Sunday, November 28, 2010
Just a little chiasmus that came to me upon reading this editorial in the N.Y. Times. I largely agree with the points about gift giving to judges. The first judge I worked for criticized these boondoggles as unwise. That always struck me as sensible for judges on any court.
But note how the op-ed seamlessly elides the issue of recusal based on gift giving with all recusal issues. It makes this move almost exactly as it trains its sights on the U.S. Supreme Court, observing that "[t]here is a growing consensus -- outside the court -- that the justices should change how they handle recusals: requiring a justice to explain any decision to recuse or not, and having a group of justices review each recusal decision."
Setting aside the issue whether such a "consensus" exists (I think Professor Steven Lubet has made this argument recently; I'm unaware that it has generated anything approaching "consensus," even a "growing" one), this seems to me an idea fraught with danger. There are all kinds of reasons that claimants move to recuse judges from hearing cases. Some are financial. Some are personal. Some are political. Some are ideological (and, sometimes, when ideological, they may be supported by religious convictions, Catholic and otherwise). Should (to pick just one example at random) the Defense of Marriage Act ever make it to the Court on constitutional grounds, it would very much surprise me not to see a motion for Justice Scalia to recuse himself from the case -- based on his public comments, the claimant would likely argue that Justice Scalia's impartiality could reasonably be questioned.
Suppose that Justice Scalia decides that he will not recuse himself from the case. Or suppose that he decides that he will. Per the editorial's suggestion, he provides a list of reasons. And now the question of his recusal is reviewed by his colleagues. Perhaps a 3-justice panel (whom shall we choose)? Or perhaps the full complement of 8 justices? If the latter, what happens if we get a 4-4 tie? Does a tie go to Justice Scalia? More problematic -- what happens if the 4-4 tie mirrors exactly the way in which the justices vote on the substantive issue of DOMA's constitutionality? It would seem that by opting for this procedure, the justices might be tempted to judge the merits sub silentio and a little prematurely; at the very least, the appearance of impartiality as to the entire Court might suffer more than a little.
Another thought: would we permit motions to recuse certain justices from judging the propriety of a decision not to recuse -- recusing judges from judging recusals? Could DOMA supporters move to recuse a justice who had said negative things about DOMA in the press from considering Justice Scalia's refusal to recuse himself? If we did permit those types of motions, could we also have further proceedings where a panel of judges considered a justice's decision not to recuse herself from considering the appeal of a justice who didn't recuse himself from the merits? I'd guess most people might reject that sort of review as excessive. But having proceeded down this path, what now makes this collateral review out of bounds -- one step too far?
I understand that it would be wonderful if justices recused themselves based on our own individual sense of when their impartiality could reasonably be questioned. And I also recognize that recusal standards are frustratingly vague, and that the current process gives off the whiff of unaccountability. But thoroughly politicizing the recusal process by demanding that other justices pronounce judgment on their colleagues' recusal decisions seems to me a bad idea. It is a reform that, though surely offered with good intentions, is fraught with the possibility of gamesmanship and politicized tit-for-tat strategizing. If adopted, I think it is likely to damage the judiciary, and to exacerbate problems that it already confronts.
Wednesday, November 24, 2010
For those who are interested in criminal law, the Ohio State Journal of Criminal Law is a relatively new peer reviewed periodical that publishes shorter and less heavily footnoted interventions than one generally finds in other legal journals. In the latest issue, I've got a brief reaction piece to Professor Anders Walker's interesting article a couple of issues back. Walker discusses the origins of the criminal law casebook as it largely exists today and offers some prescriptions for change to the course, among which are an increasing, if not exclusive, focus on case law and a concerted movement away from more theoretical discussion about the purposes, functions, and justifications of criminal prohibition and punishment. As I note in my response, Walker's prescriptions are in keeping with much that is now in vogue in legal education reform, and I suggest some reasons for skepticism about what Walker advocates. (For a very different response to Walker's article that, while touching on distinct issues, is more sympathetic to it and well worth reading, see Professor Chad Flanders's piece).
The exchange got me thinking about the range of connections between Criminal Law and Catholic Social Thought, a seminar I just taught for the first time at St. John's. One could approach the question of connections between the two in a number of ways: a first might be substantive -- for example, involving issues like the legal and moral propriety of the death penalty, or the range of reasons why it might be legitimate to punish someone. Another might compare the ways in which ideas of "rights" as compared with ideas about "human dignity" shape the way that we think about the function of criminal law. A third, if the course is approached more distinctly from the point of view of what "social justice" demands, might be to ask questions about whether criminal law is (or is capable of) providing it. Yet another -- one that occurred to me as I read Russell Powell's post below -- is about the relationship of crucial terms like "complicity" in criminal law (what gives rise to accomplice liability) and "complicity" as it is used more commonly, or even from a theological point of view.
