PrawfsBlawg

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." 

Call for Papers: "Religious Violence and Extremism"

Call For Papers
The Journal of Law, Religion and State - International Conference
Religious Violence and Extremism
28-30 May 2018

In recent years, religious violence and extremism have become an increasingly present
phenomenon on the public stage, not only growing in impact, but also spreading to many
new parts of the world. In this conference, we seek to discuss these phenomena from a
variety of legal perspectives, considering the role of law, religion and state both in
facilitating violence and extremism and countering it as well.

Our intention is to explore the legal origins and consequences of these phenomena in a
broad sense, assessing not only state law and religious law, but also the social conditions
and goals that the law reflects or emerges in response to. Moreover, we also hope to
consider the concept of religious extremism not simply as attendant to violence, but also as
its own independent phenomenon with which the state must contend. Here some of the
topics we invite participants to address:

 Analysis of religious violence and extremism (the phenomena in general and specific
incidents as well)

 Definition and classification of both religious violence and religious extremism

 What is the relationship between religious freedom and religious extremism?

 Does religious extremism justify restrictions on religious freedom (education,
expression or association) and how does/should the state conceptualize principled
limitations on religious freedom in light of religious extremism?

 How should we distinguish between a deeply religious lifestyle and extremist
religious activity?

 What are the (legal) measures states should take against radicalization of religion,
and in what cases? (e.g., avoiding support, cancellation of tax exemptions,
banning/criminalizing certain activities)

 How can the state manage conflicts—and provide political resolutions—at holy sites
that serve, at times, as loci for both religious fervour and religious extremism?
Faculty of Law JOURNAL OF LAW, RELIGION AND STATE

Faculty of Law

 Can law, the state and/or religious leaders and institutions leverage the resources
within various faith traditions to respond to religious extremism and violence? If yes,
then: how should this be done?

 Should the law and the state treat religiously-motivated crimes in a different way
than other crimes?

 What are the interpretive strategies religions take (or should take) in order to void
radicalization and how can they impact the legal and political strategies of the state?

The conference will be held at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel, from
the late afternoon of Monday, 28 May 2018 until the late afternoon of Wednesday, 30 May
2018.

We encourage academic scholars from all parts of the world and from diverse religious
backgrounds to submit proposals on the topics outlined above, and similar topics as well.

An abstract of 500 (max.) words should be sent to [email protected] no later than November 10,
2017. Please indicate academic affiliation and attach a CV. The conference committee will
review all submissions and notify applicants of papers of its decisions by Friday, 15
December 2017. The participants will be required to submit a first (full) draft of their papers
at least four weeks before the conference so as to enable all participants to prepare for the
conference discussions.

All participants will be provided three days of hotel accommodation and board during the
conference.

After the conference, participants will have the opportunity to revise and finalize their
papers in order to submit them for publication in JLRS. The articles will be published in the
Journal of Law Religion and State subject to blind peer review.

The organizing committee:

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Prof. Rex Tauati Ahdar, Faculty of Law, Otago University, New Zealand
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

JLRS website: http://www.brill.com/publications/journals/journal-law-religion-and-state

Eisgruber and Jenkins on nominees' faith and senators' questions

Following up on Paul's recent post, two open letters by university presidents Chris Eisgruber (Princeton) and Fr. John Jenkins (Notre Dame) might be of interest.

Inazu responds to Horwitz's review of "Confident Pluralism"

A few days ago, Paul posted his review - "Positive Pluralism Now" (U. of Chicago Law Review) -- of Prof. John Inazu's still-recent book, Confident Pluralism.  What follows is a guest-post response, by John, to that review:

Is Pluralism a Good Thing? 

Paul Horwitz has written a thoughtful and engaging review of my book, Confident Pluralism, for the University of Chicago Law Review.  Paul is an ideal interlocutor, having written widely about pluralism and the First Amendment.  I have a few comments in response, most of which have to do with his definition of pluralism. 

Paul notes that the term “pluralism” is “susceptible of multiple understandings—and to one big distinction: between pluralism as purely descriptive and pluralism as a good in itself.”  I tend to think of the “big distinction” somewhat differently: there is pluralism as a fact of the world (let’s call this Definition 1) and there is pluralism as a political response to that fact of the world (let’s call this Definition 2).  One can have normative views (positive or negative) about either of these meanings of pluralism. . . .

[More after the jump]

Paul calls himself a “positive pluralist” and suggests that positive pluralists seek “a shift away from thinking about pluralism as a fact to be managed . . . and toward a view of pluralism as a positive value and a good in itself.”  He suggests that I may be, or at least should be, a fellow traveler.   But I’m not so sure, in part because I’m unclear about what Paul means by pluralism being “a good in itself.”

Let’s start with Definition 1.  If positive pluralists view pluralism as a fact of the world as a “good in itself,” then I am not a positive pluralist.  As I write in the introduction to Confident Pluralism:

Not all of our differences are problematic. Most of us think some difference is good, that this variety of perspective makes life more interesting. I think the world is a better place because I pull for the Duke Blue Devils and some of my friends cheer for lesser basketball teams. March Madness would be less interesting if everybody liked Duke and nobody cheered against them. We might reach a similar conclusion about beauty, taste, and humor. Some of these differences enrich our lives. Some of them lead to sharper thinking and greater creativity.

On the other hand, most of us do not think that all difference is good. We can all name things that we think the world would be better off without. This is especially true when it comes to our moral beliefs. We might prefer a society in which everyone agreed about what counts as a justifiable homicide, a mean temperament, or a good life. To complicate matters, we also disagree over the nature of our disagreements, and over how much disagreement is a good thing. Moreover, at least some of our most important beliefs cannot be reconciled with one another. It cannot be the case that the act of abortion is both morally acceptable and morally intolerable. It cannot be the case that God exists and that God does not exist. And these differences matter far more than basketball allegiances.

My normative views about Definition 1 also come through in my characterizations of tolerance (which “does not impose the fiction that all ideas are equally valid or morally harmless”) and humility (which “should not be mistaken for relativism” and “leaves open the possibility that there is right and wrong and good and evil”) (pp. 88-89). 

