Friday, April 13, 2018
Here's a Friday booknote. I first read John Gray about 10 years ago, and was struck by his description of the “agonistic liberalism” of Isaiah Berlin. Gray’s Two Liberalisms picked up on and developed the themes in the book on Berlin in ways which influenced the way I thought about “tragedy” in law. I enjoyed Straw Dogs as well, but by this point there was an acidic quality in Gray’s writing that differed from the earlier books (I am not criticizing, just observing).
And Gray's essays are always a great read–whether on secular eschatology, Machiavelli and the weakness of law, or (my own favorite) the ubiquity of evil. He is iconoclastic, brilliant, bracingly skeptical, and deeply learned. Now comes a new book: Seven Types of Atheism (Farrar, Straus and Giroux). Here is an early review (h/t Paul Horwitz) by Terry Eagleton in “The Guardian” (more positive, I think, than Eagleton’s very critical review of Straw Dogs). And here is the publisher’s description.
For a generation now, public debate has been corroded by a shrill, narrow derision of religion in the name of an often very vaguely understood ‘science’. John Gray’s stimulating and extremely enjoyable new book describes the rich, complex world of the atheist tradition, a tradition which he sees as in many ways as rich as that of religion itself, as well as being deeply intertwined with what is so often crudely viewed as its ‘opposite’.
The result is a book that sheds an extraordinary and varied light on what it is to be human and on the thinkers who have, at different times and places, battled to understand this issue.
Thursday, February 22, 2018
In the early 1990s, I was fortunate to be a student of the great Catholic scholar, Wallace Fowlie. Professor Fowlie's particular area of expertise was French symbolist poetry, in particular Rimbaud and Mallarmé (he has an important set of translations of the former). But he was also deeply interested in the work of the symbolist-influenced Catholic poet, Paul Claudel and the (complicated) philosopher, Henri Bergson.
I took various classes on Dante and Proust with Professor Fowlie. I also remember visiting with him on several occasions in his home (at that time, in a quiet retirement community; he was already quite advanced in age) and chatting with him about his extraordinary life. On one memorable occasion, in 1995, just before I graduated, I recall driving him to a wonderful and simple Easter service.
I thought about Professor Fowlie, who passed away in 1998, twenty years ago, in reading a little pamphlet of his published in 1994 titled, "Dante Today: A Personal Essay." Here is a passage of it for Lent, concerning an encounter in his youth with T.S. Eliot:
The year was 1932-33, when Eliot came to Harvard to give the Charles Eliot Norton lectures. These were public lectures in the evening. They were published in book form in 1931: The Use of Poetry and the Use of Criticism. In addition to these public lectures, Eliot gave a course on "English literature from 1830 to 1930," to fifteen students. Fourteen of these students were English majors. I was the fifteenth, just barely admitted since I was a French-Italian major.
I had two good friends in that class which was held on the second floor of Sever Hall. Before Eliot arrived in Cambridge, we had worked hard on "The Love Song of J. Alfred Prufrock" (1915) and on "The Wasteland" (1922). When I first read "Ash Wednesday" in 1930, it seemed to me a religious poem, a poem of peacefulness finally reached after the earlier poems of man's human dilemmas. We were proud to have Eliot there and hear him speak to us each week. We became almost childishly curious about him, about his life, and we developed the outrageous habit of following him in the street to see where he walked, where he ate, what he ate. If he went into the Coop, what did he buy? He had announced his allegiance to the Anglo-Catholic branch of the Episcopal Church, and we suspected that he attended Sunday services in the Church of St. John the Evangelist, on the back of Beacon Hill in Boston. That turned out to be true.
When Christmas Eve came, the three of us decided to attend midnight Mass at St. John's where the singing was Gregorian chant, directed by a skilled organist, Mr. Titcomb. We hoped, of course, that Eliot would be there. He was there in the first row, seated beside his colleague-friend Theodore Spencer. We took our places in the sixth row behind them. It is a small church, and that evening it was filled. It was snowing outside. The ladies wore fur coats. The liturgy was performed slowly and reverently, and the Mass was beautifully sung by the Cowley Fathers, an Anglican monastic order.
At the end of the service, the congregation stood and filled immediately into the one aisle that led to the entrance. The three of us decided to wait in our row until Eliot and Spencer passed us. Then we took our places somewhat behind them. Between us and Eliot, we noticed in the very slow moving crowd, a tall fellow we had seen in the Harvard yard. He was a graduate student. The church was quiet and we filed out. Suddenly, this student, whom we did not know, opened his mouth and recited in a strong voice a line in Italian, which he obviously directed at Eliot. We could see Eliot cringe and try to move faster in order to get out of the church. When we finally got outside, Eliot and his friend had disappeared into the falling snow, and the graduate student also had disappeared.
