sufficient to impair the exercise of a citizen’s right to free speech. The baseline norm must instead be one of parity between government workers and other citizens. To justify a deviation from the default of parity, there must be a meaningful reason beyond the employment relationship itself for viewing public officials as situated differently from their peers.

In reorienting the jurisprudence around the legitimate bases for differential treatment of public employees and other citizens, parity theory furnishes a mechanism for outfitting the modern doctrine with the conceptual grounding it has lacked since its inception. The theory also offers a method for repairing pervasive flaws that plague the existing law. Perhaps most importantly, parity theory highlights the need to confront a critical factor that has played an unduly limited role in the Supreme Court’s cases to date: the institutional mission of government instrumentalities.

It's always nice when "events" make our work timely!

Bill Keller tees one up for Paul Horwitz

The NYT's Bill Keller poses, here, what he characterizes as some "tougher" questions for the (Republican) presidential candidates about "their religious beliefs."  In my view, the questions (that were not partisan and snarky) actually weren't very tough, but, whatever.  And, as some of the commenters point out, Keller seems to be overlooking the fact that a number of his questions could just as well be posed to (or have been posed to) Pres. Obama.  Still, some of the questions themselves -- again, the ones that are not partisan and snarky -- are ones that our own Paul Horwitz has thought and written a lot about, including in, well, The NYT. 

Keller's lead ("lede"?) question is, whether it is "fair" to ask candidates about the details of their faith.  In my view, the question invites another:  Why is one asking?  Sometimes, such questions are asked because it is thought by the asker that the content of a candidate's professed religious faith actually tells her something about the candidate's character, loyalties, priorities, loves, commitments, etc., that -- it is honestly thought by the asker -- is relevant to the enterprise of the office the candidate is seeking.  (Example:  Gov. Smith, you are a Quaker.  Given your sincere beliefs about the immorality of violence, could you serve effectively as Commander in Chief?)  Who could object to such a question, assuming it was asked in good faith, and asked -- when relevant -- of both parties' candidates?

At other times, though, it seems to me that the question is asked in order to elicit what the questioner hopes will be an answer that can be presented superficially (after all, not every question about religion can be answered propositionally, or in two sentences), out of context, or in a way that will (the asker hopes?) strike those who hear the answer as just "weird."  (Example:  "Rep. Jones, you are a Mormon.  Tell us about your garments."  Or, "Rep. Johnson, you are a Lutheran.  Doesn't that mean you are anti-Catholic?")  Our shared political life could get along pretty well without these latter sorts of questions, it seems to me. 

FAQs about the FAR

I'm working on a "FAQs about the FAR" project, in connection with my work on the AALS Committee on Recruitment and Retention of Minority Law Teachers.  So, please help me out:  What are some Qs that are, or should be, FA?  Please suggest the As, too!.  (Please note that "Should I lie about my willingness to move to certain parts of the country?" has already been suggested.)

The "other shoe," after CLS v. Martinez?

The San Francisco Chronicle reports that a "federal appeals court on Tuesday upheld a state university's refusal to provide funding and other campus benefits to student groups that exclude members of other religions, rejecting arguments that the policy stifles freedom of speech."  The opinion is here.

In Martinez (here), the majority's working assumption -- one that, on my reading, was crucial to the outcome -- was that the policy in question was a generally applicable "all comers" policy, according to which (simplifying a little bit) all student groups, in order to be officially recognized, had to allow all students to join.  This policy was, the Justices in the majority thought, "reasonable" and "viewpoint-neutral." 

In this most recent decision, though, the policy seems to allow some groups, but not others, to exclude students based on the dissonance between those students' views and the mission-and-message of those groups.  So . . . what's next?  My friend and fellow Mirror of Justice blogger Steve Shiffrin has some thoughts here.  A taste: 

To be sure, it is ordinarily problematic for an organization to discriminate on the basis of religion. If the Sierra Club were to exclude Catholics or Jews or Muslims, it would be an outrage. But there is nothing outrageous about a religious organization confining its membership to those who agree with its ideology any more than it is problematic for the Young Democrats to do so.