Here’s another way to make the point: I would be perfectly content if everyone in the world were persuaded to share my views of right and wrong, good and evil, and ultimate things.  That doesn’t mean that I think everyone should hold all of my views about everything.  As I mentioned above, I think that some beliefs and preferences do not implicate morally significant questions.  And on some morally significant questions, I lack the information or wisdom to have reached a view with confidence.  But there are at least some questions about which I think I hold the correct view, enough to orient my life around the implications that follow from that view.  Because I believe the correct answers to these questions matter a great deal, and that they matter ultimately for everyone, I do not think that different views about them is a good thing.  In other words, at least with respect to many of our differences, I think Definition 1 is normatively bad—the fact of our deep differences is indeed a “problem to be managed,” rather than a “good in itself.” 

Let’s turn to Definition 2, which is pluralism as a political response to the fact of our differences.  More specifically, Definition 2 is a set of political arrangements that maximizes our ability to live peacefully given the fact of our deep differences.  Paul suggests that positive pluralists should be “forthright about advocating pluralism for its own sake, rather than as a kind of conflict resolution device.”  If this is right, then I am not a positive pluralist under Definition 2, either.  Pluralism “for its own sake” sounds like a positive pluralist would find Definition 2 intrinsically valuable.  My view is that Definition 2 is instrumentally valuable as what Paul calls “a kind of conflict resolution device” (or more precisely, conflict management, or conflict mitigation).     

One reason that I find instrumental value to Definition 2 is that I doubt we will overcome our deep differences short of transcendent intervention.  And left to our own devices, the method of engagement across difference matters to me.  Like many people, I prefer persuasion over coercion, even if that preference decreases the short-term likelihood of reducing the aspects of Definition 1 that I think are normatively bad.  And I am generally wary of state power, based both on my own family’s history (to which Paul alludes in his review) and the influence of intellectual mentors, including the theologian Stanley Hauerwas (whose connections to the law I explore in this volume of Law & Contemporary Problems).

Note that both the positive pluralist and I can view Definition 2 pluralism as normatively good.  For example, Paul writes that positive pluralists of an earlier era “saw smaller groups and institutions within the nation as having a value of their own, rather than wanting to set universal rules that would had a final victory to one side or the other.”  And he suggests that positive pluralism “moves away from . . . an overly state-centered approach to our social and political structures” and encourages “the possibility that the ‘official’ legal versions of these values do not apply everywhere or with equal strength or meaning in different legal and non-legal contexts.”  I think that both of these political arrangements are instrumentally valuable insofar as I believe that both of them facilitate our ability to live together across our deep differences.  But I would not characterize either as “a good in itself.”  I advocate for strong protections for the private groups of civil society, but not because I think the diversity of beliefs and practices represented in those groups is a good thing.  To the contrary, I think some of the private groups of civil society are terrible, and I think the world would be better off without them.  But I also think we need something like confident pluralism as a kind of mutual nonaggression pact.  I’m worried about the people in power, whoever they are, and whether they are closer to “my side” or “the other side.”  And I think a great strength of our country has been its capacity to check the people in power and work to persuade rather than coerce those with whom we disagree.   That doesn’t mean we always get it right.  Like Paul, I recognize that Definition 2 pluralism has at times been abused in the course of the American political experiment.  But I prefer it to other political alternatives.

There’s much more to Paul’s review, and I encourage you to read the whole thing.

Horwitz & Smith on accommodation, pluralism, religion, and disagreement

Two new (to me!) papers to read this morning:  Here is Paul Horwitz reviewing John Inazu's recent book, Confident Pluralism, and here is Steve Smith's contribution -- "Against Civil Rights Simplism:  How Not to Accommodate Competing Legal Commitments" -- to a conference at Yale last January.

R. Kozel, "Settled Versus Right: A Theory of Precedent"

I'm pleased to share the news that the new book by my friend and colleague, Randy Kozel -- Settled Versus Right:  A Theory of Precedent -- is available now from Cambridge University Press.   (Among other things, the cover is great!).  Here's the blurb:

In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel's account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.

It's been a real treat talking with and learning from Randy about these matters over the past few years.  Congratulations!

Judge John T. Noonan, Jr., RIP

My Mirror of Justice colleague and Villanova prawf Patrick Brennan posted over there that Judge John T. Noonan, Jr., of the Court of Appeals for the Ninth Circuit, has passed away at the age of 90.  I was blessed with the chance to learn from him, and to get to know him reasonably well. (He visited my law school, during my first year, to speak about the then-current-and-controversial proceedings surrounding and leading to the execution of Robert Alton Harris.)  He was not only a thoughtful and conscientious judge, and a prolific and prominent scholar; he was a really and inspiringly good and faithful person.  If you've never read Persons and Masks of the Law (here), check it out.  Requiescat in pace.

Monday Morning with Larry (Alexander)

This morning was fun.  Classes were prepared, in-box was manageable, meetings were cancelled.  So, I spent a few hours with a stack of papers that Larry Alexander had sent a little while back.  I don't know how Larry manages to write so much so well, but he does.  Check out, e.g., "Is Wrongful Discrimination Really Wrong?" (here); "Brexit and the Future of Liberal Democracy" (here); "Hard Incompatibilism, and the Rejection of Moral Responsibility:  A Skeptical Look at an Optimistic Account" (here);  and "Against Equality" (here).

Mark Roche on "Realizing the Distinctive University" . . . or law school?

My Notre Dame colleague, Prof. Mark Roche, has a new book out, Realizing the Distinctive University:  Visions and Values, Strategy and Culture.  It is noted, here, in the Chronicle of Higher Education.  Here's a bit:

But distinctive institutions don’t have to be religious, single sex, or historically black, he says; and they don’t have to have wed "intellectual vigor and nonconformity" like, say, Reed College, or have a signature honors program like the one at Swarthmore College. Rather, they can emulate some of the many strengths of American higher education, and they can reap benefits from its shortcomings, such as its indifferent record in serving underrepresented racial, ethnic, and socioeconomic groups: "You can say, OK, where is there an objective gap, something important that needs to be addressed?"

I'm reminded of the theme that then-Dean John Garvey proposed, a few years ago, during his tenure as President of the AALS:  "Institutional Pluralism" (and that I blogged about a few times -- here, here, and here -- at the time).  I think Garvey was right then, and Roche is right now, that we need more of this in higher education.  I worry, though, that we are moving towards less.  Check out Roche's book.   

