Mirror of Justice

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Sunday, January 25, 2015

Dickens on Our Tyranny Over Words

From David Copperfield, Chapter LII ("I Assist at an Explosion"), in which Mr. Micawber is expatiating on the various villainies of Uriah Heep in his genially orotund way:

Again, Mr. Micawber had a relish in this formal piling up of words, which, however ludicrously displayed in his case, was, I must say, not at all peculiar to him. I have observed it, in the course of my life, in numbers of men. It seems to me to be a general rule. In the taking of legal oaths, for instance, deponents seem to enjoy themselves mightily when they come to several good words in succession, for the expression of one idea; as, that they utterly detest, abominate, and abjure, or so forth; and the old anathemas were made relishing on the same principle. We talk about the tyranny of words; we are fond of having a large superfluous establishment of words to wait upon us on great occasions; we think it looks important, and sounds well. As we are not particular about the meaning of our liveries on state occasions, if they be but fine and numerous enough, so the meaning or necessity of our words is a secondary consideration, if there be but a great parade of them. And as individuals get into trouble by making too great a show of liveries, or as slaves when they are too numerous rise against their masters, so I think I could mention a nation that has got into many great difficulties, and will get into many greater, from maintaining too large a retinue of words.

Noted not so much for the substance, with which I cannot quite agree. Our own difficulties have absolutely nothing to do with a little too much gusto in an unnecessarily expansive vocabulary. And there is some irony in Dickens offering this sentiment at the close of a book in excess of 800 pages. But though the substance of the criticism is common enough (indeed, all too common today--one hears something like this complaint about academic writing all the time), one rarely hears it expressed so well. 

January 25, 2015 in DeGirolami, Marc | Permalink

Friday, January 23, 2015

Holt v. Hobbs Podcast

My colleague, Mark Movsesian, and I have recorded a podcast on this week's Supreme Court decision in Holt v. Hobbs. We discuss the facts, holding, and possible implications of the case in about 20 brisk minutes. Click on over and have a listen.

January 23, 2015 in DeGirolami, Marc | Permalink

Wednesday, January 21, 2015

What Does It Mean to Say that a Religious Accommodation Should Not "Detrimentally Affect Others"? And a Couple of Other Holt v. Hobbs Thoughts

Not too much to add to Rick's analysis of Holt v. Hobbs. A short and precise opinion from Justice Alito. Here are just a few other questions and comments about the opinion and concurrences:

1. Rick quotes Justice Ginsburg's one-paragraph concurrence, which states that she only joins the Court's opinion "on th[e] understanding" that the accommodation here "would not detrimentally affect others who do not share petitioner's belief." I guess she felt she had to use the occasion to say something pejorative about Hobby Lobby, which she also quotes. It seems she has bought the line pressed by those who claim that the Establishment Clause prohibits third-party burdens, yet she articulates the standard that they champion rather expansively. There may be a big difference between arguing that the Establishment Clause prohibits religious accommodations that impose "significant burdens on identifiable third parties" (if memory serves, this was the standard favored by academic defenders of this argument) and arguing that the Establishment Clause prohibits religious accommodations that "detrimentally affect" anybody who doesn't share the claimant's religious beliefs. I don't believe the former is a correct reading of the Establishment Clause. But the latter formulation seems a good deal broader. What constitutes a "detrimental effect" under that approach? Might symbolic harms count? I don't see why they wouldn't. And as Justice Alito points out, Arkansas made no argument that an exemption was not feasible as a matter of cost or other resources ("the Department has not argued that denying a petitioner an exemption is necessary to further a compelling interest in cost control or program administration"). Had the Department made an argument about cost control (with evidence, which was seemingly in short supply on its side), would any evidence of increased cost (no matter how small) not only been enough to find against the claimant as a RLUIPA matter, but actually have triggered an Establishment Clause violation had the prison accommodated the inmate? Suppose I am a prison inmate who thinks 1/2 inch beards are beautiful as a fashion statement, or because I come from a long line of bearded ancestors and it is important to me to observe the tradition (not so far from the truth in my case, other than the bit about being a prison inmate). Am I not "detrimentally affected" by the inequality of treatment that results from Holt's accommodation, but not mine? Surely I am. It seems to me that this sort of standard, as well as its more careful academic progenitor, strikes at the heart of these religious accommodation statutes. 

