Lawrence Solum, who produces the Legal Theory Blog, has commented on MOJ friend Eduardo Penalver's and Lior Strahilevitz's essay, "Judicial Takings or Due Process?" The essay argues for a deliniation of the boundaries between judicial takings and due process that is "narrower and more coherent". The link to Legal Theory blog is here and to the SSRN page is here. Solum highly recommends it, and so do I.
Monday, March 28, 2011
Penalver and Strahilevitz on Judicial Takings
Secularism and Self-Identity
Greg had a post the other day titled "The Pro-Life Generation", in which he expressed hope for the future based on the activities of Students for Life.
There is another story about young people that is far less hopeful. Psychology Today reports that, whereas in the past the secular identiy of atheism/agnosciticm was incidental to their identity, today college students increasingly "consider their secularism to be an important, primary aspect of self-identity." The article continues:
Nothing demonstrates this point more clearly than the rapid growth of the Secular Student Alliance, the umbrella group for organized atheism and humanism on college campuses (and now high schools as well). SSA chapters have grown from less than 50 in 2007 to over 250 today, and there is no sign of slowing down....
In recent years, however, that has changed, as nonreligious identity has become increasingly important to many.
"After the September 11 attacks, I began thinking that perhaps I should speak out against what I felt was a mindset that is not only wrong but dangerous," says Ian, who was a student at the University of Wisconsin in 2001 when the religiously motivated 9-11 terrorists took the lives of 3000 innocent victims.
Ian expresses the sentiments of many young adults who increasingly have come to see traditional religion as having little value in the modern world. A secular lifestance, to many of these students, is not secondary or incidental, but a primary aspect of their self-identity.
It seems to me religion is not doing a very good job if we can't convey to young people how it is meaningful to them in today's world.
Jewish law syllabus project
From Touro law prof Sam Levine:
On behalf of the Jewish Law Institute at Touro Law Center, I am pleased to announce the initiation of the Jewish Law Syllabus Project.
With the continuing emergence of Jewish Law as an area of focus in both the American law school curriculum and American legal scholarship, recent years have seen an expansion of law school courses and centers dedicated to exploring various aspects of Jewish Law. The aim of the Jewish Law Syllabus Project is to help facilitate this increasing attention to Jewish Law in American law schools, through the compilation of a collection of syllabi from Jewish Law courses. This collection will serve as a resource, for scholars who are interested in undertaking the teaching and study of Jewish Law, as well as for those who are currently pursuing these fields.
Toward that goal, I would like to invite you to participate in the Jewish Law Syllabus Project. I would appreciate if you would send to my attention copies of Jewish Law syllabi, from both current and past courses, taught by you and/or others. Please send email attachments, to: [email protected]; or printed copies, to: Touro Law Center, 225 Eastview Drive, Central Islip, NY 11722.
I thank you in advance for your participation, and I welcome any questions and comments you may have about the project.
Welcome to Michael Moreland!
I'm happy to announce that Prof. Michael Moreland (Villanova) is joining the MOJ-blog-crew. Besides being an all-around good guy (notwithstanding his University of Michigan connections), Prof. Moreland knows a lot about many things. Here's a bit from his bio:
Professor Michael Moreland joined the Villanova faculty in 2006. Professor Moreland received his B.A. in philosophy from the University of Notre Dame, his M.A. and Ph.D. in theological ethics from Boston College, and his J.D. from the University of Michigan Law School. His scholarly interests focus on torts, bioethics, and law and religion. At Villanova, he teaches Torts, Evidence, Bioethics and the Law, Advanced Torts, Justice and Rights (1L elective), and seminars in bioethics and in Catholic social thought. Following law school, Professor Moreland clerked for the Honorable Paul J. Kelly, Jr., of the United States Court of Appeals for the Tenth Circuit and was an associate at Williams & Connolly in Washington, D.C., where he represented clients in First Amendment, professional liability, and products liability matters. Before coming to Villanova, he served as Associate Director for Domestic Policy at the White House, where he worked on a range of legal policy issues, including criminal justice, immigration, civil rights, and liability reform. . . .
Welcome, Michael!
