One of the reasons I am enjoying the judicial recusal debates is that, in their technical way, they unexpectedly touch on various deep questions. One of those is the nature of marriage today. Readers may be interested to look over Judge Reinhardt's explanation, issued today, for his earlier refusal to grant the motion to recuse in the Perry litigation. For what it's worth, I think Judge Reinhardt makes a plausible case not to recuse himself in this matter. In an earlier post, I wrote that it is not reasonable automatically to treat spouses as a political or ideological unit, and Judge Reinhardt spends a good deal of the memorandum making this point.
But it seems to me that he goes further, with this:
Proponents' contention that I should recuse myself due to my wife's opinions is based upon an outmoded conception of the relationship between spouses . . . . In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them . . . . Because my wife is an independent woman, I cannot accept Proponents' position that my impartiality might reasonably be questioned under [section] 455(a) because of her opinions or the organization that she heads.
Judge Reinhardt adds a footnote to the co-authored book by James Carville and Mary Matalin, All's Fair: Love, War, and Running for President.
I don't think it was necessary for Judge Reinhardt to go this far, and I think it weakens the opinion that he does so. As I said, it is wrong automatically to impute ideological identity as between spouses for recusal purposes. But it rings false, at least to me, to describe the relationship of a husband and wife as one in which "fundamental interests" are "shared." I share fundamental interests with lots of people -- my friends, people I go to church with, the guy across the street who got a "Slow, Children" sign put up close to our house, maybe even a law professor or two (given my views, probably not many more than that). I share fundamental interests with people I don't know: lovers of Italian poetry, or of French cuisine and Bordeaux grands crus (not fundamental enough? I cannot agree). It seems to me that most people think that spouses are united by more than common interests, even fundamental ones. Here's only a partial list off the top of my head: bonds of love, of loyalty, of sentiment, of respect and admiration, of duty, and of fidelity.
Now, it's certainly true that not all married couples share these bonds. But (I suspect in order to make his opinion appear more powerful) Judge Reinhardt seems to want to make a stronger point about what modern marriage is all about -- about each of the spouses' "independence" aside from whatever interests they share. The trouble is that since the recusal standards rely very much on public appearances, they also trade on ideas of what ordinary people think -- and in this case, what an ordinary person might think about the nature of the relationship of a married couple. Is it really "outmoded" or the vestige of some horribly atavic, chauvinistic conception of marriage to think that a spouse, for reasons of love, respect, familial congeniality, and so on, would at least consider the feelings of the other spouse in deciding on any given course of action?
But maybe it is I that misunderstands the sorts of bonds that marriage today -- at least as an ideal -- generally suggests. It might be true that the bonds I list above -- or any others that you can think of which somehow exceed "share[d]" "interests" -- are generally perceived to be "outmoded." It certainly isn't the first time I would have been called outmoded.
The Times Book Review today features several reflections on literary criticism. The piece by Katie Roiphe -- author of a mordant item of criticism some time back on the...limpness of contemporary fiction by male writers -- makes the elegant point that the difference between good and bad criticism really has to do with style, not substance: "[C]ritics must strive to write stylishly, to concentrate on the excellent sentence . . . . More than ever, critical authority comes from the power of the critic's prose, the force and clarity of her language." I've often felt that good scholarly criticism, in many ways like any good writing, is about the telling, not the story. Novelty is hyped, craft overlooked.
There is also an interesting piece by Adam Kirsch in the collection, with this observation about the decline in what he calls "the grand style" of criticism -- the criticism of Matthew Arnold:
I'm not sure anyone is writing this kind of criticism today -- certainly the most admired literary critics aren't -- and the reason is probably the one [Alfred] Kazin cited: "the growing assumption that literature cannot affect our future, that the future is in other hands." . . . . It is difficult to recapture the old sense, which Arnold had, that the literary critic is the critic par excellence, that the study of literature gives you the best vantage point from which to understand an entire society.
Perhaps this loss of centrality accounts for my own inclination to put the emphasis in the phrase "literary criticism" on the first word, not the second. If you are primarily interested in writing, then you do not need a definite or immediate sense of your audience: you write for an ideal reader, for yourself, for God, or for a combination of the three. If you want criticism to be a lever to move the world, on the other hand, you need to know exactly where you are standing -- that is, how many people are reading, and whether they are the right people.