But the connection that I want to focus on here is more a meta-question. It is the question of why it is that a course like Catholic Social Thought and the Law, or Criminal Law, ought to be worth studying at all in law school.
Sunday, November 21, 2010
I sometimes enjoy the writing of Jon Meacham. Last year for Christmas, someone gave me a copy of his book on Andrew Jackson, and I thought it a fun read about an important figure. On occasion, I've read magazine pieces of his on religion in America which I've thought interesting.
But this piece in the weekend's NY Times book review struck me as off pitch. In the process of reviewing what seems like a strong new translation of the Books of Job, Proverbs, and Ecclesiastes, Meacham tries to draw direct parallels between the trials of Job and President Obama's recent political fortunes. "Like Obama," Meacham says, "Job was once the highly favored one." But boils and other Republican afflictions have come to beset "a man seemingly rich in the gifts life has to offer, happy and blessed." Job and President Obama cannot understand why just men such as they have been consigned to suffer. Like Job, Meacham continues, the President has been forced to "humble himself" (God's pestilence is even compared to "Dick Cheney's vision of unfettered executive power" -- difficult to know how seriously to take this, or how it actually cuts). "And yet, and yet," concludes Meacham. "All is not lost, which should give the president some hope amid the shadows, and should keep the Republicans from thinking that their own course will be unimpeded." (From this, I gather that Republicans are actually not meant to represent the pestilence or the cold fury of God.). The political allegory of Job stands for the notion that for those who "endure in tribulation . . . perhaps all may be well."
I recognize that in the wake of electoral losses, the losing party looks for explanations for its defeat. This is as it should be, and analysis has been in no short supply. But my own view is that political defeats should be approached politically, not by the path of religious allegory. Putting aside the silly comparison between the devastations of Job and the political discomfort that the President has recently experienced (perhaps not quite comparable tragedies), there's a difference in kind that makes this sort of comparison inappropriate.
A large part of the meaning of Job's plight, I've always thought, is the inscrutability of God's will. God's plans and judgments are beyond the understanding of men, and -- difficult as it may be (and very often is) -- these are not matters for men to control. To apply that kind of lesson to politics is to miss the core point at a number of levels. The motions of politics are well within the sphere of the humanly knowable, the realm of human control. To use the book of Job as political allegory lends an air of (divine?) inevitability to political forces and judgments that is entirely misplaced.
And if the President is Job, who exactly represents the divine in this allegory? Is it the blind and impersonally deterministic forces of politics, something like the political Fates? Or is it something even worse -- "the people" themselves divinized, and allegorized as the wrathful godhead?
I don't agree substantively with a good bit in this piece by Mark Lilla (it begins after the comment by Ronald Dworkin), but it seems to me to be at least the sort of medicine that is directed at the right variety of illness -- political prescriptions for political failings. At a time when politics and religion seem to be more and more intertwined, the temptation to ascribe religious significance and meaning to ordinary politics -- and to find grand Biblical explanations for all too human events -- seems to me a category mistake.
Saturday, November 20, 2010
Seen at a Starbuck's this morning: a brand-new "Christmas Blend" right alongside a "Holiday Blend." The Christmas Blend bag was decorated with the right sort of colors and symbols, while the Holiday Blend had a pleasantly neutral white background accented by some nice pagan naturalistic [alteration in the interests of modest critical unity] themes -- très 'winter solstice.'
Differences in ingredients? I did not stop to look, but if you enjoy essence of Holy Ghost, I might avoid the atheist bag.
Thursday, November 18, 2010
I've just concluded a session in my Professional Responsibility class dealing with the selling of legal services by non-lawyers and their solicitation of legal business. In this particular section of the excellent book by Stephen Gillers, there is a brief discussion of the common law crime of barratry: the instigation of a law suit, including by payment and other inducements, with the intent to obtain economic advantage. Suffice it to say that Gillers is skeptical about the offense for at least some good reasons, one of which is the issue of vagueness. A number of jurisdictions have dispensed with barratry altogether, and my own class generally dismissed it as the relic of a bygone era.
