text:
Tuesday, October 23, 2012
A review of Jenkins, "The Partisan: The Life of William Rehnquist"
This weekend, the WSJ ran my review of John Jenkins' "The Partisan: The Life of William Rehnquist." It is a pretty tough review of (what should be seen, whether or not one shares my high opinion of the former Chief, as) a very bad book. That said, it struck me -- apart from the (minimal) merits of this particular book, that the genre is a tricky one:
It is true that gripping judicial biographies are difficult to write. The story
of the Supreme Court is compelling and dramatic, but the justices' own stories
are usually prosaic: They are, for the most part, gifted and well-credentialed
lawyers, not unlike many thousands of others, who work in relative privacy on
fairly technical questions and are, from time to time, hauled into the headlines
by virtue of a close vote in an abortion-regulation or affirmative-action case. . . .
Posted by Rick Garnett on October 23, 2012 at 03:08 PM in Rick Garnett | Permalink | Comments (3) | TrackBack
Friday, October 19, 2012
"The Freedom of the Church in the Modern Era"
Last weekend, I participated (along with Paul Horwitz and GuestPrawfVets Caroline Corbin, Rob Vischer, Nelson Tebbe, Michael Helfand, and others) in what was, I think, the most rewarding academic conference I've experienced: "The Freedom of the Church in the Modern Era." Thanks and congrats to Larry Alexander and Steve Smith, of the University of San Diego, and their new Institute for Law and Religion, for organizing and hosting. Here's the conference blurb:
The Western commitment to freedom of religion, reflected in the United States Constitution and in a variety of international human rights documents, arguably descends from the medieval campaign for libertas ecclesiae—"freedom of the church." In modern times, though, it seems that the progeny (freedom of religion) has largely displaced—and forgotten—the parent (freedom of the church). Jurists and scholars debate whether there is any constitutional commitment to freedom of the church, or church autonomy, or institutional free exercise. And they often suppose that such commitment, if there is one, must be derivative from a more fundamental commitment to freedom of religion.
The issue of freedom of the church has become urgent in recent years. Claimants sue churches in secular courts for what they perceive as abuse or discrimination. Government agencies act to compel religiously-affiliated institutions to provide goods or services such as contraceptives or abortion. In 2011 the Supreme Court considered for the first time a case raising the issue of the so-called "ministerial exemption" for churches from some federal regulatory laws. Opposing the position taken by numerous lower courts, the Obama Administration argued in that case that the Supreme Court should reject the exemption.
This conference will accordingly consider issues related to freedom of the church . . .
Micah Schwartzman and Rich Schragger presented their paper, "Against Religious Institutionalism" (discussed earlier here on Prawfs); Steve and Paul added to the body of important work they've done on the institutional dimension of religious freedom and the First Amendment more generally; I tried to update and expand my defense of "the freedom of the church" as a still important (i.e., not anachronistic) idea; and a number of us did an interpretive dance-reenactment of the Canossa meeting between Pope Gregory VII and Emperor Henry IV. Lots of other interesting papers were presented, and they should be out this Spring in the San Diego Law Review. Stay tuned!
Posted by Rick Garnett on October 19, 2012 at 11:12 AM in Rick Garnett | Permalink | Comments (0) | TrackBack
Monday, October 15, 2012
Confusion about Separation
This blog post, "Of Babies and Beans," by Adam Gopnik, at The New Yorker, is mainly about abortion (and about what Paul Ryan said during the vice-presidential debate on the subject) but it also included some sharp -- but I think misguided -- criticism of what Ryan said about the role of religious faith in citizens' "public" lives. Gopnik characterizes as "disturbing and scary" what struck me as Ryan's (to me)unremarkable observation that "I don't see how a person can separate their public life from their private life or from their faith. Our faith informs us in everything we do." Here's Gopnik:
That's a shocking answer—a mullah's answer, what those scary Iranian "Ayatollahs" he kept referring to when talking about Iran would say as well. Ryan was rejecting secularism itself, casually insisting, as the Roman Catholic Andrew Sullivan put it, that "the usual necessary distinction between politics and religion, between state and church, cannot and should not exist." . . .
. . . Our faith should not inform us in everything we do, or there would be no end to the religious warfare that our tolerant founders feared.
Now, I believe strongly -- in part for "religious" reasons -- in the separation of church and state, properly understood. But Ryan did not say that the "distinction between politics and religion" or the distinction between "church and state" (which is a different distinction) "should not exist"; and there is nothing mullah-ish about the statement that faith "informs" people's lives -- public and private -- comprehensively. He didn't say that the positive law should enforce religious teachings or require religious practices, and there's nothing contrary to "secularism" (properly understood) in his statement.
Which reminds me . . . I participated this past weekend, along with a number of Prawfs-bloggers and friends, in a really stimulating and fun roundtable conference at the University of San Diego's new Institute for Law and Religion, on "The Freedom of the Church in the Modern Era." Our own Paul Horwitz's work on the subject was, of course, at center-stage! More on this later (I hope!).
Posted by Rick Garnett on October 15, 2012 at 03:23 PM in Religion, Rick Garnett | Permalink | Comments (1) | TrackBack
Wednesday, October 10, 2012
Inazu on "The Four Freedoms"
Last Friday, we welcomed to Notre Dame my friend Prof. John Inazu (Wash. U.), to workshop his paper, "The Four Freedoms." Here's the abstract:
The First Amendment's rights of speech, press, religion, and assembly were once
"interwoven" but distinct. Together, these freedoms advanced a pluralist
skepticism of state orthodoxy that protected religious and other forms of
liberty. The connections among these rights were evident at the Framing. They
were also prominent during the 1930s and 1940s, when legal and political
rhetoric recognized the "preferred position" of the "Four Freedoms." We have
lost sight of the Four Freedoms, supplanting their unified distinctiveness with
an undifferentiated free speech framework driven by unsatisfying concepts like
content neutrality and public forum analysis. It did not have to be this way,
and it may not be too late to change course. This Article seeks to renew the
pluralist emphasis once represented by the Four Freedoms.
The consequences of losing the pluralist vision are nowhere more evident than in the
diminishing constitutional protections for religious groups, which are
paradigmatic of the expressive, dissenting, and culture-forming groups of civil
society. The Four Freedoms remind us that the boundaries of religious liberty
have never rested solely in the First Amendment's free exercise clause —
religious liberty is best strengthened by ensuring robust protections of more
general forms of liberty. But the normative effort to reclaim pluralism is not
without costs, and it confronts powerful objections from anti-discrimination
norms pertaining to race, gender, and sexual orientation — objections that
cannot go unanswered.
Among other things, the John's paper -- in the course of a discussion about the Bob Jones case -- engages and criticizes parts of this paper of mine, "Religious Freedom and the Nondiscrimination Norm." Fun was had by all.
