Mirror of Justice

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Tuesday, September 16, 2014

Steve Smith: "Die and Let Live: The Asymmetry of Accommodation"

An important, even if not uplifting, essay by Prof. Steven Smith:

In culture war battles over same-sex marriage, one group of scholars (“the moderators”) offers what is held out as a “live and let live” truce: same-sex marriage would be legalized, qualified by exemptions to protect groups and individuals who oppose same-sex marriage on religious grounds against liability or legal sanctions. The appeal of this proposal lies in part in its implicit claim to symmetry. The compromise– namely, same-sex marriage with religious exemptions-- is said to respect the legitimate interests of each side. Consequently, the moderators view both religious conservatives and secular egalitarians who decline to embrace the compromise as intransigent, and as unreasonably attempting to “impose their values” on others.

This essay criticizes the moderators’ implicit claim of symmetry. In fact, neither rejection of same-sex marriage nor legalization qualified by exemptions is equally respectful of each side’s interests. Both sides understand this fact, and they understand that it is better to be in a position of granting accommodation than to be in need of accommodation. In addition, the parties face different risks if they find themselves in a politically subordinate position and hence in need of accommodation. The final section of the essay considers the likelihood that either party, if politically dominant, will be inclined to accommodate the other party. While emphasizing that the question is inherently speculative, the essay argues (contrary to much academic opinion) that Christian conservatives have both the intellectual resources and the historical experience to support an attitude of tolerance. Whether secular egalitarianism has these toleration-supportive ingredients is more uncertain

September 16, 2014 in Garnett, Rick | Permalink

Call for Papers: "The Scope of Religious Exemptions"

The Bowling Green Workshop in Applied Ethics and Public Policy will take place in Bowling Green, Ohio, April 17th-18th, 2015. The keynote speakers are Robert Audi (University of Notre Dame) and Andrew Koppelman (Northwestern University).

Those interested in presenting a paper are invited to submit a 2-3 page abstract (double-spaced) by November 15th, 2014. We welcome submissions in all areas in applied ethics and philosophical issues relevant to this year’s conference theme: the scope of religious exemptions. We are especially focused on papers that address normative questions about religious exemptions, including the moral-philosophical justifications for religious exemptions and how often and to whom religious exemptions should be granted. We will consider multiple approaches to the topic, not merely in political philosophy and political theory, but normative ethics, metaethics and applied ethics.

More information is here.

September 16, 2014 in Garnett, Rick | Permalink

"Telling the Truth about Aleksandr Solzhenitsyn"

Over at Law & Liberty, there's a podcast with Daniel Mahoney about Aleksandr Solzhenitsyn, his work, his reception, his legacy, etc.  Here's part of the intro:

Comes now the great Daniel J. Mahoney, author of penetrating intellectual biographies of Bertrand de Jouvenel, Raymond Aron, and Charles de Gaulle, among other books, to discuss his latest work, The Other Solzhenitsyn. Mahoney, co-editor of The Solzhenitsyn Reader, provides us in this discussion a tremendous introduction to the Russian dissident writer’s corpus of writings and a rebuttal to his many critics.

We might say that most western writers who, from their position of faux outrage, frequently critique their governments, societies, and cultures have Solzhenitsyn envy, earnestly desiring that their work could perform something even close to the role of the Russian anti-communist writer par excellence. Not that they admire Solzhenitsyn’s political and moral philosophy, and his belief that freedom is ultimately born of spiritual commitment, but that no one will ever say of their work that it put a “sliver in the throat of power.”  Such was the praise given Solzhenitsyn after the publication of One Day in the Live of Ivan Denisovich in 1962. . . .

Whenever those polls and quizzes asking for "lists of 10 books that changed your life" or "that stayed with you" circulate on Facebook, Ivan Denisovich is always one of my ten.  (I wrote on of my college-application essays on his Cancer Ward and remember clearly buying "Warning to the West" at a bookstore in Cambridge, MA during a Spring Break visit to a friend there.  Yes, I am a geek.)  

Solzhenitsyn was, of course, a hero to the anti-communists in the United States during the Cold War, but his popularity waned as he turned his critical idea to western materialism, consumerism, etc.  Also, many critics today see him as "anti-democratic, theocratic, and pro-Putin, to name a few[.]"  In the podcast, Mahoney discusses and responds to these critics' claims.

September 16, 2014 in Garnett, Rick | Permalink

Viability, dependency, and abortion

James Mumford has a thoughtful piece in The Telegraph ("It's time to rethink our attitude to abortion") that engages the widespread but (he thinks, and I agree) misplaced emphasis placed on the "viability" of unborn children in abortion law and in the abortion debate.  Here's a bit:

But why should being capable of being born alive – being able to survive the onset of breathing and oral feeding – be the make-or-break threshold? Viability may have solidified as a legal concept, but the science shows that in reality it’s a moving target. . . .

More fundamentally, what feminist thinkers have shown is the fact that viability constitutes a profound category mistake. Human beings arrive in the world in a state of radical dependency. To insist they reach a stage of independence before we confer rights upon them is to assume, in the words of feminist political philosopher Seyla Benhabib, a "strange world" in which "individuals are grown up before they are born". . . .

Mumford's piece resonates strongly, I think, with what many of us here at MOJ (and many others, too) have said about the content of the Church's "moral anthropology," i.e., that it provides an account of the human person, of human dignity, and of human destiny that is not built on autonomy and self-sufficiency so much as on dependence and relationships.  (For an essay of mine that touches on this account, go here.)  

