Tuesday, May 24, 2016
I’m delighted to post this notice for a new book of essays by my old master, Kent Greenawalt: From the Bottom Up: Selected Essays. These previously published and newly collected essays span Kent’s writing life and do an excellent job of conveying his immense and broad erudition. They cover topics including the bases of law (public reasons, natural law, religious reasons, and so on); law and objectivity; and several subject specific inquiries (in criminal law, law and religion, and speech law).
As a compendious but complete introduction to Kent’s thought, you cannot do better. I was honored to provide this book blurb:
A crucial book for understanding the mind of one of the great legal scholars of our time. Kent Greenawalt’s core insight, developed over a scholarly life and across several disciplines, is that the law is best understood inductively–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions about how the law works itself out in the real world.
Monday, May 16, 2016
Today the Supreme Court issued a short per curiam opinion vacating the circuit courts' respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the "substantial clarification and refinement" in the claimants' and the government's respective positions that the Court claims was generated by the supplemental briefing. To wit:
Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company....The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”
Disagreements as to implementation to be worked out below. No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court's order essentially to make crystal clear to the government that she was sympathetic to its views.
Tuesday, May 10, 2016
A new meme that came to me when reading this story at Volokh about the American Bar Association’s new proposed rule concerning, inter alia, professional misconduct sanctions for lawyers who engage in “verbal conduct” (which sounds rather like speech) that “manifests bias or prejudice” or is “derogatory or demeaning” on matters related to “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The proposed rule applies to the “practice of law,” which includes “participating in bar association, business or social activities in connection with the practice of law.”
Eugene Volokh offers some interesting questions of the proposed rule’s application. I’m more interested in the ABA’s changing view of speech–from a traditional liberal view to an anti-liberal view. Haven’t we been lectured time and again by the titans of the bar (not to mention the Supreme Court’s sanctimonious diatribes on the matter) about the value of offensive ideas? About the civic importance of tolerating the expression of those ideas which we reject. Here’s one little refresher: something from Justice Douglas’s opinion in Terminiello v. City of Chicago, though many others would have sufficed:
The vitality of civil and political institutions in our society depends on free discussion….[I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute….Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.
This sort of view could, of course, be challenged. Is it really true that because Terminiello’s advocacy of fascist ideas and race and class hatred might actually persuade people–might convince them to abandon all of those nasty “prejudices and preconceptions”–that the government is therefore powerless to regulate it? Is it better to be governed by fascist ideas than to regulate the consumer’s taste for them?
Right or wrong, it was ostensibly the liberal view. How different the ABA’s approach today seems to be. But I wonder, in this paper, whether the 20th century approach to freedom, and to free speech in particular, was really ever an end in itself, or instead was a gateway (and was even perceived by some of its proponents as a gateway) from one sort of legal culture to another. The classical liberal position is an attractive one in many ways. It’s a pity that so few people have been, and are, really committed to it. Were they at some point? If so, when did that commitment change, and why? There were those in the legal academy and elsewhere who never purported to be liberal and are now feeling pretty darned good. But classical liberalism, as those who know more than I have observed, seems to be on the ropes. Or was this all part of a larger movement away from one culture and toward another? Were most people plying the liberal view actually (even if unwittingly) #NeverLiberal at all?
Tuesday, May 3, 2016
My colleague and partner in crime, Mark Movsesian, has posted his paper, Of Human Dignities, which argues that the concept of dignity as a norm of international human rights is in fact beset by fundamental disagreements about its content. Here's the abstract:
This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church and other religious bodies favor objective understandings that tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it.
Tuesday, April 5, 2016
St. John's Center for Law and Religion was delighted and honored to host Justice Samuel Alito at our colloquium in law and religion yesterday. Justice Alito discussed Hobby Lobby v. Burwell; Town of Greece v. Galloway; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC; CLS v. Martinez; Salazar v. Buono; and Summum v. Pleasant Grove, as well as his dissent from denial of certiorari in Ben-Levi v. Brown and two free exercise decisions he authored as a Third Circuit judge, Fraternal Order of Police v. City of Newark and Blackhawk v. Pennsylvania.
We had a lovely day today as well, as Justice Alito discussed several important free speech cases in which he dissented with my constitutional law class–US v. Stevens, Snyder v. Phelps, and US v. Alvarez. It was a true pleasure to have him.
