PrawfsBlawg

Three Years Ago Today . . .

OTD in 2020, the President of the University of Notre Dame, Fr. John Jenkins, had an op-ed in The New York Times called "We're Reopening Notre Dame. It's Worth the Risk."  He wrote, among other things, that "[f]or questions about moral value — how we ought to decide and act — science can inform our deliberations, but it cannot provide the answer." This decision, at the time, came in for a lot of unfair, uncharitable, and even ghoulish criticism. (One critic, I recall, lamented the workings of the university's alleged "Marian Death Cult.") Jenkins was right, though, and one hopes that, especially in the context of schooling -- including legal education -- future policymakers' cost-benefit analyses and applications of the precautionary principle will be similarly prudent.

"Justice Breyer and the Establishment Clause"

Here is a (short) paper of mine, "Justice Breyer and the Establishment Clause:  Notes on 'Appeasement,' 'Legal Judgment,' and 'Divisiveness'":

Stephen G. Breyer served as an Associate Justice of the Supreme Court of the United States
for nearly three decades. And yet, during his long career and
notwithstanding his wide-ranging interests, he never authored a majority
opinion resolving a dispute about the meaning of that Amendment’s
Establishment Clause. Nevertheless, Justice Breyer’s writings and record
regarding the no-establishment rule are distinctive in at least three ways.

First, there is the fact that he did not vote uniformly with his more
secularist colleagues in divided Establishment Clause cases. That is, he
often resisted the stricter applications of the no-establishment rule
endorsed by some of his colleagues. Next, he regularly rejected the
argument that such cases could or should be resolved by applying a
particular “test” and was unmoved by the lure of any grand unified theories
about the provision. His approach was consciously particularistic and
case-by-case; he saw church-state controversies as highly, inevitably
fact-bound, solvable only through a judicial-balancing exercise akin to the
proportionality review that is practiced in some other jurisdictions. And,
more often than any other justice in the Court’s history, he identified the
Clause’s primary purpose as the avoidance of “religiously based
divisiveness” and insisted that law-and-religion disputes should be decided
in the way most likely to promote this purpose.

This emphasis on the judicial management of strife, and his view that
judges charged with interpreting and applying the First Amendment are
authorized to invalidate those actions of political actors that are
determined or predicted to have excessive potential for conflict-creation,
are Justice Breyer’s signature Establishment Clause contributions. This
view, though, is mistaken and these contributions are regrettable.

Like the man says, "download it while it's hot"!

(Still) more on the "Sisters of Perpetual Indulgence" and FIRE.

Howard has suggested, in some recent posts (here and here) that there is some inconsistency between FIRE's opposition to, say, disinviting and/or shouting down campus speakers, such as Judge Kyle Duncan, and its (I gather) failure to criticize the (now abandoned) decision of the Los Angeles Dodgers to disinvite the "Sisters of Perpetual Indulgence" from an event at Dodger Stadium. 

I disagree; the merits matter. The "Sisters of Perpetual Indulgence" are not merely (though they are) "offensive-to-some"; they are a hate group, and they traffic in a kind of nasty bigotry and obscenity that, I am confident, Howard would not shrug off were it directed at another religious group, regardless of his disagreement with that group's teachings or beliefs. A group like FIRE is, it seems to me, on solid ground when it distinguishes between (a) students at an elite university harassing a Article III judge who has been invited, in accord with established procedures, to deliver a university-appropriate talk and (b) a for-profit sports franchise deciding that, all things considered, it's a bad idea to invite and promote a hate group, the schtick of which is to mock professed religious women who share the faith of the largest religious community in that sports franchise's city.

Moreland on Liberalism and Christianity

Michael Moreland (Villanova) has posted on SSRN a new paper, "Contingency and Contestation in Liberalism and Christianity) which discusses (among other things) the presentations at a conference last fall at Notre Dame Law School on Liberalism and Christianity.  Prawfs participating included Amy Sepinwell, Andy Koppelman, Brandon Paradise, Kathleen Brady, Steven Smith, and Nathan Chapman.  Also discussed are recent works by Adrian Vermeule and Patrick Deneen.  Here's Michael's abstract:

The essays in this Symposium engage in recurring sets of issues, and here I wish to highlight four of them: (1) the relationship between liberalism and theological traditions; (2) the historically contingent and contested accounts of how liberalism and Christianity have developed over centuries in a relationship that has varied from conciliatory to hostile and what implications that account has for the history of ideas; (3) debates in legal scholarship that are illuminated by posing broader questions about liberalism, Christianity, and constitutionalism, and in particular the relationship of liberalism to different social forms, including religious institutions; (4) the renewed interest in the relationship between liberalism and Christianity in light of a new generation of critics of liberalism, whether Catholic integralists or other types of anti-liberalism, and the question—posed forcefully at the end of Steven Smith’s paper—of if not liberalism, then what else?

Michael does, I think, a great job of capturing the richness of the conversation.  [I presented at the symposium, but didn't (mea culpa!) produce a law-review article.  Here is a short version of my presentation, "Why Liberalism and Constitutionalism Need Christianity."]

"Exploring Law Through a Christian Lens" at the Legal Vocation Fellowship

Lawprawf John Inazu (WUSTL) has a Substack.  (Recommended!)  His latest entry describes a 4-day event, part of a year-plus program that he's designed (and in which I participate), called the Legal Vocation Fellowship.  Here's a bit from John's report:

This past week, I hosted a three-day conference for the Legal Vocation Fellowship (LVF), a fifteen-month cohort experience for early career Christian attorneys. During our time together, we explored how Christians might think about the practice of law as a vocation with discussion-based lectures from five law professors: Rick Garnett (Notre Dame), Ruth Okediji (Harvard), Lisa Schiltz (St. Thomas), David Skeel (Penn), and me. We covered a wide range of readings, including selections from Augustine, Aquinas, Luther, Calvin, Kuyper, and MacIntyre, as well as some biblical texts.

On Thursday evening, LVF held a public dialogue titled “Redeeming Law” at Washington University School of Law. The dialogue explored connections between Christianity and the law and featured Professors Okediji, Schiltz, and Skeel, moderated by Professor Garnett.

Read John's account.  It was a really affirming and rewarding experience. Among other things, I got to re-read, and talk to smart young lawyers about, After Virtue!  And -- I cannot resist -- here's a shot of the five faculty participants:

Pico as Derelict

Dissenting, in Lambert v. California (1957), Justice Frankfurter predicted that the 5-4 ruling would "turn out to be . . . a derelict on the waters of the law."  Whatever the merits of Justice Frankfurter's prediction, I was reminded of it by Howard's recent post about a federal district court order in Texas that invoked Pico to require (quoting the post) "Llano County to return twelve books to the public library shelves and enjoined further book removals."

Let's put aside debates about the Marks rule, or about the semantic content of the Pico opinions by Justices White and Blackmun, or about the wisdom of the Llano County removal decision, or about the tiresome-ness of newspaper reports that refer to the removed books as "banned."  It seems to me that Pico is the among the most derelict-ish rulings of my lifetime.  (Lopez and Morrison, bless their hearts, might be the most, but put them aside, too!)

The federal court in Texas invoked, from a Fifth Circuit case quoting the Pico plurality, a “First Amendment right to receive information” which prevents libraries from “remov[ing] books from school library shelves ‘simply because they dislike the ideas contained in these books.’” But . . .  there is no general "First Amendment right to receive information" and libraries are entirely free to roam through their collections and ditch stuff they have decided isn't worth keeping.  If a local librarian in Llano County were to decide (correctly) that Ayn Rand's novels are not only badly written, but pernicious, there is no constitutional prohibition on tossing them all to make room for more Piketty.  (Yes, I realize that the preceding two sentences are inconsistent with, well, Pico.) 

Whatever rule or principle the Brennan opinion in Pico might be applying -- besides "this seems hinky" -- has not been consistently applied (if it has been applied at all) to "government decisions about what it does with its stuff."  No one really thinkgs that federal courts are authorized by the First Amendment to review the shelf-culling decisions of 2023 librarians regarding the shelf-stocking decisions of their 1953 predecessors.  If the "Pico principle" were taken seriously, I suppose the government would be obligated -- not merely in a nondiscrimination, Carson-type sense, but in a positive, obligatory sense -- to fund parents' decisions to send their kids to parochial schools.  [Ed.:  Sounds good, Rick.  What's your point?]

More on "Civil Discourse" and Judge Duncan

I was substantially offline for a while, and so missed a number of updates and posts -- scroll down, and read them all! -- regarding Judge Kyle Duncan's appearance at Stanford Law School.  (For my earlier take on what I continue to regard as the very bad behavior of some SLS students and a SLS administrator, go here.)  And, several Prawfs colleagues have weighed in on the follow-up news items, including Judge Duncan's recent talk at Notre Dame (which I did not attend), Dean Jenny Martinez's lengthy open letter (which I thought was very good), and Dean Tirien Steinbach's Wall Street Journal piece (which I thought presented a version of the SLS events that departed non-trivially from what took place).

It is often important and welcome to achieve disagreement, and Howard's recent post on Judge Duncan's Notre Dame speech suggests that we have.  (Yay, us!)  Although I generally endorse the all-in-free-speech-libertarianism vibe of the Sullivan quote, I continue to think Howard is wrong to characterize/frame disruption, insults, "public shaming," etc., during an invited lecture, organized in accord with normal procedures, in an academic setting as "counter-speech."  Putting aside all state-action issues:  To say that, in this particular context, the norm is that the invited speaker gets to speak without disruption is not to question, at all, the idea that "debate on public issues should be uninhibited" or to disagree that such debate may include "vehement, caustic, and sometimesly unpleasantly sharp attacks on . . . public officials."

I also think that the comparison suggested in an earlier post of Howard's doesn't work.  The decision by a university administrator not to permit, in a particular setting, a student group's proposed drag show implicates, it seems to me, different norms than does the decision by various students (and Dean Steinbach) to disrupt a lecture that was -- again, in accord with regular, established procedures -- approved. The former is a determination (which might well be mistaken) that a particular event is not appropriate in a particular context; that latter is a determination to undermine an event that was found to be appropriate for that context.

On "Asymmetry" and "Civil Discourse" -- Or, Why Howard is Wrong

In my view, the treatment of Judge Kyle Duncan at Stanford Law School was awful.  And, in my view, the efforts of a number of academics and commentators to downplay the awfulness of that treatment is depressing.  

More specifically, though:  My colleague Howard has two recent posts on the matter that, I think, are mistaken.  First, in "Asymmetrical Censorship", Howard contends that the "left" censors using private power while the "right" does so using state power.  This contention, it seems to me, is wrong.  It's not wrong, of course, to distinguish (both normatively and in terms of effects) the censorship that is imposed by private power from the censorship that is imposed by state power (and both kinds of censorship exist).  But it seems, to put it mildly, incongruent with the facts to suggest that the "left" eschews using state power to silence/punish expression.  [Ed.: Insert here a gabillion links.] 