Posted by Rick Garnett on October 10, 2012 at 11:56 AM in Rick Garnett | Permalink | Comments (0) | TrackBack
Monday, October 01, 2012
Schragger and Schwartzman, "Against Religious Institutionalism"
Rich Schragger and Micah Schwartzman have posted their new paper, "Against Religious Institutionalism", at SSRN. Here's the abstract:
The idea that religious institutions should play a central role in understanding
the First Amendment has become increasingly prominent in recent years. Litigation over the application of civil rights laws to ministers and the requirement that religious employers provide contraception coverage to their employees have elicited calls for a doctrine of church sovereignty based on an institutional conception of the Religion Clauses. In this Article, we present grounds for skepticism about this new religious institutionalism, especially the concept of "freedom of the church," which we distinguish from the seemingly related but importantly distinct idea of church autonomy. We further explain why individual rights of conscience are sufficient to protect the free exercise and anti-establishment values of the First Amendment. Our argument, contrary to some recent scholarship, is that religious institutions do not give rise to a special set of rights, autonomy, or sovereignty, and that what might be called institutional or church autonomy is ultimately derived from individual rights of conscience. Indeed, for purposes of understanding religious liberty, we contend that any notion of institutional autonomy — to the extent it exists — can come from nowhere else.
I'm really excited about this paper, and not only because it closely engages my own work, and that of better scholars -- Paul Horwitz, Steve Smith, Fred Schauer, Perry Dane, Doug Laycock, and many others -- who are also interested in an institutional approach to questions of religious freedom, church-state relations, and the First Amendment generally. I'm working on a paper / chapter that will respond adequately to Rich and Micah, but suffice it to say (for now) that, while I think "religious institutionalism" stands up to their criticisms, I also think that their contribution to the conversation is important and welcome.
If readers are interested in some of the papers of mine that Rich and Micah address, here is "Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses," and here is "The Freedom of the Church." Here is the abstract for the former:
In recent years, several prominent scholars have called attention to the importance and role of
"First Amendment institutions" and there is a growing body of work informed by
an appreciation for what Professor Balkin calls the "infrastructure of free
expression." The freedom of expression, he suggests, requires "more than mere
absence of government censorship or prohibition to thrive; [it] also require[s]
institutions, practices and technological structures that foster and promote
[it]." The intuition animating this scholarship, then, is that the freedom of
expression is not only enjoyed by and through, but also depends on the existence
and flourishing of, certain institutions, newspapers, political parties,
interest groups, libraries, expressive associations, universities and so on.
These "First Amendment institutions" are free-speech actors, but they also play
a structural - or, again, an "infrastructural" role in clearing out and
protecting the civil-society space within which the freedom of speech can be
well exercised. These institutions are not only conduits for expression, they
are also "the scaffolding around which civil society is constructed, in which
personal freedoms are exercised, in which loyalties are formed and transmitted,
and in which individuals flourish.
Similar "infrastructural" claims can and should be proposed with respect to the freedom of religion. Like the freedom of speech, religious freedom has and requires an infrastructure. Like free
expression, it is not exercised only by individuals; like free expression, its
exercise requires more than an individual with something to say; like free
expression, it involves more than protecting a solitary conscience. The freedom
of religion is not only lived and experienced through institutions, it is also
protected and nourished by them. Accordingly, the theories and doctrines we use
to understand, apply and enforce the First Amendment's religious-freedom
provisions should reflect and respect this fact. If we want to understand well
the content and implications of our constitutional commitment to religious
liberty, we need to ask, as Professors Lupu and Tuttle have put it, whether
"religious entities occupy a distinctive place in our constitutional order[.]"
And, of course, remember to buy Paul Horwitz's First Amendment Institutions for all the neo-pluralists on your holiday-shopping lists.
Posted by Rick Garnett on October 1, 2012 at 01:53 PM in Rick Garnett | Permalink | Comments (0) | TrackBack
Pojanowski reviews Smith's "Disenchantment of Secular Discourse"
My friend and colleauge Jeff Pojanowski (Notre Dame) has a review up at SSRN of Steve Smith's (excellent) Disenchantment of Secular Discourse. Here is the abstract:
This review essay considers Stephen D. Smith's most recent book, The Disenchantment of Secular Discourse. Rather than focusing on the book's argument about the practices and pathologies of the public square, this essay uses Smith's chapter on scientific thought as a platform for exploring connections between Disenchantment and Smith's prior work in legal theory. The catalyst for these reflections is Scandinavian legal realism. Considering these elements together sheds light on both the limits and virtues of central ideas about legal
obligation and authority in contemporary jurisprudence. Such perspective points
to a broader argument that jurisprudential debates about methodology and
concepts may be as much about how we read the universe as they are about how we understand law.
As Legal Theory-king Larry Solum would say, "highly recommended".
Posted by Rick Garnett on October 1, 2012 at 01:38 PM in Rick Garnett | Permalink | Comments (1) | TrackBack
Thursday, September 27, 2012
"The Many Paths to Neutrality"
I've posted on SSRN the introduction that Andy Koppelman and I did to our First Amendment Stories volume (buy it now, for that special holiday / Holy Day gift!). Here's the abstract:
This essay introduces a volume, First Amendment Stories, which the authors edited and to
which a number of distinguished scholars contributed. The authors reflect on the
tendency of First Amendment law to abstract away from specifics, and note that
free-speech and religious-liberty law and doctrines generally aim for a certain
kind of "neutrality"; in the interest of hitting that target, some
considerations that are salient to ordinary common sense are deemed not to
count. But, how is this neutrality possible? How does it ever happen that people
embrace it? What specific contexts lead courts to abstract away from both
specificity and context, to adopt positions that are neutral toward, say,
theological truth and the viewpoint of speech? Is this move – this striving –
toward neutrality justified, or justifiable? This question, the authors believe,
runs through this volume and its chapters.
It turns out that, like "equality," neutrality has a conventional meaning, one that, in many ways, can
obscure the term's contested, complicated, and multiple meanings. When it is not
used merely to suggest a kind of serene nonjudgmentalism, the invocation of
neutrality in conversations about law and politics is typically a shorthand
gesture toward the generally understood value of removing some issues from
political consideration, together with the arguments in favor of this removal.
Such linguistic conventions are useful. The vague term "neutrality" may either
introduce substantive argument or serve as a meaningful slogan in the many
contexts in which it is difficult to develop arguments in a careful, systematic
way. "Neutrality," though, is a fluid term, as this volume's several stories
illustrate. It must take its shape from its container, the specific arguments in
favor of withdrawing this or that substantive issue from politics.
Posted by Rick Garnett on September 27, 2012 at 02:48 PM in Rick Garnett | Permalink | Comments (0) | TrackBack
Friday, September 21, 2012
"Keep America Weird": One way to think about the HHS mandate . . .
William Mattox writes, in USA Today, that for reasons similar to those that (rightly) make Austin residents eager to "Keep Austin Weird", we should oppose policies like the HHS mandate that have the effect, even if not the aim, of standardizing and homogenizing the sometimes-"weird" institutions and associations of civil society:
I worry that Obama's health care plan is doing to Catholics what those cookie-cutter national chains were threatening to do to Austin's bohemians: Rob them of their distinctive identity. Of their unique character. Of their freedom to be authentic.