Friday, April 1, 2016
As Rick notes below, this week, the Supreme Court issued a somewhat unusual order in Zubik v. Burwell (the nonprofit litigation against the Obamacare contraception mandate) asking for more briefing. Here are the substantive provisions:
The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.
Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.
For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.
I can’t improve on Rick's insightful speculation about what this might mean. It’s hard, as he says, to escape the conclusion that this is probably good news for the petitioners (after the bad news of Justice Scalia’s passing). And it’s always the politically expedient thing to put the onus on insurance companies. Let them figure out how to comply.
But there is one way in which the order might not be so good from the claimants’ perspective. What of self-insured claimants? Any resolution to the case that would simply rely on insurers to resolve this issue would not account for those nonprofits, like the Little Sisters of the Poor, who self-insure. Shifting the (substantial) burden of compliance to the “insurer” in this sort of case is not really shifting it from the employer or from an objecting party.
Something perhaps to watch in the upcoming briefing.
Tuesday, March 15, 2016
We've been blessed and honored at St. John's Law School to have had, within the last month, visits to our Colloquium in Law and Religion by Professor Robert George (who gave a paper on "Religious Liberty and the Human Good") and Professor Mark Tushnet (who discussed his skepticism about religious accommodation in this recent piece). Two men; two rather different sets of views; a perfectly equilibrated set of perspectives for a seminar on such matters.
At the still point, there the dance is...
Wednesday, March 9, 2016
From "Hard Times," Book II, Chapter 6:
Utilitarian economists, skeletons of schoolmasters, Commissioners of Fact, genteel and used-up infidels, gabblers of many little dog’s-eared creeds, the poor you will have always with you. Cultivate in them, while there is yet time, the utmost graces of the fancies and affections, to adorn their lives so much in need of ornament; or, in the day of your triumph, when romance is utterly driven out of their souls, and they and a bare existence stand face to face, Reality will take a wolfish turn, and make an end of you.
Friday, February 26, 2016
Tom, thanks for your latest comment. Just three quick thoughts in response:
- The reason I quoted "over the truly long run" in my previous post was that this is the language I use in concluding my piece on Justice Scalia. I meant optimism over the truly long run. And it seems to me that's consistent with the post of mine on tragedy to which you link and with our exchange.
- As to the short run, yes, you are quite right. We don't agree at all about short-run optimism. And I think Justice Scalia's jurisprudential optimism may well have been a bad bet in the short run. Indeed, I suggest that he may have recognized as much toward the end of his career.
- But set that aside. What, exactly, is the convincing case to be made for optimism about, say, American constitutional law today or the present condition of American democracy and politics? You say that if we are ironists "we might be able to open our eyes, see incongruities, go in a different direction." Believe me, I'd be delighted to move away as quickly and directly as possible from the current goat rodeo of American democratic political life, a politics and a culture that "breeds alternating bouts of cynicism and hysteria." I'd even try opening my eyes a little wider if I thought it would help. But as I've written before, you and I have somewhat different views about the political psychology of the moment. Not much has changed in 3 years to make me believe that anybody has a strong desire to "go in a different direction" as respects our common political life. To the extent they do, the proposed directions don't generally seem to me to be improvements. But again, we may disagree about this too.
Wednesday, February 24, 2016
My buddy Berg asks about how my own frequently gloomy and lugubrious (and his much more sensibly ironical) views relate to Justice Scalia's. They are certainly different. I say as much in the little piece at Commonweal. On several issues, we saw things differently on the optimism index. Indeed, one might go so far as to say (though I did not go this far) that Justice Scalia's jurisprudential optimism may have betrayed him. Or perhaps that notwithstanding his disappointment in the Court, he remained optimistic with respect to the power of his views for law students and about the future of American democracy. Here, too, there may be sizable differences, not only with my views but with others here at MOJ.
Of course, differences like these may be informed by the different time periods in which one comes of age and develops. So, for example, there will be differences of perspective between a pre-baby boomer Reagan-era conservative and a gen X Obama-era conservative--differences of mood where at some points the 'chiaro' seems much brighter than the 'scuro' while at others all appears muted and dark. But all that aside, and over the truly long run, there is something to be said for optimism as a Christian virtue if not a Christian duty, isn't there?