2. Following from that point, the heart of these statutes (as Rick also notes) is to provide "very broad protection for religious liberty" or "expansive protection for religious liberty," as the Court says right at the start of the opinion. This case was an easy one according to that standard, even with a thumb on the scale of deference toward prison administrators, which the Court reaffirms (it rejects "unquestioning deference" but it acknowledges the "respect" that is due the prison administrators' "expertise"). Should not Hobby Lobby, in which there was no such presumptive deference or "respect" accorded to the government, also have been an easy case according to that standard? Should it at least have been as easy, in light of the absence of deference toward the government in the latter? And yet Holt was unanimous while Hobby Lobby split 5-4.

3. The breadth of protection for religious freedom contemplated by the statutes (RFRA and RLUIPA) and affirmed by the Court was notable, but so was the rigor with which the least restrictive means portion of the analysis was applied. In Holt, the prison argued that its concerns about the shaving of facial hair and escape were unique because of the particular sort of prison it operated, and that its rule was therefore the least restrictive means of securing against the possibility of escape. But the Court rejected that argument for the simple reason that the prison had not done enough to distinguish itself from other prisons that allow facial hair and that had managed these concerns. Other prisons, that is, whose situation was analogous to the Arkansas prison (even if not identical) used less restrictive means to achieve their security interests. The Court looked to the variety of less restrictive means on offer out there in the national universe, and found that the Department should have used one or more of those. This is perhaps a useful elaboration of the least restrictive means test. Unless the government can prove that its burden is truly unique, the Court will look to analogous (even if not identical) solutions to similar problems reached by other governmental entities. If those other solutions seem to have worked without an imposition on religious freedom, then the government has not used the least restrictive means.

January 21, 2015 in DeGirolami, Marc | Permalink

Tuesday, January 20, 2015

Another Unanimous Roberts Court Law and Religion Opinion

The Supreme Court today handed down Holt v. Hobbs, the RLUIPA case involving an Arkansas prisoner who complained of a state prison policy disallowing him to grow a beard in accordance with his understanding of his religious obligations.

The opinion was unanimous, with two separate, short concurrences by Justices Ginsburg and Sotomayor. I'll save analysis for a later moment (it was a rather straightforward application of RLUIPA in Justice Alito's majority opinion, though with some interesting language about the individual components of the test).

For now, though, I'll just note the fact of another unanimous opinion in this area from the Roberts Court. Holt v. Hobbs continues to follow the Roberts Court pattern of either unanimity or 5-4 outcomes in law and religion jurisprudence, as I discuss in greater detail at Part II of this article. The figures are now four unanimous law and religion decisions as against six 5-4 law and religion decisions. The article speculates about a few reasons that we might be seeing this particular voting pattern, contrasting it with the patterns of Supreme Courts past.

January 20, 2015 in DeGirolami, Marc | Permalink

Saturday, January 17, 2015

Lash Reviews American Sniper--"A Deeply Subversive War Movie"

I am posting, with permission, Professor Kurt Lash's superb review of the movie, "American Sniper." I haven't seen it, but after Kurt's very interesting comments, I want to.

___________________________

A Review of American Sniper

Director: Clint Eastwood

This is a deeply subversive war movie. On its face, it appears to be a straightforward retelling of the life of a soldier in war. It’s a well-trodden script: The training, the first kill, the fearful family at home, the growing emotional disconnect between soldier and loved ones as the bloody and tragic experience of war takes it toll, the increasing difficulty of leaving the war behind. This has all been done before. True, director Eastwood has an especially skilled hand. He takes us into the experience of training and battle in a manner that is realistic and which avoids the self-indulgent errors of prior films: Yes, training is grueling, but it is not sadistic. Yes battle is jarring and horrific, but also dusty and boring. Yes some soldiers think the effort is pointless, but others believe the effort is profoundly important.

Unlike most war films, however, Eastwood take no position on war itself. This is not an Army (Navy, in this case) recruiting film, nor an anti-war “bring the troops home” film. Eastwood also avoids making any kind of political statement about the Iraq war. No doubt, some will perceive a political statement precisely because there is nothing anti-Bush or anti-Iraq about the film. But that’s merely a reflection of our poisonous political culture.