When I returned to college after the Christmas holiday, I ran into the student one day in the yard. I spoke to him then. "Excuse me. After midnight Mass on Christmas eve, I heard you recite a line of Italian. You seemed to direct it to Mr. Eliot. May I ask you what that line was? Possibly Dante?" He looked at me in a somewhat scornful way, and asked: "Haven't you read Guido Cavalcanti?"
"No, I haven't read Cavalcanti."
"Well, let me recite it to you and translate it. Perch'io non spero di tornar giammai. 'Because I do not hope to turn again.' Do you recognize the translation?"
This time I was able to answer in the affirmative. And I said, "Yes, it's the first line in Eliot's Ash Wednesday." "But," I continued, "Why did you do that in the quiet of that church? It disturbed Eliot."
"I wanted to tell that Old Possum that I knew he had stolen his first line from the first line of a Cavalcanti poem."
Abruptly he left me then. And I, both shocked and somewhat amused, made my way to Widener.
Thursday, February 15, 2018
My colleague, Mark Movsesian, and I are pleased and honored to announce the fourth biennial (how many years is that?) Colloquium in Law and Religion, to be hosted at St. John's in fall 2018. This seminar invites leading law and religion scholars and judges to share their work in law and religion before a small audience of students and faculty. Here is the slate of speakers:
September 17: Professor Robert Louis Wilken (University of Virginia, Emeritus)
October 1: Professor Philip Hamburger (Columbia Law School)
October 15: Professor John Inazu (Washington U. St. Louis School of Law)
October 29: Professor Micah Schwartzman (University of Virginia School of Law)
November 12: The Honorable Diane S. Sykes (U.S. Court of Appeals for the Seventh Circuit)
November 26: Professor Vincent Phillip Muñoz (University of Notre Dame)
To read more about past colloquia, please see these links:
Wednesday, February 7, 2018
I have a review of Patrick Deneen's book, Why Liberalism Failed, at the Liberty Fund blog. A bit:
[L]aw is liberalism’s most potent instrument. Law plays a legitimating role in many political regimes, but it performs unique work in Deneen’s account of the liberal state.
Legal liberalism is the device that replaces non-liberal social structures and institutions—the very structures and institutions that once sustained it—and establishes itself as the exclusive fount of authority. Legal liberalism substitutes informal relationships derived from non-liberal institutions with administrative directives and centralized controls, whether of the surveillance state, the Title IX bureaucrat, or the carceral network. Legal liberalism elevates the Constitution to the status of sacral cultural object, in the process consecrating the legal state: new citizens and officeholders swear an oath not to the nation, but to the Constitution and the law. Legal liberalism trumpets the ceaseless progression of individual freedoms and rights, even as its laws generate and consolidate greater power, wealth, and control in the state. Legal liberalism’s contemporary master right, as announced by its oracles—to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—requires a correspondingly enormous and engulfing positive law and regulatory armamentarium. Legal liberalism is predisposed toward cosmopolitanism, globalism, and internationalism, and against local custom, culture, and tradition. And it seems to me that Deneen would take legal liberalism’s educational hubs—the elite American law schools—as archetypes of the sorts of pathologies afflicting institutions of higher learning.
Indeed, one might well suppose that the partisans of legal liberalism would be the least receptive to what Deneen has to say, devoted as they are to maintaining and enlarging the power structures and ideological commitments of the liberal status quo. Lawyers and legal academics will be particularly prone to dismiss Deneen. The legal elite is adept at inventing stratagems of self-validation. It is quick to enforce internal codes of civility, conformity, right thinking, and right speaking that mark membership in the club. It drives itself to distraction in the latest Supreme Court intrigues, investing its preferred justices with a superhuman heroism and a cult of personality (while demonizing the others). It jealously guards its own birthright. It will not like this book.
Yet even those within the legal liberal establishment who are inclined to hear him out might doubt that Deneen has shown that legal liberalism has “failed,” or that its weaknesses are so pervasive as to suggest imminent regime collapse. In the first place, legal liberalism, and the society that it has supported and been supported by, have generated vast economic wealth. To be sure, the allocation of that wealth has been, to put it gently, uneven. But its resources are nevertheless formidable. Second, legal liberalism has made several great social and political advances possible. It has helped to ameliorate, if not correct, certain profound injustices affecting various marginalized groups and it has expanded social and economic opportunity. These are genuine contributions. Deneen rapidly acknowledges this point early on, but the balance of the book does not demonstrate that the political and legal framework of liberalism either is an abject failure or has reached the point of breakdown.