"The Spiritual Crisis of the Modern Economy"

I don't agree with everything in this piece by Victor Tan Chen, but I think it makes a number of plausible, challenging claims -- echoing, in places, things that Rusty Reno has been saying at First Things, that Murray, Putnam, and Vance have highlighted in their recent books, and that our own Paul Horwitz has blogged about.  It is particularly worth a read, maybe -- as we're grading law-school exams, writing recommendation letters, etc. -- by those of us who are privileged/blessed to work in institutions that play such a large role in driving the competitive, exhausting meritocracy and in providing the credentials, merit-badges, and networks that are increasingly required for access to the upward mobility, social status, and the cognitive and other elites.  Here's just a bit: 

One possible answer . . . is the notion of grace—a stance that puts forward values that go beyond the “negatives” of the narrow secular creed and connect with individuals of diverse political viewpoints, including those hungry for more in the way of meaning than the meritocratic race affords. . . .

The concept of grace comes from the Christian teaching that everyone, not just the deserving, is saved by God’s grace. Grace in the broader sense that I (an agnostic) am using, however, can be both secular and religious. In the simplest terms, it is about refusing to divide the world into camps of deserving and undeserving, as those on both the right and left are wont to do. It rejects an obsession with excusing nothing, with measuring and judging the worth of people based on everything from a spotty résumé to an offensive comment.

. . . At the same time, grace reminds the well-educated and well-off to be less self-righteous and less hostile toward other people’s values. Without a doubt, opposing racism and other forms of bigotry is imperative. There are different ways to go about it, though, and ignorance shouldn’t be considered an irremediable sin. Yet many of the liberal, affluent, and college-educated too often reduce the beliefs of a significant segment of the population to a mash of evil and delusion. . . .

Really, though, the people who could learn from grace are the prosperous and college-educated, who often find it hard to empathize with those . . . who live outside their sunny, well-ordered worlds. When people are not so intent on blaming others for their sins—cultural and economic—they can deal more kindly with one another. Grace is a forgiving god.

"Professors or Pundits"

I received an announcement about this new volume, edited by my Political Science colleague at Notre Dame, Prof. Michael Desch, called "Public Intellectuals in the Global Arena:  Professors or Pundits."  The book grew out of a conference, held at Notre Dame in 2013 and sponsored by our Institute for Advanced Study.  Our own Paul Horwitz was one of the presenters, and I had the pleasure of providing a short response to his paper, "The Blogger as Public Intellectual."

I cannot find a linkable copy of Paul's chapter, but here's a Prawfs post I did at the time.  (How meta is that?!)  Brad DeLong also blogged a detailed response to Paul.

I wonder, Paul, if your thoughts on the subject are what they were in the Spring of 2013?

Remarks on "The Future of Religious Liberty" at the Federalist Society's National Lawyers Convention

I participated yesterday in a panel discussion on "RFRA and the Future of Religious Liberty" at the Federalist Society's annual National Lawyers Convention.  After noting that recent events had dramatically undermined any confidence one might have in my ability to say anything useful about "the future", I briefly discussed "one big-picture idea, two reasons for cautious optimism, and three causes for concern."  

The big-picture idea (such as it is) was this:  In any society where there is (a) religious and moral diversity and (b) an active, regulatory welfare state, there will -- necessarily -- be conflicts and tensions between (i) duly enacted, majority-supported, generally applicable laws and (ii) some citizens' religious beliefs and exercise.  What Justice Jackson called "the uniformity of the graveyard" is not an attractive way to manage these conflicts and tensions; the toleration-and-accommodation strategy, however, is.  RFRA-type laws are, in my view, effective and workable mechanisms for carrying out the latter strategy and so, yes, I think such laws are and should be part of the "future of religious liberty."

The two "reasons for cautious optimism":  First, the (unanimous) Hosanna-Tabor case shows that the Court recognizes that religious freedom is not entirely about "balancing interests" but also imposes, in some contexts, real limits on the government's ability -- even when its pursuing important goals like reducing employment discrimination -- to interfere with individuals' and institutions religious decisions.  Second, as the (unanimous) Holt case (among many others) illustrated, outside of a few well-known cases (e.g., Storman's) and hot-button-issues (e.g., wedding ventors), religious-liberty claimants are very often winning.  The Becket Fund, etc., and the Department of Justice, do a lot of good work.

Next, three causes for concern -- that is, three demographic, cultural, and sociological facts and trends, or three things about the culture (and "law is downstream from culture") that were true before and are still true after the election:  (1) the "rise of the nones" presents the danger that fewer people will see themselves as having a "stake" in the religious-freedom issue (when, in fact, we all -- whether or not we are religious -- do); (2) the relative decline in the role and footprint of religious institutions and communities (whether because of scandals, or atomizing individualism, or something else) reduces a sense of solidarity and makes it more difficult for people to resist incursions on religious liberty when they threaten; and (3) the increasing willingness of the government to shrink the civil-society space and to expand the "public" sector, by leveraging its licensing, accrediting, spending, grant-making, taxing, contracting, and social-welfare functions -- that is, by using conditions in addition to regulations to affect non-state actors' practices.

Then followed a lively discussion!

"Neither of the Above"

In case anyone's interested:  I wrote for Commonweal a few months ago an admittedly hand-wringing, opportunistically laden with "Hamilton" references, non-expert (HT: Paul Horwitz!) "conservative's lament" about the upcoming presidential election.  The events of the intervening weeks haven't really changed, but seem instead to have confirmed, my gloomy views.    

Dean Phil C. Neal, R.I.P.

From the University of Chicago Law School:

Former University of Chicago Law School Dean Phil C. Neal, an antitrust expert, litigator, and law firm founder whose ability to cut through complexity earned him a reputation as a deft problem-solver, died Tuesday night. He was 97.

I was particularly interested in this (taken from the same post):

After law school, Neal served for two years as a law clerk to Justice Robert H. Jackson of the US Supreme Court. In spring 1945, Jackson permitted Neal to leave his clerkship a few months early because he had the opportunity, through the intercession of Justice Felix Frankfurter, to assist Department of State official Alger Hiss in his work as secretary general of the United Nations organizing conference.

