Mirror of Justice

Arthur Ripstein, Private Wrongs

I’ve been reading Arthur Ripstein’s exceptionally interesting new book Private Wrongs the past few days, and there is a thoughtful review of it here by Lewis Kornhauser (NYU). One of Ripstein’s previous books was a deep and interesting engagement with Kant on law, and Private Wrongs applies a kind of Kantian view about moral independence to the law of torts. I agree wholeheartedly with Ripstein’s rejection of Holmes-esque invocations of “policy” in torts (more about which here), but I suspect Kornhauser is on to a possible problem in Ripstein’s argument:

Prevailing tort law plays a distinctive role in his argument. On his account, though tort law instantiates the moral idea of independence, "the law . . . appear[s] as an exporter rather than an importer of those [moral] ideas." (p. 21) Legal doctrine thus serves as a normative baseline. It is unclear, however, how doctrine can perform this function. At least in the context of wrongs to property, the legal rule itself determines the content of the property right. Trespass to land, for instance, requires a "wrongful" interference with an agent's interest in land. But the tort rule itself determines the structure of the agent's property right. One requires an independent ground to determine the baseline property right.

Or as Ripstein writes (when clarifying that his account is not “prescriptive in one familiar sense of that term”) a page before the sentence just quoted, “The prescriptions that I make are not from a standpoint outside of what is presupposed in the legal materials I seek to render intelligible” (p. 20). The key issue, it seems to me (ready? here comes the natural law point), is that a judgment of what counts as the relevant legal materials and their “intelligib[ility]” depends on some evaluative standpoint that legal doctrine can't provide on its own (though I'm not sure that Ripstein is committed to denying that given what he writes in the rest of the book).

James Comey on the cultivation of judgment, and on the importance of getting enough sleep and having a life (May 2016)

With FBI Director James Comey a person of greater than normal interest these days, many are forming opinions of him based on recent events, rather than forming opinions of recent events based on what they know of him.

Both ways of approaching matters make sense, but each has its pitfalls as well.

Those interested in learning more about Director Comey and what kind of internal processes he may have gone through in making decisions over the past several months might learn something useful from his May 2016 commencement speech to the graduates of the University of Richmond School of Law. 

A few snippets:

Judgment is different than intelligence. Intelligence is actually fairly common. Judgment is very rare. Intelligence is the ability to solve the riddle and nail a set of facts. Lots of people can do that. Judgment is the ability to circle, to orbit that answer, and see how it might be seen through the eyes of others, to move the answer in place and time, to try and see how it might be seen a year from now in Congress, five years from now in a newspaper editorial office, how might other people experience this. 

* * *

So where does this come from, the ability to orbit a situation and see it through the eyes of others. It comes from screwing up, from doing things that tick people off and then remembering that's how people see that, that's how they experience it. It's mostly a gift to you and it is nurtured along the way, the gift is protected and nurtured.

* * *

I have two slightly weird pieces of advice.

The first is sleep. Sleep is not a moral failing. There is all kinds of science to support. What is going on while you sleep? Your brain is engaging in a neurochemical ballet to amass the data you [picked up] during the day and make connections. It is laying down judgment in your head while you sleep.

My second, slightly weird piece of advice is, you have got to keep a life. One of the things that nurtures and protects judgment is physical distance from whatever is dominating your life. And most of your cases that will be work. You have got to step away from the work. I don't know whether that is kickboxing, stamp collecting, or dancing, you must keep doing it. That physical distance from the work fosters and protects your ability to orbit a situation and see it from different perspectives. Get away from this work.

As for the recent unpleasantness, I'll simply report that the most helpful analyses for my thinking about the issues comes from Jack Goldsmith and Ben Wittes. (See, for example, here and here.)

"Principled or Pragmatic Foundations for the Freedom of Conscience"

That's the title of a little essay by Professor/Judge John Noonan that was published almost thirty years ago (1987) in the Journal of Law and Religion.  A little essay, but nonetheless an important one.  I happened to reread it today--and thought that many MOJ readers would (and/or should) be interested in it.  Here it is, all nine and a half pages:  Download John Noonan (1987).

