On Larry Solum's site, I see today the very sad news that Professor Ribstein has passed away. I am sorry to say that I never got to know Professor Ribstein well, but he was most kind to me a few years ago in going out of his way to offer some advice from an outsider's perspective on a paper I was working on. My condolences to his family and friends. Requiescat in pace.
Saturday, December 24, 2011
Larry Ribstein
Friday, December 23, 2011
Santa Solum
Don't miss Larry's jolly old elfish gift-giving and "identity" series including one by Kantian philosopher David Velleman, "The Gift of Life," in which Professor Velleman argues that "human life is not a gift but a predicament, and that a biological parent's obligation to help offspring cope with that predicament cannot be contracted out to others at will."
Wednesday, December 21, 2011
Kramer on the "Purgative" Justification for Capital Punishment
Distinguished legal philosopher (and legal positivist) Matthew Kramer is publishing a fascinating-looking book early next year, The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences (OUP 2012), in which he offers a critique of current justifications and objections as well as, most intriguingly, a qualified defense of the death penalty for what I believe are particularly atrocious killings. I have not yet seen the book, so if others with knowledge of it can chime in, I would be grateful. He calls his partial defense the "purgative" justification. In this blog post from a few years ago, he describes the defense as Biblically grounded (though he emphasizes that he is "robustly atheistic"). The post is a few years old and it is therefore highly likely that the arguments in the book are changed. But for interest's sake, here's a bit from that post which may give a rough sense of his "purgative" justification.
Notwithstanding my doubts about the foregoing justifications for capital punishment, I firmly support such punishment in cases of particularly heinous murders. My support is grounded on an alternative rationale, a rationale found prominently in the Bible. (Though I am robustly atheistic, I have long taken the view that one can profit from a good knowledge of the Bible.) We are repeatedly told in the Torah that murderers - and certain other miscreants - should be put to death so that the community can be purged of their contaminating presence. Stripped of its religious trappings, and narrowed to encompass only murders that are especially vile, this purgative rationale for the death penalty is the basis for my stance in favour of capital punishment. A community sullies itself by keeping alive certain people who have acted in such a repugnantly depraved and murderous fashion as to degrade the human species through their membership in it. By sustaining rather than ending the existence of those people, a community retains its association with them - even if they are securely locked away. The only way in which the community and the human species can be purged of the debasing evil of those people is to be purged of those people themselves. That purging never requires torture or displays of heads on pikes; instead, it requires nothing more and nothing less than executions.
This to me all sounds strongly reminiscent of some of the claims made by James Fitzjames Stephen about the social and cultural virtues of expressive punishment; it is one more marker of Stephen's surprisingly contemporary applications. Kramer acknowledges that his justification sounds in the "denunciatory rationale" (I do not think this adequately captures Stephen's view, but that's another story), though he claims it is different in important ways. I am looking forward to reading the book to see how he can place the limits on the purging rationale that are reflected in the final part of the indented paragraph above.
Alexander, "Pluralism and Property"
A very interesting piece by Gregory Alexander involving value monism and value pluralism in property law (h/t Larry Solum). The influence of value pluralism on legal theory has been somewhat sporadic by comparison with other theories of value -- Steve Shiffrin has made some excellent inroads primarily (though not exclusively) in free speech, as has Brad Wendel a bit in professional responsibility. Paul Horwitz talks about incommensurability in his book. And Alexander charts a course for property scholarship here. Perhaps more soon.
Tuesday, December 20, 2011
Plover's Eggs
Perhaps you may have noticed scattered through some of Ronald Dworkin's egalitarian literature (in Freedom's Law, as well as in the first 'What is Equality'? piece) the reference to "plover's eggs." Dworkin uses plover's eggs to indicate a hyper-cultivated sensibility or taste which counts for nothing in his equality-of-resources framework.
Why plover's eggs as an association with grand, even excessive, cultivation -- itself such an arcane and cultivated allusion? It is no doubt a mark of my lack of true moral seriousness that I was always just as interested in the reference as the argument. I chased down a lead to Kenneth Arrow, but that didn't really help much. It did not explain the source of the allusion.
I recently found a possible, and I think likely, answer. The reference is to Evelyn Waugh's "Brideshead Revisited." When Charles Ryder visits Sebastian Marchmain in his room at Oxford, Sebastian is peeling a plover's egg. If this is the source of the reference, perhaps it gives the discussion of plover's eggs in these egalitarian treatments a special Catholic hue? Here is a passage from Waugh that I have enjoyed.
The family history was typical of the Catholic squires of England; from Elizabeth's reign till Victoria's they lived sequestered lives among their tenantry and kinsmen, sending their sons to school abroad; often marrying there -- inter-marrying, if not, with a score of families like themselves, debarred from all preferment; and learning, in those lost generations, lessons which could still be read in the lives of the last three men of the house.