What Deneen has shown, and to great effect, are a series of dynamics internal to the claims, logic, and aspirations of liberalism that produce extremely serious problems. Yet of all the variations of liberalism discussed in the book, legal liberalism is perhaps least likely to adapt to overcome these difficulties because of its deep investments in maintaining its own position. Deneen might welcome this resistance as the beginning of the end, since it would confirm a piece of the book’s thesis. But if the end is coming, legal liberalism’s tail is likely to be a long one.
Monday, January 22, 2018
Journal of Catholic Legal Studies Symposium on "Christian Legal Thought: Materials and Cases" by Brennan and Brewbaker
My excellent students, Liam Ray and Nick DeMarco, have put together a symposium as part of their work on the Journal of Catholic Legal Studies at St. John's on the new casebook on Christian Legal Thought by Patrick Brennan and William Brewbaker. The announcement for the event is below:
This Friday, January 26, the Journal of Catholic Legal Studies (a publication of St. John’s University School of Law) will host a symposium on the new casebook Christian Legal Thought: Materials and Cases (2017) by Patrick M. Brennan (Villanova) and William S. Brewbaker III (University of Alabama). The symposium will take place at the New York Athletic Club in Manhattan from 3 PM to 6 PM, with a reception at the Club following from 6 PM to 7 PM. It will feature as panelists both casebook authors, as well as Professors Randy Beck (University of Georgia), Angela C. Carmella (Seton Hall), Richard W. Garnett (Notre Dame), Michael P. Moreland (Villanova), and David A. Skeel, Jr. (University of Pennsylvania). The event is free and open to the public (please note the New York Athletic Club’s dress guidelines). More information, including whom to contact with questions, is available here. The January 19 deadline to RSVP has been extended to January 25.
Tuesday, December 12, 2017
My partner in crime, Mark Movsesian, and I have a podcast on last week's oral argument in Masterpiece Cakeshop. We discuss the back and forth among the justices and the lawyers on both the compelled speech and the free exercise claims, the analogy to race, the status/conduct distinction, and much else (bookended by a little François Couperin (dit "le Grand")).
Tuesday, December 5, 2017
The Masterpiece Cakeshop case was argued today before the Supreme Court. Most of us ordinary folk thought that the compelled speech argument was going to be the show. That still may turn out to be the case, since reading oral argument for clues as to the decision is not so reliable.
Still, reading through the transcript today, and in particular the colloquy among JJ. Kennedy, Alito, Gorsuch, the Chief, and counsel for Colorado, it seemed to me that the Free Exercise Clause was the surprise of the day. Those justices were pretty focused on the "animus" exhibited by one of the Colorado Civil Rights commissioners, additional comments in a similar vein by a second, and (especially in J. Alito's questioning--see 58-59) evidence that the Commission found no fault with bakers who refused to make cakes for clients who espoused views critical of homosexuality--indeed, that approved such decisions "in light of the offensive nature of the requested message." See Masterpiece Cakeshop, 370 P.3d at 282 n.8.
I didn't expect the Free Exercise Clause claim to make any headway. But this is exactly what Tom Berg and Doug Laycock emphasized in their fine brief (which was noted by counsel at oral argument). I've got my own reservations about animus arguments. But kudos to the two of them for making this argument. Who would have thought that this might be the case to give the utterly desiccated Free Exercise Clause a little juice?
Monday, December 4, 2017
Wednesday, November 29, 2017
Wednesday, November 8, 2017
I'm delighted to be participating in the annual conference of the Notre Dame Center for Ethics and Culture, which begins tomorrow and runs through Saturday. This year's theme is "Through Every Human Heart" and focuses on ideas of good and evil.
I'm on a criminal law panel moderated by Rick Garnett and together with Cecelia Klingele, John Stinneford, and Meghan Ryan. I think Tom Berg is also on another panel involving free speech. My remarks will consider the fate of evil as a concept in scholarship about criminal law and punishment. If I have some time left over, I'll talk about good too. My general thesis is that both of these ideas are basically irrelevant in academic discussion of criminal law (I wrote something about this when I was just a young MOJ pup years back).