The Little Sisters of the Poor, Janis Clarke, and friends young & old sing "Every Human Life Is Sacred"

For a joyful and beautiful counterpoint to the dreadful news about the Swiss nursing home threatened with loss of public charity status unless its operators allow on-site assisted suicide, see this music video. It features the Little Sisters of the Poor, residents of their homes, and friends young and old singing Janis Clarke's song "Every Human Life Is Sacred." 

 

Dreisbach, "Reading the Bible With the Founding Fathers"

I’m very pleased to give this notice of Professor Daniel L. Dreisbach’s new book, Reading the Bible With the Founding Fathers, which will be published by Oxford University Press in December. Professor Dreisbach is one of the most important scholars of religion in the founding generation. His earlier book, Thomas Jefferson and the Wall of Separation Between Church and State, as well as his edited volumes, Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate, and The Forgotten Founders on Religion and Public Life, offer vital and erudite insight about the relationship of church and state in the early republic. This volume looks to be essential reading for anyone interested in this area. Here's the description.

No book was more accessible or familiar to the American founders than the Bible, and no book was more frequently alluded to or quoted from in the political discourse of the age. How and for what purposes did the founding generation use the Bible? How did the Bible influence their political culture?

Shedding new light on some of the most familiar rhetoric of the founding era, Daniel Dreisbach analyzes the founders’ diverse use of scripture, ranging from the literary to the theological. He shows that they looked to the Bible for insights on human nature, civic virtue, political authority, and the rights and duties of citizens, as well as for political and legal models to emulate. They quoted scripture to authorize civil resistance, to invoke divine blessings for righteous nations, and to provide the language of liberty that would be appropriated by patriotic Americans.

Reading the Bible with the Founding Fathers broaches the perennial question of whether the American founding was, to some extent, informed by religious-specifically Christian-ideas. In the sense that the founding generation were members of a biblically literate society that placed the Bible at the center of culture and discourse, the answer to that question is clearly “yes.” Ignoring the Bible’s influence on the founders, Dreisbach warns, produces a distorted image of the American political experiment, and of the concept of self-government on which America is built.

Nicholas Wolterstorff says “yes” to same-sex marriage

Given Wolterstorff's stature as one of the most acclaimed Christian philosophers of our time, I think that this report will be of interest to many MOJ readers.

Dwyer on religious schools' "incursions on religious liberty" of children

For many years, Prof. James Dwyer has been forceful, harsh critic of parents' rights and religious schooling.  (See, for example, his book, Religious Schools v. Children's Rights, here, and Vouchers Within Reason, the latter of which was, in my view, powerfully criticized by our own Michael Scaperlanda, here.  I also engaged, and rejected, some of Dwyer's claims in this paper.)  In this new paper, "Religious Schooling and Homeschooling Before and After Hobby Lobby" (here), Dwyer contends that:

The most serious incursions on religious liberty in America today are being inflicted on children by parents and private school operators through power the State has given them. . . .

Even with RFRA's version of strict scrutiny post-Hobby Lobby, states could nonetheless regulate private and home schooling. The Article concludes that state inaction will continue as a result of a troubling pervasive indifference—stemming from societal attitudes and fundamental misconceptions about childrearing—toward children subject to these types of schooling.