He joined the faculty at Stanford Law School in 1948 after working at a law firm in San Francisco for several years. While at Stanford, Neal introduced Justice Jackson to the student who would become his final law clerk. This meeting, which took place in Neal’s office in the summer of 1951, ultimately resulted in Jackson offering a clerkship to William H. Rehnquist. As it turned out, Rehnquist was one of two future US Supreme Court justices whom Neal taught at Stanford; the other was Sandra Day O’Connor.

In his first book about the Court, The Supreme Court:  How It Was, How It Is, Rehnquist dedicates a lot of the first chapter (which I've always thought was a really endearing read) to his clerkship interview, the trip out to Washington, and the first few weeks on the job:

A large element of luck seemed to have entered into my selection as Justice Jackson's law clerk. . . .  [A]s fate would have it, Justice Jackson came to dedicate the new Stanford Law School building in the summer of 1951, when I was attending my second summer session.  Phil Neal, my administrative-law professor, had himself clerked for Justice Jackson several years before.  Shortly before Justice Jackson was due to arrive for the dedication ceremonies, Professor Neal asked me if I would be interested in clerking for the justice; the suggestion came to me out of the clear blue sky, but I naturally said that I would be. . . .

It cannot be difficult to imagine the fear and trembling with which I approached the interview. . .  I first tried to bone up for my meeting with the justice by reading some of his opinions, and by trying to steep myself in constitutional law.  After a few hours, however, I decided that it was utterly futile[.] . . .  [Justice Jackson's] pleasant and easygoing demeanor at once put me at ease. . .   I genuinely enjoyed listening to [his] anecdotes, but somehow I felt I should be doing more to make a favorable impression on him. . . .  I walked out of the room sure that in the first few minutes of our visit he had written me off as a total loss.

I know the feeling!  In any event, I'm grateful to Prof. Neal.  R.I.P.

 

"Freedom Of, For, From, and In Religion: Differing Dimensions of a Common Right?"

This past weekend, I attended a fascinating, rich conference at St. Hughes College, Oxford, that was organized by the International Consortium for Law and Religion Studies (ICLARS).  The theme was "Freedom Of/For/From/In Religion:  Differing Dimensions of a Common Right?" (more info here).  Here's the conference blurb:

Freedom of religion or belief (FoRB), once considered to be the “first” freedom, has become a controversial right. In particular, the practical possibility of implementing FoRB in impartial ways are increasingly questioned. Critics argue that FoRB cannot deliver what it promises: an equal share of freedom for people of different or no religion. Further, it is claimed that the right of FoRB, as it is regulated in international and constitutional law, is intrinsically biased because it reflects its Western and Christian origins.

Part of the problem is due to the fact that FoRB is a complex notion, including different dimensions that require careful consideration. Freedom of religion or belief, as a right recognized for every human being, is the first dimension, but not the only one. Freedom from religion, that is the right to live one’s life without being compelled to perform religious acts, is another and freedom for religion, which concerns the institutional side of this right (what was once called “libertas ecclesiae”) is a third dimension that demands consideration. Finally, freedom in religion concerns the rights that the faithful (and sometimes not so faithful) are entitled to enjoy within their religious communities.

Besides the fact that the conference gave me an excuse to re-visit some of my favorite pubs from my undergraduate days, it was rewarding and fascinating to hear papers, and hear about experiences and impressions, from scholars, lawyers, and activists from outside North America and Europe.  Doing so puts some things in perspective, both because others were dealing with very different issues (e.g., bans on conversions and proselytism) and because they were dealing with similar issues (e.g., religious exemptions) but in different ways.  I also thought the "four pronouns" device suggested in the theme was really insightful and provocative.  (My own paper was called "Freedom For Religion:  (Yet) Another View of the Cathedral."  Not exactly original, I know . . . .)  Hats off to Cole Durham, Brett Scharffs, and Donlu Thayer, of BYU, for organizing an excellent event.

University of Michigan Law School Society of Fellows

This new program might be of interest to Prawfs readers:

The University of Michigan Law School, in connection with the longstanding Michigan Society of Fellows (MSOF), now welcomes applications for a highly competitive interdisciplinary fellowship for aspiring legal academics (whether currently completing a degree, conducting postgraduate research, clerking, practicing, teaching, or otherwise engaged in law related activity). The application deadline is Tuesday, September 27, 2016, 1:00 PM EDT.

The Michigan Society of Fellows selects 8 fellows from over 900 applicants nationwide to join the Society, and to affiliate as a junior (non-tenure track) member of the faculty with one of the University’s departments or professional schools (including the University of Michigan Law School). The fellowship is offered for a term of three years (to begin in September 2017), although fellows affiliated with the Law School may go on the academic job market during the fall of their second fellowship year.

The fellowship provides a unique opportunity for aspiring academics to develop and produce high level scholarship in a supportive and intellectually challenging environment within the Society, the Law School, and the wider University community. Fellows will also begin to develop their teaching skills in a substantive area of the law while availing themselves, as desired, of Michigan’s pioneering Center for Research and Learning on Teaching. The strong focus of the fellowship is on research and the production of significant scholarship. Teaching obligations are minimal. The fellowship comes with a stipend of $55,000 per year plus participation in the University’s benefits programs. It is supported by the Ford Foundation, the Horace H. and Mary Rackham Funds, and the Andrew W. Mellon Foundation.

- See more at: https://chroniclevitae.com/jobs/0000329437-01#sthash.stt8P1HL.dpuf

The University of Chicago letter regarding "free exchange of ideas"

You can see here (and all over the interwebs) a letter from the Dean of Students at the University of Chicago to that university's incoming first-year students.  I wonder, have any law schools sent similar letters (or, letters covering the same issues) to incoming first-year law students?  Should they?  If so, what should they say?

For my own part, I do talk to students in Criminal Law, at several points during the semester, about the fact that the cases and materials we'll be reading do sometimes involve very difficult facts and that the materials and the questions they raise could very well be, for a variety of reasons, painful to read.  I urge respectful conversation and argument, but also invite students to speak with me if they have any concerns about talking in class about particular materials or about attending class on a particular day.  This kind of thing doesn't strike me as a "trigger warning," but maybe I'm misunderstanding what is meant, in the Chicago letter or generally, by that term.

