Friday, November 26, 2021
In 2020, the Journal of Catholic Legal Studies and the Center for Law and Religion at St. John's co-hosted a symposium on a draft book by Professors John Breen and Lee Strang: "A Light Unseen: A History of Catholic Legal Education." Deans of several Catholic law schools (including Rob Vischer), as well as other learned academics (including Rick Garnett), offered comments on the manuscript. Those comments were published by JCLS last year.
Professors Breen and Strang have now offered this thorough and very interesting reply, in the new issue of JCLS. Their remarks are well worth your time.
Saturday, October 9, 2021
Mark Movsesian and I discuss a set of challenges on the basis of religious scruple to the recently imposed New York COVID vaccine mandate in this new podcast.
Along the way, we chat about some of New York Governor Kathleen Hochul's recent remarks that "[t]here are not legitimate religious exemptions because the leaders of all the organized religions have said there's no legitimate reason." Also: "I'm not aware of a sanctioned religious exemption from any organized religion"; and, "In fact, they are encouraging the opposite. Everybody from the pope on down is encouraging people to get vaccinated." As it happens, Mark and I have expressed some sympathy, in different fora and for somewhat different reasons, for this general position as respects religion's legal definition. But on the existing doctrine, it may run into some problems.
Sunday, September 5, 2021
I have a new paper on the political relationship of establishment and free exercise as exemption. It responds to several scholarly and other claims and trends in First Amendment work. But some of the paper's arguments and implications are directed toward advocates of religious liberty as much as opponents. Here is the abstract:
American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.
This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.
Saturday, March 6, 2021
I have this review at the Liberty Fund Law and Liberty site of Professor John Lawrence Hill’s book, The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court (2020). A bit from the end:
What may be most puzzling in harm principle arguments is the assertion that they are not moral arguments. Hill repeats this claim in describing Mill’s view that the harm principle eschews “legal moralism.” True, Mill’s moralism is of a peculiar sort—one that steadfastly denies its moralism even as it imposes it. And this, too, is part of Mill’s legacy in American law. “Don’t impose your morality on me!” Such is the complaint, in the high and mighty places of American legal culture, of those most willing to do just that through the harm gambit.
Might it not be better simply to dispense with the harm principle? The advantages are plain. Rather than disguising what are contested moral assertions in the discursive cloak of harm—or its currently fashionable obverse, “health”—we could call deep moral disagreement by its rightful name. The losers would at least lose honestly, and what they lose could be recognized as a loss. They would not suffer the further indignity of explanations that their views are just a category mistake.
Yet regrettably, we seem destined to bear Mill’s burden. Harm-creep and harm-shrink in constitutional law track developments in other cultural arenas, where the concept of harm has enjoyed “semantic inflation” and deflation. And the efficacy of harm claims tends to correspond with who’s up and who’s down anyway. Those who wield cultural influence and can translate what they take to be grievances into legally cognizable harms will feel justified in dismissing the losers’ further losses simply as “not harms.”
A balancing of losses and gains is not enough for the victors, because only a moralized victory that treats them as fully virtuous (or “privileged” but absolved after some modest public abasement) and deserving of their wins will do. Hurts to the wrong sort of people become not matters of regret, but moral imperatives. Those hurts are “non-harm.” All the while, collateral wounds of various sorts accrue and are rendered invisible. It would not be fair to blame Mill for all of this, in legal discourse or elsewhere. Perhaps moral argument in law inevitably has something of this quality—that when the strong do what they can, it is the moral fault of the weak that they suffer as they must.
Sunday, February 21, 2021
I thought this fragment from Professor James Hankins' Virtue Politics: Soulcraft and Statecraft in Renaissance Italy (2019), was very interesting and well put (64-65):
A conceptual framework motivated by present concerns may distort the past, but questions about origins and foundations are surely not "temptations" but the lifeblood of historical inquiry. A methodology that cripples the ability to ask such questions needs rethinking. Historical questions and metahistorical questions are indeed different and should be kept separate, but this fact need not be taken as a source of epistemological despair. Rather it is, or it should be, a call to exercise our imaginative understanding of human phenomena in relation to the entirety of past cultures, their Lebenswelt, the long-faded structures of practical constraints and inherited values that shaped those cultures and still renders them legible, with disciplined research, to the attentive mind. In practical terms this means exercising ceaseless vigilance against anachronism: something easier said than done. To see the past in its own terms goes against our naïve or interested desire to make use of the past for our own purposes. It also requires hard work, imagination, and (dare one say it) a certain kind of love. We want to root our own identities as individuals or groups in a glorious past, or (more often these days) we want to preen ourselves on our superiority to a benighted past, and this desire sometimes blinds us to difference, to anachronism, to moral universes other than our own. But sometimes we have to transcend our own needs in order to do justice to the reality of other persons and times. And sometimes it is the truth we cannot see that is precisely the one we need.
Saturday, January 16, 2021
I enjoyed speaking about the relationship of substantive and procedural ideas of justice to the rule of law and stare decisis on this panel, part of The International Forum on the Future of Constitutionalism's "Global Summit" organized by Professor Richard Albert. In my remarks, I argued against a thin, purely proceduralist view of the rule of law and stare decisis, and also against a morally thick, substantive view of the rule of law and stare decisis. I urged an intermediate possibility. As the rule of law seems to be in the air, so to speak, I thought I would reproduce my remarks. They are below.