In some ways, American Sniper follows the path explored with such moving success in Band of Brothers: Soldiers are not psychopaths. They are ordinary men asked to perform extraordinary tasks. The crucible of battle melds men together into a profoundly protective “family.” They experience brotherhood and loss on a level difficult for any non-soldier to imagine. When Oliver Wendell Holmes wrote of his early experience fighting in the Civil War “in our youths, our hearts were touched with fire,” he may have intended it as a boast, but it can just as easily be understood as lament. The act of destroying human beings, however justified, leaves a scar on one’s soul.

But where Band of Brothers presented the humanity of the ordinary soldier, Eastwood presents the humanity of the outstanding soldier. This is territory not even Band of Brothers was willing to explore. Instead, Steven Ambrose and the script-writers for Band portray the most effective killing machine in the 101st, Ronald Speirs, as something of a psychopath. Rumored to have mass murdered prisoners of war, Band’s writers have Speirs instruct a frightened soldier “the only hope you have is to accept the fact that you're already dead, and the sooner you accept that, the sooner you'll be able to function as a soldier's supposed to function. Without mercy, without compassion, without remorse. All war depends on it.” This statement, of course, encapsulates the Hollywood version of the truly effective soldier since the time of Apocalypse Now. Soldiers are “baby killers,” we’ve been told. It is inhuman work. To be good at it means you are inhuman yourself, you have abandoned your humanity, or you are doomed to insanity and suicide. Thus, the Deer Hunter, Coming Home, Patton, Platoon, Full Metal Jacket, Apocalypse Now, etc etc.

It is here that Eastwood’s realistic but almost oddly subdued portrayal of Chris Kyle earns its title as a subversive war movie. Kyle was, in fact, an astonishingly effective killer. He was also a heroically committed soldier, serving four tours of duty in Iraq. I won’t recount all his stats and medals. Let’s just stipulate that Kyle did what soldiers do and did it as well as or better than any soldier in history. And, like prior Hollywood “killing machines,” Kyle is deeply patriotic and hasn’t the slightest doubt about the justness of his work. But jarringly unlike prior Hollywood warriors, Eastwood leaves open the distinct possibility that Kyle was right. There is nothing implausible about Kyle’s explanation about why his work is both important and just, and there is nothing in the movie to suggest that Kyle was anything but a decent human being, both in and out of war. Eastwood does not avoid portraying the inevitable psychological toll of war. Indeed, the toll is a major aspect of the film. But this is not the portrayal of a psychopath or a destroyed human soul. It is the story of a soldier who manages to maintain his humanity despite his commitment and skill at destroying other human beings.

How Kyle remains “human” is, of course, the key to understanding this movie. At key moments, Kyle interacts with other soldiers who either lose their belief in their work, or never had that belief in the first place. Such doubts cripple the soldier's mind and their skill. Kyle survives, and survives as an intact soul, Eastwood implies, because he never doubted the moral justness of his work. As we follow Kyle through the horrors of war, we are constantly shown examples of how one can be heroically committed to humanity, not only despite being an effective soldier, but through being an effective soldier.

Even more jarring (from a certain perspective), Eastwood’s movie is not about “the brotherhood of all soldiers.” It is about American soldiers. There are good guys and bad guys in this movie, and Eastwood leaves no doubt about who is who. In what has to be the most subversive move of all, the movie’s title, American Sniper, seems not the least bit ironic.

In truth, I would not have chosen American Sniper as a finalist for best picture. Eastwood’s pacing and the structure of the film results in a subdued experience that I am not sure sufficiently does justice to the man or the material. Perhaps that was Eastwood’s intention, perhaps this was never meant to be a blockbuster (Eastwood is long past needing any such validation), but instead a homage to the troops and their families. It certainly comes across that way: The silent credits of the movie mirrored the deep and respectful silence of the audience as we stood and exited the movie.

On the other hand, I cannot help but think Eastwood was speaking to all of us, not just soldiers and their families. It’s a worthy effort, even if not wholly successful. See it for Bradley Cooper’s outstanding effort (he fully deserves his nomination), and struggle with its protagonist to reconcile the good warrior with the good man.