September 16, 2014 in Garnett, Rick | Permalink

Monday, September 15, 2014

Freedom of Religion and the Freedom of the Church: My Response

Over at Law & Liberty, I have a reply posted to the three very thoughtful responses authored by Donald Drakeman, Paul Horwitz, and John Inazu.  Here's the reply (and you can access the original piece and the responses there).  A bit:

. . . Drakeman’s [response] serves to underscore the importance of insisting that there is more to religious freedom than an accommodations-and-exemptions regime. After all, such a regime always and inevitably (and understandably) involves the balancing, by the state, of the costs and benefits, to and for the state, of accommodations and exemptions. A political community that loses sight of the many ways that religious institutions’ and actors’ religious and religiously motivated activities serve the common good is going to be less likely to accommodate and exempt. It is important, then, to emphasize that a moral and legal commitment to religious freedom also involves an appreciation and (enforced) respect for the limited but still real “autonomy” of religious institutions and actors as well as for the limits on the state’s regulatory authority. . . .

Paul Horwitz – whose important book, First Amendment Institutions, has both shaped and challenged my thinking about the subject under discussion – is right to remind readers that “religious institutionalism” is “not necessarily a libertarian position”; it does not require or even invite “disdain for the state”; it is does not reflect or imply “complete skepticism about or outright hostility to government.” It does, I think, necessarily involve (as Horwitz says) the ungrudging acceptance – indeed, the welcoming – of non-state authorities and of occasional “incongruence” (to borrow Nancy Rosenblum’s term) between, on the one hand, the rules that govern and the goals that move the liberal state and, on the other, the practices and values of non-state groups, communities, associations, and institutions. As my colleague, Robert Rodes, has put it, there is a “nexus” between religious and political authorities that involves both cooperation and contestation, mutual support and resistance. . . .

. . . Inazu . . . expresses some doubt – friendly doubt, I think, but doubt nonetheless – about the “constitutional” and especially the “theological” limits on what I called the “translation, not transplantation” of the “freedom of the church” into present day law and practice. He writes, “The freedom of the church is first and foremost a theological argument. Some theological arguments are at least partially translatable; indeed, we have seen examples of this kind of translation unfold within American law through concepts like conscience and forgiveness. But other theological concepts are less susceptible to translation from the theological perspectives out of which they emerge.” I take the point, but would respectfully maintain that Inazu is underestimating the political, legal, and social dimensions of the idea and therefore overestimating the theological limits to translation. To be sure, Christians and Christianity have an account of what “the Church” really is that is not political and that is about the “reality of Jesus Christ”, not “the special nature of ‘religion.’” They – we – are called to bear witness to that reality and not to – in Inazu’s words – “domesticat[e]” it or make it more suitable to moderns or comfortable to liberals. Nevertheless, I continue to think that there is plenty of content in the “freedom of the church” idea, argument, proposal, and struggle that is not only translatable to, but urgently needed for, the this-side-of-Heaven project of ordering our lives together.

September 15, 2014 in Garnett, Rick | Permalink

More on the Herx case and the ministerial exception

A few days ago, I put up a short post on the Herx case -- having to do with a discrimination lawsuit against a Catholic school by a teacher -- and characterized the trial court's ruling -- rejecting the school's ministerial-exception argument -- as misguided.  (I didn't post the link to the opinion, but it is here.  Reading it again, I continue to think it is off-the-mark.)

A reader wrote in with some questions and -- with permission -- I'm posting some of them, and saying a bit in response, here . . .

I’d be interested in reading in the future your response to the judge’s distinction between the Herx and Perich, the teacher in Hosanna-Tabor. I think his approach is quite sound.

I think the trial judge read Hosanna-Tabor far too narrowly and incorrectly focused simply on the question whether the teacher in question is "ordained" or is instead a "lay teacher."  Under the terms of her contract, it is quite clear (to me) that she is expected to be, and is held out as being, charged with the formation in the faith -- through example, teaching, and witness -- of the school's students.  That she is not an ordained minister or a theology teacher should not end the inquiry.  The trial judge's approach is, it seems to me, closer to the one employed by the Sixth Circuit in Hosanna-Tabor than by the one employed by the (unanimous) Supreme Court.

I’d also be interested in reading more about your proposed presumption that K-8 teachers in parochial schools are ministers. I’ve had kids on the younger end of that spectrum in religious school (probably not parochial since the school was affiliated with a Catholic university run by a religious order) and it frankly never occurred to me that the teachers were all “ministers” unless that term is defined very broadly such that the cafeteria staff, janitors, etc. are also included.

I think it is easy to draw a line between "teachers" and "cafeteria staff, janitors, etc."  In my view, given the mission of Catholic parochial schools as it is described in the writings on Catholic education by recent popes and by the relevant USCCB bodies, a teacher (lay or ordained) at a Catholic school is a "minister" of the Church within the meaning of Hosanna-Tabor.  Whether or not courts will agree with me is, of course, an open question.  I suspect, in the current climate, many will not.

My reader's question does underscore for me the importance of making as clear as possible -- and of making more clear than some Catholic schools have done in the past -- how the school conceives of its mission and of its teachers' role.

Getting more specific, would you apply this presumption to Herx (who did not teach religion classes and had a contract different from teachers who did)? How about a teacher who did not share the parochial school’s religious affiliation (Herx and Perich did but I think you’ll agree that this fact pattern does arise)? What if the parochial school didn’t have any religion classes or chapel services at all or had special teachers, perhaps more recognizable as “ministers,” lead them? In other words, how would the presumption be overcome, if indeed it could be overcome and is not simply a “church always wins” rule?