On reaching "adulthood" in law teaching

Our new first-years are being "oriented" today, and it hit me that this is the 18th time that's happened since I started law teaching.  So, I guess that means I get to vote, or get drafted, or rent a car (but not drink) in law-teaching land.  (It also hit me that I've been teaching longer than some of the new undergraduates who are moving in this weekend have been alive, but that's too much to take in . . ..)  I'm not sure what this milestone means with respect to, for example, the conversation about what students should call professors (I'm pulling for "eminencia"!) -- but I'm pretty sure it means that all "Seinfeld" references (and, who are we kidding?, "Sopranos" references too) have to be shelved.

Have a great semester, everyone!

Some reflections on, and reactions to, Prof. Wolterstorff's "Mighty and the Almighty"

A few years ago, the Program on Church, State & Society at Notre Dame Law School hosted a day-long roundtable conversation on Prof. Nicholas Wolterstorff's then-pretty-new short book on political theology, The Mighty and the Almighty.  It was really engaging, and brought together a great group of historians, theologians, philosophers, and prawfs.  Each participant wrote up a short reaction/reflection paper -- a kind of "admission ticket" -- and now (finally?) they are all out in print. Here, in Vol. 4 of the Journal of Analytic Theology are papers by Marc DeGirolami, Chris Eberle, Kevin Vallier, Paul Weithman, and Terence Cuneo (and a response by Nick).  And here, in the Journal of Law and Religion,  are the contributions of Robert Audi, Jonathan Chaplin, Dana Dillon, Brad Gregory, John Inazu, Anna Bonta Moreland, Michael Moreland, Mark Noll, and Gladden Pappin.  The book, and the tickets, are -- like the man says -- "highly recommended"!  

A short take on churches' tax exemptions

This might be timely, given our recent commemoration of the July 4 tax revolt! Here's a short piece of mine, just out in U.S. Catholic, on the question of churches' tax exemptions.   A bit:

. . . But our tradition of exempting churches and religious institutions from taxes is justified and important. The separation of church and state is not a reason to invalidate or abandon these tax exemptions but is instead a very powerful justification for retaining them.

The Supreme Court’s precedents and popular opinion have been shaped, for better or worse, by Thomas Jefferson’s figure of speech about “a wall of separation.” This saying has often been misunderstood and misused. Still, Jefferson’s metaphor points to an important truth: In our tradition, we do not banish religion from the public square and we have not insisted on a rigid, hostile secularism that confines religious faith to the strictly private realm. We do, however, distinguish between political and religious institutions. They can productively cooperate without unconstitutional entanglement. . . .

. . . A political community like ours, that is committed to the freedom of religion and appropriately sensitive to its vulnerability, takes special care to avoid excessively burdening these institutions or interfering in their internal, religious matters. It’s not simply that churches’ contributions to the public good make them deserving of a tax-exempt status; it’s that, given our First Amendment, secular power over religious institutions is and should be limited. Governments refrain from taxing religious institutions not because it is socially useful to “subsidize” them but because their power over them is limited—and because “church” and “state” are distinct.

The point of church-state “separation” is not to create a religion-free public sphere. It is, instead, to safeguard the fundamental right to religious freedom by imposing limits on the regulatory—and, yes, the taxing—powers of governments. After all, as Daniel Webster famously argued in the Supreme Court (and the great Chief Justice John Marshall agreed) the power to tax involves the power to destroy, and so we have very good reasons for exercising that power with care—especially when it comes to religious institutions.

An Interview with Fr. (Prof.) Robert J. Araujo, S.J.

As Prawfs readers with way better memories than mine might remember, I mentioned last year that my friend and Mirror of Justice colleague, Robert J. Araujo, S.J. - a longtime law teacher and legal scholar at a number of institutions -- had passed away.  Recently, thanks to the folks at the New England Jesuit Oral History Program, I got hold of this interview, conducted not long before Fr. Araujo's death, with Fr. Paul Kenney, S.J.  Among (many) other things, Fr. Araujo reflected on his experiences with law-blogging.  It might be of interest. 

John Inazu responds to Mark Tushnet on "Confident Pluralism"

[Note: Professor John Inazu has written the following response to Professor Mark Tushnet's three posts about John's new book, Confident Pluralism: Surviving and Thriving Through Deep Difference]

Confident Pluralism, Expressive Association, and “Tone”

Mark Tushnet has a series of posts on Balkinization commenting on my new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I appreciate Mark’s engagement with the book. And I appreciate the opportunity to offer this response as a guest post on Mirror of Justice.

Before I turn to Mark’s critiques, I’ll briefly situate the main arguments of the book. Confident Pluralism insists that our shared existence is not only possible, but also necessary. Instead of the elusive goal of unity, I suggest a more modest possibility: that we can live together in our “many-ness.” That prescription includes both a legal and a personal dimension. The two are interrelated. Silencing other viewpoints may begin with personal antipathy, but it ends with legal prohibition—a refusal to extend the protections of the law to one’s adversaries, and ultimately, an effort to turn the law against them.

The legal dimension of Confident Pluralism focuses on three areas: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The personal dimension of Confident Pluralism aspires toward tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (including protests, strikes, and boycotts); and (3) our relationships across difference.

Mark’s first post addresses my critique of the Supreme Court’s expressive association doctrine. His second post explores the implications of my constitutional argument for association with the oft-raised but important hypothetical of the racist restaurant. His third post criticizes the “tone” of my civic argument for tolerance, patience, and humility. I’ll comment first on Mark’s third post, which goes much more to the core of the book than his first two posts.

 Tolerance, Patience, and Humility

Mark’s third post criticizes what he calls the “tone” of my book. He writes: “Most of [Confident Pluralism’s] argument appears to be directed at intolerant, arrogant, impatient secular liberals—although formally speaking, he addresses intolerant, arrogant, impatient religious conservatives as well.” Mark concludes his post by writing: “Tolerance, patience, and humility are good things, of course, but urging them only on secular liberals is not.”

