Tuesday, August 27, 2019
I have a short piece, posted at Public Discourse, with "some thoughts for new law students." Comments and reactions welcome! Here's a taste:
With apologies to Douglas Adams, this is the “meaning of life, the universe, and everything” Layer. Here, we ask not only about the “legislative intent” underlying a particular provision, but also about, for example, “who and what we are, what we were made for, and why it might matter.” Layer Four is where we think about not only the most efficient default rules and the “cheapest cost avoiders,” but also about the nature and destiny of the human person, and the connection between our human nature and the legal enterprise. St. Augustine famously wrote that “you have made us for yourself, O God, and our hearts are restless until they rest in thee.” This is a fact about us. We need to ask, “what differences does this fact make?” What does it mean for the law, and for lawyering, that we have, as C.S. Lewis suggested, a “God-shaped hole”?
We have traveled a long way from learning to report the implications of a fee simple or to recite the Model Penal Code’s hierarchy of culpable mental states. At the end of the day, it all comes down to Layer Four. Whether we realize it or not, this is where “the law” is. Yes, some law schools, teachers, judges, and scholars will insist or pretend otherwise; some will propose that the law in fact is, and must be, “neutral” with respect to Layer Four matters. However, it cannot, and should not, be.
Thursday, August 22, 2019
Over at First Things, George Weigel has these comments about the recent (split) decision affirming the sex-abuse conviction of Cardinal George Pell. I realize there are those who claim that skepticism about the fairness of the proceedings against Cardinal Pell simply reflects ideological or ecclesiological agreement with him, but this claim is misplaced. As a former criminal-defense lawyer, and as one who has been teaching Criminal Law for 20 years, I am committed, across the board, to the deeply rooted and foundationally important rule that imposes an exceptionally demanding burden of proof on the government before a criminal conviction. I do not believe that burden was met here, or that any reasonable, unbiased factfinder could have concluded that it was. That "something might have happened" or even that "something probably happened" (and, to be clear, I am not saying I believe that either of these is the case here) is not, and should not be, enough, in the criminal context.
Tuesday, August 20, 2019
Open Rank Faculty Position in Constitutional Studies
Department of Political Science
University of Notre Dame
The Department of Political Science at the University of Notre Dame invites applications for an open-rank full-time, tenure track/tenured faculty position in Constitutional Studies. The department seeks applications from promising and distinguished scholars with a research focus in American constitutionalism, which includes but is not limited to public law, the history and philosophy of American democracy, and American constitutional development.
The successful candidate will be a member of and offer graduate-level courses in the Department’s Ph.D. subfield in Constitutional Studies and core classes in the University’s undergraduate minor in Constitutional Studies, such as: “American Constitutionalism,” “Constitutional Government & Public Policy,” and “The History and Philosophy of Constitutional Government.”
The successful candidate will also contribute to Notre Dame’s thriving Program in Constitutional Studies, a center of research and teaching devoted to the production of distinguished scholarship and the cultivation of knowledgeable and civically-minded citizens. The Program directs the University’s growing 100+ student minor in Constitutional Studies and sponsors many lectures, seminars, and colloquia each academic year.
All applicants are required to submit a letter of interest, a C.V., three letters of reference, and a teaching statement which includes a summary of any teaching evaluations available.
Apply by October 1, 2019 at https://apply.interfolio.com/66463
Equal Employment Opportunity Statement
This appointment is contingent upon the successful completion of a background check. Applicants will be asked to identify all felony convictions and/or pending felony charges. Felony convictions do not automatically bar an individual from employment. Each case will be examined separately to determine the appropriateness of employment in the particular position. Failure to be forthcoming or dishonesty with respect to felony disclosures can result in the disqualification of a candidate. The full procedure can be viewed at https://facultyhandbook.nd.edu/?id=link-73597.
Equal Opportunity Employment Statement
The University of Notre Dame seeks to attract, develop, and retain the highest quality faculty, staff and administration. The University is an Equal Opportunity Employer, and is committed to building a culturally diverse workplace. We strongly encourage applications from female and minority candidates and those candidates attracted to a university with a Catholic identity. Moreover, Notre Dame prohibits discrimination against veterans or disabled qualified individuals, and requires affirmative action by covered contractors to employ and advance veterans and qualified individuals with disabilities in compliance with 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a).
Monday, August 19, 2019
Monday, August 12, 2019
I have an op-ed in the Indianapolis Star about the recent round of lawsuits that have been filed by former teachers against Catholic high schools and dioceses. Here's a bit:
Every summer, the Supreme Court closes its work-year with a flurry of high-profile opinions dealing with controversial questions. The commentary and headlines about these decisions tends to focus on disagreement, division, and dissent. We should remember, though, that there are important, bedrock principles that unite the Court.
One such principle, the justices unanimously reminded us just a few years ago, is that our country’s constitutional commitment to religious freedom does not allow the government to interfere with a church’s decision about its teachings or its teachers. The Court’s liberals and conservatives agree: If church-state separation means anything, it means this. . . .
If we value real diversity and meaningful pluralism in that sector, it is essential to respect both the freedom of religious schools to be distinctive and the decisions of religious schools about how to carry out, and who should carry out, their mission.
Reasonable people in good faith can and will disagree about particular employment decisions, and it is appropriate to criticize what one regards as unfair, unjust, or uncharitable discrimination. In the United States, though, just as no one is forced to embrace a particular faith, no one is entitled to teach, lead, and minister in a particular religious school. The Constitution protects the right to reject a church’s teachings but does not permit the government to reshape them
Saturday, July 20, 2019
Here is a new-ish (and short!) paper of mine, forthcoming in Studies in Christian Ethics. Here's the abstract:
A crucial, but often overlooked, dimension of the human and constitutional right to religious freedom is the autonomy of religious institutions, associations, and societies with respect to matters of governance, doctrine, formation, and membership. Although the Supreme Court of the United States has affirmed this autonomy in the context of American constitutional law, it is vulnerable, and even under threat, for a variety of reasons, including a general decline in the health of civil society and mediating associations and a crisis of confidence and authority caused by clerical sexual abuse and churches' failure to respond to it.
Sunday, July 14, 2019
Here is a book chapter I did a few years ago, for a NOMOS volume on "American Conservatism", called "The Worms and the Octopus." I admit, I like the title. here is the abstract:
A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.
That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.
Friday, June 28, 2019
This could be very big news. For more -- an older, but still worth-reading essay, by me -- on the Blaine Amendment(s), go here. This case gives the Court to embrace what seem to me to be the obvious implications of its recent decision in Trinity Lutheran, e.g., the Constitution neither requires nor permits discrimination in the context of secular-purpose-serving social-welfare programs against religious beneficiaries and institutions.
Saturday, June 22, 2019