In response to this, the Ninth Circuit argues that the liberty of the religious organization is not denied. It may still participate on campus without official recognition. But the problem is the inequality in application of the policy. In response to this point, the Circuit says that this inequality was not part of the purpose of the policy. Perhaps so, but that is beside the point. The effect of applying the policy in this way should have been regarded as constitutionally unreasonable. . . .

"Things that are not Caesar's" . . . and the ministerial exception

Following up on Paul's and Lyrissa's posts:  Here is a link to the chapter, which I contributed to a volume of First Amendment Stories (edited by Andy Koppelman and me), on the Court's decision in Kedroff v. St. Nicholas Cathedral.

This chapter, from Foundation Press’s forthcoming volume First Amendment Stories, examines closely the background, context, and implications of the Supreme Court’s underappreciated but highly significant decision in Kedroff v. St. Nicholas Cathedral. It is suggested that Kedroff – like the Steel Seizure case, which was argued and decided during the same year – reminds us of the importance of the structural devices employed in our Constitution to protect liberties and enhance democracy. These devices include, of course, the separation of powers and federalism, as well as the pluralistic principle of church-state separation, correctly understood. As Mark DeWolfe Howe observed, in a short essay published in the Harvard Law Review soon after the Kedroff decision, the Court in that case, by affirming the constitutional basis of church autonomy, engaged “a classic problem of political theory,” that is, the “pluralistic thesis . . . that government must recognize that it is not the sole possessor of sovereignty,” or, as another writer put it, that “Caesar . . . is only Caesar, [and so should] forswear any attempt to demand what is God’s.”

In the chapter, I (among other things) offer a different "take" on the church-autonomy principle, and the ministerial exception, from the one offered in Caroline and Leslie's amicus brief.

In any event, keep your eyes open for the volume, which has a lot of really good pieces in it, by a diverse array of smart and interesting people.  (I note that Prawfsblogger Paul Horwitz has a great chapter on the football-prayer case.)  It's winding its way toward publication in the early Fall of 2011.  Go ahead and pre-order yours!

Will Ireland compel Catholic priests to reveal what they hear in Confession?

The Catholic Herald is reporting that the Irish government is seeking to compel Catholic priests to break the seal of confession.  The debate will sound familiar to all American lawyers familiar with our Free Exercise and religious-exemptions cases and arguments:

 . . . Irish Children’s Minister Frances Fitzgerald said: “The point is, if there is a law in the land, it has to be followed by everybody. There are no exceptions, there are no exemptions.”

Fr PJ Madden, spokesman for the Association of Catholic Priests, insisted that the sacramental seal of confession is “above and beyond all else” and should not be broken even if a penitent confesses to a crime. . . .

I doubt that Minister Fitzgerald believes, as a general matter, that "if there is a law in the land, it has to be followed by everybody", or would want to live in a community where this was true.  In any event, this might be a good occasion to take advantage (?) of the oppressive heat and watch the old Montgomery Clift film, I Confess.

One book?

A recently graduated student of mine sent me a note the other day, asking for a suggestion for one (broadly speaking) law-and-lawyering-related book to read during the few days off he has before starting his bar-exam preparation.  I recommended Kazuo Ishiguro's "The Remains of the Day", which my own teacher -- David Luban -- once recommended to me.  Other suggestions? 

Church-state arrangements, religion, and violence

My colleague Dan Philpott, and his co-authors Tim Shah and Monica Toft, have a nice essay-summary up, at Public Discourse, of their new book, God's Century.  This bit might be of interest to those of us (I'm looking at you, Horwitz) who have been looking at the "institutional" dimension of First Amendment freedoms:

A (typically) thoughtful piece by Tim Shah, Dan Philpott, and Monica Toft:

. . . [R]eligion has made a political comeback, abetted by globalization, democratization, and technological development. Those religious actors who are most closely integrated with state authority and who hold a political theology that calls for state sponsorship, the subordination of minorities, and the use of violence are most likely to be violent. Those who have remained independent of state authority and carry a political theology that prescribes democracy, peace, and reconciliation are most likely to be peaceful and democratic. . . .