I would apply the "presumption" to any teacher in a K-8 school, regardless of whether that teacher is a Roman Catholic or not.  (Again, I'm assuming that every teacher's contract does, or should, speak clearly about the school's mission and the teachers' role.)  A Catholic school should not lose the right to make mission-related decisions in the hiring context simply because, in some cases, the school decides that a non-Catholic can advance that mission.  (I think it is obvious that, in many cases, non-Catholics support and advance the distinctly Catholic mission of Catholic schools.)

If a "parochial school didn’t have any religion classes or chapel services at all," then I'd think it wasn't much of a parochial school.  I'd be surprised if many, or any, K-8 Catholic schools fit this description.

I'm thinking that the "presumption" could be overcome if, in the circumstances of a particular case, it was clear that the teacher was not expected by the school to play any role in the formation of the students and this fact was made clear to the teacher as well as to the relevant parents.  But, yes, in cases involving a "parochial school" -- that is, a traditional K-8 meaningfully Catholic school -- the school should usually win.

To be clear . . . none of this means that the school is behaving well, or fairly, or justly, or that a particular decision cannot be criticized on moral or fairness grounds.  As I wrote here, and in more detail here. . .


September 15, 2014 in Garnett, Rick | Permalink

Cardinal George on "swimming against the tide"

Here's a bit that jumped out at me, from Cardinal George's recent column, "A Tale of Two Churches":

. . . Swimming against the tide means limiting one’s access to positions of prestige and power in society. It means that those who choose to live by the Catholic faith will not be welcomed as political candidates to national office, will not sit on editorial boards of major newspapers, will not be at home on most university faculties, will not have successful careers as actors and entertainers. Nor will their children, who will also be suspect. Since all public institutions, no matter who owns or operates them, will be agents of the government and conform their activities to the demands of the official religion, the practice of medicine and law will become more difficult for faithful Catholics . . .

Generally speaking, I've thought (and tried to speak and write) more in terms of engagement and participation than retreat and retrieval.  Generally speaking, I've thought it important to insist -- even as I find much to admire in the MacIntyre-ish localism / roots / place / "build community" themes that run through, say, the stuff at Front Porch Republic -- that it continues to be important to do all one can, in politics, law, and litigation, to protect the rights and place of religious believers and institutions in the public square and in the public conversation.  Not too long ago, I might have thought that Cardinal George was being a bit too pessimistic.  Now . . . I'm not sure he is.

September 15, 2014 in Garnett, Rick | Permalink

An upcoming lecture in Tucson

On Friday, I'm giving a lecture (thanks to the University of Arizona and the Notre Dame Alumni Association) in Tucson on "Law, Religion, and Politics:  Understanding the Separation of Church and State."  More info here.  In a nutshell:  "Healthy secularity" is way to understand "the separation of church and state" and this understanding is good for religious freedom.  

September 15, 2014 in Garnett, Rick | Permalink

Saturday, September 13, 2014

Pope Francis, 16 Women Senators, and Protecting Women

The other day I found myself re-reading Pope Francis’ recent exhortation, Evangelii Gaudiem.  In light of last week’s news, the following excerpt jumped out at me where he discusses how we are all invited:

 …to receive God’s love and to love him in return with the very love which is his gift, bring[ing] forth in our lives and ac­tions a primary and fundamental response: to de­sire, seek and protect the good of others.

The message is one which we often take for granted, and can repeat almost mechanically, without necessarily ensuring that it has a real effect on our lives and in our communities. (Evangelii Gaudiem, para. 178)

Later in the document, when more specifically discussing this call to protect the most vulnerable in society, Pope Francis singles out victims of domestic violence.  He writes “[d]oubly poor are those women who en­dure situations of exclusion, mistreatment and violence, since they are frequently less able to de­fend their rights.” (Evangelii Gaudiem, para. 212)

 As I previously blogged, much of this last week has demonstrated how society has taken for granted, indeed, accepted a certain level of violence against women, thereby negatively “affecting our lives and communities.”  However, Thursday also demonstrated how some women senators have engaged in the very actions Pope Francis exhorts us all to do.

 A bipartisan group of 16 women senators wrote Commissioner Roger Goodell expressing dismay with the NFL’s “policy” regarding domestic violence.  Central to this letter is this most basic but poignant observation:


 We are deeply concerned that the NFL’s new policy, announced last month, would allow a player to commit a violent act against a woman and return after a short suspension. If you violently assault a woman, you shouldn’t get a second chance to play football in the NFL.


The NFL is a major American business whose teams split $6 billion in revenue in 2013.  I would hope that in most businesses if an employee (let alone a public figure) knocked a co-worker unconscious and was indicted, he would be severely disciplined.  This certainly would be true if he beat unconscious a person because of his or her class, religion, or creed.  But somehow it is not true if he beat unconscious a person because of her gender.  That apparently is more acceptable. 

 I am pleased that these senators are seeking to help protect women.  It is sad, however, that this business needs to be told this basic truth: “If you violently assault a woman, you shouldn’t get a second chance to play football in the NFL.”

 A full text of the letter can be found here.

September 13, 2014 in Leary, Mary G. | Permalink

Friday, September 12, 2014

Amicus Brief of Pro-Life Organizations Supporting Strong Protection for Pregnant Workers from Discrimination

(from Tom Berg:) I'm very pleased to tell others about an amicus curiae brief, filed in the U.S. Supreme Court yesterday by 23 pro-life organizations in Young v. United Parcel Service, an important case involving the Pregnancy Discrimination Act of 1978 (the PDA).  The brief, which supports the pregnant employee who filed suit against UPS, is by pro-life organizations from across the political spectrum, from Concerned Women for America and the Southern Baptists to Feminists for Nonviolent Choices and Democrats for Life.  Here are a couple of news releases, from St. Thomas Law and from the Democrats for Life (on whose board I sit), each summarizing the case (and also linking to the brief).

