Tuesday, December 7, 2010
One of the most edifying and enjoyable aspects of being part of a large community of extended comrades who think about law -- something, I like to imagine, like the legal equivalent of the Republic of Letters that Anthony Grafton describes so beautifully in this book -- is that when a person whom one admires recommends a good read, there is actually world enough and time to follow through. I try to keep a list of personal contacts with these kinds of recommendations, and even though I don't get to many, at least I can keep track of the things that I'm missing.
Some months ago, I was fortunate to have Patrick Brennan make such a recommendation to me, one which I've only just gotten around to reading: Pierre Manent's Intellectual History of Liberalism. I am not a professional political theorist, but as a highly interested amateur, I've enjoyed this slim and readable book immensely. More than that, I was struck by the connections in emphasis and orientation between Manent's account and Mark Lilla's The Stillborn God. After the jump, some quick reflections on common themes.
Friday, December 3, 2010
I've been reading around the new book of my old teacher, Kent Greenawalt, entitled "Legal Interpretation: Perspectives from Other Disciplines and Private Texts." The book is the first in a series of planned volumes dealing, respectively, with statutory, common law, and constitutional interpretation. Many points in the chapters remind me of arguments and insights Kent offered to students like me in his "Legal Interpretation" seminar. Many are new.
Perhaps of special interest to some readers is Kent's chapter on religious interpretation. As with the relationship of the idea of doctrine to both law and theology, there are special (perhaps even unique) connections with respect to interpretation's purposes when it comes to legal and religious texts (e.g., the role of interpretation not only in offering practical guidance, but in establishing the acceptability of various actions, the status assigned to the interpreted text, and so on) -- ones which do not apply to the interpretation of literary or artistic work, for example. Something to enjoy over the Christmas period.
Thursday, December 2, 2010
Via Jonathan Adler at Volokh (the post is Eugene Volokh's), I learn that a motion was filed by the supporters of California's Proposition 8 to recuse Judge Stephen Reinhardt, one of three judges slated to hear the appeal in Perry v. Schwarzenegger. And Ed Whelan notes today that Judge Reinhardt has already denied the motion, his reasons to follow in a memorandum.
This little flurry got me thinking again about the recent suggestion (both by some legal academics and the N.Y. Times) that recusal decisions ought to be reviewed by other judges. I continue to believe this to be a dreadful idea, and wanted to explore how it might operate at the federal court of appeals level (rather than, as in my previous post, at the Supreme Court). In addition to the objections in that earlier post, I believe that this process might very well implicate judges in the public perception that they are assessing the legitimacy of each other's religious, or anti-religious, beliefs as applied to pending legal matters.
I'll use the Ninth Circuit as my example, both because this recusal motion is a Ninth Circuit creature and because, having clerked for a judge on the Ninth Circuit, Judge Jerome Farris, a wonderful man whom I'm fond of, I have a very little bit of knowledge about the dynamics of the Ninth Circuit's operations.
Here's a story about the Smithsonian's decision to pull a video that shows ants crawling all over a crucifix. The video was part of an exhibit on "sexual identity in portraiture."
Not quite sure what the problem was. Doesn't everybody think of ants crawling all over a crucifix when they think about sexual identity?
Tuesday, November 30, 2010
This piece is just a few days old but contains some interesting information about Senator-elect Rubio's religious commitments (h/t Mark Movsesian). According to the piece, Senator Rubio is both a "practicing and devout Roman Catholic" and a committed member of Christ Fellowship, a church affiliated with the Southern Baptist Convention.
The piece speculates about some political reasons for Senator Rubio's membership in the evangelical church, and it concludes with this: "What may be clear from this story — call it The Case of the First Catholic Protestant Senator — is that in America, religious distinctions matter less all the time."
That last nugget of liberal theology didn't seem to follow from the story. At one point, the author includes a quote that had Rubio "come out" as an atheist, there would have been serious political trouble. For that matter, my guess is that he would have been in hot water had he said that he was both Muslim and Catholic. But it may well be that within Christian communities in the United States -- and perhaps, as the article intimates, particularly among Hispanic-American communities (though I am even less sure about this) -- inter-denominational comfort has increased substantially, and that something more than tolerance, something more embracing, has developed. Compare, e.g., where the country was 50 years ago, let alone at the founding. Perhaps a kind of Christian eclecticism is emerging?
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.