Thursday, August 31, 2017
OK, this may be shooting fish in a barrel, but I can't resist....
Illinois has passed a new school funding law that embodies a significant compromise deal by Democrats and Republicans. Among other things, the law reworks the funding formula to rely less on property taxes, thereby increasing the share of funding allocated to poorer districts. It also includes a school-choice measure: a 5-year pilot program of tax credits for people who donate to provide scholarships for modest-income students to attend private schools. Democrats wanted the first of these; Republicans wanted the second. My first reaction, as a temperamental and philosophical moderate, is that it's great simply that the two sides came together. My second reaction is that both of these measures are good for the poorest students: on the one hand, money matters, and on the other, Catholic schools (the largest group of private schools) do an especially good job of educating disadvantaged children.
But some Democrats (I think some Republicans too) didn't go along. They were willing to vote against the funding-allocation changes, and see them defeated, in order to stop a relatively modest school-choice program. One of them, Rep. Will Guzzardi, D-Chicago, offered one of the sillier sound-bites against school choice that I've heard. He told the Chicago Sun-Times: that the program was "unconscionable" because:
“Eventually hundreds of millions of dollars of our public money is going to be diverted away to give tax breaks to very wealthy people and big businesses who are contributing to private school scholarships and that’s wrong to me."
Yes, it's unconscionable to provide a tax break to line the pockets of wealthy people with money that they must give to assist poor people. Indeed, that whole tax deduction thing for gifts made to charities that help the needy--what an unconscionable giveaway to the privileged.
If you oppose school choice, make your arguments under the real issues: how to get the best educational quality, how to teach kids respect for differing races or religions, etc. Don't mindlessly thrown in progressive-sounding but irrelevant phrases like "tax breaks to very wealthy people and big business."
Tuesday, August 29, 2017
I really enjoyed this new paper by John Infranca (Suffolk). Here is the abstract:
Property rights and religious liberty seem to share little in common. Yet surprisingly similar claims have long been made on their behalves, 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.
Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility
Submissions and nominations of articles are being accepted for the eighth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility, with submissions limited to those that have a publication date of calendar year 2017. The prize will be awarded at the 2018 AALS Annual Meeting in San Diego. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: firstname.lastname@example.org<mailto:sl
Monday, August 28, 2017
The other day, on Twitter, my friend (and fellow Prawfsblogger) Daniel Rodriguez tweeted a plea ("[W]here is the Holy Father where you need him?") for Pope Francis to weigh in on the current President's decision to pardon former Maricopa County Sheriff Joe Arpaio of his criminal contempt conviction. I'm not sure, actually, I want the Pope to weigh in on specific matters like this, but put that aside. A few, decidely not-papally-endorsed thoughts:
First, I take it that there is no "Catholic" position on the questions (a) whether our Constitution gives the President the power to grant this pardon and (b) whether our Constitution authorizes federal judges to review this (or any other) pardon. I assume the answer to (a) is "yes" and the answer to (b) is "no."
Second, I believe, and have often said publicly, that executives should use their pardon and commutation powers, to correct injustices or to show mercy, more often and more generously than they do. Yes, the power has often been abused (e.g., Marc Rich should not have been pardoned, in my view, and Chelsea Manning's sentence should not have been commuted when and as it was), but it should be prudently and meaningfully exercised.
Third, it seems to me that the pardon of ex-Sheriff Arpaio is a gross misuse of the pardon power. (My family moved to Arizona in the mid-1980s, and I'm very familiar with Arpaio's record, which is not "conservative" so much as it is petty, cruel, grandstanding, and ugly.) The pardon, like the President's responses to the events in Charlottesville, sends a terrible message and reveals (or, rather, confirms) the President's unfitness for the office he holds. The remedies for this abuse are political (e.g., public criticism, elections, impeachment, etc.) not judicial, but an abuse it still is.
Fourth, we should distinguish entirely warranted criticisms of Arpaio and his record from broader questions about the content and enforcement of immigration law and policy. One can (easily) think that Arpaio's record is indefensible and that it is not racist or contrary to Catholic Social Teaching to (reasonably and humanely) enforce borders and immigration laws. Of course, to the extent this latter position is identified with Arpaio and his record, it will lose credibility in the minds of many.
