Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, June 30, 2011

(Conservative) Optimism and Pessimism

By Marc DeGirolami

This is a well written and interesting extended review by John Gray of David Brooks's apparently avidly consumed book, The Social Animal.  I've admired some of Gray's work very much, particularly his superb treatment of Isaiah Berlin (which is in some ways as much Gray as Berlin).  It is sometimes supposed that "progressivism" correlates with optimism, and "conservatism" with pessimism, but this review is interesting in part because it pits two strains of contemporary conservatism against one another -- Brooks's optimistic, cog-sci, evolutionary-psychology-can-save-us, let's-mine-the-unconscious-for-political-wisdom variety (which Gray, interestingly, associates with Sam Harris's book, The Moral Landscape: How Science Can Determine Human Values), against Gray's pessimistic, declinist, no,-we're-actually-not-so-much-more-advanced-than-Freud-that-we-can-dispense-with-reading-him brand.  Here's the conclusion of Gray's piece:

Brooks cites Michael Oakeshott’s observation that in politics we “sail a boundless and bottomless sea; there is neither harbor for shelter nor floor for anchorage, neither starting place nor appointed destination.” It is a refreshing reminder of what conservative thinking might once have been. But Brooks would have done better to cite another passage from the same volume, where the skeptical British philosopher notes that

there seems little to stand in the way of the appearance of a vulgar counterpart to this literature of political inquiry. . . . A little book on How to Restore old Cottages may be flanked on the bookstalls by one on How to Restore old Monarchies; an article on “A face-lift for the kitchen: new and exciting materials” in a Do It Yourself magazine will be followed by others on “Dos and Don’ts in making a Revolution,” “How to win an Election.”

Oakeshott comments that “writings of this kind (with perhaps less obvious titles) have been available for more than a century.” It is doubtful, though, whether Oakeshott envisioned a book like The Social Animal: an instruction manual for politicians, the chief virtue of which is that it is practically useless.

This appealing emptiness will not ensure the book’s longevity, however. Soon enough, Brooks’s manual of positive thinking will be consumed and discarded. History will move on and yesterday’s gurus will be remaindered and forgotten. But if Brooks’s book will hardly be remembered, the reverence with which it has been received tells us something important about how we have come to be ruled. The Social Animal is an exemplar of political discourse as we know it today; the chief function is to distract attention from intractable realities, which governments and those they govern prefer not to think about.

Wednesday, June 29, 2011

Tragedy and the Strong Reading of Precedent: A Response to Tom

By Marc DeGirolami

I'm grateful to Tom as well as Michael for highlighting my work.  It isn't often that a junior person is blessed with as acute, thoughtful, and learned an audience as what I had at the ALRR.

Tom raises what I take to be one of the most powerful criticisms of my book project.  I want to step back for a moment in order to address Tom's question properly.  I adopt a specific variety of value pluralism for religious liberty questions.  That approach is skeptical about accounts of religious liberty which rely on one or even several discrete values to work out religion clause conflicts.  Some of these single value accounts acknowledge the costs of their view; others do not.  But even those accounts which admit the possibility of loss or cost when some values are chosen over others (Tom's letter b) nevertheless believe that it is possible and profitable to justify in a systematic way ex ante which values ought to win in any given conflict.  And they use that specification to construct comparatively hard rules that lead to certain outcomes -- certain in both senses of the word: (1) specific outcomes that elevate the selected value to overriding status; and (2) predictable outcomes, because people come to know that, say, the Establishment Clause is guided by a norm of state neutrality which will control in all cases.

The question that Tom asks is, how do the clearly important and worthwhile aims of predictability of outcome and legal stability figure into an account which does not start from the position that values can be systematized or rank ordered?  I agree with Tom that these rule of law values are deeply important, and I think it would count very much against any approach that it sacrificed stability and predictability.  Another way to ask this might be to wonder whether it is possible to disaggregate (1) and (2) above -- is it really true that the only way to achieve stability and predicability in the law is by elevating a single value (or small set of values) to master status?  Or can we achieve many of the advantages of (2) without (1)?

I think that we can, by adopting a comparatively strong and binding approach to precedent.  We can give rule of law values their due and adopt the position that value pluralism is the order of the day when it comes to religious liberty conflicts, by keeping a close eye on precedent and hewing to a minimalist and gradualist view of legal change.  That common law sensibility will get us many of the advantages of predictability and stability without making the mistake of believing that we can conclusively systematize the values often in play.  In fact, over time, a judicial culture which adopts a tragic view as well as a strong reading of precedent will, I believe, create a predictable and stable system.  But its stability and predictability will derive not from theoretical system, but from a close examination of the particular facts for similarity or difference with past decisions.