The filing of the brief makes important statements that, I think, are noteworthy in our society polarized over the “life” issue and how to address it.  In this, a variety of pro-life groups with different missions, who disagree on other things, have come together to emphasize that supporting pregnant women is a fundamentally pro-life position.  I suspect that, in our polarized atmosphere, some people may be surprised that a bunch of pro-life groups have filed to support working women—so spread the news!

I worked along with several other counsel, including my colleague Teresa Collett, to organize and draft the brief.  And yet another St. Thomas Law colleague, MOJ's own Lisa Schiltz, made important contributions to the brief as well.  (Go Tommies!)

The case involves Peggy Young, a driver for UPS who became pregnant and, based on the doctor’s note concerning lifting restrictions, sought to be switched to “light duty” work for the remaining few months of her pregnancy.  UPS had provided such an accommodation for several significant categories of employees, including those injured on the job, those with disabilities, and those who had lost their commercial driving license for various medical reasons—but it refused to accommodate Young.  She was forced to take an unpaid leave and lost her employer-provided health insurance for several months.  Young sued under the PDA, which requires that pregnant women be treated the same as other employees “similar in their ability or inability to work.”  Although UPS had made the accommodations mentioned above, the lower courts ruled against Young because there were other categories of employees UPS had not accommodated (e.g. off-the-job injuries); essentially, the court said that pregnancy was not discriminated against if it was treated no worse than those and was not ”singled out” for denial.  Young is seeking reversal in the Supreme Court.

The case raises an important issue concerning the effectiveness of the PDA’s protection for pregnant employees, since many employers make accommodations for some but not all employees with physical limitations.  The pro-life organizations’ brief argues that pregnancy should be treated as well as conditions the employer deems important enough to accommodate, not as poorly as conditions the employer refuses to accommodate.  The brief points to the background of the PDA, which had support in 1978 from pro-life groups and pro-life members of Congress.  Their rationale was that protecting pregnant women from discrimination reduced pressure on economically vulnerable women to abort their children, and strengthens the fundamental right to bear children and raise a family.  The brief makes those arguments as well.

Counsel of record are Carrie Severino and Jonathan Keim of the Judicial Education Project (also an amicus).

Cross-posted (with minor changes) at Whole Life Democrat

September 12, 2014 in Berg, Thomas | Permalink

"Arc of the Universe": A new blog from the Center for Civil and Human Rights

Check it out.  Here's a bit about the project:

Beliefs about justice typically lurk just beneath headlines from around the world, whether they deal with separatist movements in Ukraine, Kurdistan, or Sri Lanka; Islamic rebellions in Syrian and Iraq; U.S. policy in Iraq and Afghanistan; war between Israel and Palestine; global development policy; women’s rights; economic justice; the drug wars in Latin America; the one-child policy in China; and religious freedom.  Usually, these beliefs go unexamined.  The same is often true even in the academy.  In American political science, for instance, justice is sharply separated from the scientific study of politics.  Arc of the Universe is devoted to resurfacing justice – examining the day’s headlines from the deep commitments of ethical traditions.  Arc of the Universe is also distinctive in bringing religion into the picture.  Some posts will appeal to religion while others will be rendered in secular terms.  Arc of the Universe is a place where secular and religious meet in conversation about global justice.


So come follow Arc of the Universe!

September 12, 2014 in Garnett, Rick | Permalink

Happy Anniversary!

A friend posted this on Facebook:

On this day in 1683, the forces of the Holy League, led by Polish King Jan Sobieski III and his Winged Hussar lancers, mounted one of the largest cavalry charges in history to defeat the combined Ottoman forces of Grand Vizier Merzifonlu Kara Mustafa Pasha, relieve the siege of Vienna, and save Europe from an existential threat. Upon achieving victory Sobieski is said to have declared "Veni, vici, Deus vicit."

Na zdrowie!

September 12, 2014 | Permalink

"Under Caesar's Sword: A Christian Response to Persecution"

On September 18, the Center for Civil and Human Rights at the Notre Dame Law School (which is directed by my friend and colleague, Dan Phipott), is hosting an important and interesting-looking conference, "Under Caesar's Sword:  A Christian Response to Persecution."  More info here.  This is the beginning of an exciting, ongoing interdisciplinary research project. Stay tuned.

"Under Caesar's Sword" . . . aims to document and understand the ways in which Christian communities deal with the violent suppression of their rights. Recently awarded a $1.1 million grant from the Templeton Religion Trust, CCHR and RFP will host a panel of experts on religious freedom at Notre Dame Law School. These experts, along with many others, will set out across the globe in the next year to investigate the varied methods by which Christian communities respond to repression, from complex diplomacy to simple flight.

September 12, 2014 in Garnett, Rick | Permalink

Thinking more clearly about "discrimination"

Here's a nice piece, called "Discrimination, or Intellectual-Lite?", at God, People, Place.  The author, Charlie Peacock, says (among other things):  

. . . I am committed to discriminate thinking, that is the intellectual ability to differentiate and separate – to tell the difference between one thing and another. What education I do have encouraged the promotion of discriminate thinking and the cultivation of the ability to evaluate, make comparisons, and categorize.

Yet, there is a disturbing trend among our American institutions of higher learning. In the interest of anti-discrimination, the keepers of our intellectual future have forgotten how to think discriminately – to tell the difference between one thing and another. . . .