I want to reflect on the relationship of substantive political morality to the rule of law and stare decisis. On some accounts, the virtues of both the rule of law and stare decisis are purely procedural. On other accounts, the rule of law incorporates thick, substantive conceptions of political morality. For example, a set of substantive human rights as defined by an international body or other community. Or some thick, substantive ideal of equality or justice. Interestingly, people do not take this second view about stare decisis, the obligation of courts as a general matter to stand by a prior precedent even when they disagree with it. So far as I know, nobody thinks stare decisis contains an ideal of human rights, for example.
So, which account is right? There are a few possibilities. One possibility is that the rule of law *and* stare decisis both embody purely procedural ideals, and that those arguing for a substantive political morality within the rule of law are wrong. A second possibility is that the rule of law embodies substantive political morality while stare decisis does not. That is, the rule of law and stare decisis are relevantly different on this score. And a third possibility is that both the rule of law and stare decisis incorporate procedural and moral values. Now, even though as I indicated, nobody takes this view as to stare decisis (though some do as to the rule of law), I actually think this is the correct position.
But the type of substantive political morality incorporated within the rule of law and stare decisis is not the sort of thick view of the second possibility—equality or human rights or liberty or antidiscrimination, for example. It is instead a kind of political morality related to the procedural virtues of both.
Let me briefly describe the first two views. I’ll then take on the third view, sketching Lon Fuller’s position and extending it in ways that thicken it somewhat, but not all the way, so to speak. Not to oatmeal or gruel thickness, but more like to lobster bisque or vichyssoise thickness.
Sunday, January 10, 2021
I participated in this panel at the Federalist Society's annual academic conference last Friday. The discontent sampled here came largely from the non-standard direction, though not entirely. Perhaps of special interest for MOJ: I'm coming to think that Kevin Walsh and Jeff Pojanowski (among others) have hit on a correct insight that a crucial inflection point on the issue of discontent concerns the necessary relationship (or not) between originalism and legal positivism, something I touched on in my comments. Other discontent, raised by other commenters, involved the relationship of originalism and legal conservatism, and I thought it interesting to hear how other speakers conceived the former and the latter.
Monday, December 28, 2020
I'm pleased to announce that my new paper, Reconstructing Malice in the Law of Punitive Damages, will be published by the Journal of Tort Law next year. The paper is my first foray into tort law scholarship, though I have been teaching Torts for the last 3 years at St. John’s. Malice, in the common law of crime and tort, is a thorny subject with a complicated and ancient lineage. Indeed, there are interesting connections between law and religion, on the one hand, and notions of malice in the law, on the other. But malice’s legacy was questioned beginning in the 19th century with Holmes (and others including J.F. Stephen) and then repudiated more decisively in the work of 20th century tort law giants like William Prosser and criminal law giants like Herbert Wechsler. And many others.
This paper attempts to reconstruct a historically correct, conceptually coherent, and normatively compelling case for malice’s reintroduction into the law of punitive damages. It also speculates about the utility of this reconstructed account of malice in other fields, especially criminal law. Finally, though this paper does not approach this topic, it does suggest the possibility of reconstructivism as a broader theory of law and legal development, something about which I hope to write in the future. Here is the abstract.
Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.
This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.
Wednesday, December 2, 2020
Following up on Rick's post below, my colleague, Mark Movsesian, and I have a podcast about Carter Snead's book as part of our Legal Spirits series. We discuss some of the major themes in the book and talk a little bit about Carter's chapter on assisted reproductive technology, long a special area of his expertise. Carter was kind enough to speak with our seminar students this semester as well, so we had a double dose of the book and its arguments.
Wednesday, November 11, 2020
I want to call a little attention to this new monograph by Professor Lorenzo Castellani, L'ingranaggio del Potere ("The Gear of Power"). The book is
just published and it is in Italian. But it intervenes insightfully in debates about political power that ought to be of great interest to American and British scholars of administrative law, though its primary focus is on "Eurocracy."
The book is a sweeping study (in just a few pages)--a history of ideas or, as he puts it in an early chapter, an analysis of the "real thing"--of how "competence" and "technical expertise" has come to dominate our political world. It helpfully contrasts the realms of "politics" and "policy." While we often think of these as united, or even one and the same, Castellani distinguishes them, locating the latter squarely as the province of the experts and not really about democratic politics at all. But policy has "hidden itself" well as derived from politics in modern democratic societies. The thesis: "In advanced modern societies, the principle of aristocracy has a much greater weight in the organization of those societies than we are commonly led to believe or admit. In contemporary democracies, this aristocratic element is based on competence--that is, on the specialized knowledge of individuals supplied and certified by the structure itself through educational institutions, programs of study, titles, exams, and competitions. This aristocratic-hierarchical principle exists together with the democratic-representative principle from which, in recent decades, it has progressively eroded significant spaces." (25)
If this sounds in some ways reminiscent of James Burnham's early work in The Managerial Revolution, it is. Indeed, I think Castellani has taken on a good deal of Burnham. But the applications he sees in Burnham's work (and the work of others including Daniel Bell) for the "techno-democracies" that rule us now, and that are nevertheless the subject of such controversy, are fresh and insightful.
American publishers take note! This book deserves a good English translation. It has a lot to say to Anglo-American concerns today.