So, when the Holy Father calls, Dan, that's what I'll say! =-)
Sunday, August 27, 2017
Some time back a writer for the radical left-wing magazine Jacobin interviewed me for a profile he was writing of my friend and teaching partner Cornel West. In the end, none of my comments made it into his article. Here is what I told him:
What a lot of people on the left as well as the right fail to understand about Cornel West is his profound integrity. But to fail to grasp that is utterly to misunderstand who the man is and why he does what he does and says what he says. Cornel will speak the truth as he best understands it no matter what. Of course, he is not infallible, nor does he claim to be. Like the rest of us, he can err. (Unlike far too many people, though, he is always open to argument and willing to reconsider and revise his views where compelling reasons for doing so have been provided.) But where faith and reason lead him to a certain judgment, he will take his stand there and say exactly what he believes to be true—no matter whose ox is gored, and no matter the consequences for himself personally. Truth has priority for him. He will never under any circumstances sacrifice the truth or go silent about it to be “a good team player” or even to avoid being accused of giving aid and comfort to political opponents. Much less will he compromise his vocation as a truth-teller to gain or maintain influence or “access.’ People who do not understand that, do not understand him.
Of course, in this cynical and selfish age, a lot of people don’t get any of this. They assume that the truth-teller really is just one more operator, like everyone else. They suppose that he’s got some hidden agenda, that he’s motivated by some selfish or partisan interest, that he’s got some racket going. So Cornel’s critics cynically and falsely accuse him of craving attention; of carrying out some personal vendetta against, for example, President Obama or Hillary Clinton; of jealously guarding his status as the leading Black public intellectual against younger rivals who seek to displace him. But for anyone who actually knows him—who understands his heart, what makes him tick—this is utter nonsense. What explains what he does and says is the fact that he is a truth-driven radical Christian. What he is doing is trying to bear witness to the truth, as God gives him to understand the truth, and he places every gift he has been given, from his intellect to his celebrity, in the service of that vocation.
Cornel and I disagree about various things (though we also agree on many things that might surprise people): I am a moral and, in many ways, political conservative. He is a man of the left. But I love and respect him because he possesses and acts on the love of truth and commitment to truth-telling to which I myself aspire. That creates and sustains a bond between us that is far more powerful than even the most important political or policy differences dividing us. And it enables us to understand each other in ways that elude many others, including people on our respective “sides” of the ideological spectrum and even some of our oldest friends.
Throughout history and across cultures, truth tellers have never been very popular. People are fine with the truth when it squares with their preconceived notions, but not when it challenges them. They would prefer to be reinforced in what they already believe or in their wishful thinking or personal self-interest or ideological and partisan commitments. As a serious Christian, Cornel fully understands this. So he is scarcely shocked by the fact that he is misunderstood and in some circles on both the left and right and even vilified and defamed. He’s prepared for that and can live with it. It will not deflect him from his mission or cause him to soft-pedal his message. He has experienced worldly recognition and honors, and he enjoys those things; but he is not addicted to them nor does he live for them. He is no idol worshiper. If the “cost of discipleship” means giving them up, he will do that without blinking an eye. His horizon is a transcendent one, not a worldly one. He knows where his ultimate duty and allegiance lie. There’s an old hymn that always comes to my mind when I think of Cornel’s work and witness. It’s called “I’d Rather Have Jesus’:
I’d rather have Jesus, than silver and gold;
I’d rather have Him, than riches untold.
I’d rather have Jesus, than worldwide fame;
I’d rather be true, to his sacred Name.
If you understand that, then you understand the brilliant son of Clifton and Irene West.
August 27, 2017 | Permalink
Friday, August 25, 2017
My wonderful friend and former teacher, Robert H. Cole, has recently published (along with Boalt librarian Kathleen Vanden Heuvel) a memorial for John Noonan. Bob and John were classmates at Harvard Law School, collaborators on the HLR, and then colleagues at Boalt Hall for decades. I believe that Bob had a big role in enticing his friend John from Notre Dame to Berkeley (long before I was born!). I thank Bob for giving us this moving appreciation of his late friend and especially for sharing his understanding, which I share, of John's impeccable integrity as a "locus of love."
