Monday, November 11, 2019
From MOJ-friend Prof. Sam Levine (Touro) comes this news:
The winners have been selected for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. This year's co-winners are Michael Moffitt, Settlement Malpractice, 86 U. Chi. L. Rev. 1825 (2019), and Jessica A. Roth, The "New" District Court Activism in Criminal Justice Reform, 74 N.Y.U. Ann. Surv. Am. L. 277 (2019). The award will be presented at the AALS Annual Meeting in Washington, D.C., in January.
Thursday, October 31, 2019
Thursday, October 10, 2019
Wednesday, October 9, 2019
I highly recommend this book(s) review, by John Lancaster, in the London Review of Books, called "Document Number Nine." Among other things, it discusses the striking developments in AI/machine learning and the ways that the PRC's dictatorship is using them for policing, surveillance, rewards, and punishment. Along the way, though, there was this, which reminded me of the crucial role that both the Catholic Social Tradition and the various instances of Tocqueville-inspired political theory have assigned to mediating institutions:
The point of the state apparatus is not to silence all debate, but to prevent organisation and co-ordination; the ultimate no-no is the formation of any kind of non-party group. The CCP’s goal is not silence but isolation: you can say things, but you can’t organise. That is why the party has cracked down with such ferocity on the apparently harmless organisation Falun Gong, whose emphasis on collective breathing exercises wouldn’t normally, you would think, represent much of a challenge to CCP control of China. But Falun Gong grew popular, too popular – seventy million by 1999, as many as the CCP itself – and had an unacceptable level of collective organisation. So the party set out to destroy it. Two thousand members of Falun Gong have died in custody since the crackdown began.
Given all this, it is frequently the case that outsiders are surprised by the apparent freedom of the Chinese internet. People do feel able to complain, especially about pollution and food scandals. As Strittmatter puts it, ‘a wide range of competing ideologies continues to circulate on the Chinese internet, despite the blows struck by the censors: Maoists, the New Left, patriots, fanatical nationalists, traditionalists, humanists, liberals, democrats, neoliberals, fans of the USA and various others are launching debates on forums.’ The ultimate goal of this apparatus is to make people internalise the controls, to develop limits to their curiosity and appetite for non-party information. Unfortunately, there is evidence that this approach works: Chinese internet users are measurably less likely to use technology designed to circumvent censorship and access overseas sources of information than they used to be.
For my own take (now quite a few years old), check out this article:
In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.
In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyalties - that is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.
Monday, October 7, 2019
Thursday, October 3, 2019
As Alexandra DeSanctis and others have reported, there was at Notre Dame recently an unfortunate series of connected incidents -- involving an outdoor poster display, then a poem of sorts in the student newspaper, and also a performance-art video posted online -- of what I think can fairly be called anti-Catholic hate speech. You can read DeSanctis's article for the details, but -- in a nutshell -- in addition to contending that various writers, publications, and organizations have "blood on their hands" by virtue of writings and activities that support and defend Catholic theology, morality, and anthropology, the performers/authors of the attacks engaged in what can reasonably be regarded as a kind of fantasy about inflicting violence (using a crowbar) against the offending writers, some of whom are their fellow students.
These incidents are particularly upsetting, not only because the attacks aim at the University's animating and foundational Catholic mission and commitments, but also because Notre Dame has been (thankfully) relatively untouched by the fever-swamp excesses of our overly politicized and excessively polarized academic culture.
Although Notre Dame is a private institution, and not subject to the First Amendment's constraints, it's my view that, as a general matter, "Chicago statement"-type rules and norms should be observed by students, faculty, and administrators. As important as civility and charity are, I am inclined to agree with the Chicago Statement that "[a]lthough the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community." At the same time -- and while I reject the tendency to equate "discourse" with "violence" and the claim that criticism and disagreement make one "unsafe" -- it seems clear that actual threats of or incitements to violence are not only legally unprotected (while "hate speech" is), they are also morally excludable, and punishable, even in a university setting.
It's too bad (or, perhaps, it is fitting?) that this week is also Respect Life Week at Notre Dame (and at many other places). Even as the spirit of community and care -- the Week's theme is "authentic love, authentic freedom" -- was attacked by the series of hate-speech incidents, this beautiful student-led week of prayer, speakers, celebration, and conversation reminds us of the radical Christian call to solidarity and of the radical Christian claims regarding human dignity and equality. Here's hoping hearts and minds -- including those of the people who engaged in the expressive attacks -- will be touched and healed.
Monday, September 30, 2019
A very helpful essay, by Paul Marshall (Baylor), at the Religious Freedom Institute's Cornerstone Forum:
One reason that institutional religious freedom has become so controversial in the United States in recent years relates to the American people’s historical understanding of rights as applying only to individuals. Contentious U.S. Supreme Court decisions such as Citizens United and Hobby Lobby have also contributed to widespread suspicion about the general idea of institutional rights, especially in the form of recognizing the legal personhood of corporations.
To begin to grasp the meaning and scope of institutional religious freedom requires outlining its main aspects and considering how they fit together. Growing uncertainty over the very nature of rights presents a key challenge in this regard so we will address that first. . . .
Read the whole thing!
And then -- why not? -- read this.
David Cloutier (CUA, Theology) has a helpful piece in a recent issue of Commonweal called "The Paid Family Leave Impasse: How Catholic Social Teaching Can Help." Among other things, he explores the issue, and some policy proposals, using the principles of Subsidiarity and Solidarity. Here's a bit:
Catholic social teaching can help us understand, and perhaps correct, the failure of both parties to address this issue. The problem is not that each party fails to balance solidarity and subsidiarity—as if some fifty-fifty compromise could be worked out. Rather, neither party understands the way solidarity and subsidiarity ought to be related to each other. That relation is one of means to ends. Solidarity is meant to govern the end of social action, while subsidiarity is the principle that determines the best means to that end. As John Paul II puts it in Centesimus annus, subsidiarity means that “a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it…always with a view to the common good.” Understood in this way, subsidiarity is not just another name for libertarian individualism; rather, it is about the importance of genuine participatory structures for achieving solidarity.
It's entirely true, of course, that "subsidiarity is not just another name for libertarian individualism" or, as Cloutier says later, "atomistic individualism." (It's also not simply about devolution or federalism, as others have pointed out.) That said, I'm not sure that it's quite right to say that the subsidiarity principle is (only?) about identifying the "best means to [the] end" (i.e., "Solidarity"). I take the subsidiarity principle to (also?) be about pluralism, social ontology, the reality of group personhood, and the moral and legal rights and duties of non-state societies.
I found this essay by Russell Hittinger, "The Coherence of the Four Basic Principles of Catholic Social Doctrine," really helpful on this (and many other!) point(s).
Monday, September 23, 2019
Here is news about an (I think) striking proposal in the United Kingdom:
"[T]he motion passed by Labour . . . said the next Labour manifesto should include a 'commitment to integrate all private schools into the state sector'. That would see the 'withdrawal of charitable status and all other public subsidies and tax privileges, including business rate exemption', the motion said. It also demanded that universities only admit 7% of students from private schools, to reflect the proportion of all pupils who attend them. The motion also called for 'endowments, investments and properties held by private schools to be redistributed democratically and fairly across the country’s educational institutions'.
The primary target of this proposal seems not so much to be religious and parochial schools (in the U.K., the state sector includes a variety of "faith schools"), but rather elite institutions like Eton, etc. That said, calls to "abolish Catholic schools" are regular and recurring.