In his other post, Howard returns to a position he has developed in other posts, and says that "the 'civil discourse' trope . . . is and always has been bullshit."  No, it isn't. (He also says, in passing, that Judge Duncan "went to Stanford itching for a fight . . . and would have been as dismissive and rude to silent protesters."  I have no reason, and neither does Howard, to think this is true.  We both do have reasons, though, to think that Judge Duncan was set up, and that the Administrator prepared weird and offensively condescending remarks for delivery.)  It is not "bullshit" to endorse a norm that, when speakers are invited, in keeping with established procedures, to deliver remarks, in a space that is not Speaker's Corner [especially a higher-education space], those who dislike the speaker, or his or her views, should (a) attend and listen, and ask questions in keeping with usual practice; (b) avoid the event; or (c) protest the event, outside the space.)

It's also not too much to think that students at one of our nation's best law schools should be able to better express disagreement with a speaker's (in their view) misguided views than to yell about the speaker's and his or her spouse's intimate practices.  But, I guess, that's a separate question.

Pope Benedict XVI's Legal Thought

Like many, I have been reflecting a bit on the work and thought of the late Pope Benedict XVI.  I am not qualified to provide a worth-reading reflection on these matters, but I did want to call attention to a helpful volume, edited by my friends Prof. Marta Cartabia and Prof. Andrea Simoncini, called Pope Benedict's XVI Legal Thought:  A Dialogue on the Foundation of Law.  Contributors include (in addition to the editors) Mary Ann Glendon, Andrea Pin, Joseph Weiler, John Witte, and many others.  

Here is the blurb from That Web Site:

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. The speeches he delivered in these contexts reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along with the commentary from a number of distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they nevertheless are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a “public teaching” on the topic of justice and law.

R.I.P.

Religiously Affiliated Law Schools conference . . . coming up!

After a little bit of a hiatus, the conference of the Religiously Affiliated Law Schools is coming up, and is this year being hosted by Prof. Sam Levine and his team at Touro.  I hope to see MOJ bloggers and readers there!  Here's the conference info.  The theme is, well, broad: "The Past, Present, and Future of Religiously Affiliated Law Schools".  Come join us!

Here is the program:

Conference Program

Thursday, September 15 

• 9:00 - 9:30 am - Breakfast and Welcome
  Elena B. Langan, Dean and Professor of Law, Touro Law Center
  Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer
  
  
• 9:30 - 10:30 am - Religion in the Intellectual Life of the Law School
  Jeffrey A. Brauch, Professor, Executive Director, Center for Global Justice, Regent University School of Law --- Moderator
  Rodger Citron, Associate Dean for Research and Scholarship and Professor of Law, Touro Law Center
  Brad J. Lingo, Dean, Regent University School of Law     
  Judith A. McMorrow, Professor of Law, Boston College Law School 
  
  
• 10:30 - 10:40 am - Break
  
  
• 10:40 - 11:40 am -- Religion and Faculty Hiring
  Deseriee Kennedy, Professor of Law, Touro Law Center -- Moderator 
  John M. Breen, Georgia Reithal Professor of Law, Loyola University Chicago
  Michael A. Helfand,  Brenden Mann Foundation Chair in Law and Religion and Co-Director, Nootbaar Institute for Law, Religion and Ethics, Pepperdine Caruso School of Law 
  Lucia A. Silecchia, Professor of Law and Associate Dean for Faculty Research,
  Catholic University of America, Columbus School of Law
  
  
• 11:40 - 11:50 am - Break
  
  
• 11:50 am - 12:50 pm - Religious Thought in Criminal Law Scholarship and Advocacy
  Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
  Melina A. Healey, Director of Clinical Programs and Assistant Clinical Professor, Touro Law Center 
  Marah Stith McLeod, Associate Professor of Law, Notre Dame Law School 
  Honorable Richard J. Sullivan, United States Circuit Court Judge for the Second Circuit
  
  
• 12:50 - 2:30 pm - Lunch/Tour of Central Islip State Hospital Cemetery
  
  
• 2:30 - 3:40 pm - Past, Present, and Future of Religiously Affiliated Law Schools (I)
  

  Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
  Marvin Krislov, President, Pace University  
  Tim Perrin, Senior Vice President for Strategic Implementation, Pepperdine University
  D. Gordon Smith, Dean, Ira A. Fulton Chair and Professor of Law, BYU Law School

• 3:40 - 3:50 pm - Break
  
  
• 3:50 - 5:00 pm - Past, Present, and Future of Religiously Affiliated Law Schools (II)
  Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
  Fayneese S. Miller, President, Hamline University 
  Rod Smolla, President, Vermont Law and Graduate School
  Michael Waterstone,  Fritz B. Burns Dean, Loyola Law School, Senior Vice President, Loyola Marymount University, Professor of Law  
  
  
• 5:00 pm - Tour and Reception, Judaica Room, Gould Law Library
  
  
• 6:00 pm - Dinner

Friday, September 16

• 9:00 - 9:30 am - Breakfast
  
  
• 9:30 - 10:30 am Religion and the Practice of Law (I)
  Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
  Jeanne Bishop,  Assistant Public Defender at Cook County Public Defender's Office
  Allen Fagin, Former Chairman, Proskauer Rose, LLP; Board Member & Senior Advisor, Validity Finance  
  Joel A. Nichols, Interim Dean and Mengler Chair in Law, Univ. of St. Thomas (MN) 
  
  
• 10:30 - 10:45 am - Break
  
  
• 10:45 - 11:45 am - Religion and the Practice of Law (II)
  Tiffany C. Graham, Associate Dean for Diversity and Inclusion and Associate Professor of Law, Touro Law Center -- Moderator 
  Honorable Joseph F. Bianco, United States Circuit Court Judge for the Second Circuit
  Jordi Goodman, Visiting Clinical Assistant Professor, BU/MIT Technology Law Clinic,
  Boston University School of Law
  Randy Lee, Professor of Law, Widener Law Commonwealth 
  
  
• 12:00 - 1:00 pm - Lunch and Keynote Address
  Russell G. Pearce, Edward & Marilyn Bellet Chair in Legal Ethics, Morality, and Religion
  Fordham University School of Law
  
  
• 1:00 - 2:15 pm - Religious Liberty Advocacy
  John Linarelli, Associate Dean for Academic Affairs and Professor of Law, Touro Law Center -- Moderator 
  Nathan J. Diament, Executive Director, Orthodox Union Advocacy Center
  Josh McDaniel, Visiting Assistant Clinical Professor of Law, Director, Religious Freedom Clinic, Harvard Law School
  John Meiser, Supervising Attorney, Religious Liberty Clinic, Notre Dame Law School
  Lori Windham, Senior Counsel, Becket
  
  
• 2:15 - 2:30 pm - Closing Remarks
  Elena B. Langan, Dean and Professor of Law, Touro Law Center
  Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer

James Phillips on McCulloch and Gettysburg

Prof. James Phillips (Chapman) passed this on (below), and I'm happy to share it, with his permission:

I'm teaching constitutional law this year for the first time. I was wondering if PrawfsBlawg readers know whether anyone has ever pointed out the similarity between Chief Justice Marshall's description of our constitutional system of government in McCulloch v. Maryland and Lincoln's Gettysburg Address?

McCulloch v. Maryland: “The government of the Union, then ..., is emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”

Gettysburg Address: "...and that government of the people, by the people, for the people, shall not perish from the earth."

The ordering—of, by, for—is even the same. No doubt Lincoln would have been very familiar with McCulloch as a lawyer. In fact, perhaps there are bigger implications than just rhetoric. Maybe Lincoln drew heavily upon Marshall's ideas about the nature of the relationship between the government and the people as well as state sovereignty, in McCulloch and perhaps other cases or writings of Marshall.

Just curious if others have noticed this or know of any other connection between McCulloch (or more broadly Marshall) and Lincoln?

UPDATE: Akhil Amar has kindly brought to our attention that he notes this connection between Marshall’s language in McCulloch and Lincoln on pages 533-534 of his most recent book: The Words That Made Us: America's Constitutional Conversation, 1760-1840 (2021). Amar quotes the same passage noted in the post from Marshall, and then writes:

“Of the people, from the people, by the people, for the people. These were words and ideas that would resonate in American history, as young Americans like Daniel Webster (one of several oral advocates who argued the bank’s case in McCulloch) and even younger Americans like Abraham Lincoln (still a boy in 1819) would later carry the Washington-Hamilton-Marshall flag deeper into the century.”

Thoughts on Hopeful Retreat from Darkness: A (short) response to Howard

Unlike Howard -- and, I realize, most Prawfsbloggers and readers -- I have longed hoped for, and yesterday welcomed, the overruling of Roe and Casey.  Both were wrongly decided, and both distorted badly both the Court's role and our political life.  In my view, the traditional stare decisis factors weigh in favor of the majority's decision and I regret the Chief Justice's implausible argument that the Mississippi law can be reconciled with a re-imagined abortion right.  The three dissenters' views about Casey and judicial legitimacy are, I think, upside-down.  And, I believe that pre-natal human beings share in the equal dignity that entitles all of us to protection from violence.  (If anyone is interested, here is a law-review-type version of the amicus brief I and some others did in Dobbs.  Nutshell version, Rehnquist -- in Roe, Casey, and Glucksberg -- was right.)

Like (I assume) everyone else, I am not confident I know what the political/electoral/social consequences of the ruling will be.  I do not expect a substantial reduction in the number of abortions in the United States; I do not know which political camp Dobbs helps; I am not optimistic about the possibilities for reaching a European-style equilibrium nationwide; I do not think it is likely that Dobbs will lead to judicial retreat from other previously recognized unenumerated rights, such as those enforced in Pierce, Griswold, Loving, and Obergefell; I am sure Howard is right that the courts are not and will not soon be out of this issue; and it seems to me very unlikely that either "side" -- or, for that matter, supporters of some kind of compromise -- will secure either a constitutional amendment or nationalizing legislation. 

I hope that what (in my view) has fairly been characterized as the "abortion distortion" in other areas of law will dissipate, and also that political actors will make serious, good-faith efforts to come together on policies that generously support children and those who care for them.  I expect, but regret, that most law students, going forward, will be taught, as an orthodoxy from which dissent is at best suspect, a particular -- and, in my view, inaccurate -- narrative of Roe/Casey/Dobbs and the place of that narrative in our constitutional history, politics, and doctrine.  Those who are will be ill-served. 

"Religion and the American Constitutional Experiment" - Order Now and Save Big!

The "Black Legend" (of American constitutional law) returns

Fifteen years ago (!), when I was visiting at the University of Chicago Law School (a wonderful experience), I contributed a response to a post (on the Law School's blog . . . remember those?) by Geof Stone, in which he shared what he called a "painfully awkward observation" that the justices in the majority of the Court's Gonzales v. Carhart - in which the Court upheld a ban on partial-birth abortions -- were Catholic.  "It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore[,]" he said.  "[T]hese justices have failed to respect the fundamental difference between religious belief and morality," he charged.