Admittedly, and as was pointed out to me gently at the ALRR, my approach might seem inelegant from a theoretical perspective.  Indeed, to the extent that my view is persuasive, it persuades exactly because it is theoretically unsystematic and (for some) dissatisfying.  I will quote from one of Tom's excellent pieces on a related subject: "[T]here is a fairly widespread view . . . that if judges cannot find a coherent single principle – or at least a rather small and manageable set of principles – on a subject, they should exit entirely and let the politically accountable branches decide such questions prudentially."  Berg, Religion Clause Anti-Theory.  I guess I don't agree with that widely shared view, and I suppose if I were forced to choose between simple and predictable single-value rules that mutilate the conflicts of religious liberty for the sake of cohesion and an inelegant approach that permits judges to aspire to analyze the conflicts as they actually are, I would go for the latter.  But the reality is that this is a false choice because my approach depends to a great extent on the constraining quality of precedent to shape judgment -- not by giving judges a quick and easy rule to apply, but by focusing their attention on fact specific inquiries within which multiple values (though certainly not an infinite number of them) compete for dominance.  We can have (2) without (1) -- and courts often decide cases believing just this (and...if I had to predict the way Hosanna-Tabor will be written, it will reflect something like my approach!).

Thanks again, Tom, for the terrific and difficult question, which I've only sketched an answer to here.

Tuesday, June 28, 2011

The Dynamo, the Virgin, and Justice Breyer

By Marc DeGirolami

I see that this website has an interview with Justice Breyer where he lists and comments on several books that have influenced him.  The list is interesting and, at least to me, somewhat surprising.  I would not have expected The Education of Henry Adams to appear on it.  Indeed, I wonder about Justice Breyer's view that the book is about the survival of democracy, let alone the view expressed by the interviewer that Adams in The Education "was both sceptical and optimistic about the constitutional system . . ."  I'm not sure that's how I read, say, this memorable bit from the penultimate chapter, "A Law of Acceleration":

At the rate of progress since 1800, every American who lived into the year 2000 would know how to control unlimited power. He would think in complexities unimaginable to an earlier mind. He would deal with problems altogether beyond the range of earlier society. To him the nineteenth century would stand on the same plane with the fourth--equally childlike--and he would only wonder how both of them, knowing so little, and so weak in force, should have done so much. Perhaps even he might go back, in 1964, to sit with Gibbon on the steps of Ara Coeli.

Meanwhile he was getting education. With that, a teacher who had failed to educate even the generation of 1870, dared not interfere. The new forces would educate. History saw few lessons in the past that would be useful in the future; but one, at least, it did see. The attempt of the American of 1800 to educate the American of 1900 had not often been surpassed for folly; and since 1800 the forces and their complications had increased a thousand times or more. The attempt of the American of 1900 to educate the American of 2000, must be even blinder than that of the Congressman of 1800, except so far as he had learned his ignorance. During a million or two of years, every generation in turn had toiled with endless agony to attain and apply power, all the while betraying the deepest alarm and horror at the power they created. The teacher of 1900, if foolhardy, might stimulate; if foolish, might resist; if intelligent, might balance, as wise and foolish have often tried to do from the beginning; but the forces would continue to educate, and the mind would continue to react. All the teacher could hope was to teach it reaction.

Monday, June 27, 2011

The Maximalist Uses of Dante

By Marc DeGirolami

From Justice Scalia's majority opinion in today's case involving violent video games, Brown v. Entertainment Merchants Assn.:

California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none.  Certainly the books we give children to read -- or read to them when they are younger -- contain no shortage of gore.  Grimm's Fairy Tales, for exmaple, are grim indeed.  As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." . . . . Cinderella's evil stepsisters have their eyes pecked out by doves.  And Hansel and Gretel (children!) kill their captor by baking her in an oven.

High-school reading lists are full of similar fare.  Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake . . . . In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface . . . . And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.  FN4

FN4: Justice Alito accuses us of pronouncing that playing violent video games "is not different in 'kind'" from reading violent literature.  Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection.  Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.  But these cultural and intellectual differences are not constitutional ones.  Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny[.]

It is interesting that Justice Scalia cites Canto XXI of Inferno right in the text of the opinion.  This is the fifth bolgia of the Eighth Circle, where those guilty of barratry are submerged in boiling pitch, while demons (in this case, the Malebranche) torture them in various horrible ways.  Barrators are public servants and officials who sold their offices for money.  And barratry in civil law is the bringing of legal claims that are totally meritless, for purposes of harassment.  It isn't in Justice Scalia's opinion, but in addition to the cultural and intellectual differences between the Inferno and Mortal Kombat, it may be worth noting that Dante meant to condemn the barrators, not to celebrate them.    