. . . [W]here government and religion lack institutional independence, the result is likely to be conflict, whereas independence is a precondition for democracy and a mediating influence. Thus it seems that a healthy institutional independence between religion and state is good for everyone, everywhere. This carries with it an important lesson for policy. While it does not mean that the U.S. ought to replicate exactly the first amendment of the Constitution, it does mean that a healthy secularism of separation is better for democracy, human rights, and peace, on one hand, and for the flourishing of religion, on the other. . . .

Farewell to all that

I've been a lousy Prawfsblogger in recent months (ed.:  only "in recent months"?) and the explanation, though not the excuse, has been, I think, my winding-down gig as "Associate Dean for Academic Affairs" (i.e., for student-related stuff).  It's been a learning, rewarding, and humbling experience.  There's so much that goes into the health, happiness, and overall enterprise of a law-school community than I, notwithstanding what I like to think was my pretty high level of engagement with my teaching, scholarship, and service, realized.  Questions come up that, looking back, I didn't realize (though, looking back, I probably should have) someone had to answer (or know how they should be answered); some questions that I thought were and would be easy turn out not to be; some skills that I didn't realize were very helpful turned out to be both needed (and, I suspect, not-fully-possessed).  Live (and work) and learn!

In July, I'm taking on the "Associate Dean for Faculty Research" job.  And, I cannot help wondering what advice the future me (or anyone else!) would give current-me.   

Supreme Court narrows Flast, rejects challenge to Arizona tax-credit law

The Supreme Court's (5-4) decision in Winn is available here.  (Thanks to Howard Bashman for the link.)  I've read the decision quickly, and want to do so again, but the bottom line seems clear:  The Ninth Circuit's decision, which badly misapplied Zelman, is reversed, on standing grounds.  Because the tax-credit mechanism is one that involves not government expenditures (of the kind that worried James Madison in his Memorial and Remonstrance), but instead allows people to keep, and direct, their own money, the Flast exception to the no-taxpayer-standing rule does not apply.  

I'm torn:  I think Flast was probably a mistake, because I don't think (with all due respect!) that there's anything about the injury to a taxpayer who objects to public funds being spent on (say) a school-voucher program that distinguishes it, constitutionally, from the injury to a taxpayer who objects to public funds being spent on (say) a bridge in Alaska.  (I argued, in this short paper, that the Establishment Clause does protect "conscience", but not in the way that the Flast exception presumes.)  At the same time, I would have liked a majority opinion clearly rejecting, on the merits, the Establishment Clause challenge to the Arizona program.

Marci Hamilton on the "ministerial exception"

Readers familiar with Prof. Hamilton's work and commentary will not be surprised by this piece, at Patheos, in which she takes a dim and disapproving view of the "ministerial exception."  I suggested in an earlier post (and also at Mirror of Justice)  this "exception" is, in my view, a crucial -- and, indeed, perhaps the most obvious -- implication of our commitment to religious-freedom-under-law-and-through-church-state-separation-correctly-understood.  So, Marci and I disagree.

A few quick thoughts:  First, Prof. Hamilton allows that "[r]eligious organizations obviously should have a right to choose their clergy according to their own lights" but then goes on to indicate disagreement with the result in a relatively recent Third Circuit decision called Petruska, in which the plaintiff was a "chaplain" at a religious university.  The "right" she concedes, then, appears to be a very narrow one.  Obviously, there will be difficult lines to draw -- and I would draw them, it appears, in different places than Marci would -- but it is not clear to me what would justify drawing it so as to protect "clergy"-hiring, but not the hiring of a chaplain at a Catholic university.

Second, with respect to her statement, near the end of the piece, that "[i]f the church school wins this case . . . I think that Congress and the state legislatures owe it to potential employees of religious institutions to warn them of their lack of protection from invidious discrimination."  Now, as it happens, it strikes me as a good idea for religious institutions to incorporate into their employment contracts and related materials, to the extent possible, clear indications regarding the religious nature (if any) of their employees' duties and positions.  Prof. Hamilton's suggestion, though, that they should be required to "warn" employees is curious, to me.  We don't usually require people, as a condition of enjoying and exercising constitutional rights, to "warn" others that they have constitutional rights which they plan to exercise; the "ministerial exception" reflects the First Amendment right of religious communities to be religious communities, and to not have secular courts interfere in religious decisions and relationships.

