Friday, August 12, 2011
“The Competing Claims of Law & Religion: Who Should Influence Whom?”
Pepperdine University School of Law, Malibu, California
February 23-25, 2012
On February 23-25, Pepperdine will host the third Religious Legal Theory conference. We will deal with: “The Competing Claims of Law & Religion: Who Influences Whom?” Some speakers will address the topic as a matter of constitutional law, some as a matter of “good citizenship,” some as a matter of religious faith. The speakers who have already agreed to speak at the conference include:
Abdullahi Ahmed An-Na‛im (Emory)
Caroline Corbin (Miami)
Marc DeGirolami (St. John’s)
Richard Garnett (Notre Dame)
Mohammad Fadel (Toronto)
Marie Failinger (Hamline)
Paul Horwitz (Alabama)
James Davison Hunter (Virginia)
Andrew Koppelman (Northwestern)
Samuel Levine (Touro)
Michael Moreland (Villanova)
David Opderbeck (Seton Hall)
Michael Paulsen (St. Thomas)
Lisa Shaw Roy (Mississippi)
Ayelet Shachar (Toronto) (tentative)
Steven Smith (San Diego)
Eugene Volokh (UCLA)
Please join us. Details will appear at: http://law.pepperdine.edu/nootbaar/
If you would like to speak at the conference or organize a panel, we welcome paper and panel proposals on any law and religion topic. Please submit proposals by September 15, 2011 to: [email protected]
The conference will be the basis of a spring 2012 Pepperdine Law Review symposium edition. Papers submitted by January 7, 2012 will be considered by the law review for publication. Submission of presentations is optional and publication is not guaranteed.
This conference is sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and co-sponsored by Pepperdine’s Glazer Institute for Jewish Studies. If you have questions about the substance of the conference, contact [email protected] or [email protected] If you have questions about the details of the conference, contact [email protected]
Rick Garnett is often calling our attention to the benefits of Catholic schools, particularly in underserved urban areas. I thought of that as I read a speech by Mayor Michael Nutter of Philadelphia--graduate of Transfiguration of Our Lord Elementary School and St. Joseph's Prep--delivered last week at Mount Carmel Baptist Church in West Philly that Rich Lowry writes "must rank among the most brutally forthright calls for personal responsibility and adult authority that an elected official has ever delivered in these United States" (text below the jump):
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The Wall Street Journal has a review of Mary Ann Glendon's new book, The Forum and the Tower: How Scholars and Politicians Have Imagined the World, from Plato to Eleanor Roosevelt. The book is a study of figures who sought to reconcile the scholarly life with politics: Plato, Cicero, Justinian, Machiavelli, Hobbes and Coke, Locke, Rousseau, Burke, Tocqueville, Weber, Holmes, and, finally, Eleanor Roosevelt and other framers of the Universal Declaration of Human Rights. As the reviewer (Brian Anderson, editor of City Journal) notes:
The Forum and the Tower benefits from Ms. Glendon's own divided calling. Her experience as the U.S. ambassador to the Vatican, in 2008-09, clearly informs her sympathetic treatment of the frustrated political ambitions of Alexis de Tocqueville and Max Weber, whose achievements proved to be almost entirely intellectual; her scholarly mastery of the law makes her chapters on Oliver Wendell Holmes and the United Nations Universal Declaration of Human Rights particularly luminous.
Punishment theory has become a dizzyingly complex and increasingly systematized affair. The name of the game seems to be to continue skimming away and refining, excluding this or that reason to punish as not central, or core, or truly important -- pouring all sorts of energy into discerning what is a sufficient reason and what a necessary reason, and so on. I talk about some of these developments in this paper and I ask whether, if judges, lawyers, and legislators are at least in some small measure the target of these theories (something which might well be contested), what use these efforts could possibly be to them.
But I had a thought yesterday that I wanted to throw out for reaction. We have reached a kind of rough equilibrium in federal sentencing. After the Apprendi/Blakely/Booker cycle, the federal sentencing guidelines are merely advisory, and there is rather deferential appellate review accorded to the decisions of sentencing judges. I take it that part of the aim of the sentencing guidelines was to engage in a very thoroughgoing systematization of the reasons to punish as well as the amount to punish. We're now back to a much looser and less regularized approach, where judicial discretion is far greater and the range of reasons that a sentencing judge might offer for selecting a particular sentence is quite broad and granted significant deference.
We have gotten to this place in federal sentencing for constitutional reasons, because of the Sixth Amendment requirement that fact-finding which results in sentencing consequences either be admitted by the defendant or be proved beyond a reasonable doubt by juries. And yet...those constitutional reasons have resulted in a sentencing approach highly reminiscent of a kind of common law of punishment, in which individual judges are free to call upon many different kinds of highly context-specific reasons to punish. That is, the constitutional framework has led us policy-wise to a comparatively unruly and unsystematic approach to punishment.
So here is my question: is this linkage happenstance or structural? Is it sometimes, or even usually, the case that constitutionalism leads in a non-systematic direction? To put it a slightly different way, is there something about constitutionalism which makes it more probable that the law will admit of multiple and perhaps even clashing justifications for any particular legal and/or policy judgment? Or is the case of the constitutional common law of punishment serendipitous and sui generis?
Thursday, August 11, 2011
Over at the Harvard Business Review Blog, Umair Haque, Director of the Havas Media Lab, posted on the social meaning of the recent riots in London. Here's a taste:
[London is] a poster child for the perverse dynamics of a Great Stagnation: a few super-rich get super-richer while incomes stagnate and decline for the vast majority of the "rest." And when the rule of law is visibly, easily flouted by the rich, it usually ends up being seen as laughable by the poor.
While some of Haque's ideas are a little too extreme for me, some are dead right. I particularly agree with his diagnosis of what he calls the "logic of opulance." ("Its glittering, unattainable fever dream seems to have driven the rioters mad.") Incidentally, this is no reason to believe that this will remain a European phenomenon.The Pew Research Center reports a 20:1 gap in wealth between whites and minorities in America.
These are troubled times for the global economy. There is a growing concern that Haque represents that foundational presuppositions need to be rethought for the new globally networked economy. As Benedict XVI puts it in Caritas in Veritate, what is needed now is "further and deeper reflection on the meaning of the economy and its goals." Surely this past week should call us to realize how urgently we need to do this now. As Archbishop Chaput was recently quoted as saying "If we don't love the poor, and do all we can to improve their lot, we're going to go to Hell."