I tried to sketch out for them some of the intellectual heritage of the crime. In Dante's Inferno, i barratieri are punished way down in the 8th Circle along with other fraudulent types. They are perpetually dipped in boiling pitch by several unsavory and disgusting little demons. Barratry in that time was understood as the selling of public duties or civil offices (Dante himself had been accused of barratry and exiled from Florence by the Black Guelphs). I wondered how it was that the crime of selling public offices -- what sounds naturally like bribery to the modern ear, or perhaps some other public corruption offense -- over time took on the rather different meaning of the practice of instigating law suits, of inciting legal malcontent for profit. It might be that these are simply unconnected meanings, and that is the way they are presented in various on-line sources.
But I think that's not right at all. There are deep-rooted connections between what I'll call the ancient and modern meanings of barratry.
Sunday, November 14, 2010
In light of Rick's thoughtful post a few days ago about Justice Scalia's views on the judicial role, I was interested to read this piece by Noah Feldman over at Slate. The legal commentary at Slate is always good, clean fun for me, principally because it is a source of great comfort to have a place to go where I know that I am certain to have strong disagreements with some recently posted legal interest item. Last week was no exception; the pleasures of reaction are not to be missed.
In the piece, Professor Feldman voices the hope that Justices Sotomayor and Kagan will "elbow each other to greatness[.]" He notes that Justice Sotomayor recently dissented from the denial of cert. on a case that seemingly not a single judge to that point had taken seriously as a legal matter and he suggests that she was doing so in order to "hint" to Justice Kagan that "[i]f her new colleague opts for the center, [Sotomayor] will take on the role of conscience of the court." "Once a new appointee has fulfilled every lawyer's ambition by making it onto the court," Feldman explains, "the next step is to become a great justice."
The question is -- well, how to do that exactly. How does one become a "great" judge? Feldman says that "great" justices often get that way by defining themselves against, or in relationship to, other justices whom they view as rivals for personal influence among their fellows. His central example is the relationship of Justices Frankfurter and Black with respect to the Gobitis case -- how Frankfurter had enough clout to "convince his liberal colleagues" to rule against the right to opt out of the mandatory flag salute, how Black changed his view in part because he "sensed the chance for leadership," and how Frankfurter was in turn "devastated at what he considered the abandonment of principle -- and the loss of his own influence." The lesson, Feldman thinks, is that "strong rivalries and personalities make great justices," and he concludes with the hope that Sotomayor and Kagan will prod each other to produce "incandescent constitutional ideas or judicial opinions," so that they may become as "great" as Thurgood Marshall, Frankfurter, Black, Douglas, and Jackson.
That there aren't any conservative justices on Feldman's list of "greats" is of course unremarkable: I understand that the hunger of many law professors for a liberal lion on the Court has reached insatiably gargantuan proportions, and these sorts of pep rally pieces are to be expected in increasing supply. Each to his taste, of course. But what's much more interesting is Feldman's open embrace of judicial pride -- perhaps even a kind of petty envy -- as the avenue by which "greatness" is achieved.
A propos of John's very good post below, here is a little summary of a roundtable discussion that our Center for Law and Religion, under the guidance of my colleague and friend, Mark Movsesian, organized dealing with the subject of the persecution of Christians in the Middle East. The plight of Christians in several nations, including Egypt and Iraq, was discussed.
Our roundtable preceded the most recent violence, but one of the things I was most struck by was the unusually large attendance at this event (relatively late on a Thursday evening): there were well over 150 people in attendance -- many of them interested members of the community. My sense is that this is a comparatively understudied topic, and that there is great interest in it.
Thursday, November 11, 2010
It has been a couple of days since a jury decided on the death penalty for one of the two men who invaded the home of a Connecticut family, tortured and brutalized them, raped the mother and daughters, and slaughtered all but the father. I've been reflecting on why there hasn't been much commentary in the legal blogosphere about the incident, an exceptionally horrible one factually. My guess is that the lack of attention would be explained by the absence of any "legally" important question. But two responses occur to me. First, since when has that ever stopped people from commenting. Second, and much more important, I don't think it's remotely true that the incident does not raise important legal questions; apart from the death penalty issue (a perennial favorite of legal academics), there is the horrible brutality of the incident itself.
I can anticipate that the response to that last point might well be -- but there's nothing of real academic interest for criminal law scholars in reflecting on horrifying facts. And I think that's exactly right, but only as a descriptive account of the discomfort that legal academics feel when confronting what I want to call "the core" of the criminal law.
By "the core," I should first make clear what I don't mean. I don't mean that all criminal acts partake of the core, or that to be "criminal" is to be within the core (that is, I don't mean something like a Rawlsian range property). Clearly there are many criminally proscribed acts which do not share the attributes of the core. I also don't mean that there is anything focal or of the essence of the core -- something that makes the core more essentially "criminal" than other acts which are not at the core but are also criminal. (I take this to be something like John Finnis's description of focal cases of law in NLNR).
