Monday, July 25, 2005

Good Luck

I suppose no one out there will even know this was posted (except maybe Chris who, I think, gets email updates), but I thought, for what it's worth, I'd say "good luck" to my fellow class mates who will be spending 2 to 3 days this week, that they will never get back, sitting in a huge, crowded conference room with thousands of your best friends answering multiple choice questions about the conveyances of Owen and Oscar, the torts of Dan and Dave, the schemes of Slick and Joe, and the municipal ordinances in the state of Calizona.

Good luck on the Bar Exam. May we never do this again!!!


Sunday, April 24, 2005

To all the study groups I've had before . . .

So yesterday, I met with a group of people at the law school to go over the partial exam question released by Prof. Cox. Somewhere in the middle of speculating over his famous elpsies, I realized that this is the last go. Never again will I sit in a room of really smart people going over the justifications behind the most archain points of an area of law under the "pressure" of preparing for an exam. Nope, the next time I sit in a room and have such a brain storming session, there will be a real client with a real problem and what I think the law or outcome should be will be simply irrelevant. The pressure will be real and what really matters will not be how concise, insightful, or cogent the arguments that come out of the session are, but what the result is. No one ever called to congratulate their lawyer for writing a killer, but losing, brief.

So, I guess I must really soak up these last two weeks. To my study groups past, and the few, hopefully, to come, thanks for memories. In many ways, they were the best moments of my law school career.


Wednesday, March 30, 2005

Trapped in the Web of Values

So having told Chris yesterday that I was going to read his posting, but then I realized it was really long, I felt the need to respond.

I think, in fact hope, that on the whole Chris is right: each of our legal conventions reflect a value or set of values and that the values embodied in different conventions, or indeed sometimes in the same convention, are often competing. I would make two thoughts, with which I think Chris would agree, but I won't put words in his mouth.

First, it is not exactly correct to say that the law is a web of values. Instead, I think, the law is a common language in which "our" values are authoritatively articulated. What is the difference? Imagine Terry Schiavo's parents went to the federal judge last week and said "You're honor, unless you order the feeding tube reinstated, Terry will die within the next week or so. We rest." That might be a very powerful value argument on the street, but in law it is a dead loser just as would arguments by Michael's attorney that "if you reinestate the tube, Terry will have to linger in a persistent vegitative state. We rest." When authority is at stake, you have to speak in the language in which that value can be interpreted into the language of law.

This may be incomplete, because the substantive issue at stake is still not whether we think she should be allowed to live or be allowed to die, but what she wanted. For sure, choosing how values can be interpreted is itself a value judgment. Still, everyone knows the stakes and values at issue and even as they talk in the language of the law, those values undergird the discussion. The law, however, forces them to be articulated in the common language that "we" have chosen.

Second, I started to think about what his idea of a "web of values" does to the Chicago School's thesis. Freedom of contract and efficiency are certainly values we hold as a society, but they are not the only ones. After all, the Coase Theorem does not really help us with the Schiavo case. These parties really cannot bargain around the legal rules, and it is not a matter of transaction costs. Imagine that the parties returned to court, hand-in-hand, and said "your honor, we have reached an agreement. The Schindlers will pay Mr. Schiavo $500,000,000 and he has agreed to stop asserting what he still believes to be Terry's wishes." The Coase Theorem really has no answer here (I think, though, you should read Judge Posner's discussion of rape law in An Economic Theory of the Criminal Law, 85 Columbia Law Review 1193 (1985), to see just how far they are willing to take this).

Sunday, March 27, 2005

Pinko Commies!

An odd teaser headline on

A representative of the parents of Terri Schiavo said Sunday last-ditch appeals will be made in Washington to get the brain-damaged woman's feeding tube reinserted. After a news conference announcing the plan, a woman, saying she was from the Revolutionary Communist Youth Brigades, grabbed the microphone to say Terri Schiavo shoud be allowed to die in peace. (Posted 9:45pm, March 27, 2005) (emphasis added)

Exactly why do we all need to know she's a communist?

Saturday, March 26, 2005

I'd do it over again...

I didn't have to pay too much (relatively), I saw some Duke games, was close to friends in Chapel Hill, and, most importantly, I think Duke was a nice mix of theory and practice. Although Chris may have preferred something more theoretical, I don't mind the Chemerinsky-esque education I got....but, then again, I think I may want to practice.

Law as a web of values

More than anything else, what has struck me about the recent drama surrounding Terry Schiavo has been the expectations that many bring to what the law means and what it ought to accomplish. The outcry from those who want someone--anyone--to intervene in Schiavo's case and order the reinsertion of her feeding tube has centered around quasi "pro-life" arguments. Putting aside for now whether these are actually pro-life positions -- can using an individual as a means to a political end be a pro-life position? -- the fact that some (perhaps many) seem to suggest that the law is immoral if nothing is done (or, conversely, immoral if something is done), seem to me to misunderstand the nature of law as an institution.

Law -- not individual laws, but "Law" as an institution-- is a web of values. I think that it is probably right to say that the law should "favor life"; or, to put it another way, to protect those who are most vulnerable. In many instances, the law actually does do that--exceptions to the first amendment for child pornography is an example; mandatory appeals for those with death sentences is another. In other instances, the protection of those who are highly vulnerable gives way to other values that we believe are important. One could, for example, look at constitutional law on abortion as allowing the state some limited areas to protect the vulnerable fetus, but as also protecting the highly prized social value of reproductive privacy (another reading would be that constitutional abortion law represents a compromise between two vulnerable classes--the unborn and pregnant women).

These examples are examples of actual substantive values, values that focus on individual rights. No doubt these examples come to mind when we think sympathetically about Terry Schiavo. But as Terry Schiavo becomes a household word, and as her case runs through courts and legislatures in Florida and the Federal government, what ought to become clear is that these kinds of values must constantly compete with other values that we hold about the nature of our government.

In this case, those values are federalism; judicial review; judicial independence; stare decisis; and separation of powers. For those who cannot fathom how judges can so unanimously decline to reinsert her feeding tube--to favor life--the reason, I think, is because all of these values have come into play in some way or another. The value we place in federalism--in state, or local, control of areas of substantive law--means that Florida law must be followed with regard to guardianship rights. The value we place on judicial review means that courts must be able to review the constitutionality of claims, as a necessary check on the political branches. The value we place on judicial independence means that we do not want courts beholden to the political will of elected branches, that we want judges to make decisions according to (to use a question-begging phrase) "the law." The value we place in stare decisis means courts are bound by precedent and higher court decisions, unless they can find persuasive reasons to abandon such precedent in a way that is consistent with the law as a whole. The value of separation of powers means that we do not allow the executive or the legislature do what only the legislature may do.

These are not trivial values. We prize them because of the stability they give to government (and we prize them enough to debate their meaning and scope). We embrace them (often) because they allow us to insure that political majorities will not undermine minority rights. We protect them because we know that there are always competing ideas of what is good or important in society, and resolving matters in our kind of government with these values is the best way to ensure that all sides receive the process due to them, in fora where their rights may be best expressed and vindicated.

It would, however, be too simple to say merely that the values we place in various aspects of our form of government meet up against substantive values, but that something is wrong when those substantive values we might hold give way. It's too simple because allowing substantive values to give way is sometimes the only way to protect those values that lead to and maintain a stable government--that we would be worse off, for example, if we allowed courts to willy-nilly ignore precedent and established law in order to vindicate the will of a particular majority. It's also too simple because there is never just one substantive value at stake. In Terry Schiavo's case, there are several: not only is there the substantive value of "life," but there is also the value of marriage; of consent; and the social value of medical care. It is also not clear whether we are, in fact, valuing life in this case (in the effort of full disclosure, my Catholic convictions lead me to believe that there are serious concerns raised by removing the Terry Schiavo's feeding tube)--even if we are, reasonable people can, and do, differ about the morality of euthanasia, its place in our society, and the parameters it might or ought ot have.

My point in all of this is that, in any given case, there are a number of different values at stake, all of which are of a different order and assume an importance tethered to the context of the case (in other words, these are not hierarchical, static values, but in the context of our society have dynamic and evolutionary qualities). Some are values about individual rights; some are values concerning social institutions or social actors (I am thinking here of doctors and hospitals); some are values about government. There may be others -- I have not presented an exhaustive list. Within and between any given categories, values compete. Our laws--substantive or procedural; constitutional or statutory; state or federal--represent a vast array of different values that must constantly be negotiated. If we think of law as a web of values, we might be less willing to pass an easy moral judgment on a particular substantive outcome, and might be more willing to recognize that some, if not most or all, of the values finding expression in an outcome are not only complex, but perhaps even desirable.

Saturday, March 19, 2005

Would I Do It Over Again?

Well, for me, at least, Duke was a package deal-- I came not only for the Law School, but for the Divinity School as well, and in some ways, it's difficult for me to think through the question solely in terms of my law school experience.

Still, if there's one "regret" that I could name, it would be this: that I didn't do my degrees sequentially, with Divinity School first and Law School subsequent. There have been benefits to being able to step outside the law school culture at times (i.e., the often-toxic cloud that descends come OCI period). Still, there have been weeks and months when I've felt frustrated that I couldn't immerse myself in one discipline or the other.