Brian Leiter recently re-upped Prof. Stone's con-law version of The Black Legend, here.  He wrote (while conceding, as anyone must, the "unhappy fact is that there are clearly colorable legal arguments for overruling Roe"): 

Stone's analysis generated an uproar, but it was correct then, as it would be correct now:  someone with a conservative Catholic upbringing will of course regard abortion as verboten, and will thus find attractive--even without recognizing their real motivations--any colorable legal arguments that return the question of its permissibility to the legislative process (knowing full well, of course, that its availability will be restricted as a result).

As I wrote, though, in my response to Geof way-back-when, (a) there is nothing "Catholic" about the idea that the Constitution did and does not disable political majorities from enacting reasonable regulations of abortion (including, among other things, a prohibition on a procedure that involves sticking a scissor through the skull of a still-living fetus and "evacuating" his or her "cranial contents"), and (b) it is at least as likely that the non-Catholic justices' (both in Carhart and in -- it appears -- Dobbs) various commitments supplied "motivations" for disregarding what many of us think are straightforward, unremarkable analyses and arguments.  

I wrote then (I still cannot get over how long ago that was!):

[I]t is not clear why the claim "human fetuses are moral subjects and this fact constrains what should be done with and to them" is any more "religious", or any less "moral", than the claim "all human beings are moral equals, regardless of race, and should be treated as such in law."  What's more, even if it were true that the former claim is "religious" (certainly, for many, it is religiously motivated or grounded), it does not violate -- indeed, I do not think it even implicates -- the "separation of church and state" that our Constitution is thought to require.

It is interesting, I think, that Professor Stone invokes the example of Justice Brennan.  Although I believe that Roe was wrongly decided, it is impossible not to admire the Justice.  And, to me, it is clear that Justice Brennan's powerful opinions in Furman and Gregg -- with their strong and stirring invocations of "human dignity" as a limit on what governments may do the accused -- reflect views that, for Justice Brennan, were rooted in his religious faith.  Was he, therefore, a "faith-based justice" when he voted to strike down every death-penalty law in the nation?

 

 

Simon Lazarus on the Yale Law School "Trap House Affair"

Brian Leiter has posted a memorandum, dated Nov. 9, written by Simon Lazarus (Yale Law School '67), on the so-called "Trap House Affair" at Yale Law School, with which I am sure all Prawfsblawg readers are familiar.  Like Lazarus, and as a (grateful) YLS graduate, "I’ve become increasingly disappointed by the YLS administration’s persistent mishandling of the matter – which is largely responsible for escalating a small, apparently manageable misunderstanding between elements of the student body, into a focus for withering national and international criticism of YLS, by prominent journalists and academics."  And, I endorse Lazarus's list of five steps that YLS should take, as soon as possible, "to restore its stature as a bastion of basic rule of law and Bill of Rights-compatible principles."

UPDATE:  The "affair", it appears, is even worse than Lazarus suggests.  (HT: David Lat)

First Amendment fieldwork in Pleasant Grove

Last week, I happened to pass through Pleasant Grove, Utah.  First Amendment types will recall that, back in 2009, the Supreme Court issued a (unanimous) ruling in a case called Pleasant Grove City v. Summum, which had to do with government-speech and public-forum doctrines, and with a dispute over the City's refusal to put up a monument containing the "Seven Aphorisms" of Summum in its "Pioneer Park".  The City had accepted, the challengers noted, a privately donated monument of the Ten Commandments.  Well, because this is a full-service law-prawf-blawg, here is a picture of the Commandments, in the Park:

There are, outside the photo, some other various monuments and plaques, and also some old-timey, Utah-frontier-era buildings/reproductions.

(For what it's worth, if you're in Utah, I recommend getting into the Wasatch over wandering through suburbs looking for SCOTUS relics.)

 

Property Law exam possibilities . . . and mountain biking

I suppose the Property prawfs out there have moved from exam-writing to exam-grading, but I thought this update from Northern Michigan's outstanding Copper Harbor mountain-biking trail-club might be of interest.  It's been a (really!) long time since I took a property exam, but the club's announcement read like an issue-spotter!

More on the "codgers" . . . and institutional pluralism.

Paul noted, a few days ago, the very interesting and recently published conversation between Profs. Seidman and Tushnet.  The former had an interesting take on Georgetown University Law Center's Catholic character and mission:

"Georgetown Law Center is a nominally Catholic institution and one aspect of the residual Catholicism there is the notion that we’re educating the whole person. Frankly, that gives me the creeps."

Prof. Mark Tushnet's response should also be noted, though:

I would say we might want to think about whether different institutions could assert different kinds of jurisdiction and in this context it’s not irrelevant that Georgetown is an institution affiliated with the Society of Jesus and Harvard is not. It might well be that having a universe of 170 whatever law schools some of which take the care of the whole person seriously, others of which limit their jurisdiction, that might be a good thing.  Call it institutional pluralism or diversity. . . .

"Institutional pluralism."  I like that!

Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom

Spread the word!  The Notre Dame Law School Moot Court Board is pleased to announce its Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom, taking place Friday, April 9, 2021 through Sunday, April 11, 2021. Every year, teams from law schools across the country participate in our Tournament, arguing before a mock Supreme Court of the United States. We hope you will join us this spring to celebrate student scholarship, appellate advocacy training, and address challenging questions involving the First Amendment. Be sure to mark your calendars, and we hope to see you (virtually) for this exciting event!

More information is available here:  Download RFT External Invitation.

"Church, State & Society" Writing Competition

The Notre Dame Program on Church, State & Society  is sponsoring a writing competition for students:

The Program on Church, State & Society at Notre Dame Law School is pleased to announce a writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersection of church, state & society, and in particular how the law structures and governs that intersection.

Topic and Form: Papers should be focused, broadly, on topics related to church, state & society. For guidance on selecting a topic, students may wish to view our Program website and mission statement: https://churchstate.nd.edu/

Papers must be between 9,000-13,000 words, including footnotes and/or endnotes. Papers should be double spaced and use Bluebook citation rules.

Eligibility: The competition is open to law students in good standing, enrolled in a traditional law degree (J.D. or LL.B.), a Master’s degree (LL.M.), or a doctoral degree (S.J.D./J.S.D. or Ph.D.) program at an ABA-accredited law school within the United States. The competition is also open to recent graduates not yet practicing law (those completing clerkships or engaged in similar pursuits are eligible). Co-authored papers will not be accepted.

Submissions: Papers must be submitted by February 15th, 2021. Winners will be announced on or before May 7th, 2021. Papers must be e-mailed to the Program Director on Church, State & Society in .pdf form. Each submission must include a cover letter and resume in a separate .pdf document. Papers should not include author names in order to ensure that the Program Director can deliver submissions to judges and have them scored with anonymity. Emailed submissions should be sent with “2020 Writing Competition” in the subject line, and addressed to: Jonathan Hannah, J.D. at [email protected]

Judges: Papers will be judged by Church, State & Society Director, Richard W. Garnett, other faculty members at Notre Dame Law School, and possibly law & religion scholars from other U.S. law schools.

Prizes: First Place, $4,000 cash award; Second Place, $3,000 cash award; Third Place, $2,000 cash award; Honorable Mention, $1,000 cash award.

Joel Harrison on "Post-Liberal Religious Liberty"

Dr. Joel Harrison, of the University of Sydney, has a new book with Cambridge University Press, called Post-Liberal Religious Liberty: Forming Communities of Charity.  (Get yours here.)  I'm honored that he engages -- critically, but fairly and carefully -- my own church-state writing.  I asked him to supply Prawfs with an "extended blurb", to give readers a sense of the argument.  Here it is:

Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020)

Why should we care about religious liberty? What is religious liberty meant to protect? In Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020), Joel Harrison argues that religious liberty protects the quest for true religion. It facilitates the free creation of communities of solidarity, fraternity, and charity.

This argument challenges the increasingly popular liberal egalitarian account of religious liberty.  According to this account, found in the writing of scholars like Ronald Dworkin and Cécile Laborde, as well as case law, religious liberty is a subset of or signifier for a broader category of liberty, protecting personal autonomy or authenticity.  Harrison traces how this has two consequences: it treats as suspect any claim to consider religion, traditionally understood, as especially important; and it leads to the claim that religious groups and persons should increasingly be subject to state law, where the law reflects the claimed autonomy interests of individuals.

Harrison argues that challenging this account requires challenging how liberalism fundamentally understands religion, the ends of a political community, and the role of civil authority.  Religion on this understanding is cast as private, and increasingly associated with individual self-definition or even consumption. Political order is cast as secular, with civil authority defined by a logic claimed to be autonomous of religion: negotiating and furthering individual rights-claims. However, this differentiation between religion and the secular rests on a narrative of secularisation that, Harrison argues, is in reality a half-concealed theology.

In contrast, Post-Liberal Religious Liberty recovers a different theological and political vision. It draws especially from Augustine of Hippo, a subsequent tradition of associational thinking, and contemporary post-liberal thinkers like John Milbank.  Harrison argues that civil authority should be understood as an arm for pursuing human flourishing, right relationship, or the virtuous life, one complementary with and responsive to the Church. This requires a commitment to religion – the love of God and neighbour – as central to the ends of a political community.  Such claims are challenged, in whole or in part, even within Christian thought. Harrison contrasts this argument with the writing of three prominent modern Christian scholars: John Finnis, Richard Garnett, and Nicholas Wolterstorff. However, he argues that only such a commitment makes sense of the liberty of plural religious groups. It points to a good – our common good – that religious liberty serves.

(Available here, discount code: PLRL2020; or via Cambridge Core online)

Deadline approaching for Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the eleventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2020.  The prize will be awarded at the 2021 AALS Annual Meeting.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2020.

"Big Mountain Jesus" statue vandalized

I have blogged a few times, over the years, about the "Big Mountain Jesus" statue at Whitefish ski resort (a great place, BTW) in Montana.  I'm very sorry to share the news that the statue was vandalized last weekend.   Here's a little bit, from a short essay I did a while back, about the statue (and an earlier round of a different sort of iconoclasm):

Whitefish Mountain, a ski resort in northwest Montana, is known for its spicy terrain, rime-clothed “snow ghosts,” and postcard-perfect views of Glacier ­National Park. And, of course, for “Big Mountain Jesus.”

Big Mountain Jesus is a kitschy but beloved dashboard-ornament-style six-foot-tall statue standing on a six-foot-tall stone pedestal near the summit of one of Whitefish’s peaks. It was erected in 1955 by some local Knights of Columbus who had served in Italy during World War II with the 10th Mountain Division and remembered fondly the statues and shrines that were ubiquitous in the Apennines and Alps. Because Whitefish and the statue are on leased public lands, and the Knights’ permit has to be ­reauthorized by the United States Forest Service every ten years, the enterprising secularizers at the Freedom from Religion Foundation eventually, and predictably, made a federal case out of Big Mountain Jesus, claiming among other things that it “excludes all the brave Jews and atheists that fought in World War II.”