Instead, the core of the criminal law is merely a feature of certain kinds of criminality, a trait, sometimes present, sometimes not, but rarely (if ever) existing in other legal contexts. The core of the criminal law concerns acts which powerfully elicit visceral fear and hatred because of their transgressiveness -- their violation of the most deep-rooted interdictions. What makes these acts "core" is that they are legally unique insofar as they dredge up these sentiments. Law students will not encounter them in civil procedure, or contracts, or property, or even torts (though perhaps certain kinds of intentional tort come close). The core elicits an overpowering sense of foreboding, of terror, and even of rage at what must not be done.
Sunday, November 7, 2010
Something has been irritating me about Establishment Clause jurisprudence for some time. At least one source of my pique was crystallized in, of all things, a very recent New York criminal case: People v. Knowles, a decision of the appellate division in which the defendant claimed that the prosecution's use of its peremptory challenges to exclude a black juror violated Batson v. Kentucky. The prosecutor's reason for the exclusion? That the juror had admitted that she read the Bible "in her free time" and that "while there was nothing wrong with the practice" (always comforting when the state says such things) it was "an unusual reading choice" that suggested to the prosecutor that the juror "might be a person who would be on the spectrum of forgiveness rather than judgment." Apparently, this explanation was felt by the appellate court not to be pretextual.
What interests me is not so much the outcome, though that is curious as well. Presumably the pretextual quality of the peremptory challenge ought to depend on whether the juror was reading, say, the book of Matthew or Revelation, but I can certainly understand the court's unwillingness to inquire after the juror's chapter-and-verse preferences.
Instead, it is the typically legal characterization by the state about what someone who read the Bible in her spare time would be most likely to believe, and even to be, that I want to consider, because this kind of characterization is common in particular sorts of Establishment Clause disputes as well.
Wednesday, November 3, 2010
The idea of doctrine is unusual as a feature of scholarly attention. The only two spheres of academic learning that I can think of which rely on the idea of doctrine are law and theology. One might even say that doctrine is crucial for these two areas of learning, and anathema for most others.
Legal doctrine is studied extensively by law students, and times were that "doctrinal" scholarship was the primary preoccupation of law professors. That changed to some extent with the coming of both the crits and the 'law and...' phases of legal scholarship, though there continue to be accomplished and interesting doctrinalists (indeed, I have noticed a new wave of young-turk doctrinalists lately -- in some ways, it is they who are today's subversives). But even those who plow the interdisciplinary and critical fields know to pay doctrine its due; stray too far from it and one's writing begins not to look like legal scholarship at all. It may even be that it is doctrine which puts the 'legal' in legal scholarship. I am far less familiar with the history of theology as a discipline, but it seems to me that the interpretation of doctrine would play a central role in the life of the theological scholar. The accretion of exegetical incrustations is a happy and welcome event for theology, a sign that the field is thriving, and when one becomes a theologian, my guess is that one is committing oneself to the idea of doctrine as a core feature of one's writing life -- even if it is one's aim to offer reforming, novel, or radical doctrinal interpretations.
Is there any other discipline in which the idea of doctrine is accorded respect, let alone pride of place? Does it make any sense to speak to a philosopher or a literary critic, a scientist or an architect or a mathematician, about doctrine? In these fields and most others, doctrine, to the extent that it appears as an intellectual phenomenon at all, is an impediment. It is an obstacle to be blasted through, something to be challenged and replaced. Parricide is the order of the day, and if there are doctrines out there, they are regarded with executioner's eyes by the next scholarly generation. Naturally there are dogmas in all fields, law very much included, but the idea of dogma is different than the idea of doctrine. A dogma is an entrenched but temporary piety; a doctrine has greater permanence and less attitude. A doctrine is regarded by those within the discipline as fundamental, a cornerstone on which sound buildings can be constructed, redesigned, and reconstructed. A dogma is more militant, more ambitious, and more brittle.
What can explain the prominence of doctrine in law and theology? This is too large a topic for a blog post, but some rank speculation follows after the jump (which I hope readers will supplement).
- Another Garnett on solidarity and suffering
- TCPA's content-based robocall ban survives in the Fourth Circuit because of severability; previously exempt debt-collecting robocallers apparently in new legal jeopardy.
- Berkowitz reviews Wilken on the Christian Foundations of Human Rights
- A Panel Discussion on the Life and Legacy of Rev. Theodore M. Hesburgh, C.S.C.
- "Catholic Thought and the Challenges of Our Time"