January 17, 2015 in DeGirolami, Marc | Permalink

Monday, January 12, 2015

The Ideological Fragmentation of Public Law

I am recently back from the annual AALS meeting, during which I attended some of the offerings of the annual "shadow" Federalist Society Conference as well. Both meetings had several worthwhile programs. One of the most interesting features of both conferences was the extent to which political and ideological fragmentation has become more ordinary and prevalent in public law disciplines. I found this to be quite comforting. In this post, I want to explain why, and to describe some of what I saw at the two conferences in this respect. But first, some thoughts on law and religion as a discipline today.

For some time now, I have believed that the political and ideological divides among legal academics in the law and religion field have been growing. They have now reached cavernous dimensions. Paul Horwitz argues in this (superb) piece that law and religion scholars have been in a state of general consensus about free exercise/accommodation issues until extremely recently, but I see things a little differently. The disagreements about free exercise have been manifest at least since I have been studying and writing in the area--about a decade now and probably longer than that. But Paul is right that they have increased dramatically even within that period.

Paul is also right that there was a period of such consensus. But it was a much earlier time. It was the period when, for example, giants including Kent Greenawalt and Doug Laycock and Vince Blasi and Jesse Choper came of scholarly age, the period when Leo Pfeffer’s views were dominant in this area, and only a few outliers arguing for non-preferentialism like James O’Neill existed. One could be a liberal nel vecchio stile and with great complaisance in those days, but still support exotic religions (traditional Christian religions were never really on the agenda), confident in the view that the "great minds” of the past—Jefferson and Madison (Marshall, Adams, and so many others were rarely mentioned)—were on board in spirit. One bought one’s bona fides to argue for relatively expansive free exercise protections (it was the ‘60s and ‘70s, and people should be free to follow their stars and make themselves into whatever they wanted) with iron separationism when it came to establishment. But the bottom line was that one’s Establishment Clause views always drove the boat then, as, it seems to me, they do now. Free exercise in that period was an afterthought—a concession to the unusual and the strange. Sort of like the way many discuss the nature of excuses in criminal law. One is excused for one’s conduct because, notwithstanding its wrongfulness, one makes a concession to human weakness by allowing that one is not blameworthy for that conduct. That’s how religion was perceived—as basically somewhere between odd and wrongful, but not culpable, and therefore excusable conduct which should be accommodated where possible for those in need of such ministrations.  

That period is dead. It has been dead since long before Paul or I started writing about these matters. For those who followed in the wake of the liberal consensus, what happened was—again, beginning from an ever-hardening view of what the Establishment Clause demanded—the end of the ‘60s and ‘70s with its taste for exoticism and weird pluralism. In its place arrived a new zest for notions of equality, nondiscrimination, leveling, and so on. To argue for "pluralism" full stop and for its own sake today is something of an anachronism (this comes through nicely in the column Paul reacts to today by Frank Bruni). Exactly what is there of worth about pluralism as an intrinsic good? In the interim from then to now, sexual equalities of various sorts have gone mainstream (they were not so when the earlier consensus reigned; at least one liberal law and religion scholar of the ancien regime only began to support gay marriage in the last decade or so). Equalities of other kinds have taken center stage.

The illusion of consensus could be maintained, for a time at least, but only until the new egalitarian mandarins were challenged. Those challenges have come in the abortion context and other substantive due process areas. With some exceptions, the challenges have largely failed. But they had never come from the religion clauses proper (or their statutory analogues). Now they have. And they have made manifest the instability of the former consensus and the fact of its breakdown over many years. To invoke religious freedom is no longer to appeal to a commonly recognized constitutional freedom; it is to whistle to your favorite mangy dog.

The consequence today is that increasingly, law and religion scholars share far less common ground than they did 40 years ago. Outside their own political/ideological constituency, they have much more work to do to convince one another of their arguments. Indeed, the fact that some scholars squarely within the liberal consensus are now felt to be raving right-wingers is itself a marker of the fragmentation and polarization of the legal academy. Doug Laycock may be many wonderful and admirable things; but conservative is not one of them. These movements within (and also outside) the legal academy sometimes--perhaps oftentimes—make it feel like legal scholars have less and less to say to one another. On occasion, I have felt this to be an unfortunate feature of law and religion scholarship--exhausting and depressing. More work feels political; less work feels scholarly; and so it goes. One begins to long for other sorts of work.

But the panels that I attended last week at the AALS and Federalist Society Conferences began to persuade me of two things. First, ideological fracture is a more general development in public law in the legal academy. Second, that fracture--and all that it brings--has positive as well as negative features.

