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Wednesday, October 21, 2015

An Important New Fact, or a Report on the Coal Industry From the Newcastle Boosters League?

I admire what I have read of the work of Jean Cohen, a Columbia political scientist--particularly her Regulating Intimacy: A New Legal Paradigm, which discusses and uses "reflexive law" as a means, in the words of the book's jacket copy, to approach debates over "the regulation of intimate relationships" in a way that is "free from the liberal and welfarist paradigms that usually structure our legal thought. This new legal paradigm finally allows us to dissolve the tensions among autonomy, equality, and community that have beset us." It is always useful to escape from the standard prisons of our thought and to think perpendicular to and across the usual and tedious left-right divisions that channel and stymie so much intellectual work in the United States.

I am thus struck by the abstracts to two new papers by Prof. Cohen. I look forward to reading the papers, which are on subjects of great interest to me. But I am surprised by what she chooses to foreground in those abstracts. Here is one:

This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises. 

I think the subject is important and worthwhile. But I am struck by the description of American legal scholars "often working with well-funded conservative foundations and influencing accommodation decisions throughout the US." The other abstract repeats this language almost verbatim, adding the additional description "well-funded conservative foundations like the Beckett Fund for Religious Liberty." Evidently this information was important enough both to place in the abstract and to repeat in both papers.

On the whole, I don't mind and rather favor descriptions of the ways in which legal academics often work hand in glove with well-funded advocacy and/or ideologically charged organizations. Many legal academics, in my view, are not "academic" enough; although I'm something of an institutional pluralist about this and believe that there is room for several models of what the academic or legal academic role involves, including a more normative, goal-oriented, advocacy-oriented model, my first allegiance is to the traditional, Fishian model of "academicizing" the issues one addresses and remaining relatively indifferent to whether one is aiding and comforting the "left" or the "right" in its current struggles. 

And there is one respect in which the information in Cohen's abstract might be taken as informative. Neither pluralism, nor jurisdictional pluralism, nor religious accommodationism, are inherently politically conservative activities. Rather, positions of this sort, or contrary positions, tend to tack back and forth across "sides," depending on the issues and context of the day, but sometimes emerge as issues and strategies dear to one side, and take root long enough to affect and alter the surrounding views of that side for a time. So it can be interesting, descriptively and for purposes of sociology and intellectual history, to note when that has happened. Similarly, it can be interesting to note the ways in which strong religious accommodationism has shifted from a mainstream liberal position--the Court's decision in Employment Division v. Smith was, at the time, labeled the most "illiberal" decision of its Term in the Harvard Law Review--to one that is viewed negatively, sometimes outright critically, and even as requiring  the strategic use of ironic single quotes to propagandize the view that it has nothing to do with "'religious liberty.'" In recent times, one can witness both that shift, and the way in which it propagates across and between well-heeled liberal advocacy groups and their intellectual water-carriers, with effects on the distribution of funds, the position of groups, and the center of gravity of liberal legal scholarship in that field. 

Still, to foreground the (too-frequent?) hand-in-glove relationship between issue-based or ideological advocacy groups and legal scholars seems like something everyone knows about all too well. Is it worth that placement in an abstract, in a way that suggests that the information is unknown or novel and important?  Does doing so, and in the language used by Cohen, not carry with it a kind of unwarranted suggestiveness, as if one is revealing something secret and shameful? And is the description and its sotto-voce suggestiveness only partly accurate, thus rendering some of that suggestiveness positively misleading? I have advocated some measure of what Cohen calls jurisdictional pluralism in this area, but I have not worked with the Becket Fund (I interviewed there once long ago, when liberals were allowed to be seen in its presence, but chose not to work there) and do not broadly share the political or substantive goals of "well-funded conservative foundations." Conversely, some individuals whose liberal credentials are at least as good as Cohen's have also worked with the Becket Fund, even if some have taken to misdescribing the political and substantive views of those individuals.

And to do so in what comes off as a one-sided fashion is particularly misleading and unfortunate, lending the air that one group is engaged in some kind of covert and intellectually suborning conspiracy while the other simply involves a happy and fortuitous coherence of positions. Moreover, it is not a little ironic coming from a scholar at Columbia--my alma mater, and one I am perfectly proud to be associated with. The Becket Fund's 2012 financial snapshot shows contributions just under $5 million and assets under $2 million. In the following year, the Center for Reproductive Rights showed contributions of over $17 million and assets of almost $36.5 million. Among its good works is the joint Center for Reproductive Rights-Columbia Law School Fellowship, associated with Columbia's Center for Gender & Sexuality Law. This is not a condemnation. I presented my paper on Hobby Lobby at Columbia and faced many good and fair questions from the faculty there, including several fellows and/or faculty associated with the center; I was grateful and enjoyed meeting everyone. Its fellows do good work there and have gone on to do more good work. But it makes the unidirectional nature of the language in Cohen's abstract all the more odd.

Writing descriptively about alliances between advocacy groups and legal academics is not a bad thing. Neither is trying to tease out its implications for intellectual work by those academics and, perhaps, worrying about, or at least debating, whether legal academics are rather more affected by the "legal" part of their job description than the "academic" part. The actual work produced can, of course, still be judged by its own merit, and one hopes that at least some of that work will cut in interesting ways across the same old tired divides. But surely everyone recognizes that in the nature of things, given the generally liberal political priors of most legal academics, there will be countless examples on the liberal-left side of the same phenomena put forward by Cohen, with the same general implication of coordination and/or a potential influencing or distorting effect on independent legal scholarship. Maybe Cohen did not foreground those alliances in her abstract because everyone already acknowledges their existence, importance, and strategic and intellectual effect, so much so as to take this all for granted. But the one-sided focus still seems odd to me.    



Posted by Paul Horwitz on October 21, 2015 at 10:14 AM in Paul Horwitz | Permalink


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