Carozza on Lautsi, and memory
The good folks at The Becket Fund have posted a discussion of the Lautsi case (about crucifixes in the classrooms of Italian schools), which features my colleague, and international-human-rights expert, Paolo Carozza. A taste:
Professor Carozza points out that religious liberty “has some institutional and communal aspects that cannot be separated from it, without emptying religious freedom of its meaning and substituting it with the secularism of the State.” He adds that
we cannot disregard the importance of history. Every population is attached to its history as well as to its current state. As the Judge from Malta, Giovanni Bonello, stated in his concurring opinion, … “The European Convention does not oblige us to have a collective ‘historical Alzheimer’s’”. The aspects of a culture cannot be abstractly separated from the history of a people.
Professor Carozza’s observations build on the unstated reality that Lautsi and cases like it are in the end arguments about baselines: What is the “neutral” position when it comes to relationships between religion and government? One view holds that the neutral position is the blank wall, a kind of tabula rasa. This view has something in common with the Hobbesian construct of an ahistoric “state of nature” that often presupposes a positivist conception of the law. There is also an analogy here to John Rawls’s imaginary “original position”. Both philosophies deliberately subtract history, contingency, and memory from the human situation in order to reach conclusions about the law.
The other view is that there can be no blank slate: Each nation, and even each community, has a history of interaction between religion and government against which any current government actions (in Lautsi, keeping or removing crucifixes) will be measured and will gain their meaning. Cultural memory persists whether we want it to or not. In a real sense we cannot erase the slate and start over — we can only write over what is already there, because the “neutral” position is historically and culturally determined. Professor Joseph Weiler argued as much in his excellent presentation to the Grand Chamber in Lautsi.
Here we go! The Court grants cert. in the ministerial-exception case
Today, the Supreme Court agreed to hear (what I think is) the most important religious-freedom case in 20 years. The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC. (More here, at the Religion Clause blog.)
The case does not involve what’s become the usual stuff of the Court’s church-state caselaw: prayer at football games, war-memorial crosses in the desert, manger scenes and Ten Commandments monuments in public parks. Nevertheless, again, this case is huge, and it is about, at its heart, what really matters.
The question in the case is whether antidiscrimination laws – like, for example, the Americans with Disabilities Act – allow courts to review hiring-and-firing decisions involving “ministerial employees.” In this particular case, a lower federal court had ruled that parochial-school teachers who teach primarily secular subjects are not “ministerial employees”, and therefore are covered by the Act.
The Supreme Court should reverse this decision. Although there are many difficult questions to be asked, and many fine lines to be drawn, when it comes to interpreting and applying the First Amendment’s religious-freedom guarantees, it cannot be the role of secular government to second-guess the decisions of religious communities and institutions about who should be their ministers, leaders, and teachers, any more than they should review their decisions about the content of religious doctrines. To be sure, not every employee of a religious institution is a “ministerial employee”, and religious institutions – like all employers – have many legal obligations to their employees. The point is not that religious institutions and employees are “above the law” but rather that there are some questions – such as, who should be this religious community’s minister? -- that our Constitution’s First Amendment does not allow secular government to answer.
Supreme Court grants cert in ministerial exception case
The US Supreme Court granted cert this morning in a case addressing the scope of the ministerial exception. Here is Howard Friedman's report. I am skeptical of the whole idea of this judicially created doctrine although I doubt whether the Court will consider the propriety of the exception. It seems, rather, that the focus will be on the scope of the exception. The Court doesn't need to abandon the exception to affirm the Sixth Circuit.
Richard m.
A new blog: "Catholic Moral Theology"
Here's a new blog that I'm sure many MOJ readers will want to visit regularly: "Catholic Moral Theology" is the group blog of "15 of the best young Roman Catholic moral theologians in North America offering their insights." According to one of the participants:
[A]ll of our interaction on the site will be done:
in friendship to engage each other in theological discussion, to aid one another in our common search for wisdom, and to help one another live lives of discipleship, all in service to the reign of God. We understand our role as scholars and teachers to be a vocation rooted in the Church and so we seek to place the fruits of our training at the service of the Church, as well as the academy and the world. We recognize that we as a group will have disagreements, but want to avoid the standard “liberal /conservative” divide that often characterizes contemporary conversation, as well as the bitterly divisive tone of so much ethical discussion (particularly on the internet). We therefore endeavor to converse with each other and others in a spirit of respect, charity, and humility.
Welcome to blog-land!