On the first issue, on subjects ranging from administrative law to statutory interpretation to executive non-enforcement of the law, and even to the closer-to-home issue of public reason and religious expression, the ideological divides among legal academics are enormous. The panel on administrative law I attended ran the gamut from those supremely invested in the administrative law machine to those supremely invested in destroying it. I don’t know enough about the sociology of administrative law scholarship, but it would surprise me if administrative law panels of the distant past would have represented such a gigantic diversity of views. The tenor of the discussion was less in the nature of a conversation and more about what is ‘mainstream’ scholarship, and why it might be mainstream, with associated commentary about who on the panel could or could not be confirmable to the United States Supreme Court (which is not to say that the discussion was not civil…it certainly was). 

As for statutory interpretation, the superb lunchtime debate on the new statutory challenge to Obamacare persuaded me that King v. Burwell may do to the study of statutory interpretation what Hobby Lobby v. Burwell did to the study of religious accommodation. Textualism and intentionalism are taking on more and more distinctively partisan flavoring, and this will almost certainly reach a sort of climax if textualism takes down the PPACA (footnote: this is a little odd, of course, for those intentionalists out there who don’t toe the progressive political party line, but it worried some statutory interpretation people I know nonetheless).

Perhaps my favorite example concerned a point made by some of the panelists concerning executive non-enforcement of the law: the political valence of non-enforcement, they claimed, seemed a more natural fit for conservative than progressive politics. I’m not sure that is true, though I suppose it might be true if one substitutes “libertarian” for “conservative.” But the explicitly political register in which the subject was being debated drove the point home again. Public law is deeply riven ideologically.

A final example. The AALS sections on Jewish and Muslim law co-sponsored a session on religious reasons in political decisionmaking—that old chestnut, religion in the public square. What was striking to me was that the panel was composed of folks who discussed the perspectives of particular religious traditions on the subject. Jewish, Muslim, and Catholic perspectives, together with a Rawlsian perspective. If you went back 20-30 years ago, and attended an AALS panel on religion in the public square, would you see this composition? Almost certainly not. You would instead see a panel of scholars conversant in, if not wedded to, Rawls’s view of the matter. You would see a panel of philosophers or philosophically inclined scholars discussing the nuances of “public reason.” Of course, you still see such panels in many places. But the fact that this AALS panel was not so constituted—the fact that it was instead constituted by a broad array of very diverse political and religious perspectives—was quite an interesting development.

I have already suggested why the ideological fracture of public law might be a bad thing. There is simply less common ground between members of the academy; discussion is more exhausting; everything feels more political; more feels less scholarly.

But there are advantages too. For one thing, it is almost certainly true that there is simply a broader range of perspectives in public law at this moment than there was 30 or 50 years ago. Breadth of perspective might or might not be a good thing, but I tend to think that if the reasons for narrowness of perspective result from a kind of artificial exclusion of views (intentional or not), then the inclusion of a greater range of viewpoints is positive. It may also be the case that with greater variety of viewpoints comes greater precision in identifying exactly where one stands, as one's opinions come to be challenged from all sorts of angles that were previously hidden from view.

Positive or negative, though, it seems that these developments are here to stay: the ideological fragmentation of public law--at least in many fields--within the legal academy is very much with us. 

January 12, 2015 in DeGirolami, Marc | Permalink

Friday, January 9, 2015

Interesting Speech/Law & Religion Case Before the Supreme Court on Monday

The Supreme Court’s January calendar begins next week with argument in Reed v. Town of Gilbert, Arizona, a law and religion case that has gotten very little attention. The case relates to some of the issues that Mark Movsesian and Perry Dane have been talking about over at CLR Forum involving the New York City subway regulations concerning advertising. I found Perry’s phrase, “mental maps,” to be useful in thinking through the categories that we use to divide up both meanings and the motivations for expressing certain meanings. This case tests our mental maps.

It seems that the Town of Gilbert has a complex set of regulations governing the display of signs. It categorizes signs into five groups: political signs, ideological signs, “qualifying event” signs, homeowners’ association temporary signs, and real estate signs. Different rules regarding the size, duration, and location of the sign (among other variables) apply depending on the category of sign that one wishes to display.