UPDATE: Commenter Elena reminds me that there is a rather violent video game (rating 18, just like the rating challenged in Brown) of Dante's Inferno.  In the video game, of course, it is the player who can, in his considered discretion, "punish the damned, or absolve them as they are defeated." 

Saturday, June 25, 2011

Political History of Law and Religion Scholarship

By Marc DeGirolami

I am just back from a useful and interesting conference organized by Nelson Tebbe, Paul Horwitz, and RMOJ (that's Rector of Mirror of Justice) Rick Garnett, convened at Northwestern Law School with Andy Koppelman's gracious hospitality.  The conference brought together scholars from an extraordinarily broad range of perpspectives, and it was a pleasure for me to see and speak with MOJ family members Steve Shiffrin, Tom Berg, Mike Moreland, and Susan Stabile.

The various projects that people presented were very interesting -- some highlights for me were an Augustinian project in political and legal theory by John Inazu and a paper on freedom of the church (as distinguished from "religious" freedom) by Steve Smith, as well as a panel discussion of the Hosanna-Tabor case by deeply informed and insightful folks, but there were many others.  But I was also impressed by the distance of the projects from each other -- distance in perspective, in tone, and most especially in weltanschauung.

That got me wondering about something that might sound a little like navel-gazing, though in my defense it's really more about gazing at other people's navels than my own.  What would a political history of law and religion scholarship look like?  Would it show consistency with respect to the range of world views espoused by scholars in this area?  Or would it show expansion?  Or something more complex?

My horse sense is that the political history of law and religion scholarship might track (very) roughly the comparatively recent history of American politics.  It would evince, that is, a movement from a state of relative convergence on a set of agreed upon views to a state of increasing splintering and balkanization (or, to put it in more sanguine as well as ambiguous terms, to a state of increasing pluralism) of perspective.  Of course I don't mean that the earlier convergence among religion clause scholars tracked or mirrored an earlier political convergence, or that the current, more balkanized situation runs parallel to contemporary American politics.

What I mean is that if one were to survey the state of the field, say, roughly 30-40 years ago, one would probably see something approaching a rough similarity of perspective among many law and religion scholars -- folks who read both the Free Exercise and Establishment Clauses in a 'strong' way.  Many of the most important scholars of that generation held that general view, even as there may have been intramural differences among them.  Indeed, some of those very same folks were in attendance at our conference.  Of course there were dissenters from that general position 30-40 years ago too -- but the point is that there existed such a majority view, and that it was considered, for lack of a better term, mainstream, or eminently reasonable within the academic world -- a mid-20th century academic moderate liberal's view (which is not the same as a non-academic moderate liberal view).  Part of the power of the view was that a strong reading of the Establishment Clause gave these scholars a kind of bona fides -- certainly within academic circles -- when arguing for a strong reading of the Free Exercise Clause.  If you are against majoritarian religion, the chances might increase in the academy that people will listen to you when you argue in favor of anti-majoritarian religion. 

But today, I think it is much more difficult to identify any mainstream or consensus-like position.  There are those who like a strong EC and a weak FEC, those who prefer weak readings of both, those who go for a strong FEC and a weak EC, and those who hold to the strong reading of both.  But even those who prefer the dual strong reading aren't necessarily coming at the issue from the point de depart of mid-century academic moderate liberalism.  Some are coming from traditions of faith; some from radical political perspectives; some from rather specialized policy engagements; some from distinct philosophical traditions, and so on.  That variety of background has generated a broadening of normative preferences.  And so too, perhaps like the political culture itself, the political culture of law and religion scholarship exhibits a pattern of fragmentation -- it begins to look much more like a European parliamentary arrangement than the American situation at least as it once was.

Whether these developments are good or bad is not a particularly interesting question when framed in those stark terms.  Like all developments and changes, there is both gain and loss.  But sometime, somewhere down the road, it might be enjoyable and interesting for someone more capable than I to write a piece about the trajectory of law and religion scholarship -- what its political and cultural history looked like at inception, how it appears now, and how it may appear in years to come. 

Thursday, June 16, 2011

Indeterminate Sentencing, Rehabilitation, and Imprisonment

By Marc DeGirolami

The Supreme Court today decided Tapia v. United States, a decision interpreting 18 U.S.C. section 3582(a).  The issue had to do with the permissibility of the imposition of a term of imprisonment specifically for the reason that it would advance the function of rehabilitation.  The language in question is this: "The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation." 