The statue survives, for now, notwithstanding the lack of any accompanying, equal-time-supplying idols or icons. The federal judge assigned to the case noted that “[t]o some, Big Mountain Jesus is offensive and to others it represents only a religious symbol. But the court suspects that for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires.” Instead, the memorial “serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, t-bars, leather ski boots, and 210 cm skis.” The relevant U.S. Court of ­Appeals took the auspices and then agreed, duly reporting that Big Mountain Jesus has a “secular purpose” and—because “the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in Mardi Gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures”—the statue does not “endorse” Christianity.

According to the news report, "the forest service learned of the vandalism on Monday, but did not yet have information on whether the incident is being investigated."

Espinoza, long projects, and doctrinal change

Today's decision in Espinoza is, for me, very welcome, but also prompts some strange feelings and emotions.  I have been working on (what I regard as) the cluster of school-choice/educational-pluralism/religious-freedom issues and questions for a long time.  (Here, for example, is an essay on "The Blaine Amendments" from 17 years ago.)  Professor Garnett the Greater (i.e., Nicole Stelle Garnett) was working to challenge state-law exclusions of religious schools from choice and scholarship programs with the merry band at the Institute for Justice in the mid-1990s, and I filed (unsuccessfully!) cert. petitions in Vermont and Maine cases raising the matter, with Prof. Michael Stokes Paulsen, back in 1999 (I think!). 

Clearly, the doctrine has evolved (for the better, I think) in this area.  From Lemon and Nyquist, to Zelman and Mitchell, and now to Trinity Lutheran and Espinoza, the rules have changed from (as I see it) "discrimination against religious schools and those who choose them is often required" to "discrimination against religious schools and those who choose them is rarely permitted."  It's fascinating to step back, a bit, and trace the development, follow the lines of argument, note the incremental steps.  We will see what the real-world policy effects and implications are, but my own hope is that they will include enhanced educational pluralism, increased choice and opportunity, and a brighter future for currently beleaguered ("in these complicated times") Catholic schools.  (I realize, of course, that many Prawfs readers and colleagues will disagree, which is, of course, fine.)

All that aside, there is a (for me) weird "what now?" (or, "now what?") feeling.  A development in legal doctrine that I have been hoping for, and fretting about, for a long time, has come about.  I don't have any illusions, to be clear, that I had anything to do with it and I certainly realize I'm far from being the only or first lawyer or law professor to have this feeling.    

"What It Means To Be Human: The Case for the Body in Public Bioethics"

Congratulations to my friend and Notre Dame colleague, Carter Snead, on his forthcoming (timely, important) book, What It Means To Be Human.  Here's a blurb: 

The natural limits of the human body make us vulnerable and therefore dependent, throughout our lives, on others. Yet American law and policy disregard these stubborn facts, with statutes and judicial decisions that presume people to be autonomous, defined by their capacity to choose. As legal scholar O. Carter Snead points out, this individualistic ideology captures important truths about human freedom, but it also means that we have no obligations to each other unless we actively, voluntarily embrace them. Under such circumstances, the neediest must rely on charitable care. When it is not forthcoming, law and policy cannot adequately respond.

What It Means to Be Human makes the case for a new paradigm, one that better represents the gifts and challenges of being human. Inspired by the insights of Alasdair MacIntyre and Charles Taylor, Snead proposes a vision of human identity and flourishing that supports those who are profoundly vulnerable and dependent―children, the disabled, and the elderly. To show how such a vision would affect law and policy, he addresses three complex issues in bioethics: abortion, assisted reproductive technology, and end-of-life decisions. Avoiding typical dichotomies of conservative-versus-liberal and secular-versus-religious, Snead recasts debates over these issues and situates them within his framework of embodiment and dependence. He concludes that, if the law is built on premises that reflect the fully lived reality of life, it will provide support for the vulnerable, including the unborn, mothers, families, and those nearing the end of their lives. In this way, he argues, policy can ensure that people have the care they need in order to thrive.

In this provocative and consequential book, Snead rethinks how the law represents human experiences so that it might govern more wisely, justly, and humanely.

"Friendship in a Time of Cyberattack"

Apologies if this is a bit off-Prawfs-topic, but I enjoyed this piece, "Friendship in a Time of Cyberattack," by my theorist-and-theologian friend (and fellow Duke Blue Devils fan!), Mike Baxter.  Pope Francis, Guardini, Pieper, Berry, Simon, and MacIntyre all make appearances in Mike's discussion of friendship, time, technology, the university, and the polis. Here's just a little bit:

What the cyberattack did for us at Regis is open up the possibility of recognizing how our life and work together is so deeply dependent on digital technology and to consider the ways it could be enhanced by making ourselves less dependent on it. . . .

The cyberattack also created commonality between faculty and students, for we were in the same boat, with emails failing, assignments not posting, tests and exams running late. More importantly, there was a more personal touch to the interactions between students and faculty. Papers were graded by hand, in the penmanship of the grader. With no email, more students came by during office hours to ask about something. And there was a deeper sense that class was going to occur in the classroom, with everyone together, rather than dispersed through list-servers, online bulletin boards, and such. Finally, most importantly, it created common ground among faculty, for the simple fact that there was more time, what with fewer meetings, no department and college wide assessments to do, and so on; and with more time comes more conversations about what we are teaching and working on. An added factor here was that with on-line resources down, intellectual conversation is more likely to occur locally, which can be surprisingly fruitful. In other words, with our on-line capacities down, we were less able to have conversations with colleagues across the country and found ourselves drawn more into talking with colleagues down the hall or in the building across the quad.

In these (and other) ways we found ourselves gifted with the time and space for cultivating or renewing friendships in all the varieties and permutations discussed by Aristotle: utility, pleasure, among equals, among those older and younger, and, most importantly, true friendship, based on a common pursuit of the good. . . .

Criminal Law syllabus / course aims and goals

Over the years, I've revised, tweaked, abandoned, and cobbled together a few pages, at the front of the syllabus, about the aims and goals of my first-year Criminal Law course. To avoid exam-grading obligations, I'm messing around with them again. And, if anyone else needs an avoidance-behavior opportunity, I'd welcome reactions and suggestions!  Below the jump . . .

Course Description and (Some) Goals:

            In this introductory course, we will read, talk, learn, and think about the Criminal Law. Our focus will be, for the most part, on what is often called “the general part” of Criminal Law rather than on specific offenses in particular jurisdictions. We will cover technical matters and traditional doctrines as well as the theoretical, philosophical, and moral assumptions, commitments, and goals that shape the ways we define, prosecute, and punish crimes. The study of Criminal Law can and should be challenging and unsettling – and also fascinating and fun. I look forward to working with you.

            A goal for this class, and for the entire first year of law school, is to learn how – and to push ourselves – to read carefully, write clearly, and think rigorously, “like a lawyer.” More specifically, my hope for each one of you is that you will acquire and develop:

(1) The ability to read and the habit of reading legal materials – cases, statutes, constitutions, etc. – in a careful and disciplined way. In many contexts, skimming texts for the “general idea” works fine. In the Criminal Law and law-school contexts, though, it usually doesn’t. As you’ll see, words matter: they can make the difference between going home and going to prison.

(2) The ability to draw relevant and instructive comparisons and similarly relevant and instructive distinctions. This is a big part of what “legal reasoning” is all about. You should be able to pull general principles and rules from one case and apply them to another – or, to explain why they should not be applied and others should be instead. In your law-school classes, when your teachers push you with hypotheticals and changed facts, this kind of reasoning is what we are aiming for.

(3) An appreciation for the fact – and, to be clear, it is a fact – that legal doctrines, rules, tests, and standards reflect and are shaped by underlying premises, assumptions, values, and commitments. You should be able to think critically about these doctrines and identify the premises they reflect and their likely implications. The doctrines and definitions you will study are what they are for certain reasons and because of certain arguments.

(4) A familiarity with a range of traditional and contemporary Criminal Law terms and doctrines and also with certain notable features of the Model Penal Code. Because Notre Dame Law School students come from, and go to, a wide array of jurisdictions, it does not make sense to limit ourselves to any particular jurisdiction’s criminal statutes. It does make sense, though, to notice and appreciate the fact that, sometimes, different jurisdictions take different approaches, employ different definitions, and apply different rules.

(5) The ability to listen carefully and sympathetically to others’ arguments – especially arguments with which you think you disagree, or which irritate or offend you, or which challenge or unsettle you – and to reflect upon them, to engage them, and to respond thoughtfully and civilly to them. To teach, and to study, Criminal Law appropriately requires engaging with a number of difficult and controversial questions and topics.

(6) A genuine and abiding enthusiasm for lawyering and the legal enterprise, and a happy resolution to live your life in the profession – in this vocation – as a “different kind of lawyer.”

            Now, at some point, you will almost certainly ask yourself “why isn’t this class more like Law & Order . . . or Sherlock, or Suits, or Better Call Saul?” The truth is, in the “real world,” there is much, much more to “criminal law” than you will encounter in this course. This course is not (directly) about search-and-seizure rules, policing and profiling, interrogation practices, trial procedures, evidence, post-conviction review, prison conditions, criminology, or the death penalty. Our subject – substantive Criminal Law – is only one part of (what is often, but misleadingly, called) the criminal-justice “system.” The criminal-law process, as it plays out in the trenches, involves and is influenced by bureaucracy, procedural rules, personalities, choices, evidence, case-specific facts, race, budgets, poverty, wealth, politics, fear, prejudice, bravery, and evil. Those of you who decide to practice criminal law (or who really like crime dramas) will want to explore, during your law-school career, a wide variety of other courses. (When the time comes, I’ll be happy to offer suggestions.)

        That said, relatively few of you will actually practice criminal law. So . . .  why is Criminal Law a required course? Here are a few reasons: First, the first-year Criminal Law course is intended to continue your introduction to statutes and to the very important, lawyerly task of interpreting and applying them. You’ll need this skill in many upper-level courses and almost all of you will need it in practice as well. Second, it lays a foundation for understanding and thinking critically about the fairness, rationality, efficiency, and morality of the criminal process and you ought to be able to do these things as a lawyer – especially as a Notre Dame lawyer – and, even more importantly, as a citizen. Third, this course raises fundamental “big questions” about the law. For example: Why do we punish? What justifies punishment? What counts as a harm? When are people responsible and/or culpable for their actions or for the harms they cause? What are the limits on the coercive power of the state? These questions will arise in different forms in many other classes, in many areas of practice, and in any “examined life.” Our hope is that “Notre Dame Lawyers” will take them particularly seriously.