I was left with a few questions. First, if it is true that literary criticism no longer enjoys preeminence as a critical mode, what has replaced it? Perhaps nothing has, and there are now simply a larger number of enclaves, each with their own critical predilections. But one possibility for a replacement -- or at least an especially large and influential enclave (note, e.g., the expanding offerings of academic book publishers) -- is law. Is academic legal criticism and writing (becoming) what literary criticism once was?
Second, I'm deeply sympathetic to the point that Kirsch makes in the second paragraph. But I wonder whether the legal scholar must take the world-leverage view of criticism, or indeed of writing. That is, I am curious whether the disposition that Kirsch describes is really confined to the likes of the Arnoldian literary critic. A related question: must the Catholic legal academic take such a view -- to use one's writing life expressly to heave the world in a desirable direction, as an instrument of social improvement? Or is it possible instead to write criticism in law while caring more -- or at least as much -- for the writing, or for oneself, or for God, as for its audience, its influence, and its relationship to and position within the world?
For those MOJ denizens who will be in San Francisco next week, I hope we'll have a chance to meet up and toast the new year with a little of Walker Percy's bourbon (see the very good comment and link below). Here are some of the panels that look interesting:
1. A little self-promotion. Come on over to the Jurisprudence panel on Friday the 7th at 4:00 (Parc 55 Hotel, second floor), where the subject is the choice of evils defense in criminal law. I am very lucky to have some really fine scholars as co-presenters: Larry Alexander, Youngjae Lee, Malcolm Thorburn, and the wonderful organizer of our panel, Vera Bergelson. I'm going rogue -- not talking about jurisprudence at all and the COE only a little. Instead, I'll focus on the thought of Sir James Fitzjames Stephen and argue for something implausibly ambitious in a talk called, "Against Theories of Punishment." I'll be trying to transform the talk into a paper over the next couple of months, so your reactions will be most welcome.
2. Law and Religion in a (Post-) Secular Age (Hotel Nikko, 3d Floor), Sat. the 8th at 8:30 (early!). The panelists look to take Charles Taylor's book as a springboard for discussion of new directions in law and religion. Co-moderated by the always interesting Paul Horwitz and Caroline Corbin.
3. Lawyers' Special Responsibilities as Public Citizens in a Rapidly Changing World (Friday, 10:30, 3d floor at Parc 55). Rob Vischer is delivering a talk on this panel, and the panelists look to be quite diverse, which is always more fun. But I'm going just for him.
4. Islamic Law and Crime in Contemporary Courts (Saturday, 10:30, Parc 55, second floor). Fascinating subject that I don't know much about, but which incorporates two of my interests. Featuring Russell Powell.
5. Rabbinical Courts in American Law (Thursday, 9:00, Hilton, Ballroom Level). Some heavy hitters on the subject of Beth Dins here, including Doug Laycock and Michael Helfand, who knows a great deal about this subject. I'm sorry to be arriving too late to hear these guys. Moderated by my colleague Keith Sharfman, who is very learned in this area.
6. Don't miss the LUMEN CHRISTI conference that goes on Saturday nearby. There are some really terrific books either just out or in the works. I just got a copy of John Coughlin's Canon Law: A Comparative Study With Anglo-American Legal Theory and am looking forward to reading a little before hearing about it.
I like essays -- writing and reading them. In law, the essay is kind of a hybrid creature and a still-emerging stylistic form. The essay is missing some of the stolidly self-conscious seriousness of the article but it's so much more fun than the review. For me, the distinguishing feature of the essay -- what separates it from the prideful autonomy of the article -- is its reactive quality. It's a writing form that is somehow more socially connected, as what begins as a discrete counterpoint can blossom into broader, but still comparatively narrow, reflections.
For Christmas, my dear mother-in-law gave me the "Best American Essays of the Century" (a little late, you say? Maybe, but I still prefer it to similar collections of the past decade). Most of the essays are by American-born writers, but not all (e.g., John Muir). I have not read many of the essays and have only really read the work of about half the authors. Some of my favorites are in the book -- T.S. Eliot's Tradition and the Individual Talent, Henry Adams's A Law of Acceleration, Susan Sontag's Notes on "Camp." Others I care less for (Updike's The Disposable Rocket is the usual from him: "From the standpoint of reproduction, the male body is a delivery system, as the female is a mazy device for retention.").