Mr. Samgrass's deft editorship had assembled and arranged a curiously homogeneous little body of writing -- poetry, letters, scraps of a journal, an unpublished essay or two -- which all exhaled the same high-spirited, serious, chivalrous, other-worldly air; and the letters from their contemporaries, written after their deaths, all in varying degrees of articulateness, told the same tale of men who were, in the full flood of academic and athletic success, of popularity and the promise of great rewards ahead, seen somehow as set apart from their fellows, garlanded victims, devoted to the sacrifice. These men must die to make a world for Hooper; they were the aborigines, vermin by right of law, to be shot off at leisure so that things might be safe for the traveling salesman, with his polygonal pince-nez, his fat wet hand-shake, his grinning dentures. I wondered as the train carried me farther and farther from Lady Marchmain, whether perhaps there was not on her, too, the same blaze, marking her and hers for destruction by other ways than war. Did she see a sign in the red centre of her cozy grate and hear it in the rattle of creeper on the window-pane, this whisper of doom?
Monday, December 19, 2011
The Signaling Function of Suggested or Threatened Impeachment
The rather impetuous comments of Newt Gingrich over the weekend on Face the Nation have received some warranted scrutiny, including over at Prawfsblawg by my friend Paul Horwitz. In response to some questions by the host about his view of the Supreme Court and of courts in general, Gingrich said a few things about the secularism in evidence in the Mt. Soledad Cross case out of the Ninth Circuit as well as the "under God" Pledge of Allegiance case decided by the Ninth. Early in the interview, he also said this:
I think part of the advantage I have is that I'm not a lawyer. And so as historian, I look at the context of the judiciary and the constitution in terms of American history. The fact is, I'll just give you two examples -- Judge Biery's ruling on June 1st that he would jail the superintendent if anybody at the high school graduation used the word benediction, used the word invocation, asked for a moment of silence, asked the audience to stand, or mentioned God, he would jail the superintendent was such an anti-American dictatorship of speech that there's no reason the American people need to tolerate a federal judge who is that out of sync with an entire culture. So I have to ask the question, is there an alternative? What's the recourse? Well, one recourse is impeachment.
One interesting feature of the discussion is the move to threaten or, perhaps better in this case, to suggest, impeachment. This is, of course, nothing new. One of the first articles I wrote (and which has all the marks of an early piece) had to do with congressional threats of impeachment against federal judges; the practice is very old, indeed, in no small measure because it is so difficult to actually impeach a judge (or anybody else for that matter) -- I document some of the contexts of successful and threatened judicial impeachments in the piece.
Threats of removal against the judiciary, whether by Congress or the executive, can also, in appropriate cases, serve a kind of signaling function -- again, especially so since the prospects of actual impeachment because of disagreement with a substantive outcome are so low.
Friday, December 16, 2011
Shifting Views on the Death Penalty
An interesting report from the Death Penalty Information Center, indicating that the death penalty was imposed 78 times this year. According to the report, that represents the lowest figure since 1976 (the year of Gregg v. Georgia, when capital punishment was reinstated as constitutional) and a dramatic decrease from last year alone. There are other figures worth taking a look at as well which suggest shifting attitudes toward the death penalty, though, as always, shifts in public opinion can be unpredictable.
Tuesday, December 13, 2011
Oman on Islamic Marriage Contracts and the Common Law
Nate Oman has posted a thoughtful piece (see also Lisa's excellent post below), How to Judge Shari'a Contracts: A Guide to Islamic Marriage Agreements in American Courts. Here is the abstract.
This Article thus has two goals. The first is to show how the Muslim conception of marriage diverges from the Christian-influenced norms that dominate American law and society. Understanding this divergence provides a necessary background to Islamic mahr contracts. The second goal is to provide lawyers and judges with a doctrinal framework within our current law for analyzing these contracts and reaching sensible results in concrete cases.
The remainder of this Article will proceed as follows: Part II provides an introduction to Islamic law in general, and the law of marriage and divorce in particular, as well as some discussion of how these rules function in practice. Part III summarizes the way in which American courts have dealt with mahr contracts, showing how both husbands and wives seek to deploy arguments based on contract law, the law of premarital agreements, and constitutional law. Part IV provides a framework for analyzing mahr contracts. It argues that such contracts are best dealt with using traditional contract doctrines. Indeed, once the meaning of mahr contracts are properly understood, this Article argues that the common law of contracts is capable of dealing with potential problems presented by mahr contracts without any dramatic legal innovations.
Stanley Fish, Intentionalism, and Law Teaching
Stanley Fish has an interesting column about teaching law with specific reference to learning about constitutional law and the religion clauses. He says much that I agree with and that picks up on at least some of the themes in his entertaining, Save the World on Your Own Time.
A small but, I think, important feature of the column is the emphasis on (his variety of) intentionalism or purposivism to understand legal doctrine. He writes:
Monday, December 12, 2011
Games of Chance and Neutral Laws of General Application
Or puoi, figliuol, veder la corta buffa
d’i ben che son commessi a la fortuna,
per che l’umana gente si rabuffa[.]
A story here about consternation in Santa Monica, where it seems that a 60-year old tradition in which various Christian congregations assembled a nativity scene in a public park during the Christmas season has been disrupted by the institution of a neutral, generally applicable municipal lottery system. As it happened, Fortune favored the atheists. (h/t Sam Bray)
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