IN MEMORIAM John Thomas Noonan Jr. Milo Rees Robbins Professor of Law, Emeritus UC Berkeley 1926 – 2017 John T. Noonan Jr., a renowned scholar of remarkable vitality and moral purpose, a distinguished federal appellate judge, and an internationally influential Catholic layperson, died at his home in Berkeley on April 17, 2017, at the age of 90. He is survived by his wife of 49 years, the former Mary Lee Bennett, three children, John K. Noonan (Dixie), Rebecca Murray (Stuart), and Susanna Howard (Jim), seven grandchildren, and a sister, Mary Sabin. John Noonan was born on October 24, 1926, in Boston, Massachusetts, and grew up in nearby Brookline. In 1944, he graduated from Harvard College, which was on a wartime schedule, in two and a half years. He then spent a year at the University of Cambridge; earned an M.A. (1949) and Ph.D. (1951) in philosophy from Catholic University of America; graduated in 1954 from Harvard Law School, where he was book review editor of the Harvard Law Review; served a demanding year on the staff of the U.S. National Security Council; and then practiced law for six years at his father’s Boston firm. As a young lawyer, he had a formative experience as the elected chair of the Brookline Redevelopment Authority when it was the center of intense political conflict. He joined the law faculty at the University of Notre Dame in 1961, where he was editor of the highly regarded Natural Law Forum. Noonan came to Berkeley as a visitor in 1967 and was appointed professor of law that year. During almost 20 years on the faculty, he taught courses on professional responsibility and the role of lawyers, jurisprudence, and legal history, and was, among other interdisciplinary activities, chair of the Program in Religious Studies and the Committee on Medieval Studies. In 1985, he became emeritus after President Ronald Reagan appointed him to the United States Court of Appeals for the Ninth Circuit, sitting in San Francisco. He served for 31 years on that court, his last opinion being published in December 2016. He heard oral argument in 3,459 cases and authored 1,080 opinions, dissents, and memoranda decisions, all written by him in longhand on yellow pads. Among his many important opinions is a ground-breaking 1987 decision, Lazo-Majano v. Immigration and Naturalization Service, holding that a politically motivated sexual assault could be the basis for asylum for the victim. His 1995 decision, Compassion in Dying v. State of Washington, holding that Washington’s ban on assisted suicide was not unconstitutional, was affirmed by a unanimous U.S. Supreme Court. In 1999, he wrote a dissent in United States v. Kyllo, arguing that police use of a thermal imaging device to monitor a defendant’s home without a warrant violated the Fourth Amendment. In a 5-4 decision, the Supreme Court agreed with Noonan. In a controversial case in 1990, Noonan, sitting alone, issued a stay of execution for Robert Alton Harris, who was scheduled to die in California’s gas chamber. He held that Harris was entitled under the Constitution to a hearing on whether he had received competent psychiatric assistance during his trial. Ultimately, the Supreme Court allowed the execution, the first in California in 25 years. In an unusual action for a federal judge, Noonan wrote a scathing indictment of the Supreme Court’s decision in an op-ed for the New York Times. Noonan’s scholarly writing was prodigious, wide-ranging, and accessible. It was driven by beliefs in the importance of history, the moral importance of the subject itself, and the moral relation between scholar and reader in developing understanding. His first book, The Scholastic Analysis of Usury (1957), was the product of his dissertation; it focused on the process of development of moral, legal, and Church doctrine over time, setting something of a model for his later work. He wrote books on an impressive array of subjects, including abortion, contraception, euthanasia, marriage, divorce, religious freedom, slavery, bribes, the Magna Carta, and Shakespeare. Noonan’s 1965 book, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists, was a turning point in his early career. It led to his appointment by Pope Paul VI as a consultant to the Papal Commission on Birth Control, which was at work in Rome at the time of the Vatican Council. This established him as a prominent Catholic layperson and led to his friendships with leading Catholic intellectuals. Brightly illuminating as all of his scholarship is, the book found contraception doctrine to be older, more nuanced, and less stringent than what had been generally thought. Although the liberal recommendations of the Noonan majority on the commission were not adopted, they have been influential. Persons and Masks of the Law (1976) is Noonan’s most intensive essay in jurisprudence. Quite appropriately, since it is concerned with the human beings behind formal systems of rules, it is deeply revealing of Noonan’s fundamental commitments to persons, their relationships, and to the power of historical understanding and candid thinking in promoting them. Persons illustrates the importance of the individuals who make and apply law as judges, help make it as lawyers, and are affected by it as litigants. The book takes its place in a never-ending history dating back to Aristotle of jurisprudential thought and judicial decisions exploring the tensions between formal