This column by Roger Cohen is noteworthy for the earnestness of its anger against religion -- its "disgust." In truth, I have little quarrel with the claim that lots and lots of people in this world are miserable, including many of the people Cohen discusses. In fact, I have great sympathy for that view, and can remember having it reinforced almost every day as a state prosecutor. And that was just after dealing with defense counsel. I can even forgive Cohen for painting in rough and uncareful strokes. After all, I'm not sure it's really true that Representative King, as misguided as his hearings may be, is in precisely the same category as the guy who murdered the Swedish man, or the other one who killed the Catholic policeman. There seem to be relevant differences there. I also don't quite understand the charge that Newt Gingrich and King are choosing "opportunistically" to target "creeping Sharia" "at a time when the middle name of the president is Hussein." Opportunistic as their motives may be, I am not sure I see the connection to the President's middle name. But maybe I just haven't been keeping up with this nonsense. And of course, I understand that wrathfulness becomes more rhetorically pleasing as one wraps together disparate incidents into a single ball of seething self-righteous disgust.
Interestingly enough, Cohen finds in "religion" the lightning rod for his lightning. This is a move made with greater elegance by Professor Amos Guiora in this book as well, and one can find some nice discussion of it in Paul Horwitz's book too (see the section on the "New Commissars of the Enlightenment"). Non-religious people like Cohen (see the last line), eschewing the usual liberal tolerance of religion, are electing instead to take a more aggressive tack and blame religion itself for what ails us. I won't rehearse the standard replies to this move, as they will be familiar to the readership here. But I often do wonder the extent to which this new approach -- a bit more Voltaire and a bit less Madison -- might or might not influence the law of religious liberty.
Monday, April 4, 2011
Rick has noted the Winn decision and offered a per usual smart and nuanced rapid reaction. I agree with Rick that the Flast exception is problematic (I am still not quite clear about the "logical link" and "nexus" tests...Justice Scalia notes that the majority and the dissent "struggle" to decide whether this case is in or out), and I, too, might have liked to see this case develop the Zelman line (however that development took shape). But I'm not sure about that. For a very nice piece on the beneficent move of the Court to standing doctrine to resolve some of these cases, see Steve Smith's excellent piece, Nonestablishment, Standing, and the Soft Constitution.
I also note that this is the first (I think?) major Religion Clause decision in which we can see how Justice Kagan's mind operates in these cases, as she wrote the quite lengthy dissent. Rick was perspicuous here too.
Saturday, April 2, 2011
A complicated story, whose aim, it seems to me, is to highlight the distance between liberalism and democracy.
Friday, April 1, 2011
Don't miss Larry Solum's fantastic April Fool's scholarly papers. My favorite is the abstract from Richard Posner's piece, "What Do Deities Maximize?" and this line in particular: "Given omnipotence and omniscience, it follows that all states of affairs already accord with the preferences of an omnipotent and omniscient deity, leading to the paradoxical conclusion that rational action by such an entity is impossible."
The best thing about Solum's tom-foolery is its near-plausibility.
Thursday, March 31, 2011
One of my favorite issues in criminal law is the choice of evils -- the rule that the defendant is justified if, setting aside certain side-constraints, he breaks the law in order to avoid or abate some other, much graver social harm. And one of the most well-known philosophical expositions of the choice of evils is Philippa Foot's and Judith Jarvis Thomson's "trolley problem": a trolley on a track is speeding out of control, and there are 2 people directly in its path. You are on the trolley, and have the power to divert the trolley to another track, where it would kill only one person. Should you do nothing or take action to divert the train?
Every so often, the choice of evils actually shows up in a real case, and it did about a week ago in the New York Court of Appeals case, People v. Freddy Rodriguez. Even more surprisingly, the case raises a quasi-trolley problem scenario. Here's what happened. Somebody named Rios parks his "overloaded box truck" on a hill, with the truck facing downhill. He turns the truck off, leaves the keys in the ignition, and goes into a store. While he's in the store, the truck goes down the hill, killing one person and seriously injuring two. But there was a dispute about how the truck got down the hill.
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