I think the best response here is to leave it to other readers to decide whether my argument is slanted in the way Mark suggests. My hunch is that most readers, regardless of their ideological priors, will disagree with his characterization.

I do not mean to suggest that I wrote the book from a “view from nowhere.” I have all kinds of personal beliefs that affect how I think and how I see the world. Take, for example, the two most significant constitutional issues that I address in the book: the right of association and the public forum. Most of my views about associational autonomy lean conservative, and most of my views about the public forum (including public protest) lean liberal.  

In the chapter focused on speech as a civic practice, my critique of the “hurtful insult” is directed mostly at conservatives and my critique of the “conversation stopper” is directed mostly at liberals (though it is not difficult to think of cross-cutting examples for each of these). And when it comes to the aspirations of tolerance, humility, and patience, I tend to think, and tried to explain, that conservatives are more likely to resist the aspiration of tolerance and liberals are more likely to resist the aspiration of humility—but that both are needed to pursue a more confident pluralism.

Throughout the book, I do my best to name hypocrisy or inconsistency when I see it. For example, when it comes to the expressive nature of for-profit corporations, I express disappointment with both progressives and conservatives: “Many progressives were quick to defend Mozilla’s moral expression (and that of large corporations like Apple in the debate over Indiana’s religious freedom law) but view Hobby Lobby’s claims less favorably. Conversely, conservatives who ardently defended Hobby Lobby were quick to critique Mozilla and Apple. Whatever conclusion we reach as a society about the expressive and moral claims of for-profit corporations, it ought to apply across the ideological spectrum.”

Mark’s post raises some specific examples that emerged mostly after I completed the manuscript. On the subject of recent religious liberty legislation, I agree with Mark that most proposed laws have been neither carefully drafted nor narrowly focused, an argument that I made last fall in an essay coauthored with Michael McConnell and Rick Garnett. With respect to the so-called bathroom laws, I have criticized the North Carolina legislation and I have pushed back on overly dismissive arguments by religious conservatives. I do think, however, that some of the policy implications of transgender laws in other facilities and other circumstances are more complicated than Mark suggests.

Mark assumes a polarized binary between “secular liberals” and “religious conservatives” that I do not adopt in the book. For example, Mark references a story about some hate mail I received after I wrote about protests in Ferguson, Missouri. Mark assumes that the letter came from a “religious conservative.” But nothing in the story hints at the sender’s religious disposition, or whether the sender is liberal or conservative. (Indeed, I know nothing about the sender except for his temperament and his apparent dissatisfaction with my writing.)

I worry that Mark has assumed a “culture wars” mentality that sees only two sides. The shortcoming of that approach is that it forces an alignment of contested issues with ideologies that oversimplifies the views of many if not most people in this country. There are secular liberals and religious conservatives. There are also secular conservatives and religious liberals and all kinds of other combinations in between. And many people hold views on individual issues that, once aggregated, would not fit neatly into any of these labels.

I wrote in the introduction to Confident Pluralism that the goal of the book “is not to settle which views are right and which views are wrong. Rather, it proposes that the future of our democratic experiment requires finding a way to be steadfast in our personal convictions, while also making room for the cacophony that may ensue when others disagree with us.” That goal does not mean we will be able to engage with everyone who disagrees with us. I am unlikely to respond to the person who sent me hate mail. But I do hope to engage meaningfully with many of the people whose paths I cross. That includes colleagues, near and far, many who disagree with me on contested cultural and legal matters.

In the best cases, those encounters allow us to discover common ground in spite of profound disagreement. That is, for example, what I hope my colleague, Marion Crain, and I accomplished in our article “Re-Assembling Labor.” It is also, I trust, why scholars as diverse as Jason Mazzone, Tabatha Abu El-Haj, Ash Bhagwat, Tim Zick, Rob Vischer, and Steve Morrison have taken a renewed interest in the First Amendment’s right of assembly—perhaps because they find common ground in a constitutional principle despite deep differences on other matters.

Expressive Association

Let me turn now to some of the more granular doctrinal arguments in Mark’s first two posts, which address my critique of the Court’s expressive association doctrine. (I should note that the section on expressive association inConfident Pluralism summarizes a more extensive argument that I make in my first book, Liberty’s Refuge: The Forgotten Freedom of Assembly.)  

Mark defends the Court’s distinction between “expressive” and “non-expressive” associations as one of the “second-order rules whose justification lies in the fact, or hope, that a system implementing those rules will actually achieve better compliance with the first-order norms than a system in which courts attempt to enforce only the first-order norms.”

There are two problems with Mark’s argument. The first is that we have little evidence that the second-order formulation actually parses the first-order norms better than an undifferentiated right of association. The Supreme Court first recognized a right of association in its 1958 decision, NAACP v. Alabama. The doctrine quickly destabilized around the Court’s attempts to distinguish between the NAACP (which it wanted to protect) and the Communist Party of the United States (which it did not want to protect). It is not clear how a second-order formulation would have better honored first-order norms given the Court’s disparate treatment of Communists and civil rights workers.

The Court first introduced the second-order formulation of expressive association (alongside a separate right of “intimate association”) in its 1984 decision, Roberts v. United States Jaycees.   Since then, it has held that private civic groups (like the Jaycees) are expressive but unprotected against gender antidiscrimination norms, that the Boy Scouts are expressive and protected against sexual-orientation antidiscrimination norms, and that a skating rink is “non-expressive.” Lower courts have concluded that motorcycle clubs, fraternities, fight clubs, nudist colonies, and other groups are all “non-expressive.”

It’s hard to see how these distinctions hold up. As I argue in the book, the category of non-expressive association “obscures the fact that all associative acts have expressive potential: joining, gathering, speaking, and not speaking can all be expressive.” For this reason, “it becomes very difficult, if not impossible, to police this line apart from the expressive intent of the members of the group. And many groups that might at first blush seem to be non-expressive could in fact articulate an expressive intent.” (I also note in the book, and in an article on Virtual Assembly, that the distinction between expressive and non-expressive becomes even more precarious once we consider its online applications.)