Foucault and the CCP's social-credit scheme

I highly recommend this book(s) review, by John Lancaster, in the London Review of Books, called "Document Number Nine."  Among other things, it discusses the striking developments in AI/machine learning and the ways that the CCP dictatorship is using them for policing, surveillance, rewards, and punishment.  Along the way, though, there was this, which echoed some themes I've been presenting, in my first-year Criminal Law course, when we talk about "Big Data" and Predictive Policing:

At the moment, the main impacts of people’s social credit are on activities such as travel: people with bad social credit can’t fly, can’t book high-speed train tickets or sleeper berths; they have slower internet access and can’t book fancy hotels or restaurants. It isn’t difficult to project a future in which these sanctions spread to every area of life. The China-wide version of social credit is scheduled to go live in 2020. The ultimate goal is to make people internalise their sense of the state: to make people self-censor, self-monitor, self-supervise. Strittmatter quotes Discipline and Punish: ‘He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles; he becomes the principle of his own subjection.’ The Chinese version of social credit is the closest thing we’ve ever seen to Foucault’s system in action at a national level.

And this:

Given all this, it is frequently the case that outsiders are surprised by the apparent freedom of the Chinese internet. People do feel able to complain, especially about pollution and food scandals. As Strittmatter puts it, ‘a wide range of competing ideologies continues to circulate on the Chinese internet, despite the blows struck by the censors: Maoists, the New Left, patriots, fanatical nationalists, traditionalists, humanists, liberals, democrats, neoliberals, fans of the USA and various others are launching debates on forums.’ The ultimate goal of this apparatus is to make people internalise the controls, to develop limits to their curiosity and appetite for non-party information. Unfortunately, there is evidence that this approach works: Chinese internet users are measurably less likely to use technology designed to circumvent censorship and access overseas sources of information than they used to be.

A new chapter, perhaps, in a revised version of Andrew Ferguson's book?

Nicole Garnett JOT on "The War Against Chinese Restaurants"

I'm posting/linking to a short JOT (Download Garnett JOT 2019)written by Prof. Nicole Stelle Garnett on Gabriel Chin's and John Ormonde's 2018 article, “The War Against Chinese Restaurants."  (The piece turned out not to be run-able in JOTWELL because, the author and editors realized after the piece was completed, the article had already been JOT-ed.  But, that's no reason not to post or read it here!)

Petty Tyrants and their Property-Law Arsenal:  A Cautionary Tale

 Nicole Stelle Garnett*

Gabriel J. Chin & John Ormonde, “The War Against Chinese Restaurants,”

67 Duke Law Review 681 (2018)

For my friend and colleague, John Copeland Nagle (1960-2019), with whom I shared many Chinese meals, and for Jean Chen, the best chef in South Bend, Indiana, who cooked most of them.

            Today, according to the Chinese American Restaurant Association, there are over 45,000 Chinese restaurants in the United States – more than the number of McDonald’s, KFCs, Pizza Huts, Taco Bells, and Wendy’s combined.[1]  That statistic surprised me, but not as much as the revelation in Gabriel Chin & John Ormonde’s fascinating article, “The War Against Chinese Restaurants,” that Chinese restaurants have flourished in the U.S. for the past century and a half.  Indeed, in the late-nineteenth and early-twentieth centuries, Chinese restaurants were so successful that that they were considered a cultural menace and became the target of a xenophobic “war” declared by early labor unions and their political allies who employed a variety of legal tools, including the tools of property regulation, to prevent them from opening (or force them to close).[2]

 

* John P. Murphy Foundation Professor of Law, Notre Dame Law School.                           

[1] Emelyn Rude, A Very Brief History of Chinese Food in America, Time Magazine, Feb. 8, 2016, available at http://time.com/4211871/chinese-food-history/.

[2] In 1920, AFL President Samuel Gompers (a leader of the Chinese exclusion movement), wrote a book entitled Meat v. Rice: American Manhood against Asiatic Coolieism, Which Shall Survive?

Chin and Ormonde detail the reasons for the late-nineteenth-century growth in Chinese restaurants, including discriminatory labor practices that dramatically limited employment opportunities for Chinese immigrants and the fact that Americans, apparently, have always liked Chinese food (or at least an Americanized version of it).[1]  They also explain the economic and political motivations for opposing Chinese restaurants, including concerns about the victimization of white women by Chinese men, the risk of miscegenation,[2] and competition between Chinese restaurants (and their inexpensive labor force) and American restaurants (and their unionized labor force).[3]  The bulk of their fascinating article, however, details the various tools employed to fight the “war” against Chinese restaurants, including labor union boycotts,[4] state laws prohibiting white women from working in and/or patronizing them,[5] citizenship-based employment- and business-licensing requirements,[6] and—importantly for present purposes—the discriminatory use of the tools of property regulation.

            For example, in 1911, lawmakers in Chicago sought to enact proto-zoning legislation that would have excluded Chinese restaurants from Wabash Avenue in the city’s central business district.[7]  Despite being advised that such a law was probably unconstitutional under Yick Wo v. Hopkins,[8] the city council voted to order city commissioners to “refuse the issuance of permits for contraction or remodeling of any building ... by any Chinaman” in the area.[9]  Chicago was not anomalous.  Cities across the nation employed the discriminatory enforcement of facially neutral laws to impose de facto zoning that either excluded Chinese restaurants altogether or limited their operations to “Chinatowns.”[10]  And, as I have previously documented in other contexts, police employed the “order maintenance” tools of law enforcement to limit their operation to restricted “zones” (or to close them for minor—and sometimes fabricated—legal infractions.[11]  Finally, local governments sought to control or close Chinese restaurants by regulating the interior design of restaurants.  Because early-twentieth-century Chinese restaurants typically had small compartments, or booths with curtains, one legal tactic was to prohibit booths in restaurants.  Dozens of municipalities, in fact, banned private booths in restaurants.  The stated justification for these bans was the prevention of solicitation, but the unstated motive—closing Chinese restaurants—was hardly a secret.  Indeed, in a report endorsing booth bans, the U.S. Public Health Service specifically cited the problem of “chop suey joints” with private booths.[12]  Ultimately, restrictive immigration regulations—specifically the Chinese exclusion law—led opponents to declare victory,[13] but the persistent popularity of Chinese restaurants suggests that they may have won the battle and lost the war.

            Chin and Ormonde conclude by drawing connections between the war against Chinese restaurants and contemporary immigration battles.  There are undoubtedly connections to be drawn, but their piece also illustrates a dark underbelly of property regulation.  It is well-understood that land use regulations can be, and are, used to exclude unwanted land uses and users.   Academics and policy makers alike have debated for decades how to curb the exclusionary effects of zoning law, for example.  But both groups tend to discount, overlook (or in some cases obfuscate) the fact that the nuts-and-bolts tools of property regulations (such as permitting and licensing requirements, design review, and off-street-parking requirements) can be used to achieve the same exclusionary effects in far-less transparent ways.[14]  Chin and Ormonde’s article reminds us that, in the hands of petty tyrants, the tools of property regulation are dangerous weapons—ones that perhaps property law scholars should attend too more closely.

 

[1] Chin & Ormonde, 687-88. 

[2] Id. at 701-705.

[3] Id. at 689-90.

[4] Id.at 691-98.

[5] Id. at 707-16.

[6] Id. at 716-719.

[7] Id. at 719.

[8] 118 U.S. 356 (1886).

[9] Id. 720.

[10] Id. at 721-22.

[11] Id. at 723-24.  Nicole Stelle Garnett, “Relocating Disorder,” 91 Virginia Law Review 1075 (2005).

[12] Chin & Ormonde, 727-30.

[13] Id. at 727-34.

[14] See, e.g., Margaret Brinig& Nicole Garnett, ”A Room of One’s Own?  Accessory-Dwelling-Unit Reforms and Local Parochialism,” 45 Urban Lawyer 519 (2013) (finding that local governments in California used these restrictions to undermine a state-law affordable-housing mandate).

 

Using Reddit for Law School seminar?

A question for the Prawfs hive-mind:  Could it work well, for a seminar-style course, to create a (private, I assume) subreddit for class-related links, posts, discussion, etc.?  Or, are there excessive risks of distraction (or worse) from some of Reddit's more . . . colorful content?  Does anyone have any experience with this kind of discussion-mechanism?  (I am, I admit, trying to avoid having to learn how to use TWEN or Sakai for this kind of thing.)

"Professional Responsibility 2020 Works in Progress Workshop"

AALS Section on Professional Responsibility
2020 AALS Annual Meeting
Call for Papers Announcement

The AALS Section on Professional Responsibility invites papers for its program
“Professional Responsibility 2020 Works In Progress Workshop”

at the AALS Annual Meeting in Washington, DC.

WORKSHOP DESCRIPTION:

This workshop will be an opportunity for junior scholars to receive substantive critique and feedback on a work in progress. Each junior scholar will be paired with a more senior scholar in the field who will lead a discussion of the piece and provide feedback. Successful papers should engage with scholarly literature and make a meaningful, original contribution to the field or professional responsibility or legal ethics.

ELIGIBILITY:

Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars focusing their work in the area of professional responsibility and legal ethics. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.

PAPER SUBMISSION PROCEDURE:

Two papers will be selected by the Section’s Executive Committee for presentation at the AALS annual meeting.
There is no formal requirement as to the form or length of proposals. However, the presenter is expected to have a draft for commentators one month prior to the beginning of the AALS conference.
The paper MUST be a work in progress and cannot be published at the time of presentation. It may, however have been accepted for publication and be forthcoming.

DEADLINE:

Please email submissions to Veronica Root Martinez, Associate Professor, Notre Dame Law School, [email protected] on or before September 10, 2019. The title of the email submission should read: “Submission – 2020 AALS Section on Professional Responsibility.”

On "Big Mountain Jesus" (again) . . . and also liberalism, the First Amendment, Dignitatis Humanae, etc.

I've posted a few times about the "Big Mountain Jesus" statue at Whitefish Ski Resort (click here for a picture).  And, the Supreme Court's pending case involving a war-memorial Cross in Maryland has brought back to public attention -- it's been about 15 years since the Court's pair of Ten Commandments cases -- the question of the First Amendment's implications for religious symbols, etc., in "public."

In the latest issue of First Things, I return to the "Big Mountain Jesus" controversy, and also speculate a bit about liberalism (as I understand it!), religious establishments, and other things.  Here is the SSRN abstract:

This paper, which was prepared for discussion at the May 2018 Dulles Colloquium, convened by the Institute for Public Life, engages current discussions and debates regarding the nature of “liberalism” and the content of “religious freedom.” It considers, specifically, whether a “liberal" political community may and/or should recognize or establish a religion, drawing on the Second Vatican Council's “Declaration on Religious Freedom.” And, it addresses the controversy surrounding “Big Mountain Jesus.”