The petitioners in the case are representatives of the Good News Community Church, a small Christian church that “holds services on Sundays, where attendees worship and fellowship together, learn biblical lessons, sing religious songs, pray for their community, and encourage others whenever possible.” Good News depends on signs to advertise its presence and invite people to join.

The Town has classified Good News as the sort of organization entitled to “qualifying event signs.” A “qualifying event sign” is a “temporary sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’ A ‘qualifying event’ is any assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”

By contrast, a “political sign” is a “temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election.”

And an “ideological sign” is a “sign communicating a message or ideas for non- commercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.”

The petitioners’ basic complaint is that by lumping the Church in with organizations entitled only to a “qualifying event” sign, the Town is engaging in viewpoint discrimination against it, because it is only entitled to a tiny sign of very limited duration that can only be displayed in limited locations. The Town’s justification for this highly reticulated set of requirements and classifications? “Safety and aesthetics.” Also of interest is that at some point in the procedural history (which looks rather involved), the Town amended certain locational requirements for “qualifying events signs,” replacing them with a requirement that “qualifying events signs” must “relate to events in the Town of Gilbert.” That requirement does not apply to political or ideological signs. The Church claims that this amendment was made specifically to target it for unfavorable treatment.

At any rate, it will be interesting to see how the argument goes. Here is an interesting contrast contained in the Petitioners’ Brief:

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UPDATE: Here is our own Tom Berg's post from this past September linking to an amicus brief by the UST Religious Liberty Appellate Clinic in the case in support of the church--cogent and well written, as always (h/t John Inazu, whose own arguments about the freedom of assembly may make an appearance...stay tuned).

January 9, 2015 in DeGirolami, Marc | Permalink

Tuesday, December 30, 2014

Redemption is Not the Purpose of Punishment

An interesting piece by Theodore Dalrymple, concerning the punishment meted out to a London financier who dodged his commuter fare in an unprecedentedly and willfully systematic way. Dalrymple reacts to a column by the philosopher Nigel Warburton, who advanced (but ultimately rejected) certain arguments that the financier should not have been banned for life from working on London's equivalent of Wall Street ("the City") because that would stymie his "redemption." I think I agree with Warburton that the justice of a society is conceptually prior to the justification of punishment within that society. But it is also true that a society need not achieve perfect justice before engaging in punishment practices.

[E]ven if the redemption of the punished were the object of punishment, this would be false. There is always more than one route to earthly redemption and to being useful to other people. It cannot possibly be that a return to finance is the only way Burrows could prove he had turned over a new leaf. Indeed, a return to the City, at least at a level that he would find attractive or commensurate with his knowledge and experience, would resemble impunity more than an opportunity for redemption.

But at any rate redemption is not the purpose of punishment, for if it were there would be no crimes beyond its reach, no crimes so terrible that they could not be forgiven. Far from being generous, this kind of reasoning seems to me callous—lacking in imagination about just how terrible crimes can be, an almost wilful disregard of the history of the 20th century. And if a Christian were to object that no crime is beyond the Savior’s forgiveness, it should be recalled that His kingdom was not of this world. As for us, we are men, not saviors.

The second, and “more worrying” reservation in Warburton’s mind is that the punishment will be applauded by a populace already angry with, and envious of, financiers. Thus it would “deflect attention from greater inequalities that some in the square mile [“the City”] perpetuate.” Burrows “may be a scapegoat,” he writes.

This seems a destructive argument. It is true, of course, that there are far greater crimes than the one under discussion here. But just as there can be only one richest man in the world, so there can be only one worst criminal (or a few equal worst criminals) in the world—at least if the badness of crime can be measured on an analogue scale, which I very much doubt. It is no excuse for one man that another man has done something even worse. I cannot argue in my defense, when caught for speeding, that I know someone who drove twice as fast and got away with it, rendering any fine imposed on me an act of scapegoating.

In the end, the philosopher (whose touchstones in this piece are John Rawls and Thomas Piketty) comes down on the side of banning the bloody one-percenter. Still, it is worth noting that his two hesitations before lowering the boom—they are not his alone, I suspect—are based upon misunderstandings, first that the purpose of punishment is redemption of the punished, and second, that no one can be rightfully punished until justice is perfect[.]