Finally, while it is certainly true that religious institutions (like all others) can and do behave badly (who would deny it?), it is not the case that there is necessarily anything "insidious" about a religious institution making decisions about religious doctrine and positions using criteria that we do not think governments and non-religious employers should not use.  That said, even if a religious institution acts badly in selecting or terminating a ministerial employee -- say, by doing so for reasons that actually have nothing to do with religion and reflect simply petty spite, or worse -- it is still the case, in my view, that a secular government committed to church-state separation will recognize that it cannot tell a religious community -- even a bad-acting one -- who will be its clergy, ministers, or teachers.

The Court grants cert. in ministerial-exception case

Today, the Supreme Court agreed to hear what (I think) might be its most important religious-freedom case  in a long time.  The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC.  (More here, at the Religion Clause blog.)

The case does not involve what’s become the usual stuff of the Court’s church-state caselaw:  prayer at football games, war-memorial crosses in the desert, manger scenes and Ten Commandments monuments in public parks.  Nevertheless, again, this case is huge, and it is about, at its heart, what I think really matters.

As readers probably know, the question in the case is whether antidiscrimination laws – like, for example, the Americans with Disabilities Act – allow courts to review hiring-and-firing decisions involving “ministerial employees.”  In this particular case, a lower federal court had ruled that parochial-school teachers who teach primarily "secular subjects" are not “ministerial employees”, and therefore are covered by the Act.

 The Supreme Court should reverse this decision.  Although there are many difficult questions to be asked, and many fine lines to be drawn, when it comes to interpreting and applying the First Amendment’s religious-freedom guarantees, it cannot be the role of secular government to second-guess the decisions of religious communities and institutions about who should be their ministers, leaders, and teachers, any more than they should review their decisions about the content of religious doctrines.  This, it seems to me, is what church-state separation is really about.  Now, to be sure, not every employee of a religious institution is a “ministerial employee”, and the Court's decision will almost certainly be more about where to draw the line (between "ministerial" employees and others) than about whether the Constitution requires some kind of "ministerial exception."  The former question is, to be sure, tricky; the latter, though, should not be.  The point is not that religious institutions and employees are “above the law” but rather that there are some (not very many, to be sure, but some) that our Constitution does not allow secular governments to answer.

William Stuntz, R.I.P.

"William Stuntz, a renowned scholar of criminal justice at Harvard Law School,  an evangelical Christian and a teacher much beloved by students and colleagues, died March 14 after a long battle with cancer."  More here.  He was a great scholar and a deeply good man.  God bless him, and his family.

"Let Them Use Laptops"

I've weighed in here at Prawfs a few times on the "laptops in law-school classes" issue, sharing my view that, on balance, using laptops the way they (seem to be) used in class is not very good for student learning. 

Well, Kristen Murray disagrees, in this paper, "Let Them Use Laptops:  Debunking the Assumptions Underlying the Debate Over Laptops in the Classroom."  I'm not sure the study she describes actually "debunks" my working assumptions on the matter, but the paper certainly is making me think and reflect about them.

Here's the abstract:

 Law professors have struggled with the issue of laptops in the classroom since students started bringing laptops to class almost fifteen years ago. Some believe they are a powerful educational tool while others believe that they inhibit learning. Many balance these competing thoughts when deciding how to handle the issue; some decide to ban laptops altogether.

What has troubled me about this debate is that both sides make arguments based on untested assumptions about student laptop use and without taking account of existing knowledge about today’s law student learners. Thus, I decided to survey law students about how they use their laptops to support their learning. The results, when combined with knowledge about how today’s law students learn, show that many of our assumptions are incorrect and that laptops provide a tremendous opportunity to enhance student learning in an age of changing classroom dynamics.

Thus, I conclude that law professors should allow students to use laptops in lecture courses. In the article, I analyze five assumptions that arise in the laptop debate — what I call “laptop myths.” I first set forth the arguments commonly made in the laptop debate. I then provide background on generational research, including the modern law student’s relationship with technology. I then summarize my survey and use the survey data and learning theory to challenge some of the assumptions that underlie the laptop debate. Ultimately, I conclude that students’ self-directed learning makes good use of laptops and therefore laptops should not be completely banned from law school classrooms. Finally, I offer some thoughts and examples of alternatives to all-out laptop bans.