With regard to the Duke Law experience in particular, I think my own jury is still out. If Duke Divinity was not in the picture, I honestly don't think I would have come to Duke; the atmosphere among the undergrads is overwhelmingly pre-professional (I see this as an RA now-- I've never met so many students who all want to be doctors or lawyers), and similarly, the Law School atmosphere often feels overwhelmingly corporate. I have to say that if I'd gotten into Yale (sad!), I would have taken on loan upon loan to be a part of a community that I suspect is a bit more engaged in issues of legal theory and interdisciplinary discourse.

Still, I've been happy with my Duke experience. I love the people (you guys among them! :)), and I've had great experiences with the faculty here. I'm still thinking of applying for clerkships next year, and I've heard that Duke's (good) reputation still doesn't carry the kind of weight of the Harvard/Yale/C0lumbia degree, but I don't know if that would have been a determinative issue for me three years ago.

Monday, March 14, 2005

Would I do it over again?

I'm not sure. My answer to this question has less to do with law school than it does with legal practice. When I decided to go to law school, it was more of a decision not to get a PhD -- which, at the time, was really more of a practical consideration (though not exclusively so). There's a lot I've liked about law school--among other things, it's made me think about American democracy in a different way--but I miss reading and thinking about other things. There are times I regret not getting a PhD (in philosophy); I regret it the most on two occasions: 1) when I find myself wishing I had the time to read a particular book (often); and 2) when I think about the fact that I will have even less time when I'm a litigator at a big firm (more often recently).

As for Duke, there have been really great things about it--small school, have gotten to know my professors--that have made it worthwhile. I have criticisms (sometimes feels like an anti-intellectual place), but my suspicion is that that has more to do with law school than it has to do with Duke (I might have prefered the intellectual atmosphere of a school more known for "theory" -- Yale or Chicago -- to the intellectual atmosphere of Duke, but there might have been undesirable tradeoffs).

I don't share Scott's concerns -- I have no interest (aside from wanting to be closer to family) in returning to California -- and so I can't say much about the regional/national school tradeoffs.

Wednesday, March 09, 2005

If you had it to do over again . . .

Hey gang,
It has been a while and as I am preparing to take my graduating class picture, I thought I would throw a question out to the group: if you had it to do over again, would you choose law school and, if so, would it be Duke?
For my part I would do law school again (I am not completely soured on the legal profession yet, but give me a few years :-)). As far as choosing Duke, while I have never though "man, I wish I was at Harvard/Yale/Virginia, etc." (okay, maybe a little during the clerkship application process), but I am not sure that passing on the University of Florida (I never applied) was such a good choice. The opportunity to establish roots in the legal community of my home state and to be unburdened by loans would have given me interesting career opportunities (most notably, working in a local DA's office as a prosecutor) that I am not seriously considering at this point. I know that those options are still "open," and if I wanted to "bite the bullet" I could do them, but, frankly, the money and prestige of my firm is hard to turn down, especially with this pile of debt.
I have thoroughly enjoyed my experiences here at Duke and I certainly have opportunities I would not have had if I had gone to UF Law (my clerkship, for starters), but I would have to say that the jury is still out on whether choosing Duke over my alma mater was the right decision for me.



Saturday, November 06, 2004

Last point on gay marriage--I think :-)

Matt, appologies to those conservatives who hold the view that heterosexual couples cannot maintain steady relationships where homosexual couples are allowed to marry, but that's absolute bunk. Even if there is a correlation between a trend away from child rearing in marriage and homosexual marriage, it is just that, a correlation. I venture to say Nevada's marriage laws are more likely to undermine traditional marriage than gay marriage, but where's the uproar?

Having been raised by a single mother, I will refrain from telling you exactly what I think of people who imply that raising children out of wedlock is a blight on our society (not you, but it was implicit in the message you articulated). It's not so much the underlying assumption that I was doomed to wander the streets making a living by turning tricks and stealing that bothers me, it is the implication that I was fundamentally disadvantaged by being raised by my mother. I venture to say many people raised in "good, moral, christian, two-parent homes" could have benefitted from my mom's influence, a single school teacher who raised two boys on her own. Indeed many of her students did and still do. And I certainly learned a lot being raised primarily by a strong, independent woman who had to make her own way in the world and I will take to task anyone who thinks they were "parented" better simply because there parents were married.

Oh, and while I'm on the subject, it's not just the reelection of Bush that bothers me, and it's not just that the Republicans won more seats in Congress, its which Republicans won. Senator-elect DeMint of South Carolina went on the record saying that single mothers should not be allowed to teach in public schools. He later retracted it, sort of, noting that it was a "local issue." You can imagine my thoughts on that. Before I changed the term to "unfamiliar," but that man is ignorant.

Lochner, Roe, et al.

Great post, Scott. For the record, though, my use of the term "activist judges" was meant to convey the argument as conservatives would make it, not to characterize the Court from my own perspective.

Although, if I were to characterize the Court, I would say that whatever one means by "activist judges," I am as opposed to the doctrine of "substantive due process" as much in Lochner as in Griswold and Roe. I am perplexed as to how the former decision has been so maligned by the same people who consistently accept the latter two as examples of fundamental progress in our constitutional scheme. Both seem to me to be examples of judges applying their personal predilections through a dubious constitutional clause. The best explanation I can think of for the repudiation of Lochner and the embrace of Griswold and Roe is that the former overturned a government attempt to regulate the economy in a liberal way, while the latter two overturned government attempts to regulate personal behavior in a conservative way. (It's hard to even make the argument that one involved "public" areas like the economy, while the others involved a "private" sphere of liberty. Lochner, after all, involved regulations limiting the right of an individual baker to work harder, while Grisowold and Roe regulated which services doctors could perform.) I would have to agree with you that if one praises the latter decisions as upholding our constitutional scheme of liberty while while criticizing the former as the imposition of anti-New Deal old liners, then the term "activist judges" truly has no meaning outside one's personal political tastes.

On gay marriage, I think the best arguments against it have nothing to do with gays; they have to do with the effect on the attitudes that heterosexuals bring to marriage, which after all is where the majority of children are going to be conceived. Stanley Kurtz has argued that those countries that have most fully adopted gay marriage have accelerated societal trends separating marriage from its traditional role as a prerequisite for cohabitation and child-rearing. The result, he argues, is that heterosexual couples don't bother to get married, if at all, until after their second child, which creates relationships lacking the stability and commitment necessary for healthy children. He has some other good points, which I ultimately disagree with, here and here. Although I think they are wrong, I think these arguments do point to a crisis in our culture's understanding of marriage. So essentially, one could say to one's gay loved ones, I support your life-long love, but I don't trust the heterosexual masses to handle their own sexuality, with its risks of conceiving children and the potential for gender inequities, responsibly enough in a post-gay marriage society. Again, I don't hold that view, but some thoughtful conservatives do.

By the way, I believe in the early Mormon church, polygamy was an obligation, not just a right. At least if one wanted to fully please God and achieve the highest reaches of heaven.

Okay, I'll try not to be a blog hog from now on.

It's the Terrorism, Stupid.

The colloquy that's been going on over the past few days began with the observation--or lament--that progressives became the obvious political minority in this country; and that there is now a good likelihood that conservative social policies, motivated by a particular political ideology, will be enacted over the next two, probably four, years. Since then, much of the discussion has focused on gay marriage.

David Brooks in the New York Times today has take on the election that seems to be gaining currency: Bush didn't win the election because the Republican party was able to mobilize the anti-gay marriage vote: he won broadly, and he won on terrorism. Here's the meat of the article:

The reality is that this was a broad victory for the president. Bush did better this year than he did in 2000 in 45 out of the 50 states. He did better in New York, Connecticut and, amazingly, Massachusetts. That's hardly the Bible Belt. Bush, on the other hand, did not gain significantly in the 11 states with gay marriage referendums.

He won because 53 percent of voters approved of his performance as president. Fifty-eight percent of them trust Bush to fight terrorism. They had roughly equal confidence in Bush and Kerry to handle the economy. Most approved of the decision to go to war in Iraq. Most see it as part of the war on terror.

The fact is that if you think we are safer now, you probably voted for Bush. If you think we are less safe, you probably voted for Kerry. That's policy, not fundamentalism. The upsurge in voters was an upsurge of people with conservative policy views, whether they are religious or not.

I think there's a lot to this. Not to minimize the value of the current discussion, but if Brooks is right, then it may be easier for progressives to persuade voters than it might otherwise be if "moral values" (whatever that means, according to Brooks) were the key to this election.

To Matt P.

First, I disagree that the Dems lost because they continue to support the right to choose. I think they lost because they failed to give the American a clear, alternative vision to the America the Republicans and George Bush were proposing. Matt, you're right that many of the issues Dems espouse are moral, but I think the failure was to phrase them as such. More exactly, the failure of the Democrats was not that they are too far to the left, but that they were too close to the right. People who wanted to vote conservative were going to vote as such and vice versa for the liberals. Many of the people in the middle, however, were (and are) extremely dissatisfied with the direction this country is headed but the Democratic party failed to really give them another way. At this point, I think many people in the middle would be willing to try the liberalism of John Kerry over conservatism of George Bush, but they were not willing to try a leader they conceived as unsure of himself (I am not saying Kerry was unsure of himself, just that he was perceived as such). Remember, Kerry did not have to win Nebraska to win, he only had to persuade 200,000 voters in Ohio. A strong message and a clear alternative may have done that.