The second problem with Mark’s second-order argument is his assertion that “the Court’s distinction between expressive and non-expressive associations was motivated by a concern that ordinary commercial enterprises would invoke the right to justify policies of racial (and, later, other) discrimination.” I don’t think that’s right. The closest we get to that view is Justice O’Connor’s concurrence in the Jaycees’ case, a view that has never been adopted by a majority of the Court.

Even if Mark were right about the Court’s view, the two second-order formulations are not interchangeable—“commercial” is not an adequate proxy for “non-expressive.” Many commercial associations are “expressive” and some noncommercial associations are “non-expressive.” Hobby Lobby is expressive when it takes a position on birth control, and Delta Airlines is expressive when it threatens to boycott Arizona over the state’s religious freedom legislation. Conversely, both a gay social club and a Christian prayer group arguably fall short of the Court’s definition of “expressiveness,” even though both groups are clearly noncommercial.

One could, of course, adopt a pragmatic distinction between commercial and noncommercial associations. Andy Koppelman has called this view a “neo-libertarian” approach to the right of association, which he attributes to a diverse group of scholars including Michael McConnell, David Bernstein, Dale Carpenter, Richard Epstein, John McGinnis, Michael Paulsen, Nancy Rosenblum, and Seana Shiffrin. I find the distinction insufficient insofar as it leaves open the possibility of powerful monopolies emerging from within the noncommercial category. In Liberty’s Refuge, I propose a line between commercial and noncommercial associations that also accounts for the monopoly situation in the noncommercial context (a position for which Richard Epstein has criticized me).

In short, I agree with Mark about the pragmatic line-drawing; I just don’t think expressive association gets us there. But all of this is a bit beside the point when it comes to Confident Pluralism. The primary claim of the book with respect to the right of association—and the one that I wish Mark had focused on a bit more—is that current doctrine insufficiently protects the private groups of civil society—the very groups that we most need to live out confident pluralism.

The Racist Restaurant

Mark’s second post raises the oft-made but important hypothetical of the racist restaurant owner who appeals to the right of expressive association to exclude non-white customers. As I’ve already suggested, my own pragmatic view is that the right of association (or what I prefer to think of as the right of assembly) should not extend to commercial associations. That knocks out the different versions of Mark’s hypothetical, so let me turn to the harder case that I address in the book, the racist private school. Schools present a much harder and more interesting question than restaurants (in the latter example, I agree with Mark that antidiscrimination laws should prevail).

It seems in this instance that courts have made plausible distinctions on the level of social policy. When it comes to race-based discrimination against African Americans in the wake of widespread and damaging practices of the Jim Crow South, the schools have lost. When it comes to any other kind of discrimination (including other forms of race-based discrimination), the schools have typically prevailed. That is not to deny that people suffer real and tangible harms from discrimination on the basis of other characteristics, including gender and sexual orientation (which is one reason that I support a pragmatic line-drawing between commercial and noncommercial associations under which the former would not be protected under the right of association).

The Intended Audience of Confident Pluralism 

In closing, I’d like to return to Mark’s third post and clear up one final point: it was never my intention to write to “intolerant, arrogant, impatient secular liberals,” any more than it was my intention to write to intolerant, arrogant, and impatient conservatives. The people who have already made up their minds and demonized “the other side” are unlikely to persuaded by my book, even if they happen to come across it. The people I am trying to reach are those who are predisposed to be more charitable to one another, even in the midst of deep and intractable disagreement. They are the people who are open to reasonable arguments, and willing to listen to different perspectives. To my good fortune, based on my interactions with him, Mark Tushnet is one of them.

More on Tushnet on candor, the "culture wars", and taking a "hard line"

Like Paul, I read with interest -- and, in my own case, I was both provoked and taken aback by -- Mark Tushnet's recent post at Balkinization on "abandoning defensive crouch liberal constitutionalism."  Although, like Mark, I look forward to a day when legal advocates and scholars don't have to read the entrails of, or purport to admire, Justice Kennedy's prose, I don't share Mark's enthusiasm for the substantive results and doctrinal changes he hopes (and I glumly assume) are on the way.  (Mark wants to see more Brennan and Marshall; I'd rather see more Rehnquist and Roberts.  We agree, though, that Casey was "wrong the day it was decided"!)  

That said, and as someone who admires Mark's work and has cherished his mentorship, I regret that he wrote this, with respect to the so-called "culture wars" and the current religious-accommodations fights:

. . . My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) . . .

Mark has followed up his post with a new one, in which he reports that a number of readers, bloggers, commenters, etc., reacted very negatively:  

Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).

He then goes on to say that what he means by "taking a hard line" is refusing to support broad, RFRA-type accommodations for the conservatives who have lost the "culture wars" and being very cautious about even more specific and narrow exemptions.    

I wish, though, that rather than dismissing as snark-worthy the negative reaction to his invocation of the "hard line" taken after World War II and the Civil War -- i.e., the "hard line" taken against the supporters, enablers, and managers of two genocidal and racist empires, or against traitors fighting for slavery -- he had instead said that he got a bit carried away and that the comparison was inapt and inflammatory.  His follow-up post represents, it seems to me, more of an adjustment to what he said in the first than a re-statement.  In the follow-up, after all, he indicates some openness to some (limited, contained) accommodations and compromises, but the original post is reasonably read as rejecting even those (just as, presumably, the "hard line" taken with respect to Japan and Germany didn't include, and shouldn't have included, much openness to them):

. . . I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won. . . .

As I see it, if someone on what he calls in his posts "their side" had employed similar rhetoric, many would (understandably) have pushed back hard against the wisdom and merits of making a comparison that unsurprisingly was heard by some as an invocation of denazification or the IMTFE as helpful guides for dealing with one's defeated ideological opponents.  In this case, Godwin's Law kicked in at the outset and the comparison, I think, undermined the possibility of Mark's post being part of a real conversation about the extent to which (if at all) religious actors may or should be accommodated going forward, if it really is the case that the "culture wars" have ended (or, perhaps, they've morphed -- with the campaigns of Trump and Sanders -- into something very different). . . .

. . . Which reminds me:  I also think I might have a different understanding than Mark does about what, exactly, the "culture wars" were or are, and whether it makes sense to see them primarily as a "scorched earth" offensive (as opposed to, say, a series of limited-success defensive efforts, against Murphy Brown, W.A.S.P., "Hot, Sexy, & Safer," etc.) by conservatives.  But that's a matter for another post, and I should probably re-read the original James Davison Hunter "Culture Wars" book first. . . .