rules, abstract principles, and structured roles on the one hand, all of which are necessary, and, on the other hand, the essential demands of humanity and the effects of laws on individuals in a context of social and moral realities. The book can be considered radical in its systematic argument that rules and the legal and social constructs that mask the humanity of participants are unduly dominant in legal thinking and legal education. Certainly, it is a legal philosophy quite at odds with that of the government that later appointed him to the federal bench. Writing some years later, he summed up his view of the personal in judging: “Americans are blessed with a much fuller literature on their judges’ lives, reflecting, I believe, an American appreciation of the truth that the law a judge makes is a projection of values that are inescapably personal – even while the judge labors to be impartial between the litigants and objective in his framing of the dispositive legal rule.” The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (1977) was first intended to be an illustrative chapter in Persons and Masks of the Law, but became a separate and powerful case study of how the American legal system used the mask of property to conceal and obliterate the humanity of enslaved Africans and their descendants. The book follows the capture of the slave ship, The Antelope, and examines not only the decisions by United States courts, but also what happened to the people aboard the ship, both during and after their detention. Bribes: The Intellectual History of a Moral Ideal (1984) has been called Noonan’s masterpiece. The book shows that in early society the aim of giving gifts to powerful strangers was to elicit reciprocity and create social coherence. There was no crime of bribery. Instead, the wrongdoer was the powerful person who accepted gifts but did not grant the favors they were meant to engender. Noonan examines the social, theological, and psychological implications of bribes, focusing on historical instances of persons giving and receiving bribes, rather than on rules that abstractly define ‘bribery.’ He concludes that a bribe is a breach of the fidelity that alone distinguishes public office from raw power. Central to everything in Noonan’s life were his family and his Catholic faith and connections to the Church. No account of his life, however brief, can omit the central importance of Mary Lee Noonan. An art historian, she was his partner in every aspect of his life. Their relationship to each other and their family life were remarkably happy. A man of traditional tastes, Noonan was nevertheless a lifelong adventurer. At the start, he took a year at the University of Cambridge simply to read, travel, socialize, and interview the likes of T.S. Eliot and George Santayana. He devised a curriculum of personal tutorials in Catholicism with distinguished mentors to prepare himself for the Ph.D. program in philosophy; took a Ph.D. even as he knew he was destined for law; always sought out the most daunting thinkers. An appellate judge, he volunteered to sit as a trial judge, a challenging task, in order to understand the whole system better. He followed his humane interests all the way through to publishing books on whatever they led to, including writing on Shakespeare near the end of a lifetime in law. His close personal and intellectual relationship with his older Law School colleague, David Daube, a towering figure in Jewish and Roman law, must have been an adventure in itself to the scholar of Church law. This was a pattern of seeking out challenges necessary for a man who trusted his considered convictions. This particular kind of trust in oneself is a form of integrity. Integrity defined John Noonan: integrity, in that he lived and acted as virtuously as one can ask of fallible human beings; and integrity in the sense of the integration of one’s self across all of life’s various roles and interests. He internalized the Catholic ethics and social teaching that absorbed him throughout his adult years, he acted on his beliefs, and he trusted his convictions. As a judge, he treated the individuals who were litigants and lawyers as persons. His concern for persons informed his judicial sympathy for immigrants. His opposition to abortion was principled, not political, and was coupled with adamant opposition to the death penalty. Slavery, the ultimate denial of personhood, haunts much of his work. He taught ethics and insisted on ethical behavior from the lawyers in his court, his students, his law clerks, and the government officials in the lawsuits before him. His judicial opinions were issued under his name and so he, never his law clerks, wrote them. If issues arose that he thought were important, he would pursue them in scholarship. His delight in friendship was inextricable from his delight in intellectual discourse and both, as well as his profound commitment to family, were inextricable from a belief in the pervading presence of goodness. Perhaps, then, the key to John Noonan’s remarkable capacity to integrate and so actively realize all aspects of his life, from family, to social life, to educating us, to work, to moral well-being, is that he took himself seriously — not as ego or in some frivolous sense — but because it was his responsibility to take his endowments seriously as a person, as a locus of the love that he believed animates everything.
