For many law professors formalism generally draws at best mixed reviews (there are exceptions, of course -- I've heard tell of some maverick neo-formalists as well as formalists in the great white north of Toronto). Brian Tamanaha's recent book even goes so far as to claim that some formalists of yesteryear didn't embrace the designation. But in this post, I don't want to plunge into those ship-wrecking waters. I want instead to play on safer shoals -- to think about the connection, if there is one, between the ideas of formalism in law and formality of behavior or manner. I'm particularly interested in the question whether, from the standpoint of teachers of future lawyers, there is a relationship between formalism in law and formality in one's written expression, one's professional interactions, and one's general professional deportment.
Friday, February 4, 2011
Formalism and Formality
Thursday, February 3, 2011
Kuyper tackles the BJR
Fans of Abraham Kuyper (and who isn't?) will want to check out this new paper by Lael Daniel Weinberger, "The Business Judgment Rule and Sphere Sovereignty." Here's the abstract:
The Business Judgment Rule prevents courts from reviewing the substantive business decisions of corporate directors. The rule is a microcosm of the tension between government regulation and private autonomy that runs throughout corporate law. The Business Judgment Rule is protective of the self-determination of the business enterprise, but its rationale is, not surprisingly, debated. Courts and commentators have offered a variety of explanations, but these still leave the rule open to the accusation that it is a sui generis privilege granted to corporations.
This Article places the Business Judgment Rule in the context of a large-scale social theory: sphere sovereignty. In a sphere-sovereignty framework, the Business Judgment Rule should not be viewed as a special privilege of corporations. Rather, it should be viewed as a recognition by the courts of the autonomy of each societal sphere, created by God to pursue unique ends and purposes. The political and theological theory of sphere sovereignty provides a basis for the Business Judgment Rule’s various provisions and offers suggestions for its future development.
Wednesday, February 2, 2011
Obstreperous Italy
This story (h/t Mark Movsesian) reports Italy's rejection of the EU's "statement against persecution of religious minorities" because of what it claims to be the studied failure to reference the persecution of Christians. Italy was supported by France (vraiment??) in its rejection of the statement.
Anybody have a sense for when the Lautsi appeal will be handed down? I'm looking forward to the Italian reaction to what I predict will be an affirmation of the ECtHR's hugely unpopular earlier decision.
Does the physician's right of conscience encompass a right against compelled speech?
My post of Mark Rienzi's new paper arguing that physicians have a constitutional right not to be required (by the state) to participate in abortions triggered this comment from Kevin Walsh:
What about laws that enlist doctors to provide scripted information about fetal development for women that seek to obtain abortions? Suppose a doctor believes that the information is misleading or that delivering it is in some other way incompatible with his or her integrity as a person and as a professional. Would that doctor have a constitutionally protected conscience right to refuse enlistment as a mouthpiece of the state, but to nevertheless continue to perform abortions? If professional licenses are "safeguards of competence" rather than a "means by which providers are enlisted as quasi-government officials" (which sounds right to me), then it would seem difficult to justify the compelled speech simply as an incident of professional licensing. Is there some other way to justify this particular form of compelled speech? Or does it not call for justification in the same way that compelled participation in performing an abortion does?
Given that it came a bit late in the comment thread, I was afraid it might get overlooked, so I'm posting it here because it raises an important issue. The success of Rienzi's argument turns on our view of professional licenses. If we want to ensure that licenses are not used to hijack a professional's conscience, should we resist state efforts to use providers to transmit certain (contested) messages about abortion to patients, even if we like those messages?
UPDATE: A related question is whether the constitutional right not to participate in abortions would extend to pharmacists, as argued in the Washington state litigation over pharmacy regulations. There's an empirical wrinkle in the pharmacist context, at least in the (widely litigated) Plan B context: is the drug at issue an abortifacient, and must the state defer to the objector's view on that question?
Religious liberty and SSM in Maryland
Download Maryland letter Here is a letter, signed by Tom Berg, Marc Stern, Ed Gaffney, Robin Fretwell Wilson, Carl Esbeck, and me, to members of the Maryland legislature, urging them to make accommodations for religious liberty in any statutes recognizing or authorizing same-sex marriage.
Tuesday, February 1, 2011
"The Moral and Legal Obligations of Catholic Judges"
Well, this piece, by Frank-Paul Sampino, at Dappled Things, is certainly right at the heart of many conversations we've had at MOJ over the years. Here is Sampino's central claim (which he elaborates and defends in the essay):
Generally speaking, a Catholic judge’s moral obligation is no more, and no less, than to apply the civil law as he understands it, regardless of the outcome of particular cases. I maintain that a Catholic judge need not recuse himself, or resign, or stretch the law to achieve a morally acceptable outcome. With rare exceptions, he may simply decide the case as he believes the appropriate civil laws require.
This is, I think, pretty much my view, too. I am not quite on board, though, here:
To expect judges to bring political and moral considerations to bear on their interpretations of the law is to undermine the whole purpose of judging.
This is not necessarily true. There will, it seems to me, sometimes be "legal" questions presented to judges that require -- because they do, in fact, invite and authorize -- judges to bring "moral considerations" to bear.
Episcopal Appointments: Comic Relief
Rick and I each recently posted on the practice of state involvement in the appointment of bishops. Rick shared with MOJ readers the powerful scene of St. John Fisher's martyrdom as depicted in "The Tudors." For a humorous look at the issue of episcopal appointments in the Church of England you can't do better than these scences from the BBC series "Yes, Prime Minister" available here and here.
Obama Bioethics Commission report on synthetic biology
In December, President Obama's Bioethics Commission issued a report on synthetic biology -- the engineering of new forms of life. I have not heard much news coverage about it, and I haven't read the report. For my own research purposes, I'm interested in how the concept of "human dignity" is being used (or not) in public policy discussions. I ran a "find" search for "dignity" in the report, and the word does not appear. I know that President Bush's Commission was criticized for relying on "dignity" to do too much heavy lifting in its analysis (a criticism with which I disagree), so I wonder if this is a deliberate decision by the new Commission to chart a new course. Again, though, I haven't read the (192-page) report, and I know the Commission has some good folks on it (e.g., Daniel Sulmasy). Can anyone comment on the report or steer me in the direction of some good commentary?
Recent Posts
Categories
Monthly Archive
StatCounter
PageViews
Since February 19, 2008