December 30, 2014 in DeGirolami, Marc | Permalink

Thursday, December 18, 2014

"Catholic Midwives Must Supervise Abortions, Supreme Court Decides"

That’s the title of this report, though I would welcome more information from readers who may have it. The Supreme Court is that of the United Kingdom, and the case involves the issue of accommodation for objection to performing abortions on the basis of religious conscience. The statute interpreted by the Court is the Abortion Act of 1967, which provides that “no person shall be under any duty … to participate in any treatment authorised by this Act to which he has a conscientious objection.” The issue before the Court was the scope of the statute: it was clear that the objecting midwives would be under no obligation to participate in abortions themselves, but it was not clear whether they could be compelled to supervise other staff who did participate in abortions. “Participate,” ruled the Court, demands a “hands on” role in the abortion, and any supervisory role was insufficiently “direct” to come within the statutory definition.

The midwives claimed that it would have been very easy to accommodate them, because the number of abortions on their ward was only a very small fraction of the work, supervision of which could readily have been assigned to others with no risk that anyone desiring an abortion would go without care. But that sort of compromise was unavailing to Ann Furedi, chief executive of the British Pregnancy Advisory Service: “[E]xtending this protection to tasks not directly related to the abortion would be to the detriment of women needing to end a pregnancy and the health care staff committed to providing that care. There are enough barriers in the way of women who need an abortion without further obstacles being thrown in their way.”

UPDATE: More information on the case and a link to the decision may be found at Religion Clause Blog.

December 18, 2014 in DeGirolami, Marc | Permalink

Wednesday, December 17, 2014

The Proctor: A Legal Note from David Copperfield

The more substantial novels of Charles Dickens represent a regrettably sizable hole in my reading, one which with time I hope to plug up. I've started with David Copperfield and am enjoying it greatly. The writing, as much or more than the story itself, is truly magnificent.

Unlike with some of Dickens's other work in which it is generally portrayed unflatteringly, the law and legal practice is not an absolutely central theme in David Copperfield, though it does show up from time to time. The ingratiatingly servile Uriah Heep has already been described poring over some legal treatises, and this detail is sure to resurface by and by. But the law does make something of an appearance when David, now a young man of 17 and at the urging of his aunt, selects the profession of "proctor."

I had not before known what a proctor was. Apparently the proctor was a special kind of solicitor who dealt with both ecclesiastical and admiralty matters, an unexpected pair! The position of proctor was merged with solicitor in the late 19th century. Here is a charming bit from Chapter XXIII about proctors and their practice (as relayed only slightly in jest by David's prepossessing friend, Steerforth):

"What is a proctor, Steerforth?" said I.

"Why, he is a sort of monkish attorney," replied Steerforth. "He is, to some faded courts held in Doctors' Commons--a lazy old nook near St. Paul's Churchyard--what solicitors are to the courts of law and equity. He is a functionary whose existence, in the natural course of things, would have terminated about two hundred years ago. I can tell you best what he is, by telling you what Doctors’ Commons is. It’s a little out-of-the-way place, where they administer what is called ecclesiastical law, and play all kinds of tricks with obsolete old monsters of acts of Parliament, which three-fourths of the world know nothing about, and the other fourth supposes to have been dug up, in a fossil state, in the days of the Edwards. It’s a place that has an ancient monopoly in suits about people’s wills and people’s marriages, and disputes among ships and boats.”

“Nonsense, Steerforth!” I exclaimed. “You don’t mean to say that there is any affinity between nautical matters and ecclesiastical matters?”

“I don’t, indeed, my dear boy,” he returned; “but I mean to say that they are managed and decided by the same set of people, down in that same Doctors’ Commons. You shall go there one day, and find them blundering through half the nautical terms in Young’s Dictionary, apropos of the ‘Nancy’ having run down the ‘Sarah Jane,’ or Mr. Peggotty and the Yarmouth boatmen having put off in a gale of wind with an anchor and cable to the ‘Nelson’ Indiaman in distress; and you shall go there another day, and find them deep in evidence, pro and con, respecting a clergyman who has misbehaved himself; and you shall find the judge in the nautical case, the advocate in the clergyman’s case, or contrariwise. They are like actors: now a man’s a judge, and now he is not a judge; now he’s one thing, now he’s another; now he’s something else, change and change about; but it’s always a very pleasant profitable little affair of private theatricals, presented to an uncommonly select audience.”

December 17, 2014 in DeGirolami, Marc | Permalink