 

 

State Constitutional Law at Notre Dame

Last Friday, I enjoyed attending a symposium at Notre Dame Law School, hosted by our Journal of Law, Ethics & Public Policy, on state constitutional law.  The line-up was outstanding (it included our own Dan Rodriguez) and Judge Jeff Sutton gave a thoughtful, engaging, and well-attended keynote address.

I particularly appreciated (as did, I hope, my students) the event because I'm teaching this semester, for the first time, a seminar on State Constitutional Law.  (The Other Professor Garnett has taught it for several years at Notre Dame.)  We are using the casebook for which Judge Sutton is a co-editor, and also his recent book, 51 Imperfect Solutions:  States and the Making of American Constitutional Law.  

Probably, most Prawfsblawg readers are familiar with Justice Brennan's article on the subject and with the fact that in a number of "hot button" subject-matter areas (e.g., religious accommodations, the exclusionary rule, education funding, economic-development takings, disparate impact, etc.) state courts have interpreted their own constitutions differently -- that is, in a way that provides more protection for individual rights -- than the Supreme Court has interpreted analogous provisions of the Constitution of the United States.  In addition to "rights" issues, though, there are fascinating variations in terms of "structure", e.g., non-unitary executives, non-delegation, standing and advisory opinions, etc.  My sense is that the students find these points of comparison and contrast even more interesting than the rights one (perhaps because the rights variations seem to reflect the one-way-ratchet principle).

I'd love to have Dan weigh in, but one question that has recurred again and again, for me, this semester is whether / when state courts are actually interpreting their own constitutions, as opposed to using the raw facts of federalism, Michigan v. Long, and the Supremacy Clause to dissent from / push back against Supreme Court decisions with which they disagree.  That is, are we seeing the interpretations of state constitutions themselves, or are they just vehicles, in some cases, for incorporating by reference various Supreme Court justices' dissenting opinions?

Another intriguing (to me!) question:  Judge Sutton insisted that "the federal floor is a myth."  That is, he said, it is not really the case that state courts must interpret their rights-related provisions as guaranteeing at least as much protection as do the analogous federal provisions.  True, if the federal claim is raised, its protections will win out but, he insisted, whether the federal claim is raised or not, a state court could still insist (imagine, for example, that a state court determined that its own constitution's free-speech clause does not protect pornography or campaign contributions) that its own rights-related provision provides, by itself, "less" protection.  So . . . why would/should a state court do such a thing? 

In any event, if anyone's looking to pick up a new course -- and I know that Sandy Levinson and others have been urging it! -- I recommend this one!    

"The Party of the University"

I recently read -- and really enjoyed -- Hanna Holborn Gray's memoir, An Academic Life.  Her's and her family's are fascinating stories.  We learn a lot about higher education during the second half of the 20th century and about Yale and the University of Chicago in particular.  Having just spent three years on my own institution's "Ad Hoc Committee on Faculty Governance," I found Gray's accounts of committee meetings, governance procedures, and institutional citizenship not only entertaining, but even a bit inspiring.  She actually seems to have enjoyed, and to still have confidence in, these mechanisms.

This review ("The Party of the University"), by Rita Koganzon, does a good job of capturing the book's feel.  And, it discusses some of the interesting questions the book raises for us today, in higher education.  Here's just a bit:

Gray’s memoir is so insistently out of place among higher-education polemics that it might be worthwhile for that reason alone. She is an inveterate institutional loyalist, impervious to the appeal of the movements and ideologies to which many academics have openly and happily hitched their work. To call someone an institutional loyalist now cannot help but sound like an accusation of moral corruption—surely you’re not going defend Yale over justice? But in Gray’s depiction, correcting injustice rarely requires exposing the university to public humiliation, and, conversely, it is very unlikely that such humiliation will correct any injustice.

To read her memoir is to be launched into alien terrain. On this planet, there are universities full of good “citizens,” as Gray calls her colleagues, who sacrifice their time to perform often unrecognized and thankless service to guide their institutions through difficult financial straits and leadership impasses. Even the deepest clashes of principle, like those at stake in the anti-war protests, are worked out in committees and through personal discussions, with all parties satisfied that a “fair process” has been observed. In the most intractable cases—like the question of South African divestment, which was debated during Gray’s presidency at Chicago—task forces are convened to produce reports laying out broadly accepted guiding principles for the future. The various constituents of higher education may have quite divergent visions for their institutions but they can all, on the whole, be reasoned with. . . .

Has anyone else read Gray's memoir?  I'd welcome others' reactions.

Prof. Thomas L. Shaffer, RIP

My colleague -- and friend, teacher, mentor, inspiration -- Prof. Thomas Shaffer died on Tuesday. A former dean of the Notre Dame Law School, he was a creative, provocative, and incredibly prolific scholar. His writings on legal ethics, narrative, literature, poverty, religion, clinical teaching, and other things are a wonderful legacy.  I recommend this lovely remembrance by Tom's student and friend, Prof. Robert Cochran (Pepperdine). 

I first discovered his work during my second year of law school, when I was in a (great) seminar taught by David Luban on "The Legal Profession."  He assigned an article of Tom's called The Legal Ethics of Radical Individualism.  The piece's claims, tones, and premises were very different from most of what I was reading as a law student, and his unapologetic transparency about the relevance to lawyering of one's religious faith and commitments was welcome and inspiring.  It opened with this:

Most of what American lawyers and law teachers call legal ethics is not ethics. . . .  Its appeal is not to conscience, but to sanction. It seems mandate rather than insight.  [It] rests on two doctrines:  first, that fact and value are separate; and second, that the moral agent acts alone; as W.H. Auden put it, each of us is alone on a moral planet tamed by terror. . . .

Ethics properly defined is thinking about morals. It is an intellectual activity and an appropriate academic discipline, but it is valid only to the extent that it truthfully describes what is going on. . . .  [O]rganic communities of persons are prior to life and in culture to individuals-- in other words, . . . the moral agent is not alone.    

This article led me to Tom's books, American Lawyers and Their Communities, On Being a Christian and a Lawyer, Faith and the Professions, and then to his radically (think Hauerwas, etc.) Christian brand of communitarianism more generally. I wrote a paper for Luban's seminar on the legal ethics issues raised by representing so-called "death row volunteers" that became, eventually, this early article of mine. I mailed my paper to Tom -- whom I'd never met and who was, after all, being paid to teach other students, not me! -- and he wrote me back a three-page, single-spaced letter with helpful feedback, comments, and encouragement.  I was so happy to be able thank him, five years later, when I came to Notre Dame to be his colleague.

Tom was a deeply good person with a genuine heart for those on the margins. He was a chaired professor, but insisted on working and teaching in the Legal Aid Clinic. I believe that I very well might not be a legal academic today, but for him, and I'm very grateful to him for that (and many other things). RIP.

"Two Weeks In": thoughts for first-year students

For about 15 (!) years now, I've imposed on the students in my first-year classes (Constitutional Law and Criminal Law) a version of the meandering and sprawling e-mail that's pasted below the jump.  It's meant to be an evolving reflection on legal education and formation, and the legal enterprise more generally, for (again) people who are still pretty near the starting gate.  I'd welcome (off-line or in the comments) any thoughts or suggestions for improvement!

Dear all,

We're two weeks into the new semester.  For what they're worth, here are a few reflections of mine, both about these first two weeks and about what's ahead.  You've probably heard a lot of this, from me or from others, before. Usually, I impose these thoughts -- which change every year! -- on first-semester students and, obviously, you all are more experienced than that.  Still, I thought it might be helpful to you to have a sense of how (for what it's worth) I think about what we're doing.

My view, as you've probably guessed, is that legal education is not primarily about memorizing rules, and “being a lawyer” involves more than being paid to apply clear “black letter” doctrines to clear facts.  As I see it, there is not always a clear “right answer”:  Life in the law is far more complicated -- and far more interesting -- than this, in several ways.

As I've mentioned a few times in class, we lawyers are, in many ways, story-tellers.  We investigate the facts, select our witnesses, find our evidence, ask our questions, and make our arguments.  We are, of course, both honest and creative. We try to convince the courts, and our opponents, about “the law” that applies to the case – i.e., the rules by which our “story” will be judged. We make arguments.  We draw analogies to some cases and we distinguish others.  After all, it is not always clear what the law is or what the law means.  And, we try convince our audience that “the law”, applied to “the facts”, yields the result for which we are advocating.  And, of course, we do all this mindful of the fact that we have an obligation to the truth. 

None of these three aspects of the drama of practicing law has anything to do with memorizing “black letter” rules or case-names.

You are all students at a good law school.  What does that mean?  Some think that law students are, essentially, consumers, and that “the law” is a neatly packaged product that law schools and teachers hand over, in small chunks, in exchange for huge tuition payments.  Some think that law school is a three-year bar review course, the purpose of which consists entirely in preparing one to take and pass the dreaded bar exam.   Still others might think that law-school classes can be neatly divided into “law,” which one needs to know, and “policy” and “theory,” which the professors care about but is really irrelevant.

As you might imagine, I believe these views are mistaken.  The truth is, we don’t really have a “product” for you to consume.  Instead, what we've been doing this year is inviting you into a profession and into a way of thinking about the problem of ordering the life of the community (which is the problem that law is supposed to solve).  And the study and teaching of law does not consist of me handing over, and you memorizing, briefly retaining, and then regurgitating on an exam, a set of rules called “the law.”  Legal education – if done right – is not about memorizing facts, data, and rules; it is not only about “technique.”  It is about learning to think, write, and reason – critically, carefully, and creatively.

In my view, if we are doing our jobs right, my colleagues and I are teaching and encouraging you to write clearly and persuasively; to craft sound arguments by drawing analogies and making distinctions; to abstract general principles from specific situations, to analyze complicated scenarios, and to apply the appropriate principles to the given facts and circumstances; to appreciate, when presented with a problem, which facts matter, and which facts do not; to recognize the moral dilemmas that so often arise in law (and in life), to have the strength of character to do the right thing, and to encourage others to do likewise; to think critically about legal rules and practices, and to evaluate them in light of the transcendent demands of justice and human dignity; to communicate to others, to your friends and families, to your clients, and to your communities the value and importance of the rule of law (in other words, part of what you are learning here is how to be a law teacher); and, perhaps most important, we want to encourage you to regard “being a lawyer” as “more than a job,” but a vocation.

Well, now you might be thinking, “this sounds fine, but is it practical?”  For starters, in law, theory and practice are always connected, and cannot be separated.  The practice of law is the application of theory and principles.  For example, the various “punishment theory” readings might seem abstract and theoretical; in fact, they explore ideas and arguments that play an essential role in shaping the “black letter” law.  In addition – I cannot emphasize this enough – you’ll find that when you practice law, your stock in trade will not be your memorized storehouse of legal formulas.  You’ll forget most of them pretty quickly after you graduate, if not before.