Second, I wish you would try and avoid an empty buzz word such as "activist judges." It means nothing except that the speaker disagrees with what the courts have done. If we could banish that phrase from political dialogue, it would be fine with me. It's one thing to say that judges are being aggressive in a particular area where you think they ought not tread, the blanket term, to me, is utterly empty and dangerous because it carries a charge. The "impeach Earl Warren" crowd that picketed after Brown and spent the next two decades terrorising "uppity" African-Americans (though, to be fair, they had been terrorizing them for 400 years, so maybe Brown had little to do with it) often complained of the Warren Court as activist. If Brown was the work of "activist judges," I submit we need more of them, whatever they are (n.b. I am not attacking you, personally, Matt--that term really sticks in my craw and I have a personal axe to grind--no offense intended, I think you are brilliant).

Third, I guess I am just ignorant (as I think I admitted earlier) of how you can truly embrace gay people and deny them the right to marry. How do you say to someone "you are like a brother to me and I really think it is great that you and X are in love, but I think that if you two were allowed to enter into a civil marriage, it would undermine the fabric of our society?" I just don't get that.

Fourth, I agree Kerry's position on gay marriage was as disingenuous as his vote for the President's authorization for the war. Ultimately, that disingenuity may have cost him those 200,000 votes that he needed so badly. See First, supra.

Fifth, I take exception to the comparison to pologamy. Homosexuality, Dick Cheney and I believe, is an immutable characteristic. If a gay man cannot marry another gay man, he cannot get married (less he marry a woman an live a lie). Furtherhile there are religions that allow pologamy, I know of none that require it. I get your point that it is a moral line, and I think there is no way to create a legal regime without moral norms underlying it, but I think there is a fundamental difference between telling a person they can marry someone but not some people and denying a person the ability to choose who they want to marry. I see no difference between the latter and the state telling me, if I applied for a marriage license (and I do mean if) that I have made a socially unacceptable choice and must try again.

Finally, I do not think liberals are inconsistent in their views of regulation with respect to social values and the economy. What is important, I think, is externalities. When a company creates polution, it causes harm to things not included in the market price, in effect subsodizing the market. The government, then, plays an important role in forcing the company to internalize the externality (I am NOT saying that present law does this in the best way, just that that is the idea). Gay marriage imposes NO externalities (Yes, I am refusing to count the moral disgust of those that are "grossed out by the whole gay thing"). Of course there is a point at which social activity does create externalities (e.g. expressing yourself by playing loud music at 3AM) and, I think, liberals are glad to allow the government to step in at that point. (The calcuation with respect to abortion is a little more complicated, so I will "duck" the issue for present purposes).

Friday, November 05, 2004

Hope this isn't too long...

...But this is a great discussion.

While you were right, Scott, that the gay issue is what got out the vote this time, I think you are wrong to view it as unconnected or unrelated to the abortion issue. Abortion has been the driving engine of cultural, and especially Evangelical, conservatism for twenty-four years, beginning with the election of Reagan. I was in Georgia during the Republican primaries this year, and abortion was THE issue used to distinguish and tarnish competing candidates. So this vote was a long time in the making. Moreover, if one looks at why these constitutional amendments are being proposed, and why the right has taken on the gay-bashing mentality, I think gay-marriage has become a kind of last-stand for the right in their antagonism toward activist judges. It has certainly been a staple of Colorado Springs-style conservatism for a while, but it was not until the Massachussetts Supreme Court decision and Lawrence v. Texas that the spectre of Supreme Court-imposed gay marriage became a real threat. This has strong resonance on the right, because that is the same way that abortion and church-state issues have been imposed upon them from on high. So to the cultural right, which has lived for over three decades under Roe, and seen the logic of Roe overturn Bowers v. Hardwick, it would go along way for Democrats to tolerate people who opposed Roe legally. It would go even further for them to tolerate people who oppose abortion politically.

The irony in the whole gay marriage discussion was that John Kerry was on record against them. I wonder if he is undeveloped socially and needs more gay friends. More probably, it was a cynical political position he didn't really believe, which made voters feel like he has no political core that can be trusted. To him should be posed Scott's question: if one cannot impose one's faith through the law (his position on abortion), how can one do so in the realm of marriage, where no one gets hurt and the ultimate values of the heart are promoted?

I was dying for someone to ask Kerry that in the debates, but in truth I think it is a false question. So long as the state has marriage laws, it will be in the practice of making moral choices. One cannot get around this, Scott. You and I agree, I at least for now, that it would be more moral to include gay marriage in this institution. I assume you would not agree, and I certainly wouldn't, that in the name of religious neutrality we should allow polygamous arrangements, though four wives are allowed in Islam. Nor, do I think, should we make it easy as to get divorced as it is to break a contract, although that is my own moral vision that marriages should be protected and nourished by the state at all costs. In short, by having civil marriages at all, the state is making a host of moral choices and line drawing. To win over Red America, we who support gay marriage should make the positive argument that this is the morally right thing to do for the millions of loving families who desire the recognition and protection of law, not the negative argument that the state cannot make moral choices, which would seem to license polygamous and other arrangements we truly believe to be harmful to the development of human personality and the rearing of children.

One last point. When I went to college, I had known one gay person, a guy in my high school. He was widely made fun of in my Georgia culture, and I tried to be his friend. On our senior trip, I was disgusted by the way my classmates refused to room with him, so I volunteered. I knew all the Bible verses against homosexuality, but had somehow absorbed a larger cultural ethic of non-discrimination or at least a Christian norm of loving one's neighbor. When I went to college, my roommate and now lifelong deepest friend, who was from rural Georgia, was struggling with his homosexuality in a dark closet of despair. I helped convince him that God did not make a mistake when he made him, and that perhaps the Biblical verses should not be understood as God's will. Throughout our friendship, and many others with conservative Christians who oppose homosexuality and campus activists who supported it, I always believed in the rightness of gay marriage and in the God that I saw in the love of committed gay relationships. This fit my general egalitarian view of all things gendered. While this is still my view, I would say that I have felt my instincts moving a bit toward the right. While gender identity and expression is a continuum, there are deep issues surrounding notions of masculinity and feminity for the majority of our bimodal distribution. While I will always be for the furthest expressions of tolerance, I am not as sure as I once was that gender should be banished in all its public forms. I am not at all sure that that such a view would be helpful for women, given the natural sexual differences that create innumerable ways for women to be exploited, from rape, to sexual hrassment, to prostitution, to strip clubs, to pornography. Most influential in this thinking has been my own journey in trying to be a man and a husband for Sarah.

In short, these are deep issues, especially when the question of children become involved. While undoubtedly many people's views would change if they had more exposure to gay individuals, particularly gay families, I am not sure it is right to consider the view that marriage should remain a public arrangment for male-female couples to be one based in ignorance or intolerance. It is conceivable to me that I may come to that position, despite my gay friends and family members whom I love very, very deeply.

Justice and Righteousness

Scott, I really like your defense of FDR. You can add Truman and, to a lesser extent, JFK and RFK to that list. But part of the point of my post was that these great figures, while fighting for a broad notion of justice, were defined largely by economic issues cast in moral terms. I don't know where any of them would have come down on the litany of social/moral issues today, but I know Jimmy Carter was vehemently pro-life. I don't think the modern Democratic party would nominate Jimmy again, and the party certainly pressured Al Gore and Dick Gephardt, both of whom were pro-life early in their careers, to adopt the party orthodoxy if they wanted to seek more prominent positions. My hope was that the party would loosen up on this issue, which would allow it to loosen up in other areas and attract more strident "moral values" candidates. It can't be that the split in the two parties is a difference in one's view of the role of government in setting up and enforcing morality. Democrats' rhetoric drips with moral overtones. Republicans are accused of supporting greedy companies, of being bigoted toward Blacks and other races and of being intolerant of gays. This is moral language. When a tax structure is supported not because it will increase the GDP, but because it will be more just or fair for the poor, that is a moral argument. When capital punishment is opposed because it is the taking of a life, that is a moral argument. Most subtly, when racism and sexual orientation discrimination are made to be illegal bases for employment decisions across the spectrum of the entire American market, those are moral interventions into private American choices.

One could roughly separate moral arguments into two kinds, those that are concerned with justice for the poor and oppressed, and those that are concerned with personal righteousness. Economic issues dominate the former, while sexual issues and issues of integrity (like, say, corporate corruption) dominate the latter. Speaking very broadly, I'd say Democrats like state intervention to correct issues of economic justice, Republicans are more concerned with state representation of personal righteousness. But this is not the only possible divide. Libertarians would be laissez faire about both market disparities and personal righteousness; most Catholic thinkers are interventionist about both economic and personal morality. I think strategically, to be more successful, the Democrats could try to be open to people concerned with issues of personal righteousness. It certainly rings hollow to use moral language up and down in criticizing the selfish, greedy, intolerant behavior of conservatives, and then assert that really moral issues are a matter of one's private conscience that the State has no business getting involved in. Democrats are not libertarians, so why are they selectively applying their rhetoric?

Just to clarify

I do not think I have a monopoly on right and wrong and I am always willing to engage the other side in a discussion to understand their point of view. I think that much is required if you ever expect them to engage you. Also, I absolutely agree with your Greenwich Village point. Most people in Greenwich village are probably ignorant about the way farmers live. I myself am no expert, though I spent my youth emersed in tensions among rural, suburban, and urban cultures. I am not suggesting that people from the red states all backwards bumpkins. Some of the people I most respect are against gay marriage. I think that on this issue they are ingorant, probably because they were raised in a culuture that is ignorant on this issue. As they said on the Daily show, middle America is more concerned about gays than New Yorkers because, they have a healthy distance from gays. All I am suggesting is that if that distance was not so "healthy," attitudes might change. (Perhaps if the word ignorant were replaced with "unfamilar," would that make you feel better about the characterization?)