Robert H. Cole
Kathleen Vanden Heuvel
This open letter is now up at The Gospel Coalition, an evangelical website. Signatories are invited; I believe it's well considered, and well expressed, on a crucial issue at an important juncture. A few snippets:
What we have seen in Charlottesville makes it clear once again that racism is not a thing of the past, something that brothers and sisters of color have been trying to tell the white church for years.
Racism should be denounced by religious and civic leaders in no uncertain terms. Equivocal talk about racist groups gives those groups sanction, something no politician or pastor should ever do. As Christian scholars, we affirm the reality that all humans are created in the image of God and should be treated with respect and dignity....
Even as we condemn racism, we recognize that the First Amendment legally protects even very offensive speech.... [Moreover, ...] No one is beyond redemption, so we encourage our fellow believers to pray that members of these groups will find the truth, and that the truth will set them free.
Wednesday, August 23, 2017
Lawrence Joseph, the Tinnelly Professor of Law at St. John’s University School of Law, is--as many of you know--an acclaimed poet. Larry's new book of poems--his sixth--has just been published by Farrar, Straus and Giroux. Information about the book, So Where Are We?, is available here.
And a wonderful interview with Larry that will appear in Commonweal in September is available now online (here). Well worth reading!
Monday, August 21, 2017
The current issue of Communio is about "The City," and my friend and colleague Philip Bess, with whose work MOJ readers are likely familiar, has a nice essay called "City Stories of Nature and Grace: An Urban Pilgrim's Progress." Here's a quick description:
The Winter 2016 issue of Communio explores “The City.” Modern urban life challenges us to examine the principles according to which cities either foster or hinder the human person and community in their relation to God.
Philip Bess reflects on good urban order in “City Stories of Nature and Grace: An Urban Pilgrim’s Progress.” A city’s architecture and objective pattern educates its inhabitants, whether poorly or well, in their role as “intermediaries” between the sacred and mundane. “Cities (like families) point beyond themselves to transcendent truths and realities of which their denizens may be but dimly aware, if at all.” In tracing the emergence and features of contemporary cities, Bess shows how a well-structured city is centered on the thriving of local neighborhoods and, by its very form, reflects the sacramental cosmos in which it is embedded.
Here is a link to Bess's piece ( Download Bess City Stories).
Saturday, August 19, 2017
In my Introduction to Law case, I assign Lon Fuller's wonderful "The Case of the Speluncean Explorers." I just realized that Judge Tatting's opinion contains the following paragraph in his case against purposivist statutory interpretation. Is it convincing? Victor Hugo probably would not think so.
But what are we to do with one of the landmarks of our jurisprudence, which again my brother passes over in silence? This is Commonwealth v. Valjean. Though the case is somewhat obscurely reported, it appears that the defendant was indicted for the larceny of a loaf of bread, and offered as a defense that he was in a condition approaching starvation. The court refused to accept this defense. If hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man? Again, if we look at the thing in terms of deterrence, is it likely that a man will starve to death to avoid a jail sentence for the theft of a loaf of bread? My brother's demonstrations would compel us to overrule Commonwealth v. Valjean, and many other precedents that have been built on that case.