Thoughts?

"Christianity and Human Rights" now available for purchase

And now, a report from the shamelessness department:  As I mentioned a few months ago, I have a chapter (as do some really good scholars) in the Witte-and-Alexander-edited collection, "Christianity and Human Rights:  An Introduction" (Cambridge).  I'm sure it would make an appropriately overpriced Valentine's Day present.

Happy Thanksgiving!

Although, I admit, my mind at the moment is primarily focused on deep-fried turkey, pumpkin-molasses pie, mocha-pecan pie, ginger-cranberry sauce, chorizo stuffing, corn-and-bacon pudding, garlic mashed potatoes, squash soup, cranberry mojitos, and malbec . . . I suppose it's worth remembering the words of Abraham Lincoln, shared during some pretty tough times (1863):

A Proclamation.

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consiousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union.

Best wishes to all!

The "story"

Paul has written before, here at Prawfs, about the "Yale 'So'".  Because I am, as a rule, slow to pick up on things, I am just now starting to notice (what strikes me as) the pandemic-speed spread of the use by legal scholars, and also entry-level candidates, of the word "story" to replace, say, "account".  We note, often, that "there is a story [to the effect that X]" instead of "One could [or even 'I would'] argue [that X]."

My sense is that the turn-to-the-"story" started -- or Patient Zero emerged from -- the empirical-studies context, but I could be wrong.  Like any tic, I suppose "story" could be over- or mis-used (just like endless parentheticals can be misused.  Oops.) but, I have to say, I kind of like this one.  So (sorry Paul), . . . what's the story?

Humans and Econs, read by a robot

I am, I suspect, the last law professor in America to actually "read" (as opposed to "get a good sense of what the book's about by listening to NPR and reading a few relevant magazine articles") the Sunstein and Thaler "Nudge" book.  I listened to it, actually, while running.  And, I thought it was funny that a book which has its (somewhat precious) leitmotif  the importance of distinguishing between real people ("humans") and hypothetical, Spock-esque rational actors ("econs") is -- at least the version I listened to is -- "read", apparently, by the same technology that talks to me when I call the Delta service number.

Benedict (and More) in Westminster Hall

I hope Prawfsblawg readers won't think it's out of line, or even just weird, if I pass on this link to the Pope's September 17 address in Westminster Hall.  His remarks might be of interest to lawyers, legal scholars, and law students, given that he shared them

conscious of the privilege afforded me to speak to the British people and their representatives in Westminster Hall, a building of unique significance in the civil and political history of the people of these islands. Allow me also to express my esteem for the Parliament which has existed on this site for centuries and which has had such a profound influence on the development of participative government among the nations, especially in the Commonwealth and the English-speaking world at large. Your common law tradition serves as the basis of legal systems in many parts of the world, and your particular vision of the respective rights and duties of the state and the individual, and of the separation of powers, remains an inspiration to many across the globe. . . .

After noting that he was speaking in the very room in which Thomas More was tried and condemned, he observed that 

The dilemma which faced More in those difficult times, the perennial question of the relationship between what is owed to Caesar and what is owed to God, allows me the opportunity to reflect with you briefly on the proper place of religious belief within the political process. . . . 

This matter -- i.e., the "proper place of religious belief within the political process" -- is, of course, of great interest to many of us, and I'd welcome any thoughts on the Pope's short reflection.  Are his thoughts and his proposal consonant with our understanding of how this matter should be treated in American law? 

A "web alternative to peer review"?

The NYT ran, a few days ago, this piece, "Scholars test web alternative to peer review," in which the author notes, among other things, that:

[S]ome humanities scholars have begun to challenge the monopoly that peer review has on admission to career-making journals and, as a consequence, to the charmed circle of tenured academe. They argue that in an era of digital media there is a better way to assess the quality of work. Instead of relying on a few experts selected by leading publications, they advocate using the Internet to expose scholarly thinking to the swift collective judgment of a much broader interested audience. . .

The traditional method, in which independent experts evaluate a submission, often under a veil of anonymity, can take months, even years.