Yes, I know Obama's contraception mandate provides an exception for Catholic churches. But it offers no such relief to those running Catholic schools, hospitals and charities who want to live out their faith (and follow their church's teachings) on more than just Sundays. In essence, the Obama administration's message to these Catholics, despite a cosmetic compromise, is akin to telling Austin's bohemians that they can dress like hipsters on the weekends so long as they behave like corporate shills Monday through Friday. . . .
Well, my thirteen-year-old daughter certainly thinks I'm weird . . . I guess there are worse things!
Posted by Rick Garnett on September 21, 2012 at 10:10 AM in Religion, Rick Garnett | Permalink | Comments (3) | TrackBack
Tuesday, September 18, 2012
It seems to me that we should be more bothered than we seem to be
by this ("Man Linked to Film in Protests is Questioned", NYT Sept. 15, 2012):
One of the men behind the anti-Muslim film trailer on YouTube that has set off violent protests at Western embassies across the Middle East was taken in for questioning by federal probation officers early Saturday morning, law enforcement officials said. . .
I am not making (only) the skunk-in-the-garden-party observation that the blogs of and read by law professors would be reacting differently to this picture if John Ashcroft were the Attorney General or George Bush were the President (though, I feel confident, they would be). That is what it is. That said, I think that the impulse to focus law-enforcement resources on this "film"-maker, and arguments like these, in The Los Angeles Times ("Does 'Innocence of Muslims' Meet the Free Speech Test"), could reveal a troubling wobbliness.
To be clear: I am open to arguments that recent decisions about crush videos, offensive funeral protests, violent video games, and lying about medals illustrate a free-speech regime that is perhaps in need of some re-calibration, and I agree with those who say that, sometimes, that regime discounts or undercounts the real harms that result from offensive speech. I agree also that it is an abuse of the freedom of speech to gratuitously insult (as opposed to thoughtfully criticize) the religious beliefs of others.
Still . . . a violent heckler's veto is still a heckler's veto, and I am inclined to think that there is little, if any, room for such a veto in the approach that a constitutional democracy takes to the regulation of even offensive and ignorant "politcal" expression. Thoughts?
Posted by Rick Garnett on September 18, 2012 at 05:21 PM in Rick Garnett | Permalink | Comments (33) | TrackBack
Monday, September 17, 2012
Solve fiscal woes by taxing the Church?
Paul Caron calls attention to a WaPo article suggesting that some are considering the Roman Catholic Church -- you know, the one with all the fancy art and deep "coffers" (See Garnett & Carr, "Drop Coffers," in The Green Bag) -- as a source of funds in fiscal-cliff times. I have my doubts about the Post writer's characterization of the Church as "one of the last untouched sources of wealth" (the Dissolution of the Monasteries, anyone?), but it's an interesting and timely question. If governments need money, why should they (a) spend money (through various subsidies and supports) on Church matters and (b) forego extracting money from (i.e., extend exeptions to) the Church?
We could think about this, I guess, just in terms of the overall costs and benefits to the relevant political community from current subsidies-and-exemptions practices. Or, we could ask, at a more theoretical level, whether there are good reasons (having to do with things other than budgets) for changing those practices.
At First Things, Leroy Huizinga has some thoughts about the story. He writes:
. . . Why shouldn't churches be taxed, in general? One reason has to do with preserving a healthy separation of Church and State. If Churches can be taxed, then the government can get into the business of running them (or crushing them) through tax policy, like it does most everything else. Another reason is that private institutions like churches contribute to the common good both as charitable institutions directly serving people through its various programs and also as space as a community mediating between individual and the State. A third reason is more practical: Churches generally do a better job administering social programs than government does (which, one suspects, grates government functionaries). A fourth reason applicable to Europe in particular: The reason most people bother visiting Europe and spending significant tourist dollars there is the legacy of beauty produced by Europe's Christian heritage. . . .
Of course, one knows why government wishes to control religion, going back at least to Hobbes. Religious institutions have often been the only entities effective in challenging State power, reminding rulers that there is a higher law than their whims and will, that they too stand under the judgment of God and nature. . . .
This last point is, for me, a powerful one, but it does invite this response: Perhaps (as many Americans have thought over the years) churches' ability to effective "challeng[e] state power" is undermined by subsidies and Erastian co-option? (I tend to think exemptions raise different questions, and that "separation" points toward, rather than away from, at least some exemptions.)
In the United States, it strikes me that private institutions of higher education might prove, to some, an analogously attractive source of fiscal relief? We'll see. . .
Posted by Rick Garnett on September 17, 2012 at 11:56 AM in Rick Garnett | Permalink | Comments (0) | TrackBack
Tuesday, September 11, 2012
Going through 11-year-old e-mails . . .
I kept, in a folder -- never thinking, I'm sure, that e-mail would still be around in 11 years -- some correspondence among friends exchanged as Sept. 11, 2001 unfolded. Yeats and Auden made multiple appearances, as did this one, in particular:
I sit in one of the dives
On Fifty-second Street
Uncertain and afraid
As the clever hopes expire
Of a low dishonest decade;
Waves of anger and fear
Circulate over the bright
And darkened lands of the earth,
Obsessing our private lives;
The unmentionable odour of death
Offends the September night
W. H. Auden, September 1, 1939.
That afternoon -- I'll never forget how amazed I was that it all came together so quickly, and smoothly -- about 6,000 members of the Notre Dame community celebrated Mass on the South Quad.
It's strange, for me, to remember what a beautiful day that awful day was.
Posted by Rick Garnett on September 11, 2012 at 02:55 PM in Rick Garnett | Permalink | Comments (0) | TrackBack
Thursday, September 06, 2012
Religiously Affiliated Law Schools reception at the AALS hiring conference
For all those going to the hiring conference next month:
Touro Law Center will be hosting the annual reception of Religiously Affiliated Law Schools at the AALS Faculty Recruitment Conference in Washington, DC. This year's reception will be held on Thursday, October 11, 2012, from 7:30 to 9:00, in the Hoover Room of the Washington Marriott Wardman Park Hotel. All faculty candidates are invited to attend.
Thanks to Sam Levine (Touro) for the reminder!