 Our stock in trade as lawyers is judgment, persuasiveness, reason, and wit.  No one is ever going to come to your office and say, “Mr. Smith, can you tell me the Rule Against Perpetuities?”  Instead, they are going to come to you with complicated problems and they will want your counsel and advice.  The solutions to these problems will rarely be clear; in fact, the problems themselves will rarely be clear.  This is why law is fun.  It is fun, challenging, and creative to identify and solve problems.  That’s what we do.

I think that an important aspect of legal education is learning to deal with uncertainty.  It's learning to deal with the fact that, sometimes, my colleagues and I won’t give you “the answer” to your question and will instead work through the competing arguments with you.   This under-determinacy can be frustrating.  But, there’s no escaping it.  If we make the law and its applications “black and white”, then we are lying to you.  To be clear:  I’m not saying that “there is no truth” or that “right and wrong are all subjective and relative.”  I’m simply saying that, in the law, there are often good arguments on both sides of a question.

I think that all this is true not only for Criminal Law, but also for your other courses, last semester and now.  In a way, the label on the book or the title of the class doesn’t matter all that much.  In all of these classes, you are learning pretty much the same thing:  How to think and write like a lawyer.  Think of it this way:  Every law-school subject has three “levels.”:  The subject’s particular rules and doctrines; the history and public-policy justifications for those rules and doctrines; and the meaning of life.  To be a good lawyer -- to deserve the name -- you have to think about law on all three levels.  In my view, no lawyer worthy of the name can be ignorant about where the principles she applies come from, or indifferent about whether they can be justified.

Finally, a favor to ask:  please do your best during your time here to build an intellectual culture here that is consistent with all this.  Allow yourself, and encourage each other, to be intrigued by and curious about the law.  Care and argue about the law.  Not every law student thinks this way, but a Notre Dame lawyer should.

Sincerely,

RG

Marcus Cole to be Dean of Notre Dame Law School

I'm very happy to share the news that my old friend -- who shares with a Very Important Person the honor of having clerked for Judge Morris "Buzz" Arnold -- Marcus Cole is going to be my new boss at Notre Dame Law School. Great things are happening at Notre Dame -- the "Killer B's", for instance!, we have great students, and I am looking forward to what can happen under Marcus's leadership. I'm also happy for him, now that he gets to cheer for Our Lady's Fighting Irish instead of . . . a tree. (I kid, I kid!)

"The End of a Walking Dead Doctrine?"

Here is my contribution to a symposium sponsored by the good folks at SCOTUSblog on the upcoming memorial-cross case.  Here are the opening grafs:

About four and a half years ago, here at SCOTUSblog, commenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound. . . . 

Stay tuned!

"Volunteering for Execution" (again)

Reading and thinking about this Bloomberg news-item ("In Unusual Capital Fight, Inmate Gets His Wish and Gets Executed") took me back to a Prawfsblawg post of mine from more than ten (!) years ago.  Reacting to a then-recent decision by the U.S. Court of Appeals for the Ninth Circuit, I wrote: 

The term "death-row volunteer" probably sounds strange -- do people really "volunteer" to be on death-row? -- but, nonetheless, it describes reasonably accurately a not-insubstantial number of those convicted murderers who have been executed in the United States since 1976.  (For more detail on the death-row-volunteer issue, see this paper of minefrom a few years ago.) 

Today, the indefatigable Howard Bashman reports, the en banc United States Court of Appeals ruled that Robert Charles Comer, who was sentenced to death in Arizona, was "competent" to waive further proceedings relating to his federal habeas corpus petition and that he had, in fact, "voluntarily" waived those proceedings.  In a nutshell, the Ninth Circuit ruled that, notwithstanding the possibility that legal errors had infected his capital-sentencing proceedings, Comer could prevent judicial correction of those errors by "volunteering" to be executed, in accord with his death sentence.  (The court rejected the argument, advanced by Comer's counsel -- who were arguing, obviously, against Comer's stated wish to volunteer -- that Comer's "volunteering" was the product of harsh prison conditions.)

What should we think about this case?  How should we think about death-row volunteers generally?

Perhaps the most famous death-row "volunteer" was Gary Gilmore, who imagined himself something of a romantic outlaw-hero.  As is described at (great) length in The Executioner's Song, he fought, bitterly and publicly -- with the help of some publicity-hungry lawyers -- the efforts by the ACLU, his own mother, and others to prevent his execution.  Gilmore insisted, in an open letter to the ACLU, "I know what I did. . . .  I know the . . . effect it had on the lives of two families.  I'm wiling to pay ultimately.  Let me!"  "Butt out of my life," he demanded.  To which the ACLU responded, "We don't think the world is obliged to be governed by your preference. . . .  We are not imposing our wants and attitude on you.  We are seeking to impose humanity and decency upon the state of Utah."

So, again, how should we think about Gilmore's or Comer's case?  On the one hand, we might follow a commitment to "autonomy" where it (appears to) lead, and say, something like, "we don't approve of the death penalty, but it's legally authorized, and it's your choice."  As it happens, though, most lawyers for death-row inmates who flirt with volunteering -- and many do -- are willing to contest their own clients' efforts to volunteer and to contest, if necessary, their own client's decision-making capacity.  Here is a question:  If one opposes capital punishment on the ground that it is inconsistent with a commitment to human dignity, is that commitment undermined or impeached by efforts to paint one's client as "incompetent" in order to prevent him from pursuing a course that one believes will result in immoral state action?

I once represented a man who was living -- like Comer -- on Arizona's death row.  He twice "volunteered" -- or started to -- but was dissuaded.  If he had not changed his mind, though, what should I -- or another lawyer who opposed the death penalty but also knew that the inmate was not delusional, just tired, lonely, and remorseful -- have done?

By way of an update:  A few years I posted the above, the person I represented had his death sentence vacated (thanks to the hard work of other lawyers).

"(Communal) Life, (Religious) Liberty, and Property"

I highly recommend Prof. John Infranca's paper.  It's been available on SSRN for a bit, but I neglected to post about it before.  Here's the abstract: 

Property rights and religious liberty seem to share little in common. Yet surprisingly similar claims have long been made on their behalf, including bold assertions that each of these two rights uniquely limits the power of the state and serves as the foundation for other rights. This Article reframes the conception of property rights and religious liberty as foundational by foregrounding communitarian aspects of each right. Property and religious freedom are a foundation for other rights, but in a different manner than traditional accounts suggest. It is not the individual exercise of these rights that provides a foundation for other rights, but rather the complementary roles these rights play in the formation of normative communities that, in turn, serve as counterweights to the state.

This Article makes three distinct contributions to existing legal literature. First, it reveals the significant similarities in historical and theoretical conceptions of the foundational status of these two rights. Second, it integrates the developing scholarly literature on the communal and institutional nature of these two rights. Third, it builds upon this literature to contend that the right to property and religious freedom can indeed provide important foundations for rights more generally, but only if we sufficiently protect and nurture, through law, the communities and institutions upon which these rights depend. The Article concludes by suggesting new approaches to assessing a diverse set of contemporary legal disputes: religious communities seeking to locate in the face of local government opposition, Native American communities challenging government actions on sacred lands, and Sanctuary churches opposing immigration enforcement by sheltering individuals on their property.

If the law-and-religion literature has, of late, seemed to you to be a bit stuck on the questions presented in cases like Hobby Lobby and Masterpiece Cakeshop, Infranca's wide-ranging and provocative piece should be an enjoyable read.    

Tribute(s) to Prof. Joshua Dressler

The latest issue of the consistently excellent Ohio State Journal of Criminal Law includes a bunch of tribute-essays from the field's heaviest hitters about CrimProf extraordinaire Joshua Dressler and his work.  I don't think it's a stretch to say that Dressler is a legal-education treasure.  I've been using his casebook (now a joint project with Stephen Garvey) since 2000 and I know that hundreds of my former students are more-than-grateful to his Understanding Criminal Law for cutting through the fog created by my lectures!   Take a look a the volume, and raise a glass to Joshua!       

Book Review Roundtable on Kathleen Brady's "The Distinctiveness of Religion in American Law"

Last Spring, the Program on Church, State & Society at Notre Dame Law School (more here) hosted a small roundtable conference dedicated to Kathleen Brady's then-new book, The Distinctiveness of Religion in American Law:  Rethinking Religion Clause Jurisprudence.  Each participant wrote a short reflection on the book -- a kind of "admission ticket" -- and these reflections (along with Brady's response) formed the basis for the day's conversations.  I'm pleased to report that the "tickets" have been collected in the November 2017 issue of the Journal of Law and Religion.  They are, if I say so myself, really interesting.  Take a look!

 

Pope Francis on Tweeting, Posting, Surfing, . . . and Blogging?

Pope Francis has a new "Apostolic Exhortation" (for more on what that is, especially if you are a religion-beat journalist writing about the matter, go here) called "Rejoice and Be Glad" (Gaudete et exsultate).  It is discursive, and covers a lot of ground.  Among other things, the Pope talks about the challenges posed to joyfulness and "holiness" by some of our social-media and information-gathering technologies.   A bit:

“Blessed are the peacemakers, for they will be called children of God”

87. This Beatitude makes us think of the many endless situations of war in our world. Yet we ourselves are often a cause of conflict or at least of misunderstanding. For example, I may hear something about someone and I go off and repeat it. I may even embellish it the second time around and keep spreading it… And the more harm it does, the more satisfaction I seem to derive from it. The world of gossip, inhabited by negative and destructive people, does not bring peace. Such people are really the enemies of peace; in no way are they “blessed”.[73]

[73] Detraction and calumny are acts of terrorism: a bomb is thrown, it explodes and the attacker walks away calm and contented. This is completely different from the nobility of those who speak to others face to face, serenely and frankly, out of genuine concern for their good.

...

115. [We] can be caught up in networks of verbal violence through the internet and the various forums of digital communication. [L]imits can be overstepped, defamation and slander can become commonplace, and all ethical standards and respect for the good name of others can be abandoned. The result is a dangerous dichotomy, since things can be said there that would be unacceptable in public discourse, and people look to compensate for their own discontent by lashing out at others. . . .

116. Inner strength, as the work of grace, prevents us from becoming carried away by the violence that is so much a part of life today, because grace defuses vanity and makes possible meekness of heart. The saints do not waste energy complaining about the failings of others; they can hold their tongue before the faults of their brothers and sisters, and avoid the verbal violence that demeans and mistreats others. Saints hesitate to treat others harshly; they consider others better than themselves (cf. Phil 2:3).

I particularly liked this passage, which seems relevant both to parenting tweens and teenagers and teaching in today's colleges and universities:

167. The gift of discernment has become all the more necessary today, since contemporary life offers immense possibilities for action and distraction, and the world presents all of them as valid and good. All of us, but especially the young, are immersed in a culture of zapping. We can navigate simultaneously on two or more screens and interact at the same time with two or three virtual scenarios. Without the wisdom of discernment, we can easily become prey to every passing trend.