For reasons I tried to set out here ("Confusion about Discrimination") and here ("Religious Freedom and the Antidiscrimination Norm"), I agree!

September 12, 2014 in Garnett, Rick | Permalink

A symposium on Dworkin's "Religion Without God"

The Boston University Law Review has posted a number of excellent contributions to a symposium on Ronald Dworkin's Religion Without God.  Talk about an abundance of riches!  There are pieces by James Fleming, Jeremy Waldron, Stephen Carter, Paul Horwitz, Andy Koppelman, Cecile Laborde, Linda McClain, Micah Schwartzman, and Steven Smith.  Wow!  

September 12, 2014 in Garnett, Rick | Permalink

A Tale of Two Churches – Francis Cardinal George

In his recent column, “A Tale of Two Churches,” Francis Cardinal George pithily recounts the history of how the Catholic Church flourished in this country, in part due to the promise that the government would not be confessional in nature, a promise to which it has remained true “Until recent years.”

Now “[t]he ‘ruling class,’ those who shape public opinion in politics, in education, in communications, in entertainment, is using the civil law to impose its own form of morality on everyone” to the point where today “we are warned” that “those who do not conform to the official religion . . . place their citizenship in danger.”  This kind of pressure (from, no less, those “who regard themselves as ‘progressive’ and ‘enlightened’”) inevitably results “in a crisis of belief for many Catholics.”  As George notes: “It already means in some States that those who run businesses must conform their activities to the official religion or be fined, as Christians and Jews are fined for their religion in countries governed by Sharia law.”

Some may dismiss this as hyperbole and fear mongering from an aging ecclesiastic.  Others will see the new order of the day as the movement of the Holy Spirit, as the state helping to effect the will of God, updating the Church on matters of marriage, sexual morality and abortion.

But a clear-eyed view of history and fidelity to the apostolic faith says otherwise.  The Church does change, she develops over time and in different cultures.  But authentic development is never the product of coercion.  Indeed, it is in resisting the powers of this world in true freedom that the Church comes to more deeply understand the faith given to her.  Genuine discipleship means being willing to swim against the tide.  What will this look like in the near future?

It means that those who choose to live by the Catholic faith will not be welcomed as political candidates to national office, will not sit on editorial boards of major newspapers, will not be at home on most university faculties, will not have successful careers as actors and entertainers. Nor will their children, who will also be suspect. Since all public institutions, no matter who owns or operates them, will be agents of the government and conform their activities to the demands of the official religion, the practice of medicine and law will become more difficult for faithful Catholics.

Read the whole thing.

September 12, 2014 | Permalink

Thursday, September 11, 2014

A prediction about Yates v. United States

Greg Sisk's post about a brief on behalf of eighteen criminal law professors in Yates v. United States brought me back a few weeks to our law school orientation at Richmond, during which a colleague and I argued the case before a panel of faculty judges for the benefit of our incoming students. When the case was originally chosen for this exercise, I asked to be on the side of liberty. But as circumstance would have it, I ended up on the side of text. And that is where I think the Supreme Court will end up as well. 

The policy problems identified in the criminal law professors' brief are real problems. But the professors' legal arguments for the petitioner in Yates will not suffice, I expect. Perhaps most importantly, the intent element confines the scope of this statute to cover conduct that is not simply malum prohibitum (in the words of the brief). Petitioner deliberately destroyed the best evidence of his civil infraction. The statutory language prohibiting this conduct was modeled on statutory language prohibiting the destruction of physical evidence in other jurisdictions and other contexts. 

I predict that petitioner loses unanimously.

September 11, 2014 in Walsh, Kevin | Permalink

Overcriminalization: The Criminal Law Professors Brief

In conducting some last-minute update research on a forthcoming article (here) on the legal ethics of real evidence (and the potential use of obstruction of justice statutes to punish a lawyer for zealous representation of a criminal defendant), I came across the "Brief for Eighteen Criminal Law Professors as Amici Curiae" in the pending Supreme Court case of Yates v. United States, No. 13-7451.

Red grouper Epinephelus_morioYates is the case in which creative federal prosecutors applied the new "anti-shredding" provision in the Sarbanes-Oxley Act to prosecute a fisherman for anticipatory obstruction of justice because he tossed some under-size fish overboard (rather than bring them back to the dock) after a Florida fish and wildlife officer had cited him for a civil violation.

The statute punishes those who knowingly destroy or conceal “any record, document, or tangible object” with the intent to impede an investigation within the jurisdiction of a federal agency.  In prosecuting the fisherman and now before the Supreme Court, the federal government argues that the three red grouper fish were a "tangible object."  The fisherman's lawyer, and the amicus brief above, argue that "tangible object" should be understood in the context of "record" and "document" to mean such things as hard-drives, flash-drives, computer diskettes, etc. which can record information.

What especially struck me about the brief, which was filed on behalf of a member (Rick Garnett) and several friends of the Mirror of Justice, was its powerful indictment of overcriminalization -- together with the sad decline of wise use of prosecutorial discretion.  Below is the key discussion of this matter from this thoughtful and well-written brief:


Today’s federal criminal code would be profoundly troubling to the Founders. As James Madison wrote in FEDERALIST NO. 62, “[i]t will be of little avail to the people * * * if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood[.]” Yet these words provide an apt description of today’s U.S. criminal code. As one commentator puts it, the federal criminal “code” is a “haphazard grabbag of statutes accumulated over 200 years”—it is “incomprehensible, random and incoherent, duplicative, ambiguous, incomplete, and organizationally nonsensical.” Julie O’Sullivan, The Federal Criminal “Code” is a National Disgrace: Obstruction Statutes as Case Study, 96 J. CRIM. L. & CRIMINOLOGY 643, 643 (2006).