Sunday, March 27, 2011
The New North Carolina
I have been living in Raleigh for a few years now and have witnessed, even in that short time, dramatic changes in the area. The Wall Street Journal recently reported that the state's population grew over the past decade by about 18.5%. And, many of the new arrivals are Hispanic--now 8.4% of the state's population--while white population dropped to 45%. What does this mean? Maybe not much. But, it is clear that there is a growing Catholic population in this area. And, many of the newly arrived Catholics are professionally educated. Raleigh Diocese will celebrate its 3rd Red Mass this October. It would be difficult for me to witness these changes and not feel optimistic about the future.
Thirty-eight Years and Counting . . . But Still Reason to Be Hopeful!
On Friday we celebrated the Feast of the Annunciation, a liturgical celebration that, aside from Easter, could be described as the preeminent feast of hope.
Just over two months ago we marked the thirty-eighth anniversary of Roe v. Wade, an occasion of profound sadness, and for some, even despair. I had meant to post this entry at that time, but it fits nicely with Greg Sisk’s recent, hopeful post, The Pro-Life Generation.
Just prior to Roe’s anniversary, Russell Shaw published a sobering and largely accurate commentary here on why the barbaric legal regime created by Roe is still with us notwithstanding the opinion polls indicating that the country would like to be rid of it.
The polling data show that a majority of Americans don’t support the virtually unlimited access to abortion that now exists. Yet people who are opposed to abortion, at least tepidly, regularly vote for pro-choice candidates. The result is this prolife/pro-choice seesaw. Up and down—it’s been that way for 38 years. So let us return to our question: How come?
It appears to me that the only possible explanation for this voting behavior is that, no matter what many people say they believe about abortion, when push comes to shove the issue doesn’t carry all that much weight with quite a few. For them, clearly, it is not the great moral issue of our times that convinced prolifers—and not a few prochoicers as well—consider it to be.
And the fact that it isn’t can only be understood as a reflection of the value such people assign to human life before birth. Not that it’s unimportant exactly, but that in the end it’s less important than something else.
I describe Shaw’s comments as “largely accurate” because some voters may be convinced (and not without some reason) that political action against abortion will be unavailing. Most voters probably don’t think in terms of constitutional law, though Roe’s status as a constitutional decision is an obvious impediment. What they do see is that Roe remains in place despite all efforts to the contrary. Aren’t pro-life efforts on the legal front ultimately doomed to failure? Why “waste” my vote on a futile gesture at the ballot box?
Thus, Roe’s resilience and the perceived lack of pro-life progress can be disheartening. It can engender an abortion fatalism or resignation to the inefficacy of pro-life legal measures that becomes a kind of self-fulfilling prophecy. Convinced that pro-life politicians can make no difference, voters turn to “something else” (as Shaw says) in making their political calculation at the ballot box.
Contrary to this outlook, a compelling case can be made that the restrictions on abortion enacted over the course of Roe’s reign have had an enormous influence on the frequency of the procedure. I refer here in part to the path-breaking work of political scientist Michael New (see here, here, and here) showing that modest restrictions like parental notification requirements and waiting periods and prohibitions on the use of government funds to pay for abortions have significantly reduced the incidence of the procedure in states that have enacted them.
Other pro-life gains include the Partial Birth Abortion Ban, the Born-Alive Infants Protection Act, and the Unborn Victims of Violence Act. Cynics might protest that these statutes prevent few if any actual abortions, and that, to the extent they have any value at all, their value is entirely symbolic, serving only as rallying points and fund-raising opportunities for both abortion supporters and opponents.
There is some truth in this observation, but the value of these legislative acts goes beyond mere symbolism. The correct way to view these statutes is as a putting in place the legal foundation for building a culture of life (see here). They are necessary first steps to establishing in federal law the principle that the unborn child counts for something – that he or she is not simply a disposable object – and a reminder that the right in Roe, insofar as it exists at all, is a right to be unburdened by pregnancy, not the right to a dead child. See Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 99-100 (1976) (White, concurring in part and dissenting in par).
Few MOJers will argue with Shaw’s conclusion that the reality of the present situation simply “underlines the magnitude of the task of education and persuasion facing the prolife community after 38 years.” At the same time, Greg’s post reminds us that pro-life education efforts are already bearing fruit. The reason for hope is on the vine.
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