With only a few exceptions, I noticed that there are almost no Catholic essayists on the roster (difficult for me to count Mary McCarthy or Annie Dillard). One is Richard Rodriguez -- a new author for me -- here's something from his essay, Aria: A Memoir of a Bilingual Childhood, "Supporters of bilingual education imply that students like me miss a great deal by not being taught in their family's language. What they seem not to recognize is that, as a socially disadvantaged child, I regarded Spanish as a private language."
But how about it, knowledgeable MOJ writers and readers: who are your favorite Catholic essayists? Definitions are always tricky, so please construe the labels broadly -- writers of short, non-fiction pieces who have been influenced by their Catholicism in one way or another. Fire away!
Rick mentioned this article by Steve Smith some time ago, but since I'm always behind in my reading, I only got to it yesterday. I wanted in this post to note again that the piece is a worthwhile read and highlight some of Steve's interesting and (I think) elegant moves.
The doctrine of government speech recently has crept into cases whose facts implicate Establishment Clause issues. Pleasant Grove v. Summum will be familiar to MOJ readers, and there has been a flurry of scholarly writing directed toward this development (for a good summary of the issues and a careful take on the question of government speech, see this paper by my friend, Mary Jean Dolan). In a nutshell, here's the issue: if the "speech" of erecting a monument is private, then isn't it illegitimate for a municipality to discriminate for content-based reasons as to which monuments get public real estate? If the same speech is public, then doesn't the municipality violate the Establishment Clause by putting up, say, a monument of the Ten Commandments and not putting up other religious monuments?
After the jump, some description of and thoughts on Steve's paper.
Our business is to get them away from the Eternal, and from the Present. With this in view, we sometimes tempt a human (say a widow or a scholar) to live in the Past. But this is of limited value, for they have some real knowledge of the Past and it has a determinate nature and, to that extent, resembles eternity. It is far better to make them live in the Future. Biological necessity makes all their passions point in that direction already, so that thought about the Future inflames hope and fear. Also, it is unknown to them, so that in making them think about it we make them think of unrealities. In a word, the Future is, of all things, the least like eternity. It is the most completely temporal part of time -- for the Past is frozen and no longer flows, and the Present is all lit up with eternal rays . . . . Gratitude looks to the Past and love to the present; fear, avarice, lust, and ambition look ahead.
They are different in tone and meaning, but I remembered Eliot's lines about time past and time future pointing to one end -- time present. Buon Natale, MOJ friends!
Here's what seems to me a balanced article about the waning courtship of religious liberals by the Democratic party and President Obama's administration. It will be interesting to see whether efforts pick up in advance of 2012.
This is Steve Shiffrin territory, and maybe he will have some thoughts about these developments.
This Christmas season, I wanted to patch up one of the many holes in my reading and picked up a copy of The Screwtape Letters (for New York readers, there's a theater performance of it in town that I've heard some good things about, but please weigh in if you've caught it). The book is clever and very enjoyable, and I thought it might be fun to share some passages over the next few weeks with the MOJ community for comment, discussion, remonstration, silently satisfied rumination, etc.
Here's a passage from the second letter. Screwtape, a highly placed demon, is describing to his nephew, the novice demon Wormwood, the best way to prey on the sensibilities of the recent Christian convert -- to direct him back to the devil's fold:
Work hard, then, on the disappointment or anticlimax which is certainly coming to the patient during his first few weeks as a churchman. The Enemy allows this disappointment to occur on the threshold of every endeavour. It occurs when the boy who has been enchanted in the nursery by Stories From the Odyssey buckles down to really learning Greek. It occurs when lovers have got married and begin the real task of learning to live together. In every department of life it marks the transition from dreaming aspiration to laborious doing.
I was reminded of the statement (I can't remember where) that for the convert, the first experience of Christianity is like the first experience of the Post Office. How marvelous!! One's mail is picked up and is actually (by some sorcerer's magic?...no...but how, then?) delivered in timely fashion all over the world? Not to be believed! For the ordinary church goer, by contrast, the Post Office performs its regular, necessary and vital labor, just as it ever has and ever will.
My friend and colleague Chris Borgen flagged this fascinating little project undertaken by some sanguine Harvard data jocks to uncover the human "culturome" -- the social scientific equivalent of the human genome -- by systematically analyzing the evolution of language patterns in the roughly 5-odd million books that Google Books has scanned and drawing conclusions about the history and future of culture. I enjoyed this bit:
As the team says, the corpus “will furnish a great cache of bones from which to reconstruct the skeleton of a new science.” There are strong parallels to the completion of the human genome. Just as that provided an invaluable resource for biologists, Google’s corpus will allow social scientists and humanities scholars to study human culture in a rigorous way. There’s a good reason that the team are calling this field “culturomics”.