Neither prosecutors nor their targets can plumb the depths of this criminal law. Federal law addresses conduct ranging from unquestionably serious crimes (e.g., 18 U.S.C. § 2381 (treason)), to trivial ones (e.g., id. § 711 (unauthorized reproduction of “Smokey Bear”)). As one well-known jurist has observed, “most Americans are criminals and don’t even know it.” Alex Kozinski & Misha Tseytlin, You’re (Probably) a Federal Criminal, in IN THE NAME OF JUSTICE 43, 44–45 (Timothy Lynch ed., 2009).

To be sure, U.S. Attorneys cannot (and would not) enforce every one of these provisions every time it was violated. For those who do get prosecuted, however, the circumstances are grim. The vastness of the federal code and the breadth of myriad statutes provide the imaginative prosecutor with near-endless permutations of crimes to charge. Exercising prosecutorial discretion has evolved “from an exercise of wisdom to a selection of weaponry.” Robert Weisberg, Crime and Law: An American Tragedy, 125 HARV. L. REV. 1425, 1445 (2012).

 * * *

According to recent estimates, U.S. law contains 4,450 criminal provisions. . . . Now add to this expansive body of criminal statutes a mountain of federal criminal regulations. According to one estimate, there are now more than 300,000 federal regulations that may trigger criminal sanctions.

 Still worse, many of these regulatory offenses pro-scribe conduct that is malum prohibitumi.e., conduct that is wrong only because it is prohibited. Everyone knows that it is immoral to kill, rape, or steal. The same cannot be said, however, of importing non-veneered ebony wood from India, snowmobiling into a national forest in the midst of a blizzard, or saving a bird from the clutches of a hungry cat. Yet as Gibson Guitar Corp.[2] IndyCar champion Bobby Unsar,[3] and11-year-old Skylar Capo[4] found out, the Government has no qualms about prosecuting such behavior. As these heavy-handed prosecutions show, the vast ocean of regulatory crimes—including many offenses that are “wrongful only because [they are] illegal”—threatens to “allow punishment where ‘consciousness of wrongdoing be totally wanting.’” Stephen Smith, Overcoming Overcriminalization, 102 J. CRIM. L. & CRIMINOLOGY 537, 538 (2012) (quoting United States v. Dotterweich, 320 U.S. 277, 284 (1943)).

 2 See C. Jarrett Dieterle, Note, The Lacey Act: A Case Study in the Mechanics of Overcriminalization, 102 GEO. L.J. 1279, 1284–86 (2014) (summarizing the prosecution of Gibson Guitar Corp. under the Lacey Act, 16 U.S.C. §§ 3371 et seq.).  

3 Reining in Overcriminalization: Hearing Before the Sub-comm. on Crime, Terrorism, & Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 21–35 (2010) (statement of Robert “Bobby” Unser, detailing his prosecution under 16 U.S.C. § 551 and 36 C.F.R. § 261.16 for unintentionally entering a national forest with a snowmobile during a blizzard).

 4 Girl saves woodpecker, but her mom fined $535, CBS NEWS, Aug. 4, 2011, available at http://www.cbsnews.com /news/girl-saves-woodpecker-but-her-mom-fined-535/ (re-porting the citation of an 11-year-old child under the Migratory Bird Act, 16 U.S.C. §§ 703 et seq., for saving an endangered woodpecker from being eaten by the family cat). The charges were dropped after an international outcry over the incident.

 In short, the ever-expanding breadth and redundancy of the federal statutory and regulatory crimi-nal “code” threatens to create, in the words of the late Bill Stuntz, “a world in which the law on the books makes everyone a felon.” William Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 511 (2001).

September 11, 2014 in Sisk, Greg | Permalink

"Foundational Texts in Modern Criminal Law" (available for pre-order)

I am pleased to announce that Foundational Texts in Modern Criminal Law, edited by Markus D. Dubber, is now available for pre-order. I've listed the description of the volume below. As Markus explains in his introduction, the aim of the volume is to provide a set of comments (and in some cases, an introduction) to criminal texts that are canonical for the modern liberal state, but also that grew out of and from within the modern liberal state. The collection begins with Hobbes and ends with the contemporary German theorist, Günther Jakobs. I was delighted to contribute the chapter on J.F. Stephen. The primary texts themselves can be accessed here

Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context. 

Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems.

September 11, 2014 in DeGirolami, Marc | Permalink

Wednesday, September 10, 2014

Justin Driver's TNR Review of Murphy's Scalia screed

The New Republic is running a book review by Justin Driver of Bruce Allen Murphy's book about Justice Scalia. Titled "How Scalia's Beliefs Completely Changed the Supreme Court ... and therefore, the country," the review combines appreciation for the impact of Justice Scalia's beliefs about interpretation (and the role of Justices in oral argument) with criticism of Murphy's "vituperative attacks on Scalia's character and even on his religion."

Driver's appreciation of Justice Scalia's impact is far from uncritical. The review concludes: "If legal liberals are going to prevail in the long run, they must comprehend that the many profound problems with Scalia's views are not characterological or ecclesiastical; they are jurisprudential." But Driver's criticisms of Scalia are not the main feature of the review. His criticisms of Murphy are. And those criticisms are deserved. So, too, are Driver's criticism of reviews like Dahlia Lithwick's. After outlining problems with Murphy's treatment of Justice Scalia's Catholicism, Driver writes:

These deficiencies in Murphy’s approach may seem glaringly obvious, but his book has received a surprisingly warm reception in some estimable quarters. At least one reviewer has even showered praise on Murphy for his brave, penetrating insights into Scalia’s religion. Writing in The Atlantic, Dahlia Lithwick commended Murphy as “a timely and unintimidated biographer” who “refuses to be daunted by the silence that surrounds most discussions about religion and the Court.” In Lithwick’s view, “Murphy’s conclusion—at once obvious and subversive—is that Justice Scalia is very much a product of his deeply held Catholic faith.” Failure to acknowledge the ample flaws in Murphy’s treatment of religion is a dereliction. But celebrating the biography for its bold willingness to speak truth to power is perverse.