The portion of Justice Kagan's majority opinion interpreting the language of the statute is worth reading for itself, but of even greater interest to me was the earlier discussion of the history of American federal sentencing.  I had not realized sufficiently that rehabilitation was perhaps the most crucial aim of the indeterminate sentencing system which was in place in the U.S. before passage of the Sentencing Reform Act -- in fact, that rehabilitation was thought to be fundamentally tied to indeterminate sentencing.  Historically, that has not necessarily been the case.  That is, (comparatively) indeterminate sentencing schemes have often been supported without any correlative support for rehabilitation as the crucial function of punishment.  The association of rehabilitation with indeterminate sentencing strikes me as a mid-twentieth century American phenomenon.

Also interesting is the simple fact that the SRA prohibits a judge from imposing incarceration for rehabilitative purposes.  This, too, as the amicus pointed out, is quite different than the earlier understanding of the pointedly rehabilitative purposes of incarceration.

Wednesday, June 15, 2011

Gorgias Ascendant

By Marc DeGirolami

Sophistry -- an ethic for our times, here (h/t MLM).  Or, of course, here:

GORGIAS: Well, I do not think, Socrates, that we ought yet to depart, but you should carry through the discussion, and I think the others too agree with me.  I myself am anxious to hear you go through what remains.

SOCRATES: I myself, too, Gorgias, would have liked to continue the argument with Callicles here, until I had paid him back with the speech of Amphion in reply to that of Zethus.  But since you are unwilling, Callicles, to help me finish the argument, you can at least listen and interrupt if at any point you think I am wrong.  And if you refute me, I shall not be vexed with you as you are with me, but you shall be enrolled as the greatest of my benefactors.

CALLICLES: Go on alone, my dear sir, and finish the argument.

Tuesday, June 14, 2011

Strangulation and Undercriminalization

By Marc DeGirolami

It seems to be something of a truism these days that there are too many criminal laws, and too many new criminal laws being created.  There is much that is sensible about the claims of overcriminalization; I'd recommend especially the (as usual) superb and thoughtful treatment by Doug Husak, Overcriminalization: The Limits of Criminal Law as well as a piece I think I've recommended before here by David Skeel and the late William Stuntz, Christianity and the (Modest) Rule of Law.

But not all new criminal laws are evidence of fatuous overcriminalization, even new laws which are used with frequency.  The offense (though of course not the act) of strangulation is a comparatively new phenomenon in criminal law.  New York passed its strangulation law in 2010, as did 13 other states.  The New York law creates three offenses, a misdemeanor and two felonies (classes C and D), and it is an important development in the law of domestic violence.  As this story explains (behind a pay wall, unfortunately), many victims of domestic violence state that they have been strangled at least once by their partner, but because strangulation often leaves no visible injury -- even when a victim has been strangled severely and near the point of death -- assailants generally could not be charged with anything more than harassment or some kind of simple assault.  The laws available did not accurately reflect the specific nature of the harm and threatened harm involved in strangulation.  Since the law's passage in New York and elsewhere, it has been used frequently, filling an undercriminalized gap. 

Monday, June 13, 2011

Stinneford on Proportionality as Part of the Original Meaning of the Eighth Amendment

By Marc DeGirolami

Via Larry Solum, I see that John Stinneford has posted a new version of his terrific piece on the issue of excessiveness of punishment as part of the original meaning of the Eighth Amendment.  John also discusses the theoretical nature of proportionality as exclusively retributivist (see note 32 and the section beginning at page 961 for John's position w/r/t utilitarian aims -- he basically stakes out a negative retributivist place for proportionality).

For those that do not know John's excellent and interesting work on originalism and the Eighth Amendment, may I also recommend his The Original Meaning of Unusual and his piece on chemical castration, which a couple of my students this last year found helpful as we talked about various kinds of punishment practices -- the possibility of physical castration as punishment is (incredibly, to me) a live one in some states in this country. 

Saturday, June 11, 2011

Nice Items in Today's NY Times

By Marc DeGirolami

Three of them: (1) a story about Bologna, the Lucullan princess of Italy and my childhood home away from home (Santa Maria Maggiore and Santo Stefano are ancient and magnificent); (2) a review of a wonderful looking new translation by John Ashbery of Rimbaud's Illuminations; and (3) a review of a book about a really neat volume by Tacitus, Germania, re-discovered sometime in the 15th century.  Tacitus is the author of the insufficiently well-known Annales, as great a declinist history as has ever been written (post-Augustan Rome was grim). 

From Book I of the Annales: "The histories of Tiberius, Caius [that's Caligula!], Claudius, and Nero, while they were in power, were falsified through terror, and after their death were written under the irritation of a recent hatred.  Hence my purpose is to relate a few facts about Augustus -- more particularly his last acts, then the reign of Tiberius, and all which follows, without either bitterness or partiality, from any motives to which I am far removed."  

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