Dagger in hand

A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand.

--Michel de Montaigne, Of the art of discussion.

Stab back: cmnewman99-at-yahoo.com


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Monday, November 29, 2004
Tell that to Anna Nicole

Smirking aside, I think Randy deserves some kind of most cunning oralist award for this exchange in the Raich argument

Barnett: The point is that economic activity and personal liberty are two different categories.

Souter: That is not a very realistic premise.

Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity.
Beautifully done. Now let's hope that the Chief is truly able to participate in this decision, and that he wants to end his career by fulfilling his federalism revolution rather than by scotching it.

Wednesday, November 24, 2004
I am the great and powerful UN!
Pay no attention to the petty bureaucratic fiefdom behind the curtain.

Don't worry, things were always this bad.

So you're depressed that our democracy is going to hell in a handbasket? We've become hopelessly polarized and partisan? Media is scurrilous and manipulative? Politicians are engaged in character assassination, dredging up their opponents' war records, playing underhanded games with matters of state, and using prospects of war for personal and party advantage? Urban and rural voters don't see eye to eye? The electoral college system is a crisis waiting to happen? People are trying to use legal maneuvers to steal the election, which is in any case too close to call? If only we could go back to the days of high-minded statesmen like the founders, wouldn't it be great?

Well, read this. Welcome to democracy. Remember, it's not a good system, just better than the alternatives.

It's an excellent book. And it's available on audible for podheads.

Tuesday, November 23, 2004
If a story occurs and no journalist is there to report it, does it still contain inaccuracies?
Justice Scalia spoke at Michigan. But as Heidi reports, the media heard only what they wanted to hear. Don't miss this hilarious account of her exchange with a nuance-challenged journalist.

Critical Christian Studies

I received a link to this article from a law school friend of mine, along with the following comment:

I believe these schools are scary. Although it seems axiomatic that judges bring their personal moralities to bear on their decisions, and is likewise axiomatic that those morals shall often stem from religious precepts, I find quite disturbing the recent trend toward religious law schools. I can only hope they are never accredited. This is so because, it seems to me, their students are highly inclined to view the law through the prism of Christian dogma. Not only does this not make for a good attorney, I rue the possibility that such persons would, inevitably, be in positions to fill judcial posts. There can be no room in such positions for people who believe that "God's Law" is more important than "man's " law. Because, by their presence at these schools, these students are wedded to the principle of the superiority of God's Law over man's law, I do not believe that they can ever be really fit to serve in judicial roles. Because they are not fit to serve in such roles, the easiest way to keep them out of such roles is to refuse accreditation for their law schools.
Here's my response:

Let me hasten to agree with you that anyone who believes he can substitute the Bible for the Constitution in ruling on a case should not be made a judge. But let me raise a few points:

1) Don't these schools merely represent the rise of what one might call "Critical Christian Studies" (hereinafter "CCS"), just as we have long had critical race and critical gender studies? Like all crits, these people subject the law to radical criticism from the perspective of a given set of values, and assert that because the current system of legal decisionmaking gives insufficient weight to those values, the resulting "rule of law" lacks legitimacy. I think it's fair to say with regard to any of the "crit" schools of thought, that the more strongly a judicial candidate adheres to it, the less likely he is to feel morally bound to apply established legal rules where that would lead to results his ideology deems unjust. I think, therefore, that to be consistent on this score you would have to say that anyone who is "highly inclined to view the law through the prism of critical race theory" should be regarded as being at least as unfit to be a judge as one who views it "through the prism of Christian dogma." Do you disagree?

2) On the other hand, one doesn't have to take one's crittiness to extremes. Obviously, being committed to the rule of law does not preclude being critical about the current state of the law. Criticism of the law is usually based on some normative vantage point outside the law, and surely it is valuable to have such criticism from diverse viewpoints. Moreover, one can gain worthwhile insights from listening to what crits have to say without necessarily swallowing all six of their impossible things before breakfast. See Don Herzog, As Many as Six Impossible Things Before Breakfast, 75 CALIF. L. REV. 609 (1987). It's all a question of deciding which are, and which are not legitimate means of pushing legal norms in the direction you think they ought to go. A judge might very well sincerely believe, as you put it, "that 'God's Law' is more important than 'man's' law," and yet believe that ultimately her job permits her only to apply "man's law." One might even feel marginally more sanguine about the chances that an adherent of CCS, believing as she does in a God who will enforce her solemn oath to uphold the Constitution, will refrain from reading into said Constitution things she cannot in good faith find there.

3) I find your zeal to deny accreditation to schools presenting competing viewpoints much scarier than the fact that such schools exist. The only reason you have schools devoted to CCS is that unlike CLS, this viewpoint has been excluded from mainstream law schools. Had the leftist tilt of academia not ensured that CLS would get a respectful hearing, competing alternative law schools could easily have been the only places students could go to study with folks like Bell, Delgado, and MacKinnon. Would it have been acceptable to deny accreditation to such schools? Or would it have been more appropriate to apply to them the same neutral principles (given that we non-crits believe there is such an animal) that we apply to any school? Frankly, I don't even know exactly what those principles are, but I imagine (hope) that they prescribe mainly certain minimum standards with regard to competence in providing students with a grounding in key substantive areas of law. I'd agree we should deny accreditation to a "law school" that consisted entirely of bible study, but that's clearly not what we're talking about. As long as someone can demonstrate that he understands the difference between the holding of Erie and his prof's pet theory about Erie (something that might actually be easier when one comes from Ave Maria than from Yale…), what justification is there for disqualifying him from practice because we think his prof's pet theory is pernicious?

4) There is, in any case, no constitutional requirement that an Article III (or state) judge have graduated from an "accredited" law school, or any law school at all for that matter. (Personally, I don't think there's any justification even for making graduation from such a school a legal prerequisite of admission to the bar either, provided one can pass the exam.) If the ABA or whoever it is that doles out "accreditation" starts doing so according to ideological litmus tests, it will serve merely to devalue accreditation in the eyes of those who disagree with the ideology. If we get to the point where any President is willing to nominate, and Senate is willing to confirm, a judicial candidate who believes that his job will be to "preside under the Bible"--a prospect that I regard with as much horror as you, but that I regard as much farther-fetched than you--I think they will not be deterred by the fact that the godless legal academy refused to sanction his views.

5) Your horror at the prospect of these schools and their graduates becoming judges makes a prophet of Justice Scalia. Part of the point of textualism and originalism is that they greatly restrict the extent to which judges can get away with making their personal views determinative in their legal reasoning. Of course they do not do so perfectly, as Nino would be the first to admit. But you pays your money and you takes your choice. A living constitution can change its lifestyle, and if you want a system where the Court can short circuit democratic debate by giving you Roe, you will live forever in terror of the day when five people in robes may decide fetuses are persons.

Wednesday, November 10, 2004
So what do I do with this quill?
Here's Dahlia's take on the Pasquantino argument, which was yesterday morning. She's pretty much got the gist of what happened. It is foolhardy to predict case outcomes from what one sees on the bench, but I'm feeling pretty optimistic.