Clubby exclusiveness, sloppy editing and fraud have all marred peer review on occasion. Anonymity can help prevent personal bias, but it can also make reviewers less accountable; exclusiveness can help ensure quality control but can also narrow the range of feedback and participants. Open review more closely resembles Wikipedia behind the scenes, where anyone with an interest can post a comment. This open-door policy has made Wikipedia, on balance, a crucial reference resource. . . .

Any thoughts?  Do such developments represent a welcome "democratization" of the process, or instead a failure to appreciate the fact that (as Michele Lamont is quoted in the piece as saying) "knowledge is not democratic"?  Or something else?

"Judicial Access to the Natural Law"

I'd welcome Prawfsblawg readers' and bloggers' reactions to this review, by my friend and "Mirror of Justice" blogger Patrick Brennan (Villanova), of Prof. Hadley Arkes' new book, "Constitutional Illusions and Anchoring Truths."  Probably not all of Justice Scalia's critics are aware that he has some "conservative" critics as well, critics who -- like Arkes -- think that he is wrong to insist that it is beyond the capacity or job-description of federal judges to "give effect to the natural law."  Brennan writes:

 Scalia affirms the existence of the natural law, to be sure, but denies that federal judges are authorized to consult it as a part of their decision-making. Arkes’s admiration of Scalia is palpable, yet Arkes is impatient with Scalia’s unwillingness to look beyond the positive law for purposes of reaching judicial judgment.

Now, I take it as given that most of us would disagree with at least some of Prof. Arkes' (or Justice Scalia's) claims about the content of the natural law.  At the same time -- and whether or not we are comfortable with "natural law"-language -- many of us probably believe that it *is* within the role of judges, including federal judges, to give effect to foundational principles of justice and moral norms that are not clearly specified in the Constitution itself.

Now, why is it that Justice Scalia is "unwilling[] to look beyond the positive law for purposes of reaching judicial judgment"?  Is it that (a) he actually does, but just doesn't admit it; (b) he worries that judges authorized to look outside the positive law will find unsound moral norms to enforce; (c) he wants judges to have less power, and telling them to look at fewer sources of law is a good way of constraining their power; or (d) something else?

I posted a few thoughts, in response to Brennan, here.  Any thoughts?

Style points and exam-grading

This post is a follow-up to Bill's, from a few days ago ("The Very Mixed Blessings of Word-Processed Exams").  In first-year classes, what I do with exams is (I gather) pretty typical:  word-processed, open-book, and word limits.  Also (and maybe this isn't typical?), I tell the students in the instructions that a part (a very small part, as it happens, but still a part) of their exam score will be based on style, organization, grammar, syntax, and spelling.

I do this for (I think) three reasons:  First, I hope to dis-incentivize, if only a little bit, some students' tendency to (as Bill put it) "power through" the exam-answer and simply type every doctrinal proposition they can recall.  It seems to me that a student who is thinking about form and style might be a bit less likely to engage in this kind of outline-dumping.  Second, I want to have some way to take account of the fact that the students who write a more elegant -- or just a readable -- answer are likely to have allocated some of their scarce answer-writing time to proof-reading and editing.  Those who write word-salad had, in a sense, extra time on their answers.  Finally (and in saying this, I do not mean to celebrate the mad-rush, in-class, everything-rides-on-three-hours law-school-exam practice), it seems to me that, now and again, in law practice, lawyers are required to do good work very quickly, and the fact that it has to be done quickly is not regarded as an excuse for doing it sloppily.

Any thoughts or reactions?  

"A Catholic Interpretation of the Establishment Clause"?

Go here for Scot Powe's review of Donald Drakeman's Church, State, and Original Intent (Cambridge).  The book is first-rate, in my view.  (Full disclosure:  I blurbed the book for the press.)