The real issue I take with the anti-gay-marriage crew is not their religious position but their desire to legislate that onto others. If a christian evangelical says that gays shouldn't marry because homosexualaity is sin, how is that different from worshiping Allah or the Golden Calf? (lest we forget the same arguments were made about interracial marriage just 35 years ago) I am christian too, but, in the words of John Kerry, I don't think I should legislate an article of faith onto others. Your church does not have to allow gay people in, your state does.

Furthermore, Bush may say he supports gay people and civil unions but I submit that the bulk of the people who voted for the bans (and for him) would not put such a face on it. I grew up in a culture (not at home but in the surrounding community, especially school and sports) where the worst thing you could be called was gay. To say that the people individually were unfamilar is to miss that the culture was. Anti-gay sentiments were engrained in it. The issue was not humanized within the culture because pretty much anyone who was gay would move out of town before coming out of the closet. Then the discussion would be "did you hear so-and-so came out of the closet--ugh, he always did seem to be weird, what a [epiteth]." The more "enlightened" would not be so overt about it, they might say "he was always a bit off" or "well, it just goes to show you never really know about someone," but the same general sentiment was there. There were plenty of people who did reach out to the gay community, but it was far the exception and not the rule (And before I came to Duke, the only two places I had ever lived were 2 of the 3 North Florida counties that went blue!)

That's exteme unfamilarity and I suppose that is the only anti-gay-marriage culture I know. If there is another one out there, then I am ignorant of it.

Thursday, November 04, 2004

Progress: Descriptive and Normative

To respond to Scott:

1. I don't think I'm conflating academic v. normative conceptions of progress. In fact, what I'm trying to do is point out that we tend to conflate the descriptive "is" (i.e., the way in which society has changed) with the normative "ought" (i.e., ours is a better society than it once was because of some moral ideal that we're closer to and should get closer to). If Posner's right, and "we're all Realists now," then we are guilty of doing the one thing Realists ought not do: confuse "is" and "ought."

I readily admit, however, that individuals have normative ideas that inform their politics--what society ought to look like. And I understand that we want to call the process of moving toward the perfection of that norm "progress" (a term, at any rate, laden with lots of morally questionable, German-idealist baggage). If we choose to define our terms with such clarity first, then I'm happy to debate the premises (e.g., have we chosen the right norms?). I take issue, however -- and this is not a direct response to anything anyone posted, this is an argument arising out of my own observation -- with the idea that any objectively-identifiable "progress" actually exists.

2. Again, I disagree with the characterization of those who are against gay marriage. Sure, there are plenty of folks who live in homogenous communities. (I assume when I say that that we're all thinking of, say, the rural south, where backward Creationism reigns supreme? I would venture to say that the population of Greenwich Village is just as politically homogeneous as the population of, say, towns along the Florida pandandle; but never mind.) But I think it's simply wrong to say that the anti-gay marriage crowd is full of people who are, as Scott might put it, uneducated in the full diversity of human life--the assumption is, it seems to me, that if there's not some mental defect or academic-education defect, then, really, it's a defect of experience. What we need to do, as Scott puts it, is "humanize" the issue . . .

I'm not so sure. Again, I'll go back to my previous comments: we're probably not talking about a lack of "education" (loosely defined); we're probably talking about one group of voters that is willing to distinguish "moral issues" (I called this private morality in a previous post, to avoid Matt P.'s critique ) from "political issues" (which I termed "legal sanctions" -- again, to get myself out of the problem Matt P. raised).

I'm making an assumption here, and I don't think it's unreasonable: I'm assuming that people vote for and against these measures for different reasons. I don't think anyone believes that the Republican (or Democratic) Party is monolithic: again, good Realists that we are, we all recognize that individual Americans make individual choices. Sure, there may be some individuals out there who think of the gay-marriage "thing" the same way they would think of, say, the possibility that the U.S. government will adopt Swedish as the new official language: too outrageous to contemplate. But there are others who may vote against gay marriage because, despite having friends who are gay, they just don't believe that that's what marriage is; or because they think that there's problematic evidence about adoption and don't want to see the issue pressed that far; or because they adhere to strongly-held religious beliefs that compel their vote, regardless of the compassion they feel for fellow-citizens. Imagine an individual voting for an abortion ban even though a daughter or close friend had an abortion: not too far-fetched. People are capable of voting on firmly-held principle (especially if informed by religious conviction), even when the "human element" may tug on them to vote based on sympathy.

I'm not saying the point isn't valid -- sure, I do think there are plenty of folks who live sheltered or isolated lives and can't see the other side (my Greenwich Village friends, for example, probably wouldn't know an Evangelical Christian from a Zoroastrian--wait, no, they'd probably recognize the Zoroastrian), and who would be persuaded to see things your way if they had the opportunity to be exposed to different points of view/people/movies/books/radio stations/cities/restaurants/etc. But I will simply not make what I think is the condescending claim that I hold the enlightened position here and that the folks who voted "yea" in Ohio for the anti-gay marriage ban are just sheltered/ignorant/silly. Yes, I disagree with the vote; but no, I don't think that I hold a monopoly on reason. Frankly, if I'm going to be consistent, I would have to admit that I, too, should have my mind open enough to be persuaded of the other point of view -- shouldn't I?

(And really, what does justice mean, anyway?)

In Defense of Matt H.

Chris, I think, makes some good points, but I think he may be confusing a couple of issues. First, an academic conception of "progress" (which, I agree, is difficult to define) and a normative conception of progress. In the academic law school environment "I believe" has little or no value (in Weistartian terms, a measure of persuasiveness -5). After all, that is not a persuasive argument, so we learn to channel into the language of legal authority (theoretically, as lawyers, adopting the norative ends our clients seek while casting aside our own). In that context, "progress" is meaningless, because the law is ostensibly agnostic about what "direction" society is or should be heading. However, normatively, we all have values of where society is or should be heading. I believe that this nation regressed (or demonstrated that it already had) on Tuesday in that we moved away from what I feel are the normative goals we should seek to achieve. That is a normative argument, not a legal or academic one.

Second, education has several meanings. One is the number of letters after one's name or the number/quality of degrees on ones wall. Another, however, is, again, not academic by social. You can read all you want about "gay people" but if you don't know any, they may seem foreign, strange, and perverse. The same is true for different ethnicities, cultures, and even social classes (ala a certain member of the law school who unabassedly "hates poor people). George W. Bush scores pretty highly on my first definition of "educated" (Yale undergrad and Harvard Business School) but, I submit, extremely low on the second. While I think the first type of education is very important (I think I would be a hypocrite if I said otherwise), lacking the second is often a fatal flaw as the ignorant one is often igorant of his own ignorance, and, in fact, frequently consideres himself an expert on the subject.

Matt H's call, I think (although I do not want to put words in his mouth) was to educate people, not by shouting at them and calling them ignorant, or sending them to school, but to humanize the other side of the issue to people. Be open with your anti-gay-rights that you have gay friends that you care about if they make an anti-gay-rights comment. To the extent that you can, help them understand the concern you feel for your friends because of the pervasive discrimination, official and unoffical, they face daily, just for being who they are or expressing their affection for their significant other. The listener will probably not drop to his knees and beg forgiveness for his evil ways, but maybe he'll be more receptive the next time you two discuss it, or think twice about making a rude comment the next time he sees a gay couple on TV or in person. Baby steps.

If that was what Matt H. had in mind, kudos Matt! had a quote from the Rev. Dr. King yesterday that I feel would fit well here: "The arc of history is long but it bends toward justice."

Progress and Cultural Education

To respond to Matt H. --

1. I'm skeptical about any idea of progress. Progress toward what? How do we know? It seems to me to smack of hubris to say that we in 2004 are more enlightened than folks in, say, 1904 or 1004; or that we, Democrats, are more enlightened than you, Republicans (and besides, don't those other folks think the same thing?). The idea of progress rises and falls on the worth of human reason; and I for one am not confident about the strength of human reason.

2. I'm skeptical about the idea of education as the means to spur "progress." Is ignorance really the problem? Anecdotally, I know smart, knowledgable people who think gay marriage is an awful idea; and I know people or more modest education and intelligence who think that anyone opposed to gay marriage is a neanderthal.

Apart from the anecdote, it seems to me the divide isn't between the ignorant (are the ignorant, anyway, those who disgree with us?) and the sophisticated; the divide is between those who hold a strong view of the separation of private morality and law; and those who whold a weak view of that same separation. I hesitate to call this a religious/secular divide (I'm Catholic and have a fairly strong view of the divide between private morality and legal sanction), even though it may in fact translate to the religious, on the one hand, and the non-religious, on the other. Either way, the issue it seems to me boils down to the way we envision our society and our society's collective priorities.