Posted by Rick Garnett on September 6, 2012 at 02:20 PM in Rick Garnett | Permalink | Comments (3) | TrackBack
Wednesday, September 05, 2012
Crime, Chicago, and Catholic Schools
This op-ed has a nice shout-out for recent and ongoing work, in the Journal of Empirical Legal Studies and the U. of Chicago L. Rev., by Nicole Stelle Garnett and her co-author, Margaret Brinig, on the social-capital and neighborhood-health effects of Catholic schools (and Catholic-school closings). A bit from the op-ed:
A series of research articles by University of Notre Dame Professors Margaret Brinig and Nicole Garnet have laid out the case. In a paper summarizing their findings, "Catholic Schools, Urban Neighborhoods, and Education Reform" Brinig and Garnet used three decades of data from the Project on Human Development in Chicago Neighborhoods to evaluate the effect of a Catholic school closure on its neighborhood. They found -- even after controlling for other demographic variables that might predict decline -- that neighborhood social cohesion decreases and disorder increases in neighborhoods that have had a Catholic elementary school close. Last month an article about Brinig and Garnet's research, "Catholic Schools and Broken Windows," was published in the Journal of Empirical Legal Studies. This research demonstrated that during a time of overall decline in crime, Catholic school closures slowed the rate of decline of crime as compared to beats without a Catholic school closure.
There remain many questions not answered by this research as to why inner-city Catholic schools might have this effect. However, the authors conclude that "...Catholic school closures are strongly linked with increased disorder, reduced neighborhood social cohesion, and eventually, serious crime." . . .
Posted by Rick Garnett on September 5, 2012 at 03:01 PM in Rick Garnett | Permalink | Comments (1) | TrackBack
Tuesday, September 04, 2012
"Executive Overreach"
I have a short piece in the new issue of Commonweal, called "Executive Overreach." It was solicited as part of a "what's important to think about, as the election approaches" series that the magazine -- a liberal-Catholic-(or Catholic-liberal)-leaning journal of opinion -- is running. Here's a bit:
. . . Constitutionalism is about more than our particular charter's text, the Supreme Court's various decisions, or pieties about shared values and fundamental rights. It is an attachment to the enterprise of protecting human freedom and promoting the common good by structuring, separating, and limiting power in entrenched and enforceable ways. It is a mechanism for conferring power and authorizing action, a vehicle for governing and getting things done, but it's also an embrace of constraints, processes, and forms, and a willingness to accept delays, inefficiencies, and frustrations as unavoidable costs, perhaps even benefits. In constitutional
government, how and by whom things are done is at least as important as what is
done and when, or how quickly. And this is why it is troubling, rather than
inspiring, to hear the president keep saying, "We can't wait."
This is not a partisan concern. Both parties have been guilty of overreach . . . .
This is not a Tea Party point, even if the Tea Party sometimes makes it. It is certainly not an endorsement of the constitutional provisions that once entrenched slavery or a denial that some others are anachronistic. Nor is it a defense of the various congressionally created, non-constitutional rules that sometimes make a mockery of the idea of structured deliberation by setting up a maze of holdouts, vetoes, and hostage taking.
Electoral majorities will sometimes reward those whose proclaimed or perceived energy and vision are too big for the rules and who promise to ignore or abolish procedures that—especially during times of deep political divisions—seem to deliver only delay and dead ends. And yet, as Chief Justice Warren Burger observed almost thirty years ago, "With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution." Those who designed the Constitution understood that political liberties are best served through competition and cooperation among plural authorities and jurisdictions, and through mechanisms that check, diffuse, and divide power. . . .
Posted by Rick Garnett on September 4, 2012 at 02:18 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0) | TrackBack
Friday, August 24, 2012
A pronunciation guide to the Supreme Court's caselaw
Here, thanks to Gene Fidell and several others (and The Green Bag), is a great resource: A "Pronouncing Dictionary of the Supreme Court of the United States." (I've been pronouncing "Kiryas Joel" wrong for years, it appears. Dang.) No more stumbling in class over Compañía General de Tabacos de Filipinas v. Collector of Internal Revenue or Compagnie Internationale de Produits Alimentaires v. Miller!Posted by Rick Garnett on August 24, 2012 at 12:58 PM in Rick Garnett | Permalink | Comments (2) | TrackBack
Tuesday, August 21, 2012
"In retrospect, I guess we might have resorted to cannibalism a bit early"
Once again, I used "The Case of the Speluncean Explorers" in the first week of Criminal Law, as a way of "putting on the table" some of the big and interesting questions the course presents (in addition to "who brings dice on a caving trip?") -- questions about statutory interpretation, state-of-mind, clemency, justification-and-excuse, and the sanctity of human life.
And, doing this reminded me of one of my all-time favorite pieces from The Onion:
. . . When the six of us got into the elevator on that fateful day, we had no idea what was going to happen. We thought we were just going to take a little ride from the 12th floor to the lobby, just like every other day. Do you think we knew that elevator was going to get stuck between floors? Do you think we got into the elevator saying, "Hey, you know, we should eat our good old pal Jerry Weinhoff from Accounts Payable"? Of course not. . . .
Posted by Rick Garnett on August 21, 2012 at 11:14 AM in Criminal Law, Rick Garnett | Permalink | Comments (0) | TrackBack
Tuesday, July 24, 2012
The death penalty for Holmes, and "consultation" with victims
It's in the news (and not surprising, I suppose) that the Arapahoe County District Attorney is considering seeking the death penalty for the accused, James Holmes, in the Aurora movie-theater killings. It has also been reported widely (here's one clip) that the D.A. plans to come do a decision in "consultation with the victims' families."
I oppose capital punishment, so I guess my views about such consultation, or about the related matter of "victim impact evidence" at sentencing, can fairly be discounted. And, I am also sensitive to the fact that I have not been teaching or writing about these questions for several years. That said, my strong sense continues to be that we -- that is, the political community that punishes -- need to be very careful about this consultation, and about what its purposes should (and should not) be.
For example, it seems to me that the important question whether the death penalty is "deserved" (and no punishment should be imposed that is not deserved) is not one that should depend much on what the victims' families' preferences are regarding punishment, and it should not depend at all on whether the consultation/investigation uncovers facts that suggest that these particular victims were especially "valuable to society" or high-achieving or praiseworthy, or that their families were, for one reason or another, harmed more than usual by the loss. (I am inclined to think, though, that a prosecutor could appropriately take into account facts uncovered during consultation with the victims' families having to do with the ease, or difficulty, of securing a (just) conviction efficiently.)
Again, I'm not an expert and others here at Prawfs know a lot more about punishment theory than I do! Thoughts?
Posted by Rick Garnett on July 24, 2012 at 12:17 PM in Criminal Law, Rick Garnett | Permalink | Comments (11) | TrackBack
Wednesday, July 11, 2012
The "If ___ means anything, it surely means ____" argument
We've all encountered this argument, I imagine: "If ___ means anything, it surely means _____." See, e.g., Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S. 557, 575 (1980) (Brennan, J., concurring) ("If the First Amendment guarantee means anything, it means that, absent clear and present danger, government has no power to restrict expression because of the effect its message is likely to have on the public"). This is more of a move than a "modality," I suppose, but it's a common one. (It evokes, in a way, Phil Hartman's "unfrozen caveman lawyer" tactics.) Is there a name for it? I'm sure there's a technical fallacy involved in the move, so maybe it has a cool Latin name?
Why yes, I am avoiding something I'm supposed to be doing . . .