After a generally helpful review, Powe concludes, oddly, with a clunky pivot to the observation that  "[t]hree years ago, the Supreme Court ignored its own recent decision and ruled by a 5-4 margin that Congress could ban the procedure known as partial birth abortion" (I don't think it did, but never mind) and a reminder that Geof Stone had suggested, controversially, that the Court's decision might have something to do with the fact that the five justices in the majority are Catholic.  (I responded to Geof here.)  Powe then concludes:

A number of conservative Catholic legal scholars have shown support for Drakeman’s conclusion.  It is conceivable that a Supreme Court Justice might rely on Drakeman (with or without citation) for a Catholic interpretation of the Establishment Clause; and while decades ago Cardinal Francis Spellman had to lobby President Eisenhower to add a single Catholic to the Court (Ike picked William Brennan, who voted as a separationist and favored Roe v. Wade), six of the nine Justices are now Catholic. Church, State, and Original Intent is not priced for a wide readership, but if it gets the right five readers, it could have a major impact.

There are, it is true, a number of "conservative Catholic legal scholars" (and many others) who agree (as I do) with Prof. Drakeman that the Establishment Clause was misinterpreted, in the parochial-school cases of the 1970s and 1980s, as requiring strict "no aid" separationism.  But, this agreement does not make Drakeman's interpretation a "Catholic" interpretation, and a Catholic justice who voted in accord with Drakeman's interpretation would not be adopting (or imposing) a "Catholic" interpretation.  Nor would the fact that a Catholic justice (or legal scholar) embraced it make the interpretation "Catholic."

To be sure, there are "Catholic" ways of thinking about religious freedom and church-state relations.  For a good start, go here.

"Religious Liberty, Church Autonomy and the Structure of Freedom"

Here's a link to a book chapter I've done, for a forthcoming volume (edited by John Witte and Frank Alexander) on "Christianity and Human Rights."

What is the “right to freedom of religion,” a right which our leading human-rights instruments commit us to protecting, and what are the legal and other mechanisms that will sustain and vindicate our commitment? Some mechanisms might be better (or less well) designed for the purpose and so might work better (or less well) than others; some actors and authorities might be more (or less) reliable and effective protectors than others. In other words, the project of protecting human rights – including the right to religious freedom – involves not only reflecting on human goods and goals, but also wrestling with questions about institutional design and competence.

This chapter considers both the content of religious freedom and the ways it is protected and promoted. It proposes, first, that the “right to freedom of religion” belongs not only to individuals, but also to institutions, associations, communities, and congregations. Just as every person has the right to seek religious truth and to cling to it when it is found, religious communities have the right to hold and teach their own doctrines; just as every person ought to be free from official coercion when it comes to religious practices or professions, religious institutions are entitled to govern themselves, and to exercise appropriate authority, free from official interference; just as every person has the right to select the religious teachings he will embrace, churches have the right to select the ministers they will ordain.

Next, it is suggested that the right to church autonomy is a structural mechanism for protecting both the freedom of religion and human rights more generally. The relationship between the enterprise of protecting human rights and religious communities’ right to self-determination is a dynamic, mutually reinforcing one. Human rights law, in other words, protects church autonomy – it protects the freedom of religious communities to govern and organize themselves, to decide religious matters without government interference, to establish their own criteria for membership, leadership, and orthodoxy, etc. – and, in turn, church autonomy promotes the enjoyment and exercise of human rights. This mechanism is, John Courtney Murray thought, “Christianity’s basic contribution to freedom in the political order.” If we understand and appreciate this contribution, we will better understand and appreciate that often misunderstood idea, “the separation of church and state.”

Comments and reactions welcome!

Smith & Garnett on "The Unknown Justice Thomas"

The New York University Journal of Law & Liberty convened, a while back, a conference on "The Unknown Justice Thomas."  (You can find video of the conference, here, and the full published symposium here.)  My colleague Stephen Smith contributed a paper called "Clarence X?:  The Black Nationalist Behind Justice Thomas's Constitutionalism".  Also, the lovely and talented Nicole Stelle Garnett contributed a paper called "'There but for the Grace of God Go I':  Justice Thomas and the Little Guy."  Here's Nicole's abstract: 

This Essay, prepared for a NYU Journal of Law and Liberty symposium on “The Unknown Justice Thomas,” challenges the oft-repeated criticism that Justice Clarence Thomas’s opinions reflect a lack of empathy for the less fortunate. The Essay argues that, on the contrary, Justice Thomas’s opinions are replete with expressions of concern for the “little guy,” which are frequently overlooked or misinterpreted. The Essay explores three themes reflecting this concern in Thomas’s opinions.