I agree with you, Matt H., that progressives (which is a much better term than
"liberals") need to take this opportunity to create a more effective way to meet their goals (I would suggest that actually articulating those goals first would be helpful--and perhaps finding a charismatic spokesperson to do just that would also be useful). But I would also suggest that persuading people to adopt progressive views has less to do with education than it has to do with persuasion--convincing people not that they don't know what you know (and they need to learn it, from you); but rather that one vision of society is better than another. Maybe this is just semantic (persuasion v. education), but I do think there's a substantive difference (persuasion, after all, entails more than reason alone), and that difference reflects a certain understanding of what exactly it means for a large segment of the population to adopt a different political perspective--especially in the context of the current election

Wednesday, November 03, 2004

Being disappointed

Chris makes an interesting point. I suppose that I would prefer to live in a country where most people found the actions of the Bush administration over the last four years to be sufficient reason not to vote for him. Nonetheless, I think that there is something to be said for being in the minority: it means that we have the opportunity to have a part in helping our country to move forward. For example, if there are that many people out there who are so strongly opposed to gay marriage, it means that those of us who prefer equality for homosexuals have not done a good enough job at educating people. I think it's inevitable that gays and lesbians will ultimately have the right to marry in every state, but it's going to be a long process, just as the movement from slavery to equality under the law was a long process. This election just gives us a update on where we are in the process. As progressives, we sometimes get impatient with the rate of change and want to accelerate it by propagating national social policy, but the truth of the matter is that, while that has a certain appeal, it doesn't really change people's minds about the rightness or wrongness of a thing. And the fact that Bush won the election doesn't mean that most of the voters in this country are static in opposition to social change--it just means that they haven't changed yet, and it's our job to do the grassroots work that will help them move forward.

Response to Matt

I hate to break it to you, but the red states are more upset about gay marriage than they are about abortion.

Why I am disappointed--a response to Chris

I will tell you why I am disappointed in the outcome. Actually, I was disappointed before the misleading first exit poll was released. I am disappointed in the death of liberalism in this country. Liberals used to be about big ideas, including everyone, and building for the future. Now it is an arrow in the quiver of the conservatives that needs no compliment to be effective. Bush called Kerry a "liberal" and Kerry simply tried to say that he was not, he never tried to defend liberalism.

But there is so much to defend.

FDR was a Liberal. He built massive highway systems, dams, and created the institutional infrastructure needed for our government to adapt to the 20th and 21st century. And he wasn't soft on anything. He defeated Nazi Germany, Fascist Italy, and Imperial Japan--AT THE SAME TIME! And he picked his battles. He did not launch a full-scale invasion of mainland Japan or into Berlin a month after Pearl Harbor. He took his time, plotted, and worked with allies. And he asked for sacrifices from Americans. After Pearl Harbor, he promised American consumers rationing and American businesses the militarization of their factories. And for America's young men, he promised them conscription and war. And he got them to gladly make those sacrifices, by asking them to believe in something bigger than themselves, and by ensuring that the cause was not only just, but the right one. And by being deliberate, thoughtful, reflective, and careful in orchestrating the execution. There are other liberals to be proud of (JFK, Woodrow Wilson, Teddy Roosevelt and Abraham Lincoln (the latter two were "liberals" in the contemporary sense, despite their party affiliation--times have changed)), but I think this illustrates the point.

Being a liberal, for me, means believing that the quintessential American values are respect for minority rights and collective sacrifice for the betterment of the society as a whole. It means believing that what makes this country great has been its ability to achieve those goals by harnessing the natural power the free market not its ability to produce a free market (which any economist will tell you would organize itself anyhow). I think that sort of grand vision is dead, or at least on life support. We are no longer the "land of hope and promise," we are the "Home of the Whopper." That is why I am disappointed.

Minority Party

I am disappointed and ashamed to have George W. as my president. But I am even more disappointed and ashamed that I had to vote for him. I am disappointed that for twenty-plus years, the national Democratic party has committed itself to maintaining Roe at all costs. In so doing, they have created a generation of division between themselves and the Red states, many of which are dominated by populists that might respond to their economic program. All this for a legally unjustifiable ruling, which, if overturned, would not criminalize abortion anywhere. It would simply allow state and local governments to wrestle with what everyone with wisdom and sincerity recognizes is a problem of profound moral implications.

I hope that is the lesson the Democrats take from this election. They have become a minority party. And they did not do so because the majority of Americans like protracted foreign interventions, budget deficits, world antipathy, or corporate tax-cuts. They are a minority party because Karl Rove got 4 million Evangelical Christians to the polls that were missing in 2000.

I hate being a one-issue voter. I hope Bush appoints five justices so I can stop voting for the court and start voting for president. I hope in the future to vote for Democrats. But until they are comfortable with people of evangelical faith, and especially until they decide to open up their tent to pro-life leaders, I fear I will keep being diappointed and ashamed.

a thought about blacks and gay rights

Chris pointed out something that has been commented upon before: that African-Americans, especially religious ones, are either tepid about gay rights or vociferously oppose them. In fact, I've heard that the percentage of blacks voting Republican has slightly increased (not necessarily on the Presidential level), and largely due to this. I find this odd. I do understand blacks' frustration when gay rights advocates use the rhetoric of the civil rights movements - like invoking the holocaust for something less worthy (I realize that gay rights is very important, but I don't know if it can compare to the civil rights movement). But it seems that African-Americans were opposed to gay rights before gay advocates started using the civil rights language, and in any case the latter's use of the language cannot be the sole reason for blacks' animosity towards them. The source, of course, is the conservative ethics that come from their version of Christianity. Nonetheless, how can they ignore the parallels between discrimination against people of color and discrimination against homosexuals? I realize, of course, that they would make a clear distinction between the two - that being gay is "wrong," whereas color doesn't mean someone is "good" or "bad." Of course, white racists disagreed with the latter assertion! So how does one know when one is right? This, of course, is a very complex question that cannot be answered here. My only point is that when there are so many parallels between two social movements, beneficiaries of one should think long and hard about the latter - they should give it "deference" and be inclined to support it. Maybe they will end up disagreeing with the latter movement's goals, etc., but they shouldn't do so as reflexively as it seems some African-Americans have!

"The Decent Society"

Will that be the moniker--"The Decent Society"--that defines this era of politics? Will it be as failed an expirment as "The Good Society"? I'm skeptical of political ideology dictating policymaking--and so am skeptical of what is to come over the next four years . . .

In the Minority

I wonder if those who, like me, are disappointed with the outcome of this year's presidential election are not necessarily disappointed that Kerry lost as they are disappointed with something more, well, existential: being part of a political minority (albeit a sizeable one). Let me explain what I mean.

For those disappointed with the outcome of the 2004 presidential election, there are four reasons (that I can think of) to be disappointed:

1. Kerry lost. You are disappointed because Kerry lost if you liked Kerry, thought he would make a good president, and wished that the person you liked had won. Analogous to rooting for the Red Sox, but being bummed that they lost the World Series to any random national league team.

2. Bush won. You are disappointed because Bush won if you hate Bush, can't stand his policies, and will take someone--anyone--other than Bush; and Kerry fits that bill. Analogous to rooting against the Yankees in the World Series, but being incensed when they win.

3. A combination of the above. The proper analogy is being a Red Sox fan, and the Red Sox lose to the Yankees.

4. Being in the minority. This is sort of like realizing that everyone else is a football fan. You're upset not because Kerry lost, really, as you are upset that Kerry obviously lost; that he lost at the same time that 11 states passed laws banning gay marriage/civil unions; that he lost at the same time that the Senate and House increased their Republican membership.

Among the people who backed Kerry, I wonder how many are disappointed because this election was a wakeup call to the current political structure of American society. The dominant, and governing, political ideology is based on cultural conservatism. This is perhaps a crude generalization--all governing majorities are products of innumerable compromises--but I'm not sure if there's another way to read this election.

The deep disappointment that I, for one, feel is a disappointment in the nature of the current governing majority. I disagree with the ideology that seems to be motivating it, and I am concerned with what seems like the utter collapse of a coherent opposition to it. But what would a viable and coherent opposition--one that create a majority--look like? What would it be based on? Surely, it can't merely be reactionary . . .

Wednesday, October 20, 2004

Reforming the Structure of Law Reviews?

In this brief essay forLegal Affairs, Posner suggests the world of student-run law reviews to be one in which "inexperienced editors make articles about the wrong topics worse." Of his arguments, I most appreciated this comment about the inadequacy of typical law review editorial boards to respond to the increasingly interdisciplinary nature of law.

[The] work [of publishing law faculty] now draws very heavily on sources other than legal doctrine, whether it is economics, history, political or moral philosophy, psychology, statistics, epistemology, anthropology, linguistics—even literary theory. The use of insights from these fields in analyzing law has given rise in recent decades to a cornucopia of interdisciplinary fields of legal studies ("law and . . . " fields), ranging from law and economics (the largest and most influential) to feminist jurisprudence and critical race theory. Except for the rarefied set of Ph.D.s who go to law school for a J.D., the disciplines on which these fields draw are generally not ones about which a law review editor will be knowledgeable, except by accident. This might not matter much if the analytical core of such fields were legal, but it is not. "Law and economics," for example, is the application of economic theory to law, not the application of legal reasoning to economics. So the law review editor cannot get much mileage from what he or she has learned about legal reasoning.

Sunday, October 17, 2004

Derrida, Deconstruction, and Legal Theory

Jacques Derrida, a postmodern philosopher whose work is most closely associated with the idea of "deconstruction," died last week.

I've never fully understood his ideas, in part because I haven't taken a great deal of time to actually read what he's written. Most of what I know about him and his thoughts have been distilled through other sources.