Posted by Rick Garnett on July 11, 2012 at 04:11 PM in Rick Garnett | Permalink | Comments (7) | TrackBack
Tuesday, July 10, 2012
Steve Smith guest-blogging at the CLR Forum
A special summer treat for law-and-religion folks: Steve Smith (San Diego) is guest-blogging over at the Center for Law and Religion's blog. In this post, "Religious Freedom and the Social Contract," Steve responds to the increasingly prevalent view that special protections for religious liberty -- of the kind afforded by our First Amendment -- depend for their justification on "theistic premises that are no longer admissible in a liberal political order." So . . . what next?
Steve suggests that "special protection for religious freedom is a central part of the social contract, and that it would be both unjust and imprudent for government to violate that contract":
We all participate (or decline to participate) in our political and social order based on some understanding of what its terms are– what government can expect of us, what we can expect of government, what we can expect government not to do. These terms form a sort of "social contract," but they are not derived from any thought experiment based on a fictional "state of nature" or "pre-political condition" or "original position." Rather, they are real terms, partly written but largely unwritten, that we perceive in our law, traditions, and practices. The terms are subject to interpretation, of course, and no doubt they may change over time– occasionally through deliberately enacted law, more often through gradual and almost imperceptible cultural evolution. Nonetheless, at any given time we have some sense of the terms of this implicit but quite real "social contract."
So long as government honors the terms, we may feel some obligation to render our support and allegiance. Conversely, if government disregards or violates the terms of the "contract," our loyalty is betrayed and our commitment compromised.
Check out the whole thing, and also Steve's several other thoughtful posts.
Posted by Rick Garnett on July 10, 2012 at 09:49 AM in Rick Garnett | Permalink | Comments (0) | TrackBack
Tuesday, July 03, 2012
Chief Justice Roberts and the ACA cases
Now that I have the benefit of a long time's reflection about, and critical distance from, Thursday's decision (insert appropriate emoticon here, to signal that I'm aware of the funny-absurdity of four days being a "long time" in blog-world), a few thoughts about the ACA cases, and the Chief Justice's opinion in particular, are starting to come together.
First, I am surprised and (maybe naively) disappointed by the almost-Orwellian "two minute hate" (which, I suppose, could go on longer) that has erupted in the world of talk-radio and in sectors of the right-leaning blogosphere towards the Chief. One would think he'd suddenly become an amalgam of Bill Douglas (or maybe David Souter) and Bill Ayers, this former law clerk to Justice Rehnquist and lawyer for Ronald Reagan. (I heard a radio guy say, "I knew it all along, this guy is no conservative!" But this, of course, is insane.) All this because he didn't vote to strike down a law that (a) remains repealable, if it's so bad, and that (b) most people -- including some who are committed to judicial enforcement of the Constitution's structural features -- thought until recently was, even if seriously wrongheaded, probably constitutional under the relevant precedents? And, apparently, the fact that he somehow got two "liberal" justices to sign on to what I think is the first decision since Dole to put any teeth in the "there are limits to the federal government's ability to regulate-by-spending" idea (an idea that is, as I've argued, essential to any meaningful "federalism revolution") seems, in these quarters, to count for nothing.
Second, it is pretty much universally believed (see, for example, Jessie's recent post), so far as I can tell, that the Chief Justice's argument that the mandate may be regarded, for constitutional purposes, as a "tax" -- not because it obviously is one but in order to save a major statute enacted by the Congress and signed by the President -- is glaringly unconvincing, and that the Chief embraced this argument for "political" reasons. I'll go out on a limb, and say that, in my view, what the Chief actually says -- e.g., that it is possible to regard the mandate, given all the circumstances, as, functionally speaking, enough like a tax to justify taking the avoidance-canon route and upholding what would otherwise be an unconstitutional law -- doesn't strike me as notably less convincing than a lot of things that the Court has done and that many law professors have welcomed. I have not thought enough about the question, I admit, but it does not seem like we're talking "Yoder was about hybrid rights"-unconvincing here. And, the very existence of this route -- the idea that unelected federal judges should try, if it's possible, within reason, to interpret federal statutes in ways that keep their existence and merits in the political arena -- is "political," isn't it?
Third, I certainly hope it is not true -- I am confident that it is not -- that the Chief changed his vote merely because some critics were (lamely, I think) anticipatorily complaining that it would be activist, illegitimate, etc., etc., for the Court to strike down the law. (High dudgeon about how shocking it would be for the Court to strike down the ACA, coming from folks who, I suspect, think it was Wise and Good to invalidate, say, the death-penalty or abortion-related laws in dozens of states is a bit hard for me to take seriously, as is disingenuous praise from former-and-future critics of the Chief for his "statesmanship" here.) But, here's another possibility. I know, I know, it sounds naive, but: Perhaps the Chief Justice really did come to believe, during the Spring, that -- especially in circumstances like the ones surrounding the ACA cases, which were decided months before a presidential election, and which involved the President's primary legislative accomplishment, and which were vigorously debate (even if unedifyingly enacted) -- it would be a bad thing -- not for him, or his "legacy", and not even just for the Court itself -- for the Court to strike down the mandate by a 5-4 vote, on a theory that is, even if sound, certainly debatable among reasonable and informed people. And so, having come to believe this -- having changed his mind -- he took the "out" that the "it's permissible to regard this as a tax" argument offered. It's not as if (contra, e.g., Roe) he put a bad policy beyond the reach of correction, or voted to remove a deeply contested and inescapably moral question from the political process and to constitutionally entrench what many regard as the wrong answer to that question; to the extent he constitutionalized anything, it would seem to be a pretty hard-core Madisonian approach to the Commerce Clause, the Necessary and Proper Clause, and the Spending Power.
And, of course, he wrote Hosanna-Tabor. Yay, Chief!
Posted by Rick Garnett on July 3, 2012 at 11:09 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (6) | TrackBack
Thursday, June 28, 2012
The ACA cases, conditional spending, and coercion
I'm not (nearly) as far along as the other Rick is in figuring out what I think of today's ACA cases. I'm glad my friend and teacher Akhil Amar will be okay, and -- unlike Ethan -- I'm inclined to think the Chief did what he did because he thinks, all things considered, it's a pretty-much-right way to go, consistent with his Lopez-esque discussion, early in the opinion, about enumerated powers, federalism, and judicial review. I also still have the view that the efforts, during the lead-up to today's decisions, to anticipatorily establish that a ruling against the Act would be illegitimate, etc., were lame.
Once upon a time, I had a strong interest, and maybe even something approaching expertise, in the conditional spending / regulation-by-contract / South Dakota v. Dole business, and its place in the so-called "New Federalism" (Read this, please). And so, I'm very interested in the question whether language like this, in the Chief's opinion, will have any Congress-disciplining or judge-emboldening effects: "Respecting this limitation [on conditional spending] is critical to ensuringthat Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system." And, later, he connects the Dole / conditional-spending doctrine (if that's what it is) with the Printz and New York "commandeering" themes.
Stay tuned!