Driver describes as "indefensible" the idea that "the issue of religion should never be broached when it comes to assessing justices." Indeed, he says that "[i]n the particular case of Scalia ... it would be irresponsible for any biographer to avoid discussing his religion at some length." But Driver objects to treatments like Murphy's that use tactics whose "impudence is enough to make practitioners of guilt by association blush with embarrassment." 

I wish Driver were correct that Murphy's "hatchet is so crude and so wanton that it falls well short of achieving its intended effect." But the set of readers "who are unsympathetic to Scalia's legal vision," but nevertheless "find themselves leaping to his defense, supplying the counterarguments, explanations, and qualifications that Murphy too often disregards," must be very small. It is to Driver's credit that he is one such reader. But Driver is almost certainly atypical, at least outside the legal academy.

September 10, 2014 in Walsh, Kevin | Permalink

Tuesday, September 9, 2014

We Should Not Need A Videotape To Be Repulsed By Domestic Violence

So, exactly what did you think domestic violence looked like?

In the wake of TMZ’s release of the elevator video recording of Ray Rice’s vicious beating of his now wife, Janay Palmer, everyone has something to say.  Now we are horrified.  Now the team is outraged because, as Coach John Harbaugh put it, the videotape “changed things.”  Why?

I think I know the answer.  It changed things because now we cannot hide.  Now, we cannot blame the victim as the Ravens suggested in an early tweet talking about how Ms. Palmer “regrets the role she played” in the incident. (Was that the role her face played in receiving Rice’s punch, hitting the wall, or hitting the floor?) Now we cannot whitewash with the sterile label “domestic violence” a 206 pound man punching a woman unconscious, then dragging her body and dropping it face down onto the floor.  It changes things because now we cannot look the other way.  The ugliness and the viciousness of what the words “domestic violence” mean are laid bare and there is no escaping it no matter how hard we try.

And we tried hard.  This is not a situation in which nothing was known prior to yesterday’s release of the video.   It was already known that Rice hit her with such force that she was unconscious.  It was already known he was charged with aggravated assault, not simple assault (although the prosecutor approved a diversion program).  It was already known that there was at least a video of him dragging her unconscious body from the elevator.  But amazingly we as a society generally - the NFL and the Ravens particularly- managed to minimize.

So why are things different now?  Things are different because, after the videotape, society and the NFL are now faced with the ugly truth: that domestic violence is exactly that – violence; and what Ms. Palmer experienced was the violence of a closed fist hitting her head with such force that she immediately was knocked unconscious as her body fell against the wall.  It was the violence and humiliation of being unceremoniously dragged into a hallway with so little dignity that she lay there injured, unresponsive, and humiliated with her skirt pulled above her waist on the floor.

How did this willful ignorance happen? Two decades after the Violence Against Women Act, twelve years after the Catholic Conference of Bishops wrote “Violence against women, inside or outside the home, is never justified. Violence in any form-physical, sexual, psychological, or verbal is sinful; often, it is a crime as well" -  how is it that we are still looking the other way?  The sad truth is that this happens because we do not afford women and children the inherent dignity they deserve.  We even give this victimization a different label, “domestic violence” and treat it differently than what it is: a fist to the face. 

We do not want to face the reality of violence against women and children.  Just think back to the Steubenville high school football players convicted of rape.  This was a case covered up and one that may not have been prosecuted but for the videotapes of both circumstances surrounding the event and the teens discussing it.  Remember the outrage at Penn State?  It was outrage only felt when the testimony of an adult eye witness was released to the public through the grand jury.  Not until the reality of what women and children victims experience behind closed doors is placed front and center are we willing to reluctantly acknowledge what it is.

Some have commented that this  termination is a watershed moment.  Sadly, I am not so optimistic.  Ironically, on the same day that Ray Rice was let go from the Ravens, the NCAA lifted the ban on Penn State’s post season play because “they have made remarkable progress” in their cover up of one of their former coaches molesting children on campus. Remarkable progress for such a serious institutional failure?  This further underscores society’s preference to sweep away not only the victimization, but the institutional willful ignorance as well.  As Joey Galloway questioned, “[w]hen you start to peel back these penalties, what are you saying about the initial crime?”

We simply do not take violence against women and children seriously because we hide from its reality.  We do so because our society simply does not afford victims the inherent human dignity belonging to all people.  Not until we  recognize what this violence is, can we effectively respond and prevent its occurrence by working with victims and offenders. 

Many now are asking whether the NFL knew of this video prior to yesterday. There are, however, more fundamental questions: given what was known, why did we need a videotape to be repulsed?  Why does the existence of a video change things?  But it does.

According to the Domestic Violence Hotline, 3 in 10 women will experience some form of intimate partner violence or stalking.  In the minute it took to read this piece 24 people have been victimized in this way.  Chances are there was no video camera to force us to hold those abusers accountable. 