In a nutshell, I've understood Derrida's work as one that questions the meaning(s) of "texts." Text, as the term is used in the postmodern context, tends to refer not only to written documents, but also to physical spaces (a building is a "text" in the po-mo universe). To grossly oversimplofy his thinking, a text means more than what it says, and means more than what it means. There are connections in texts that an author does not intend (and perhaps can never intend), because language is dynamic; and the interplay between, say, words ("signifiers") in a document and the things that they siginify are not fixed.

The typical critique of Derrida is that his philosophy is nihilistic: words don't mean anything, and deconstruction is literally a practice of destroying meaning. An online obituary poked fun at deconstruction using this critique, questioning whether there is a "Derrida," and whether he really was "dead." Whatever that means.

Critics, aided by the fact that Derrida himself was often willfully obscure and consciously self-contradictory, accuse Derrida of undermining the Western philosophical tradition, and--the argument often goes--in so doing, has ushered in a parade of horribles (no language, no communication, no ethics, mere anarchy is loosed upon the world).

I think this critique is too facile -- Derrida's critical theory (to put it in those terms) really doesn't say anything about ethics or politics. It hardly says anything about metaphysics. It seems to me entirely epistemological. In other words, we can't really locate an ethical system in Derrida's work. (For what it's worth, Derrida himself was always politically active, usually on the far left.)

I've wondered recently how Derrida's thought influences law and legal theory. Jack Balkin, a Yale Law prof, wrote an article about this in 1998, and argues that the important consequences lie in how we interpret legal texts -- contracts, statutes, the Constitution. To give an example -- if words mean more than they say, and more than they mean, then how does one interpret a contract? Is there such a thing as staying with the "four corners" of the document? If not, how far out can you go? How iterative is the interpretive process?

Accepting this theory of interpretation seems to me to present profound consequences for constitutional interpretation. Looking to the "Framers' intent," for example, would exclude not only all other possible interpretations, but also all other actual meanings within the text. In other words, we would be refusing to take the text on its own terms.

That said, acceptance of such an interpretive method is not bound to happen anytime soon. I don't know if that's a good or bad thing -- and I don't know if the interpretive system Derrida championed would lead, as many of critics assume, to anarchy. Indeed, I wonder if instead we would find ourselves forced into a more deliberative mode of lawmaking, engaging in a kind of perpetual dialogue with legal texts. In theory, this doesn't sound so bad.

Thursday, October 14, 2004

Kerry, Value-Neutrality, and Abortion

I thought Kerry had an interesting statement during the second presidential debate that reflects a broader problem I often hear in public policy debates involving competing determinations of value. Kerry was asked whether he supports taxpayer-funded abortion. Here's the question and answer:

DEGENHART: Senator Kerry, suppose you are speaking with a voter who believed abortion is murder and the voter asked for reassurance that his or her tax dollars would not go to support abortion, what would you say to that person?
KERRY: I would say to that person exactly what I will say to you right now.
First of all, I cannot tell you how deeply I respect the belief about life and when it begins. I'm a Catholic, raised a Catholic. I was an altar boy. Religion has been a huge part of my life. It helped lead me through a war, leads me today. But I can't take what is an article of faith for me and legislate it for someone who doesn't share that article of faith, whether they be agnostic, atheist, Jew, Protestant, whatever. I can't do that. But I can counsel people. I can talk reasonably about life and about responsibility. I can talk to people, as my wife Teresa does, about making other choices, and about abstinence, and about all these other things that we ought to do as a responsible society. But as a president, I have to represent all the people in the nation. And I have to make that judgment. Now, I believe that you can take that position and not be pro- abortion, but you have to afford people their constitutional rights. And that means being smart about allowing people to be fully educated, to know what their options are in life, and making certain that you don't deny a poor person the right to be able to have whatever the constitution affords them if they can't afford it otherwise.

This is an interesting answer, for two reasons.

(1) First, Kerry chose to use the language of value-neutrality that is sometimes offerred as the ideal in a pluralistic, (classically) liberal society. One might directly attack this ideal as an illusion that smuggles in certain values of its own. On the abortion question, for example, one article of faith asserts that fetuses are persons deserving legal protection, while another denies this or is agnostic on the question. Is a philosophy that requires the government, in the name of value-neutrality, to behave as if the latter article of faith is true, really neutral between the propositions?

Even if value-neutrality is possible, however, I am more intrigued by what seems to me to be a convenient inconsistency in the way that Kerry and many value-neutral proponents selectively employ the rationale. As Chris has pointed out, the logic of non-discrimination laws often put them on a collision course with other value systems. California, because of its article of faith that gender inequity is wrong, now requires employers to provide contraception coverage to their employees, regardless of their competing articles of faith. If Congress adopts Kerry's view and passes the Employment Non-Discrimination Act (ENDA), the federal government, based on its article of faith that sexual orientation is not a morally valid ground for distinguishing between empolyees, will intervene into the private decisions of employers whose articles of faith may view sexual orientation as an indication of one's character. And of course, by passing the 13th and 14th amendments, the federal government ended its 70-year toleration of differing articles of faith regarding slavery and endorsed racial equality, eventually even intervening in the private decisions of employers and social clubs on behalf of its egalitarian principles.

Now, my personal predilections would probably fall on the government's side on all three of these articles of faith. But I cannot help but recognize them for what they are: decisions by the government to choose a side in a cultural struggle, and to impose upon the losing side its vision of equality.

When one accepts historic examples of government imposition into private decisions based on racial and gender equity, workers and children's rights, or other progressive visions, or when one endorses proposed interventions such as ENDA, but refuses to embrace other interventions based on the logic of value-neutrality, doesn't neutrality become simply a convenient cover for one of two propositions: either one really holds to a competing value (in this case, the value of reproductive freedom), or one holds to a heirarchy of value importance that mandates intervention in some but not others (in this case, valuing sexual orientation equality in the workplace over a right to be born)?

(2) The other intersting thing about Kerry's answer was his hinting at something like affirmative rights, along the lines that Justice Marshall endorsed in arguing for a constitutional right to federal funds for abortion. He says, breathtakingly, that we must "mak[e] certain that you don't deny a poor person the right to be able to have whatever the constitution affords them." I'm sure he meant only certain fundamental liberty interests that the constitution affords, but this still struck me as a remarkable position. One's freedom of speech, to peaceably assemble, and to practice a religion at times may require an expenditure of funds. The constitutional right to freedom of religion particularly came to my mind. One can imagine a religion, say, one founded by a popular science fiction writer, whose tenets requre the purchasing of various books, tapes, and materials attendance at seminars, workshops, and retreats. This religion could get very expensive.

Thursday, October 07, 2004

Catholic Charities: Court Denies Cert

The Supreme Court on Monday denied cert in Catholic Charities v. California.

Quick Summary: California passed a law (The "Women's Contraceptive Equity Act," or WCEA) which mandates that private organizations that provide prescription drug coverage to their employees must also provide coverage for prescription contraceptives. There is a narrow "conscience" exception that affects a very small number of religious organizations (21 states have similar laws, and about 15 have broader exceptions). Catholic Charities is not covered by the exception. They filed an action for a preliminary injunction and declaratory judgment--saying that the law violates the Free Exercise clause--and lost at the trial, appellate, and Cal. Supreme Court levels. The cert petition was delivered over the summer, and cert was denied this week.

I think this is unfortunate, but unsurprising.

It's unfortunate for two reasons: first, I think there's something deeply troubling--and incoherent--about the Court's current Free Exercise jurisprudence (built around Employment Division v. Smith). Essentially, the decision leaves it up to state and federal legislatures to decide whether or not they will exempt or burden religious practice (unless, of course, the legislation is passed with outright animus toward a religion or a religious practice). My view is that the legislature shouldn't be relied on to make such decisions: the existence of the Free Exercise clause, and a vast human history of religious persecution (or, at the very least, denial of religious freedom) suggests that many religions and religious adherents exist as political minorities. This reality is manifest now when it comes to social legislation that runs counter to religious tenets. To say that "neutral laws of general applicability" do not run afoul of Free Exercise ignores what happens during the legislative process: lobbying. Is the lobbying of the Catholic Church over the issue of contraceptives--an issue that not too many ordinary Catholics are going to base their vote on--going to trump the lobbying of medical groups, Planned Parenthood, and other organizations that command an active political base that may actually base their votes on the passage of such a law? In other words, the Church itself really does have a voice in this matter, but it's a voice without political currency. Smith ignores this.

Second, anti-discrimination laws have essentially eviscerated tenets of the First Amendment. The only case to suggest that the First Amendment will trump anti-discrimination laws is Boy Scouts v. Dale (where the Court said that New Jersey's public accomodations law, which applied to the Boy Scouts, ran afoul of the First Amendment's protection of the freedom of expressive association when it forced the Boy Scouts to accept an openly homosexual individual as a Scout master).

To be sure, it is unsettling to say that my right to be, for example, racist or sexist or otherwise prejudiced ought to be protected by the First Amendment, when those views affect the ability of others to be members of national organizations. Nevertheless, the idea that an organization might be forced through legislation to take actions or accept individuals that send a message contrary to the message(s) they wish to send seems to me in great tension with freedom of speech and association.

In the Catholic Charities case, the idea that California can force an arm of the Catholic Church to either pay for prescription contraceptives--when it is well known that the Church finds the use of such devices morally repugnant--or to opt out of paying for any prescription drug coverage benefits plan--when it is well known that the Church tries to act out the moral ideal of social justice--seems to me to run afoul of vital free speech values: the value of associating for expressive purposes and the value of having organizations (here, a religious organization) convey and teach specific messages, all without government interference. It makes me wonder what we as a society truly value: freedom (of thought, speech, expression, and association) or correct social norms.