Some of my favorite findings: "Contrary to warnings about its imminent demise at the hands of teenagaers and Americans, English is booming. In the last 50 years, its vocabulary has expanded by over 70% and around 8500 words are being added every year." Well, that settles it!! Expansion is to linguistic health as cleanliness is to godliness.
And another: "When the team looked at the frequency of individual years, they found a consistent pattern. In their own words: “'1951' was rarely discussed until the years immediately preceding 1951. Its frequency soared in 1951, remained high for three years, and then underwent a rapid decay, dropping by half over the next fifteen years.” But the shape of these graphs is changing. The peak gets higher with every year and we are forgetting our past with greater speed. The half-life of ‘1880’ was 32 years, but that of ‘1973’ was a mere 10 years. The future, however, is becoming ever more easily ingrained."
Poor forgotten 1973 (and 1880)...but here's to 2011! And here's hoping that "culturomics" does for cultural studies all that empirical legal studies has done for law. But I digress. Didn't Giambattista Vico try to do something similar in The New Science? (Scanned here, as culturomicists will know, by Google) To be sure, his empirical instruments were slightly less refined, but perhaps "culturomics" will inspire the revival of the sort of historicist philosophy that Vico fathered and which flourished in 18th-19th century Germany. One can only dream. Thoughts, philosophers or culturomic wannabes? [p.s., -- I know most people say Vichian, but I can't bring myself to bastardize Vico's name like that...at least not until I see more usage data from the study].
I have been noticing an increasingly common move in journalistic and popular accounts of judicial decision-making. A politically charged policy issues in a judicial decision either striking it down or upholding it. Because it is politically charged, the decision garners the attention of the public. Oftentimes the legal issues are complex, but members of the public, and certainly the media reporting on the decision, feel quite strongly about what the proper outcome ought to be. When the writer disagrees with the outcome of the case, rather than attempting to engage with the substance of the decision -- or even try to make the issues digestible for the public -- the writer will instead focus on the judge's background -- her "biases." That is why one always sees prominently in these kinds of accounts the political affiliation of the president who nominated the judge. It is also why one sees, increasingly, an analysis of any possible personal conflicts -- no matter how remote -- that a judge might have that would tilt his or her mind. In this way, the outcome can be explained -- understood by the public for what really motivates it.
In this column, Washington Post columnist Ruth Marcus begins by rightly criticizing the increasingly popular notion that a judge cannot be fair merely because he or she has developed the kinds of "political" contacts that got him or her nominated in the first place.
Because I agree with that view, it was all the more disappointing to see Marcus breezily elide the issue of whether or not Judge Henry Hudson's views on the mandate were legally convincing (something she spends one sentence doing -- "I happen to believe that the individual mandate passes constitutional muster, but I also believe a credible argument can be made the other way") with the question of whether Judge Hudson is a "partisan hack[]" because he retains an ownership interest in a Republican consulting firm [addendum -- a firm which at one time, though not at any time during which Judge Hudson considered the case, provided services to the Virginia AG, who brought the challenge]. Marcus goes on to extend this claim to a judge's decision to address a political group: she says that Justice Scalia's decision to address a Republican group is "a terrible idea" because while addressing "ideological[ly]" oriented groups is ok, this is just one step too far.
For myself, I don't see how making a speech to a group is analogous to having a financial interest in the outcome (which Judge Hudson did not have here) [addendum -- a conclusion, for me, unaffected by the fact that the AG bringing the case, at some point in time before the judge heard and decided the case, received services from the consulting firm], but let's set that aside. The larger point is that if it's true that reasonable minds can disagree about the legal merits of the mandate (and I have no opinion about this issue, since I'm not sufficiently familiar with the legal arguments), then it's unfortunate to see Marcus using personal bias as a proxy for substantive criticism. I've written on this page before about the use of recusal motions as weapons, and I expect the use of such motions to increase, just for this reason: it's so much easier to cast aspersions at a judge's integrity than to engage with complicated legal questions. It is also a highly effective way of attacking the merits of a decision without actually addressing them. I should add, should it be necessary, that it's no less objectionable to me when this kind of denigration happens to judges who are ideologically oriented left-ward.