Posted by Rick Garnett on June 28, 2012 at 11:38 AM in Rick Garnett | Permalink | Comments (1) | TrackBack
Wednesday, June 27, 2012
"Just and Unjust Peace"
I just received my copy of my friend and colleague (in Political Science) Dan Philpott's new book, Just and Unjust Peace. I think this book will be of interest to a broad range of people -- not only international-relations and transitional-justice folks -- including criminal-law scholars engaged with punishment-theory and restorative-justice questions. Here is the O.U.P. blurb:
In the wake of massive injustice, how can justice be achieved and peace restored? Is it possible to find a universal standard that will work for people of diverse and often conflicting religious, cultural, and philosophical backgrounds?
In Just and Unjust Peace, Daniel Philpott offers an innovative and hopeful response to these questions. He challenges the approach to peace-building that dominates the United Nations, western governments, and the human rights community. While he shares their commitments to human rights and democracy, Philpott argues that these values alone cannot redress the wounds caused by war, genocide, and dictatorship. Both justice and the effective restoration of political order call for a more holistic, restorative approach. Philpott answers that call by proposing a form of political reconciliation that is deeply rooted in three religious traditions--Christianity, Islam, and Judaism--as well as the restorative justice movement. These traditions offer the fullest expressions of the core concepts of justice, mercy, and peace. By adapting these ancient concepts to modern constitutional democracy and international norms, Philpott crafts an ethic that has widespread appeal and offers real hope for the restoration of justice in fractured communities. . . .
I also really liked this bit, from The New Republic: "Just and Unjust Peace is a book of optimism, of hope, of insistently seeing the glass as half full. Humane but not fatuous or sappy, it is the exit ramp off Apocalypse Highway." Nice.
Posted by Rick Garnett on June 27, 2012 at 03:45 PM in Rick Garnett | Permalink | Comments (1) | TrackBack
Happy 10th birthday to Zelman v. Simmons-Harris
I know that the whole world is focused on the upcoming Affordable Care Act decisions, but, ten years ago today, the Supreme Court decided -- the Court's opinion was authored by Chief Justice Rehnquist -- Zelman v. Simmons-Harris, which upheld the Cleveland school-choice program and, in my view, correctly said that the First Amendment does not disable governments from experimenting meaningfully (i.e., in a way that includes religious schools) with "vouchers", tax credits, scholarships, etc. For more, see my "The Right Questions about School Choice: Education, Religious Freedom, and the Common Good" (here).
Although the progress has been slow, and the political "headwinds" are still strong, my sense is that various states (including my own Indiana) are starting to try the kinds of programs and policies that Zelman allowed. More, please.
Posted by Rick Garnett on June 27, 2012 at 10:47 AM in Rick Garnett | Permalink | Comments (0) | TrackBack
Monday, June 25, 2012
Religious Freedom and the Nondiscrimination Norm
Returning to a Prawfsblawg hobby-horse of mine . . . here's a paper of mine, finally in shape for SSRN posting, from a really fun conference (more here and here) that Austin Sarat and Paul Horwitz organized down at Alabama last year. And, here's the first bit of the abstract:
"Discrimination," we believe, is wrong. And, because "discrimination" is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take regulatory and other steps to prevent, discourage, and denounce it. However, it is not true that "discrimination" is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may
regulate or discourage it even when it is. Some wrongs are beyond the
authorized reach of government policy; some are too difficult or costly to
identify, let alone regulate; others are none of the government's business.
When we say that "discrimination" is wrong, what we actually mean is that wrongful discrimination is wrong, and when we affirm that governments should oppose it we mean that governments should oppose it when it makes sense, all things considered, and when it is within their constitutionally and morally limited
powers to do so. To label a decision or action "discrimination" is simply to
note that one factor or another was or will be taken into account in the course
of a decision; it is to invite, but not at all to answer, the questions whether
that decision or action was or would be wrong, and whether the public authority
may or should forbid or discourage it.
Posted by Rick Garnett on June 25, 2012 at 02:04 PM in Rick Garnett | Permalink | Comments (0) | TrackBack
Tuesday, June 19, 2012
"Failing Law Schools": Two Quick Thoughts
Like many others, I just finished reading Brian Tamanaha's Failing Law Schools. I'm not sure I "enjoyed" it -- it's sobering, indicting, discomfiting stuff -- but I respect and admire it, and know that I'll be thinking a lot about it, and recommending it to others. Two quick thoughts:
First, a point that Brian emphasizes several times is that we are seeing, at the same time, (i) a difficult job-market for law-school graduates, most of whom are carrying large debt-loads, which are made possible to a large extent by the availability of a lot of student-loan funding, and (ii) a situation where poor people regularly lack legal services in contexts where those services, most of us would think, are needed.
This point raised, for me, the question whether, as a policy matter, we (that is, the larger community, not law professors) would be better off if a substantial portion of the public funds that are currently (as Brian tells it) being funneled, via loan-receiving students, from taxpayers to law schools were instead re-tasked to subsidizing legal services for the poor (that is, if the money was moved from the production of lawyers to the delivery of legal services)? I realize, of course, that this is not in principle an either-or, that there are political barriers to increasing funding for such services, etc. "Access" is in play, it seems to me, under both options, i.e., "access" for would-be law students, or "access" for would-be low-income clients), but after reading Brian's book, I was not sure that the former is actually being very well served by current lending policies (because tuition simply goes up to capture the available loan-funding and because the schools don't have enough incentive to worry about whether students will be able to pay back the debts they are incurring).
Second, it appears that a few -- but only a few -- law schools really can and could do what they want -- or, what they think is really right -- without worrying about U.S. News, the ABA, or the AALS will "say." (If U.S. News decided to rank Harvard at #15, I assume it would hurt U.S. News more than Harvard.) So, after reading Failing Law Schools, what big steps could, or should, the faculty and administration at these schools do? What could they do to lead, that might have ripple / cascade effects? Or, do even these schools have to simply wait, either for the cliff or for the regulators and rankers to demand changes?
Posted by Rick Garnett on June 19, 2012 at 01:32 PM in Rick Garnett | Permalink | Comments (16) | TrackBack
Tuesday, May 22, 2012
"Neutrality and the Good of Religious Freedom: An Appreciative Response to Prof. Koppelman"
A little while ago, Bob Cochran and the crew at Pepperdine hosted a great conference, "The Competing Claims of Law and Religion: Who Should Influence Whom?" (Here, here, and here are some earlier posts, from the "Mirror of Justice" blog, on the conference.) I was honored to be asked to respond to Prof. Koppelman's invited lecture (which is based on his forthcoming book, Defending American Religious Neutrality), but the festering miasma of evil that is contemporary air travel delayed my arrival so that I was too late to share my response with the conference. So, thanks to SSRN, several months later, here it is:
This paper is a short response to an address, "And I Don't Care What It Is: Religious Neutrality in American Law," delivered by Prof. Andrew Koppelman at a conference, "The Competing Claims of Law and Religion: Who Should Influence Whom?", which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that "American religious neutrality" is, as Koppelman argues, "coherent and attractive" because and to the extent that it is not neutral with respect to the goal and good of religious freedom.
Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain "neutral" with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.
Posted by Rick Garnett on May 22, 2012 at 04:28 PM in Rick Garnett | Permalink | Comments (1) | TrackBack
Saturday, May 19, 2012
Pithy graduation exhortation
This morning, at the graduation-day prayer service organized by the Notre Dame Law School Class of 2012, one of the readings was from Micah: "[D]o justice and [] love goodness, and to walk humbly with your God."
Best wishes and congratulations to all the new law-school graduates!
Posted by Rick Garnett on May 19, 2012 at 11:17 AM in Rick Garnett | Permalink | Comments (8) | TrackBack
Tuesday, April 24, 2012
Skyscrapers in D.C.
When I was a kid, in Anchorage, I was giddy with excitement and flush with pride when we got (what seemed like) two bona fide skyscrapers -- big glass boxes, each more than 20 (!!) stories high.
When arcane baseball stats just weren't enough, I would memorize lists of "the ___ tallest buildings in _____," and I once did a school presentation of some kind on Philadelphia's (then) practice of not allowing buildings taller than the William Penn statue. Goofy, I know . . .
Anyway, all this might explain why this piece, in Slate, caught my eye. If the (non-church) skyscraper is a kind of American invention -- a hallmark of great cities like Chicago and New York -- then Washington, D.C., is kind of an American anomaly, no? I guess that, despite my youthful skyscraper geekery, I have always liked the way D.C. looks (and not because I have any ideologically motivated desire to somehow elevate government buildings over commercial ones). But, the piece makes me wonder if I'm wrong. If D.C.'s somewhat "parisian" look increases businesses' rents and tourists' hotel expenses, is it worth it? How would we know?
Posted by Rick Garnett on April 24, 2012 at 04:08 PM in Rick Garnett | Permalink | Comments (13) | TrackBack
Friday, March 30, 2012
"In the Whirlwind"
I received from the library today my hot-off-the-presses copy of my teacher Robert Burt's new book, In the Whirlwind. I'm really looking forward to it. Here's some blurb-age:
God deserves obedience simply because he's God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God's authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.
In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God's relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.
Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.
Posted by Rick Garnett on March 30, 2012 at 02:21 PM in Books, Rick Garnett | Permalink | Comments (0) | TrackBack
On teaching Criminal Law again . . . and getting stoked
It's probably not on par with finding one's long-lost "rad-ass hoodie" (warning: This Onion News Network clip has some bad words), but pushing my way back into the rotation for teaching first-year Criminal Law next year has me stoked. Although I don't write in the area, I have always found teaching the subject to students in their first year (at Notre Dame, their first semester) of law school incredibly rewarding and fun.
Anyway, here's a bleg for Prawfs readers and bloggers: I would welcome thoughts and suggestions for changing, or even re-working, the traditional first-year Criminal Law class, based on your experiences in recent years, involving new books, teaching cases, outside readings and materials, films and clips, subjects, etc. (An example: Because I have used Joshua Dressler's book, I've always spent a lot of time on necessity, on justification and excuse, etc., and current events certainly put these questions at center-stage. Another: I worry that I have not "done enough," in my class, to get students thinking about "criminology" and "criminal justice," as opposed to "criminal law." What do you all do?)
Posted by Rick Garnett on March 30, 2012 at 11:51 AM in Criminal Law, Rick Garnett | Permalink | Comments (8) | TrackBack
Thursday, March 29, 2012
The mandate, conditioning the environment, and "The Myth of Judicial Activism"
As I read today's (to me) depressingly predictable op-ed by E.J. Dionne, in which -- in what seems to me a pretty obvious attempt to "condition the environment," and pre-fab some outrage, by invoking Bush v. Gore, Citizens United, etc. -- he anticipatorily accuses the Court's "conservatives" of "activism" for seeming to consider invalidating the insurance-mandate aspect of the Affordable Care Act, I was reminded of Kim Roosevelt's book, from a few years ago, The Myth of Judicial Activism. (Kim and I discussed his book, and the "activism" charge, here, at the PENNumbra site.)
I genuinely don't know what the Court will do with the mandate, and I'm not sure what I think the right answer is to the question, "Does the Constitution, correctly understood, authorize Congress to enact it?" (I do think the question is interesting and important and hard, and I am sure that Dahlia Lithwick is wrong in thinking that the question's answer is obvious and that only low politics and hackery could explain a Court ruling that the answer is "no.") I also think that not many people -- not E.J. Dionne and not most other critics of the Court's "conservatives" -- really oppose "judicial activism," and so I can only sigh at his concluding charge that "a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. " (Is Dionne a big fan of stricter standing doctrines? Did he lament Boudmediene, or Roper?)
I know there are some principled and consistent Thayerians out there -- some write for this blog -- but they do not seem thick on the ground. It seems to me that what most of us (for better or worse) want and praise is a Court that strikes down government actions we think are bad and upholds ones that we think are good; that what we lawyers probably should want and praise is a Court that invalidates laws that are actually (and pretty clearly) unconstitutional (good or bad) and reasonably applies the rest (good or bad); and that complaints about "activism" are more often political-rhetoric moves than the conclusions of arguments. If the Constitution gives Congress the power to impose the mandate, then of course the Justices should "defer to those elected to make [that] law[]"; but if it (pretty clearly) doesn't, then they should not. No?
Posted by Rick Garnett on March 29, 2012 at 01:53 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (8) | TrackBack
Friday, March 23, 2012
Religious Freedom and (and in) Institutions
Here is a short chapter, called "Religious Freedom and (and in) Institutions," which I contributed to a just-published volume, Challenges to Religious Liberty in the Twenty-First Century" (Cambridge 2012), edited by my colleague Gerard Bradley:
This paper is a contribution to a volume of essays dealing with a range of contemporary challenges – challenges posed by new questions, and by new forces -- to religious liberty. It considers the role that religious communities, groups, and associations play – and the role that they should they play – in our thinking and conversations about religious freedom and church-state relations. And, its primary claim is that the values and goods that the First Amendment's Religion Clauses embody and protect are well served by a civil-society landscape that is thick with churches (and mediating institutions and associations of all kinds) and by legal rules that reflect their importance. These institutions contribute in distinctive ways to the reality of religious freedom under law.
Much more interesting is the fact that Kent Greenawalt and Steven Smith also contributed chapters. Check it out!
Posted by Rick Garnett on March 23, 2012 at 03:04 PM in Rick Garnett | Permalink | Comments (0) | TrackBack
Wednesday, February 22, 2012
Stanley Fish, "Failing Law Schools", and Institutional Pluralism
Here, in the New York Times. Fish writes that "Tamanaha's analysis pretty much tracks [David] Segal's, but his book is more ambitious in its scope and puts statistical flesh on the bones of Segal's polemic." I'd be surprised, given what I've read from Brian, if the book really track's Segal's pieces, which I thought were burdened by the tired "law schools focus too much on theory instead of teaching really useful things, like _____" critique. But, it seems to me that both Fish and Brian are spot-on in directing heavy criticism at the role played in legal education by the ABA and U.S. News (and on how these entities perform that role).