I think we begin walking on a dim and dangerous road when we allow popular social legislation to blind us to the importance of these free speech values. And that danger is compounded when the free speech that is being eviscerated is that of a religious group whose views on a particular practice are contrary to, and out of favor with, a political majority.

Wednesday, October 06, 2004

Just Laws (part 3)

My brief response to Olivia's post:

1. I am assuming that there is such a thing as just and unjust laws (though I'm not assuming that just laws need be drawn from moral sources). Now, what I have not defined is the content of "just." One definition of just--a positive definition--would put my view and Holmes's view of the law in harmony. A natural law position, by contrast, would put our views in tension.

2. To your question, is the morality of a given philosophy that undergirds the law relevant to the purpose of the law--by which I take you to mean law qua law--I would have to answer yes. How could it not be? My baseline assumption here is that background philosophies themselves are both the efficient and final causes of law: that is, they help create the content of law, and create that content because they seek to have law play a particular role in human interaction and social ordering.

A philosophy, for example, that is utilitarian might define "free speech" and its importance in a given society differently than a philosophy that is focused on natural. The former might seek to simply maximize the ability of individuals to seek individual expression because that would serve the end of (to oversimplify) increasing pleasure and reducing pain; the latter might seek couple free expression with the need to teach virtue (man's summum bonum, so the argument would go).

Now, by asking whether an "immoral philosophy" can lead to a "just law," I may perhaps be looking through the lens of natural law. Even so, I don't think we can talk about a law being just or not unless we can talk about what end it serves, whether the end that it serves is just, and whether the means the law chooses to meet that end is just. These questions are answered, in part, by looking at the philosophical principles that undergird that law.

3. A point about Holmes specifically: I find it ironic that the leading exponent of legal positivism (or "realism")--that is, as Olivia points out, the idea that the law and moral judgments are really separate--should frame the First Amendment in terms of "ought"--a Kantian or Natural Law position--and not "is"--the positivist position. Holmes was not, in his great dissents in Abrams and Gitlow, accepting a positive view of free speech (in fact, he rejected the view he took in Schenck, where he suggested that the First Amendment only prohibits prior restraints because that's what Blackstone had in mind): he was framing the issue in moral terms. It's just that the morality he seems to draw from is, well, survival of the fittest. . .

Tuesday, October 05, 2004

Framing the Law / Ethics Dialogue

Can an immoral philosophy lead to a just law?

Since Holmes and his legal philosophy serve as the context for the Social Darwinism example below, I thought I'd add a couple thoughts (we're discussing Holmes in my Readings course).

1) To borrow from Weistart, the above question rests on the baseline assumption that law and morality can, to a certain extent, be conflated. That is, an analysis of one can legitimately borrow from the language of the other (and therefore, it's appropriate to apply a moral hermeneutic to the law). However, Holmes (as far as I can tell), viewed law as distinct from moral issues. In Powell/Purdy's Ethics course, we're reading Holmes' "The Path of the Law," and in it, he writes:

"[I]t is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most enlightened opinion of the time, or which at alle vents pass the limit of interference as many consciences would draw it. Manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law."

The bifurcation that Holmes draws between moral conscience and legal dictum is a stark one, and it makes me wonder: can we really ask whether an immoral philosophy leads to a just law without asking, more fundamentally, whether an immoral philosophy is relevant to the telos of the law? Friends of mine would know how I would answer that question -- but for the sake of sound analysis, I think we need to recognize the epistemological question that underlies the (great) question that Chris raises.

2) Epistemology aside, however, while I agree that Social Darwinism as a legal philosophy is problematic, I don't know if I necessarily see Social Darwinism as manifest in free speech in the same way. For example, the main reason I take issue with Social Darwinism (or indeed, any post-Enlightenment, uber-individualistic legal theory) is because of the way it posits the individual, as opposed to the community, as the "subject" of the law and its accompanying language. In that context, law is effectively a composition of individual rights and freedoms, which arguably costs us a perspective on the law as a body politic that serves community interests. My opposition to Social Darwinism as legal philosophy, therefore, is very much an "embodied" opposition -- I disagree with the way it eviscerates our legal dialogue of important (I believe) principles such as community, sacrifice, or the (common) Good.

That said, I don't necessarily find the Social Darwinism in Holmes' comment re: free speech to be all that problematic. After all, it is not ideas/expressions that can/should engage in community with one another, but people. Shouldn't a different analysis apply?

By the way, anyone want to blog about law/theology? I'd be more apt to comment. ;) I have embarassinly little to say about substantive law. The shame!

The Value of Social Darwinism

Can an immoral philosophy lead to a just law?

A professor today pointed out that Justice Holmes was a Social Darwinist. Such a philosophy had neferious consequences in at least one of his more famous cases, Buck v. Bell, where Justice Holmes declared--allowing Virginia to keep sterlizing those who were "feeble-minded"--that "Three generations of imbeciles is enough." Generally speaking, the tenets of social darwinism (that human interaction mirrors the process of natural selection) have been discredited.

But -- for free speech liberals, social darwinism (an objectively immoral philosophy?) is a great good. Witness Justice Holmes' explanation of the meaning of free speech:

Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

- Gitlow v. New York

These thoughts, which found even more eloquent expression in Holmes's dissent in Abrams v. United States, eventually carried the day in First Amendment Free Speech jurisprudence. And they were born out of, and reflect, a social darwinist frame of mind.

Sunday, October 03, 2004

I'm a fan of Dahlia, too, but . . .

. . . this is just a little weird.

Abolish Presidential Debates!

Let's all admit the following: There will never again be anything like the Lincoln-Douglas debates.

Let's also admit that debate is not the same as discussion.

For some reason, elites (i.e., scholars, intellectuals, media editorial pages) tend to believe that we would all be better off with substantive debates between political candidates. Such debates, the argument tends to run, allow the voting public the opportunity to weigh ideas discussed by the candidates, and allow the candidates themselves to consider policy posititions.

The model, it seems to me, is the Lincoln-Douglas debates of 1858. This is the model to which all political debates aspire: reasoned, eloquent, highly substantive discussions of the important issues of the day. Anyone with the patience and time can mine the speeches given during the Lincoln-Douglas debates and discover there a wealth of nuanced political theory and rhetorical models.

But those debates are, on one level, the apex of our national experience with political debates. Even if the level of skill, nuance, and intelligence on display there were not confined (as I believe they are) to those particular debates--that is, assuming that worthwhile political debate is a perennial possibility rather than an occasional phenomenon--televizing debates obviates the opportunity to display such excellence. I'm not stating anything revolutionary when I say that television makes the "show," and not the substance, the centerpiece of the debate.

This has been true since the Kennedy-Nixon debates. Those who heard the debate on the radio said Nixon won. Those who saw Nixon grimace and sweat on camera thought Kennedy won. Carter-Reagan: reviews by the commentariat crowned Carter the winner. But the public? In a swoon over a gentle chuckle, a grandfatherly smile, and "There you go again."

The pity of this is that, with a candidate who, for example, mangles syntax (something Dwight Eisenhower famously did, though no one every questioned his intelligence or political acumen), the debate is not won or lost on substance (an aside: anyone else think that Bush is a) nervous in front of crowds, and b) overly-scripted? Check out this interview (click on "video")--two people (and a cameraman), no crowds, no script).

But how could it be won on substance? What startling new revelation occurs during a debate? How much that we did not know or could not know came out into the open during Thursday's debate beween Bush and Kerry?

Debates are a facade of substance, parading in the guise of discussion. They are pre-scripted (that is, the candidates know what they're going to say), and we can be excused if we think we're clairvoyant (how could anyone not guess at someone's answer--unless, of course, this is the first time you've paid attention to the campaign -- but then, if you haven't been paying attention, why would you tune into a 90 minute debate?). Discussion, on the other hand, is an open exchange of ideas, intended to persuade the other individual that your point is more reasoned, but also open to the idea that you may be incorrect about any number of things.

Such discussions do not happen in our political discourse. Instead, if we're junkies or idealogues, we tune in to hear our guy be right and the other guy be wrong. We declare our candidate the "winner" on substance, but then give the honest answer based on style (did our guy grimace too much? did the other guy sigh? who had the best zinger?). In other words, we leave the debate with no new ideas, only new weapons of attack.

This is good for democracy?

Saturday, September 25, 2004

The Patriot Act for liberals...

This relates to the topic of a paper for a class here, but I found this interesting: David Passaro, a contractor to the CIA charged with torturing a man to death in Iraq, was recently charged under a provision of the Patriot Act which grants federal jurisdiction to crimes that happen on, inter alia, U.S. military installations abroad. It's an "odd" use of the Act, at least insofar as certain liberals who claim not to like the Act are loathe to condemn this use of it. He was charged in federal district court in Raleigh, and the Raleigh News and Observer had an article about it entitled, "The Patriot Act is Bad, Right?" Legal observers are "troubled" by this use of the Act according to the Associated Press.