September 9, 2014 in Leary, Mary G. | Permalink

Monday, September 8, 2014

A fascinating "what if?" about colonial America

What if the first American colonists had been Catholics seeking refuge from Elizabethan persecution?  A new book from Oxford ("God's Traitors:  Terror and Faith in Elizabethan England") tells the story:

Over the summer of 1582 a group of English Catholic gentlemen met to hammer out their plans for a colony in North America — not Roanoke Island, Sir Walter Raleigh’s settlement of 1585, but Norumbega in present-day New England.

The scheme was promoted by two knights of the realm, Sir George Peckham and Sir Thomas Gerard, and it attracted several wealthy backers, including a gentleman from the midlands called Sir William Catesby. In the list of articles drafted in June 1582, Catesby agreed to be an Associate. In return for putting up £100 and ten men for the first voyage (forty for the next), he was promised a seignory of 10,000 acres and election to one of “the chief offices in government”. Special privileges would be extended to “encourage women to go on the voyage” and according to Bernardino de Mendoza, the Spanish ambassador in London, the settlers would “live in those parts with freedom of conscience.”

Religious liberty was important for these English Catholics because they didn’t have it at home. The Mass was banned, their priests were outlawed and, since 1571, even the possession of personal devotional items, like rosaries, was considered suspect. . . .

Sir William Catesby did not sail the seas or have a role in the plantation of what — had it succeeded — would have been the first English colony in North America. He remained in England and continued to strive for a peaceful solution. “Suffer us not to be the only outcasts and refuse of the world,” he and his friends begged Elizabeth I in 1585, just before an act was passed making it a capital offense to be, or even to harbor, a seminary priest in England. Three years later, as the Spanish Armada beat menacingly towards England’s shore, Sir William and other prominent Catholics were clapped up as suspected fifth columnists. In 1593 those Catholics who refused to go to church were forbidden by law from traveling beyond five miles of their homes without a license. And so it went on until William’s death in 1598.

Seven years later, in the reign of the next monarch James I (James VI of Scotland), William’s son Robert became what we would today call a terrorist. Frustrated, angry and “beside himself with mindless fanaticism,” he contrived to blow up the king and the House of Lords at the state opening of Parliament on 5 November 1605.


September 8, 2014 in Garnett, Rick | Permalink

"Moral and Factual Claims in Burwell v. Hobby Lobby: A Response to Prof. Colb"

[A reader, Christian E. O'Connell, sent in the following, and asked if I would be willing to post it at MOJ.  I am happy to do so.]

Moral and Factual Claims in Burwell v. Hobby Lobby: A Response to Professor Colb

Christian E. O’Connell [*]


In her recent essay at Justia’s Verdict, titled “What Counts as an Abortion, and Does It Matter?,” Cornell law professor Sherry Colb waxes philosophical about the normative and empirical claims she perceives to be at work in Burwell v. Hobby Lobby Stores, Inc., the Religious Freedom Restoration Act (“RFRA”) controversy recently decided by the U.S. Supreme Court.

Professor Colb laments as “underdeveloped” the factual issues raised by the Hobby Lobby plaintiffs’ claims about the so-called “morning-after” pills and intra-uterine devices to which they object, while acknowledging strong arguments in favor of judicial deference to such claims.  (I’ll refer here to the RFRA claimants in the consolidated litigation as, collectively, the “plaintiffs.”)  Yet, Colb argues, the plaintiffs’ premise that human life begins at conception suggests a standard for assessing whether participation in a given birth control method violates a RFRA claimant’s religious commitments.  She submits that, by that standard—even if the embryo’s humanity and the drug’s implantation-inhibiting potential are conceded—it’s doubtful whether the morning-after pill “is an abortifacient that literally kills embryonic life,” and accordingly whether there is any corresponding violation of religious beliefs.

Nevertheless, the formal distinctions on which Colb’s thesis relies are suspect in this context, and it’s far from clear in any event that they support her conclusion.

Continue reading

September 8, 2014 in Garnett, Rick | Permalink

Notre Dame crushes Michigan . . . and there was much rejoicing

As this post discusses in more detail, the media hype about a "storied rivalry" (etc.) between the Fighting Irish and the Skunk Bears has manage to inflate a relatively recent and not-THAT-long series into something it's not.  Of course, it could have been a "storied rivalry" (etc.) had Michigan officials (like many others in the Big 10 and elsewhere) in the first half of the 20th century not based decisions regarding the University of Notre Dame on fears and prejudices regarding Catholicism.  In Catholic Heaven, I suspect this was the reaction.

September 8, 2014 in Garnett, Rick | Permalink

A misguided ministerial-exception decision in Indiana

I've been following closely -- and maybe some of you have been, too -- this story, here in Indiana.  My home diocese of Ft. Wayne-South Bend chose not to renew the contract of a teacher at a parochial (K-8) school after she underwent in vitro fertilization.  (The article describes this in one place as "treatment[] for infertility", which seems to misstate the diocese's position).

A local federal trial judge is allowing Emily Herx's Title VII sex-discrimination claim to go forward (but not her ADA claim).  According to the judge, Title VII's accommodation for religious employers does not apply because this accommodation does not give "freedom to make discriminatory decisions on the basis of race, sex, or national origin."  (This is true, but it is a mistake, in my view, to characterize what the Diocese did as being "discrimination" on the basis of sex as opposed to a religious-mission-related staffing decision.)  Also, the judge rejected the Diocese's ministerial-exception argument because, according to the news story, "nothing so far suggested Herx fit the definition of a 'minister' of the church."  In my view, a teacher at a K-8 parochial school is, presumptively, within the coverage of the ministerial exception.  

Stay tuned.  (And . . . expect more of this.)


September 8, 2014 in Garnett, Rick | Permalink