Certainly, I hope Dwyer is right in his prediction that "state inaction" -- that is, what I would call "state respect for religious freedom and the fundamental moral and legal right of parents to, generally speaking, direct and control the education and upbringing of their children -- will continue.  The notion that children's religious liberty is being violated by "parents and private school operators through power that the State has given them" is, to me, entirely unappealing and, indeed, repugnant.  (Although I should underscore that, in my experience, Prof. Dwyer's commitment to the well-being of children as he understands it is deep and sincere.)  I highlight the piece here, though, because I think its publication is another "data point", among an increasing number, that provides worrisome support for the concern that, in the coming years, attacks on religious education, parents' rights, and Pierce will continue and escalate.  (Recently, prominent academic and commentator Erwin Chemerinsky called for Pierce to be overruled.)  One way this will happen is through the application of wide-reaching antidiscrimination regulations and curricular requirements that are at odds with the religious mission of many religious schools (and with the religious-education and formation aims of many parents).  These regulations and requirements will be framed by their supporters as important for the socialization and development of children, and parents' disagreement with them will be characterized as a kind of neglect.  Stay tuned, and wary.  

Michael McConnell, "Tradition and the Constitution"

Rick, Michael, and Kevin have written several fine posts about the Tradition Project conference that our Center for Law and Religion hosted last weekend (thank you also to Erika for her very interesting post). Here is a story with some further details of the gathering, which collects their and other reflections on the conference.

And here is Professor Michael McConnell's lecture, "Tradition and the Constitution":

 

 

Justice Scalia honored at CIC

Don't miss Ed Whelan's beautiful tribute to the late Justice Scalia at NRO today.  

 

Levine on the "Hands-Off Approach to Religious Doctrine"

Prof. Samuel Levine (Touro) returns, here, to an issue that he has addressed thoughtfully and thoroughly in other work, namely, what he calls the Supreme Court's "Hands-Off Approach to Religious Doctrine."  Here's the paper's abstract:

In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed — and seemed to resolve — a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as the contours of free exercise rights for prisoners and the definition of a religious minister. More dramatically — though anticlimactically — in Zubik, rather than ruling in favor of one of the parties, the Court issued an unusual per curiam opinion instructing the parties to work to find a way to resolve the matter.

This article suggests that the Supreme Court’s inability to answer some of these questions, or even to resolve the controversy in Zubik, is rooted in the Court’s continuing, and arguably expanding, hands-off approach to religious doctrine. Courts and scholars have offered sound justifications for the Supreme Court’s hands-off approach to questions of religious doctrine grounded in constitutional principles of religious freedom as well as more general concerns over judicial competence and the role of judges. Nevertheless, as recent cases have illustrated, the hands-off approach raises concerns of its own, at times serving as a source of contention and confusion. The ongoing tensions and divisions among Justices and judges revolving around these issues may suggest a need for the Supreme Court to revisit and perhaps rethink the contours of the hands-off approach to achieve clarity for the future.

My own effort to understand this "hands-off approach" is here:

At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that “the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief.” The Court, it was proposed, is — more and more — taking a “hands-off approach to religious doctrine.”

This proposal was, and remains, timely and important, as is illustrated by — to mention just a few, diverse examples — the ongoing property-ownership dispute between several “breakaway” Episcopal churches in Virginia, on the one hand, and the Episcopal Diocese of Virginia, on the other; by the Supreme Court of Canada’s recent ruling that an agreement regarding a religious divorce under Jewish law is enforceable in civil courts; by a federal judge’s ruling that the Georgia Institute of Technology had unconstitutionally taken on the task of instructing students about the merits of various traditions’ positions on sexual morality; and perhaps even by the Speaker of the House’s controversial pronouncements, on “Meet the Press,” about Roman Catholic teaching with respect to abortion. In each of these controversies, a government actor is being asked to decide a question, or has presumed to resolve a dispute, involving the meaning or content of religious teaching.

But, such examples notwithstanding, is the proposed claim true? That is, is it really the case that American courts are showing such an “increasing unwillingness,” and that they are doing so in accord with any identifiable principle or “approach”? If there is, in the Court’s law-and-religion toolkit, something like a hands-off “rule,” then what are that rule’s scope, content, and justifications? Which feared harms does it protect against, and which goods does it promote? When it comes to “matters that relate to the interpretation of religious practice and belief,” why is the Court doing, and should it be doing, what it is doing?