In case anyone is curious, Supreme Court precedent holds that civilians cannot be court-martialed except in a time of war, and "time of war" has been construed by the Court of Military Appeals to mean a declared war. The Military Extraterrorial Jurisdiction Act applies to civilian contractors of the Department of Defense, but Passaro was a CIA contractor, and the CIA is not in the Department of Defense. He might have been able to be charged under the War Crimes Act, which provides for federal jurisdiction over crimes defined in the Hague and Vienna conventions, but that Act is untested and somewhat difficult to apply. Thus, the Patriot Act might have been the "best" route to use here - although when it was enacted, of course, I doubt Congress thought it would be used against U.S. soldiers.

This seems unconstitutional

The House just passed a bill forbidding the Supreme Court from considering whether "under God" should be removed from the pledge. From what I remember from Federal Courts, the constitutionality of such issue-specific jurisdictional removals is quite unclear, but most scholars argue that an issue cannot be completely removed from federal court review. I think similar bills have been introduced before regarding abortion and maybe other issues, usually by conservatives. It's interesting, though: wouldn't a pro-life conservative want to keep federal jursidiction over abortion so that the law might change? Surely they don't want Roe v. Wade/Casey "frozen" into the law. But I suppose in the pledge case their purposes are served because the current law - the "default" - is in their "favor."

Personally, I'm uncomfortable with the idea of removing anything like this from federal court jurisdiction. Doesn't doing so implicitly announce a distrust of the federal judiciary? That is, isn't such a direct accusation of ideology on the Court going to hurt the Court's credibility? And if it isn't a direct accusation of ideology - if the House "agrees" that the Court will honestly interpret "under God" according to the Constitution - then either 1) the House thinks it's a better arbiter of the Constitution, which is a serious separation of powers issue or 2) the House is trying to make a de facto amendment to the constitution short of amendment (i.e., the House would be acknowledging that "under God" may violate the First Amendment, but it would be forbidding that fact to ever come out in court).

Tuesday, September 21, 2004

Ahhhh, the perks

A very interesting little aside in the New Yorker Article on DOJ's approach to voter rights ("Poll Position: Is the Justice Department Poised To Stop Voter Fraud - Or To Keep Voters From Voting?" by Jeffrey Toobin, September 20 issue). According to Toobin, Ashcroft has exerted high-level control over hiring for the Attorney General Honors program, much to the dismay of the career attorneys at DOJ. The article speculates this could have an effect on the Voter Rights division, but it could just as clearly politicize the Department as a whole.

That prompts two thoughts. In the roundtable panel held here at Duke on September 17 on "Interrogation, Detention and the Commander in Chief Power," several of the attorneys who had worked in DOJ's Office of Legal Counsel cited OLC as the best source for legal advice in the administration precisely because it was staffed with attorneys who would give non-partisan advice and who had access to and respect for the long experience of the career staff at DOJ. Although none of the attorneys present specifically said why they thought OLC had manged to produce such a disgraceful product as the infamous torture memo, the possibility that Ashcroft and his political-level staff have turned their back on the model of disinterested advice represented by past OLC actions - and reaped the rewards of such a short-sighted move - would certainly be consistent with the idea that they are also seeking to politicize overall DOJ hiring.

The other thought is prompted by the explanation from one Ashcroft appointee to Toobin as to why the hiring change was no big deal. '[Ashcroft Spokesman Mark] Corallo dismisses complaints about the changes as coming from malcontents. "A bunch of mid-level people here had their boondoggle taken away from them, going on these recruiting trips for weeks at a time, wining and dining at great hotels on the government's dime," he said.'

This echoes an explanation that Under Secretary of State John Bolton once gave for why he disdained previous arm control efforts, saying they were undertaken by bureaucrats who "camped out in the finest hotels in Geneva for months at a time." What is the deal here? Do Bush loyalists find all government travel illegitimate? It's certainly less lavish than private-firm attorney travel, and hardly luxurious. Why does it bug them so? Is it some kind of religious objection to cheap carpeting and synthetic bedspreads? Are they worried that GS-14s are watching dirty movies on the taxpayer's dime? Does a night in a Holiday Inn and dinner at Chili's really constitute 'wining and dining at great hotels'? Can someone explain this to me?

Sunday, September 12, 2004

Is Stare Decisis a constitutional rule?

There are, it seems to me, two meaningful possibilities for the underpinnings of the rule of Stare Decisis in Supreme Court opinions:

1. It is a Constitutional doctrine. According to the text and structure of the Constitution -- and perhaps even the concept of precedent at the time of the framing -- stare decisis is necessary to effective judicial review, and is implict in the grant of power to the judiciary under Article III.

2. It is mere policy. There is nothing necessarily constitutional about stare decisis (just as, perhaps, there is nothing truly constitutional about judicial review). The policy is important and highly pragmatic, but the Court need not abide by its previous decision-making. As a policy tool, it plays the role of check.

So, is stare decisis a constitutional necessity? What if the rule of stare decisis were written into Article III of the Constitution -- how would judicial review change?

Saturday, September 11, 2004

"Understanding the Rehnquist Court"

Mark Tushnet, a Con Law scholar at Georgetown, has an excellent three-part post theorizing about the divisions and leadership of the Rehnquist Court.

What I find particularly intriguing about his analysis is that he speculates not on, say, the methodology of the Justices ("legalist" v. "pragmatist," as Walter Dellinger as suggested) or their ideology (liberal v. conservative), but rather on such ostensibly unknowable details as the state of Justice Kenney's mind; the way in which Justice Stevens is able to manipulate the assignment system, and the isolationist tendency of Justice Thomas, a consequence of his nomination fight.

It's an almost-breathtaking view of the Court. I just wonder how much weight to give what seem like speculations that are based not on the opinions themselves, but on what must be some unknowable information.

Recruiting Academics - The UT Emerging Scholars Program

I was impressed to see the UT has a new program that seeks to attract scholars to Texas. It strikes me as an excellent way to both find, and keep, good academic talent--and it's a good way to show students at the institution that the pursuit of academia is honorable and will be supported. It would be nice, I think, to see Duke adopt a similar program.

I think Duke's stats for students entering academia (at or less than 1% of the typical year's graduating class--or, 1-2 graduates) will not be changing any time soon. I wonder if that's a function of the character of the student body, or of the resources invested by the school in encouraging and preparing students to enter the academic field. I'm not convinced it's a bad thing, but I wonder if such a low percentage keeps Duke from attracting certain students or certain faculty.

Tuesday, July 20, 2004

Regarding the propriety of citing to foreign opinions...

Thanks to Dave Fuhr for pointing this out to me: Scalia himself cited the legislatures of various foreign countries in McIntyre v. Ohio Elections Com'n, 514 U.S. 334, 381-82 (1985)(Scalia, J., dissenting). Granted, this is not the same thing as citing a foreign judicial opinion, but it does relate to Constitutional law: Scalia was citing the foreign statutes as examples of a statute that, in this case, the majority found to violate the First Amendment. Of course, he is using it to support a federalist position (or, rather, a judicial-abstention position - he states that 49 (if not 50) of the states and the federal government approve of the statute that was struck down), but it is interesting nonetheless.

For more information on this, see the late, great Trey Childress note in the October issue of the Duke Law Journal.

Thursday, July 15, 2004

Thoughts on federalism after the Reconstruction amendments.

The observation that the content of American federalism was fundamentally changed with the inclusion of the Reconstruction amendments (13th-15th) seems to me both compelling and misleading. The argument runs roughly along these lines: the Constitution, as ratified (along with the Bill of Rights) in 1789 created a government defined by separation of powers on two levels: first, between the arms of government (executive, legislative, judicial); second, between the loci of government (state and federal). The Federalist Papers and other documents penned by the founders suggest that the separation of power between the state and federal governments was a core principle of the new American government, designed both to give a decent respect to the sovereignty of the states, as well as to safeguard citizens from tyranny. The Bill of Rights, appropriately enough, applied only as a check on the federal government. Looked at more simply, the Constitution created a federal government whose power was checked in three ways: by the power of the states, by the rights of the people, and by direct limitations placed on each branch.

The Reconstruction amendments—foremost among them the 14th—changed all of that (so the argument runs). The intent of the 14th amendment was to curb the power of the states; to make the federal government more powerful and give it a sort of supremacy over the states. Whatever arguments there may be for state sovereignty, states rights, or the idea of a limited federal government checked in part by the states were seriously undercut by an amendment that placed checks directly on the states, in favor of the federal government.

This doesn’t seem right to me. Indeed, the 14th amendment does place a check on the states, but not in a way that undercuts federalism. Looked at structurally, the Constitution post-Reconstruction does not undercut the federalist system in favor of the federal government, but rather places an additional check on the states in favor of individual rights. I’m not sure if the intent was necessarily to give primacy to the federal government over the states (that is, to lessen the state as a check on the federal government), but jurisprudentially it seems that the 14th amendment has done (and ought to do) nothing to prevent states from placing a direct check on the federal government. Indirectly, of course, this may be its effect: if Congress can pass legislation that protects individuals from, for example, racial discrimination pursuant to the 14th amendment, then certainly states must abide by it. (However, I fail to see how that would be different than the effect of a Federal law in light of the Supremacy clause.) But directly, the purpose and effect of the 14th amendment is to universalize individual rights, enshrined in the Bill of Rights.

This does not undercut federalism. I fail to see how the historical arguments in favor of a robust federalism—insofar as by federalism we mean that state power acts as a check on federal power—are undercut by the Reconstruction amendments. One could, however, make an argument that the 14th amendment creates a more populist government than existed before. Populism may be a check on federalism, but it seems to me that it would only be so in a strictly cultural, and not constitutional, sense.