"A culture of zapping."  Is the Pope sub-tweeting David Lodge?

Ross Douthat on banning pornography

In the New York Times, Ross Douthat has a column contending that we should "ban" hard-core pornography.  Although the Supreme Court's precedents allow, in theory, governments to ban "obscene" material, my sense (and what I tell my Freedom of Speech students) is that, practically speaking -- because of the ubiquity of and ease of accessing online pornography, because of prosecutors' resource-allocation decisions, etc. -- pornography is, in practice, both unregulated and unregulatable (by the government, anyway -- employers, universities, etc., might be a different story).

I suspect (but maybe I'm wrong!) most of us think Douthat is mistaken.  I admit, my own view of the First Amendment's free-speech guarantee tends to be the maximalist, old-school-ACLU-type, thrill-to-the-rhetoric-in-Barnette libertarian position -- i.e., the government may almost never regulate expression because of its content or because of the "viewpoint" it expresses and, in a free society, the remedy for bad speech is good speech.  I hold this view (which, it seems to me, the Court's precedents support) not so much because I think it is compelled, or even very strongly supported, by the First (or the Fourteenth) Amendment's original public meaning but because my intuition is that, all things considered, it is "worth it" to endure offensive, misguided, foolish, and even dangerous speech rather than to trust officials with the task of identifying and policing, in a consistent and unbiased way, a line between speech that will be permitted and speech that is not.

I admit, though, that I'm not and have never been entirely comfortable with this view (and not only because, again, it seems hard to square with what I understand to be the original meaning of "the freedom of speech").  Sometimes, those who hold this view justify it on the asserted ground that "sticks and stones may break my bones but words can never hurt me."  I don't believe this, though.  Speech causes "harms" to others, to the community, to the self, and to the moral ecosystem.  The freedom of speech, as we understand it, has costs.  What's more, there is no reason to think that these harms and costs are distributed in an equitable way or that they are borne by those who benefit the most from, or are best able to protect themselves in, a libertarian speech regime.  Still, my well-grounded confidence that the power to regulate speech would be abused (e.g., it would be employed overconfidently in the service of the arc of "history") makes me reluctant to depart from the near-absolutist position.

And yet:  I agree that pornography is both immoral and harmful, including in the ways Douthat discusses.  (It seems to me that the scathing piece Douthat wrote after Hugh Hefner's death was spot on.  Hefner was "a pornographer and chauvinist who got rich on masturbation, consumerism and the exploitation of women, aged into a leering grotesque in a captain’s hat, and died a pack rat in a decaying manse where porn blared during his pathetic orgies.")  It's increasingly difficult for me to resist the suggestion that it should, at least, be regulated more than it is -- or, at least, it should be marginalized and disapproved more than it currently is -- and that meaningful lines between Pornhub and, say, The Rosy Crucifixion might not actually be as elusive as my fellow near-absolutists warn.  

Or . . . maybe not.  Still, I can't disagree with Douthat that there's something worrisome, and sad, when the New York Times Magazine is suggesting ways to teach kids "critical thinking" and self-esteem-preserving techniques with respect to the massive amounts of online pornography they are viewing, by themselves.

A Conversation in Chicago about Trinity Lutheran

A few days ago, thanks to the good people at the Lumen Christi Institute at the University of Chicago, I was able to participate in a panel/conversation about last year's Trinity Lutheran case with my friends Andy Koppelman and (fellow Prawf) Dan Rodriguez.  The video of the event is available here.  (As you'll see, the video-producers substituted some bald guy for me but the words and bad jokes were mine.)  Unfortunately, I suppose, for the organizers and audience, Andy and I were in substantial agreement for most of the event.

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

The winner has been selected for the eight annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility: Robert W. Gordon, The Return of the Lawyer-Statesman?, 69 Stan. L. Rev. 1731 (2017).


The Prize will be awarded at the AALS Annual Meeting in San Diego in January.

Abel reviews Espeland & Sauder's "Engines of Anxiety: Academic Rankings, Reputation, and Accountability."

Prof. Abel's review is in the Journal of Legal Education and can be downloaded here.  A bit:

Student choice of a law school is complicated and facilitated by a combination of ignorance and indifference. Few harbor a passionate desire to be a lawyer. . . .  They do not know what
kind of law they will practice or which schools prepare better for various specializations. . . .  If they have any image of lawyers, it probably is drawn from the media . . . , which depict (inaccurately) a practice few will enter[.]

If few applicants have intrinsic reasons for choosing among law schools (or even for becoming lawyers), they do share a common trait: ambition. They have been socialized from an early age to distinguish themselves through achievement: academic, athletic, cultural, social, political. Most can compare the status of their high school with that of its local competitors. They strove to get into the “best” college—for which they had a metric—and build a resumé there and in the subsequent gap year(s) to get them into the “best” law school.  They have been accumulating cultural capital the way earlier generations accumulated land (in feudal society) and capital (in bourgeois society). All they need is a marker of the best, preferably one that also will distinguish them in the eyes of prospective employers.

The[] changes in legal education and the legal profession since 1970 created an opening, indeed an imperative need, for information to guide aspiring law students in choosing a school. . . .

A Conference of Possible Interest: "Here I Stand: Conscience, Reformation, and Religious Freedom Across the Centuries"

This event, sponsored by the Religious Freedom Research Project at Georgetown's Berkley Center, looks to be really good.  If you're in Washington, D.C. on Nov. 1 . . . check it out! (RSVP required.)  Here's the blurb:

On October 31, 1517, Martin Luther published his Ninety-Five Theses urging sweeping religious reforms and catalyzing the Protestant Reformation. The Reformation unleashed an intensified focus on freedom of conscience, with dramatic social and political consequences. It fostered new notions of religious liberty as well as new frameworks for civic life. At the same time, the Reformation built upon centuries of Roman Catholic and Eastern Orthodox theologies of conscience, dignity, and freedom in ways that are not always understood.

This symposium will explore these dynamics, but also examine how Christianity per se has unleashed distinctive and powerful principles of conscience and freedom across its 2,000-year history, even in the face of what Pope Francis has called the “ecumenism of blood”—the severe religious persecution affecting numerous Christian and non-Christian communities around the world.

The line-up of speakers and presenters is really impressive, and the keynote address is by the great Robert Louis Wilken.

A reflection on "the life issues" in the current moment, and going forward

My friends at Notre Dame Magazine (which is, notwithstanding what I'm about to say, an excellent magazine) asked me to contribute a reflection on the state of "the life issues" in the current moment.  I realize, of course, that these "issues" are ones about which we deeply and reasonably disagree, and I'll confess to having mixed feelings about imposing it on all of you.  It sprawls and wanders, I'm afraid and I suppose it's downright confused, politically.  In any event, here's a bit:

. . . The proposal, the claim, and the truth that grounds the comprehensive and integrated pro-life position is that every person matters and no one matters more than anyone else. This was the message of Pope Francis’ Installation Mass homily, and it is at the heart of the Catholic Church’s social and moral teaching. A human being is a human person, and to be a human person is to have great, inestimable worth. This is true when we are very small and vulnerable, when we are old and sick, when our life seems all potential and when it seems at its very end, when we are strong, beautiful and creative, and when we are weak, ugly and venal. Our ultimate, transcendent worth does not depend on what we accomplish, on what we are capable of doing, on what we can produce or contribute, on how much we are wanted, or on how much we cost. No one is worth less and no one is worthless.

Politico’s Timothy Alberta has called economist and think-tanker Arthur Brooks “the most interesting man in Washington.” At a recent forum at Harvard’s Kennedy School, Brooks was reflecting on the unedifying state of public culture and conversation in America, and he proposed that the problem with our politics is not disagreement, division, polarization or even anger. In a free society, strong disagreements about at least some things that matter are, this side of Heaven, inevitable. For Brooks, what is striking is not simply the “Big Sort” into red and blue enclaves or our increasingly tribal divisions that infect everything down to debates about the regulation of large sugary sodas. Our real problem, he suggested, is “contempt,” which he defined as the “conviction of the worthlessness of another human being.” Who can deny that “contempt” is pervasive and ubiquitous? Indeed, in many contexts it seems to be the currency of our discourse. Anger can be resolved, but contempt, Brooks warned, leads to permanent estrangement.

Brooks is on to something. During the campaign — recall the Access Hollywood tape or his imitation of Serge Kovaleski — and since his election, President Trump has not hesitated to mock, insult and degrade — to express “contempt.” On “the other side,” one of the turning points in the election was Clinton’s expression of dismissive disdain for those in the “basket of deplorables” to which she consigned so many of those who resisted the appeal of her candidacy. No one could spend much time at the rallies or following the Twitter feeds of either of the two candidates and their surrogates, fans and followers and not be struck by the vicious, deep contempt with which the two camps regarded each other. It was contempt, not “heritage” or “history,” that inspired and informed the marchers’ chants in Charlottesville.

Now, Brooks was not speaking directly to abortion or to the “life issues.” Still, his assessment is helpful. The pro-life position is not merely a package of negative prohibitions but is a thoroughgoing response to the call and challenge to solidarity and mercy. To stand in solidarity — in community — with other persons is to embrace these other persons’ dignity, value, worth and destiny, and to truly — despite differences in ability, strength, beauty, talent, advantages and prospects — regard and treat them as equally bearing the image of God. What could be more contrary to solidarity than, as Brooks says, the estrangement that contempt produces? “Life” isn’t really “winning” — it cannot, really — if the political community and conversation are saturated with contempt.

Pope Francis has forcefully condemned abortion as a symptom of and contributor to what he calls our “throwaway culture.” It is an arresting and illuminating image, and it resonates with Brooks’ diagnosis and definition of contempt. What is it, after all, that we throw away? We throw away what we think is worthless, that which we can no longer bother fixing, saving, nurturing, protecting, repairing, treasuring or loving. It is, the pope has said, “precisely the weakest and most fragile human beings — the unborn, the poorest, the sick and elderly, the seriously handicapped, et al. — who are in danger of being thrown away.” But not only are there no “worthless” people, there are, as C.S. Lewis remarked in his sermon The Weight of Glory, “no ordinary people.” Those “we joke with, work with, marry, snub, and exploit” — those we mock on Twitter, those at whom we direct contempt, those we “throw away” — are “immortals” and “everlasting splendours.”

Pope Francis has said much the same thing: “Even the weakest and most vulnerable, the sick, the old, the unborn and the poor, are masterpieces of God’s creation, made in his own image, destined to live forever, and deserving of the utmost reverence and respect.” Lewis’ essay concludes with a striking assertion: “Next to the Blessed Sacrament itself,” he wrote, “your neighbor is the holiest object presented to your senses.” And remember the answer that Jesus gave to the question, “who is my neighbor?” When we, in our laws and in our lives, give and act on the right answer, life will be winning.

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

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

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

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

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

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

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

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

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