NOMOS LVI ("American Conservatism") is out

NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy." Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented.  Get your copy here!  My own contribution, "The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism," is included.  Here is the abstract:

A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.

That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[]…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.

Many thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!

Criminal Law Class Materials Request - Update

Back in January, I imposed on the Prawfs community for some suggestions about materials for a few stand-alone class sessions I was hoping to integrate into my standard first-year Criminal Law course:

A Criminal Law class-materials request

Consulting the blawg-oracle:  I'm doing something new (for me!) in my first-year Criminal Law course, and I would welcome very much some help.  I made some cuts in my usual coverage, and freed up three classes (75 mins each) for what I'm describing as "special" or "current debates" topics.  I was thinking of (1) the "mass incarceration" phenomenon; relatedly (2) the "overcriminalization" debate; and (3) policing.  As we all know, each of these topics could take up an entire course (and more) and I'm proposing to put together simply a 30-pages or so handout for each, for the purpose of just one in-class discussion (although, of course, these topics come up, in other contexts, throughout the semester).

Take it away!  Revise my syllabus!

Because some people asked for a report-back, I'm imposing again!  I ended up doing three special classes, one on Solitary Confinement, one on Policing, and one on Overcriminalization.  

 

For the Solitary Confinement session, we watched the Frontline documentary, "Solitary Nation" and read (a) the opinion and order in Peoples v. Anucci; (b) A. Gawande's "Hellhole," and (c) A. Cohen's review of "Solitary Nation", "Creating Monsters."  For the "Policing" section, we looked at excerpts of the recent report of the President's Task Force on Policing and watched part of a Brookings panel on that report.  And, for "Overcriminalization", we watched part of the Kozinski / Wilkinson debate on Criminal Justice reform that the Cato Institute hosted as well as parts of Kozinski's paper, "Criminal Justice 2.0." 

 

The students *seemed* to enjoy these units -- if only as breaks between inchoate crimes and defenses! -- but we'll see what the evaluations say!

 

Thanks again for all the help.

Alta is (still) for skiers

A few years ago, I noted here on Prawfs an equal-protection / "animus" challenge that had been filed against Alta Ski Area's (a/k/a "Heaven on Earth") skiers-only policy.  The Tenth Circuit has ruled against "Wasatch Equality" on state-action grounds. Here is the opinion.  

 

Laptops in class (again)

For those of you who are keeping (as I am) a file or folder for the increasing number of pieces covering the "laptops in the classroom" issue, here's another item, from Weekend Edition.

"Drunk Outlines": Marbury v. Madison

Some students of mine had some fun with what could be -- who knows? -- the sequel to the Hamilton! craze:  The "drunk outlined" version of the Election of 1800 and Marbury. Above the Law, take note!

SCOTUS, religion, and age

As are, I assume, millions of others, I'm "watching" the live-blog of the Judge Garland nomination thanks to SCOTUSblog.  Two quick, non-substantive observations:  First, unless I'm remembering incorrectly, there has not been a Protestant nominated to the Supreme Court in 25 years (Justice Souter was nominated in 1990.)  If Judge Garland were confirmed, it would continue to be the case -- as it has been since Justice Kagan joined the Court in 2010 -- that the Court is made up entirely of Catholics and Jews (and graduates of Harvard and Yale).  Fascinating.  Imagine what, say, John Adams would have said!  Second, as others have noted, Judge Garland is the oldest nominee since Lewis Powell, almost 45 years ago.

Conference Announcement: "Louis D. Brandeis: An Interdisciplinary Perspective"

Touro Law Center and the Jewish Law Institute are hosting a national conference, Louis D. Brandeis: An Interdisciplinary Retrospective. More than thirty judges, lawyers, and scholars, representing a broad range of disciplines and hailing from around the United States, will explore topics that include, among others: Brandeis's groundbreaking work as a lawyer and a scholar; his commitment to his Jewish heritage; his historic appointment to the Supreme Court nearly one hundred years ago; and his jurisprudence on the Court.

  

Speakers will include The Honorable Kermit Lipez, United States Court of Appeals for the First Circuit; Lance Liebman, former Dean of Columbia Law School and former Director of the American Law Institute; Kenneth Elzinga, Robert C. Taylor Chair in Economics at the University of Virginia; Hasia Diner, Paul S. and Sylvia Steinberg Professor of American Jewish History and Director of the Goldstein-Goren Center for American Jewish History at New York University; and Fred Lawrence, former President of Brandeis University.

 

More info is available here.

Frank Pasquale on Law Schools' "double binds"

For the past few years, I had the pleasure of serving on the Editorial Board of the Journal of Legal Education with Prof. Frank Pasquale (Maryland), who was kind enough to share with me a paper he and I discussed, called "Synergy and Tradition:  The Unity of Research, Service, and Teaching in Legal Education."  Here's the SSRN abstract:

Most non-profit law schools generate public goods of enormous value: important research, service to disadvantaged communities, and instruction that both educates students about present legal practice and encourages them to improve it. Each of these missions informs and enriches the others. However, technocratic management practices menace law schools’ traditional missions of balancing theory and practice, advocacy and scholarly reflection, study of and service to communities. This article defends the unity and complementarity of law schools’ research, service, and teaching roles. (For those short on time, the chart on pages 45-46 encapsulates the conflicting critiques of law schools which this article responds to.)

Like The Man says, "highly recommended."

Justice Scalia and the Blaine Amendments

Following up on Josh's post:  For about 20 years, I've been hoping for -- and sometimes trying to contribute to to bring about -- a Court decision to the effect that the "Blaine Amendment"-type provisions in state constitutions (which, in my view, needlessly discriminate against religious institutions) violate the Constitution of the United States.   The currently soon-to-be-argued Trinity Lutheran case appeared to be a decent candidate for a case that would produce such a decision.   However, given the votes of Justices Breyer and Ginsburg in Locke v. Davey and Zelman, it seems likely that they'll endorse the lower-court opinion in that case (which allowed to Missouri deny an "application for a grant of solid waste management funds to resurface a playground on church property").