This caught my attention:
And the solution? In a word, differentiation. Don't let the A.B.A. and U.S. News call the tune. Instead, take a good look at the educational landscape, at the market, at the costs, at the demographics and come up with a flexible system that matches law school graduates to needs: "Research oriented schools will remain as they are. Practice-oriented schools will be staffed by experienced lawyers; … research institutions will be staffed by scholars mainly engaged in research; other schools will be staffed by both types." Different strokes for different folks.
This strikes me as a good and important point, but maybe we can (channeling Paul Horwitz?) push the point further: Not only the ABA, but also the AALS and the academy generally, should welcome and encourage what John Garvey a few years ago called "institutional pluralism" in legal education. This would involve, among other things, appreciating the role and purpose of distinctively religious law schools. A few years ago, Madisonian.net hosted a forum on law schools, and I contributed this post, also on "institutional pluralism":
. . . this might not be the forum for thinking-out-loud about what a "Catholic law school" should be, what precisely should be its distinguishing features, etc. In my view, the project of building such a law school — an engaged, open, critical, and distinctively Catholic law school — is not an exercise in nostalgia, reaction, or retrieval. The project is, in my view, a new one.
It's also, I think, an exciting and worthy one, and I'm inclined to think that it should be regarded as such by the legal academy generally, not just by co-religionists and the like. It is not just "not a bad thing", it is a good thing, that there be distinctive law schools. Our commitments to diversity need not, and should not, lead us to insist on homogenization at the level of institutions. Quite the contrary — the same commitments that push us to respect and learn from diversity in many academic settings might also push us — and the AALS, and the ABA — to stay our hand from requiring that each institution look and act in precisely the same way.
Garvey fleshes out a number of reasons — reasons that I find persuasive — why we might think that institutional pluralism in the academy is a good thing. It seems to me that we ought not to resist, but instead should welcome, not only law schools that have focused on serving underserved populations, or law schools with a particular strength in a specific subject-matter area (for example, Lewis & Clark in environmental law), or even law schools with a particular animating point-of-view (Law & Economics at George Mason?), but also law schools that are distinctive in being meaningfully animated by a shared — even if contested — religious tradition.
Posted by Rick Garnett on February 22, 2012 at 10:30 AM in Rick Garnett | Permalink | Comments (2) | TrackBack
Monday, January 30, 2012
"Government and its Rivals"
A (long) while ago, in this essay, "The Story of Henry Adams's Soul: Education and the Expression of Association(s)," I wrote:
[W]e not only speak through associations and rely on mediating institutions for the civic space in which to engage in such expression, but we are also . . . spoken to and formed by them. Indeed, this is one reason why associations are able to play their structural role, described above, as society's hedgerows. It is not only that they are concentrations or blocs of political power, which can be marshalled against that of the state; they are also the state's competitors in the arena of education and formation. . . .
[T]he state competes with the mediating institutions of civil society, and its expression competes with that of associations, for the privilege of educating. The freedom of expressive association, then, is not only the freedom enjoyed by individuals of expressing themselves through their associations, but also the freedom of associations to serve and speak as rival sources of values and loyalties.
I "heard" Ross Douthat making a similar point the other day, in the New York Times, in this piece (which I thought was very thoughtful but which quite a few commenters seemed not to like), "Government and its Rivals," which addresses the recent decision by HHS to require most religious institutions and employers to provide coverage, in their health-care plans, for contraceptives. He noted, among other things, that:
When government expands, it's often at the expense of alternative expressions of community, alternative groups that seek to serve the common good. Unlike most communal organizations, the government has coercive power — the power to regulate, to mandate and to tax. These advantages make it all too easy for the state to gradually crowd out its rivals. The more things we "do together" as a government, in many cases, the fewer things we're allowed to do together in other spheres.
Sometimes this crowding out happens gradually, subtly, indirectly. Every tax dollar the government takes is a dollar that can't go to charities and churches. Every program the government runs, from education to health care to the welfare office, can easily become a kind of taxpayer-backed monopoly.
But sometimes the state goes further. . . .
Paul Horwitz, author of the soon-to-be-groundbreaking First Amendment Institutions, and John Inazu, whose Liberty's Refuge is already out and burning up the charts, might (along with other Prawfs readers) have some helpful thoughts and reactions here.
Posted by Rick Garnett on January 30, 2012 at 10:06 AM in Rick Garnett | Permalink | Comments (0) | TrackBack
Lateral hiring news at The Faculty Lounge
Over in The Faculty Lounge, Dan Filler is, once again, tracking the latest in lateral moves. Help him keep his list current and accurate!
Posted by Rick Garnett on January 30, 2012 at 09:06 AM in Rick Garnett | Permalink | Comments (0) | TrackBack
Tuesday, January 17, 2012
McGinnis, Mangas, and Rodriguez on "Killing the Law Schools"
In the Wall Street Journal, John McGinnis and Russell Mangas suggest "killing" (not really) the law schools as a way to increase the number of attorneys and lower legal fees. At his new "Word on the Streeterville" blog, now-Dean Dan Rodriguez of Northwestern responds:
. . . What would this reform do to legal education generally? Not much good, from my perspective. The legal profession is becoming considerably more, rather than less, complex over time. Appeals to, as they write, the "ancient common law" is rather quaint. There is, to be sure, a core and a canon which every well-trained lawyer should have exposure to, and two years may do the trick. But there is much beyond this core, as lawyers grappling with a technologically sophisticated, globally interdependent, socially and economically diverse legal and business world well appreciate. Lawyers tell us in the academy that we are not doing enough to get our students ready to practice. They insist on greater skills training, more clinical experience, more integrated law/business curricula, and opportunities within the post-graduate structure to gain on-the-job practical experience through internships and externships. And what McMangas has on offer is tossing that aside to be replaced with two years worth of presumably in-class exposure to the "ancient common law" and a few additional goodies. Leave aside the self-interest of the professiorate. That's not what lawyers tell us that they need. . . .
Rodriguez has also posted a detailed reply by McGinnis and Mangas. Thoughts? Certainly, there are loads of smart undergraduates who could, without the assistance of an increasingly expensive law-school education, pass a bar exam after an undergraduate law course and competently provide a range -- though not the full range -- of legal services. And, since I'm inclined to think that more than a few of the standards and regulations that are imposed (by the A.B.A. and the A.A.L.S.) on law schools as a condition of producing bar-eligible lawyers are homogenizing, heavy handed, simplistic, misguided, and/or products of special-interest lobbying, rather than careful responses to the demonstrated needs of students, clients, and the profession, I see some appeal to the McGinnis / Mangas call for a "more flowers blooming" market. On the other hand . . .
What do you think?
Posted by Rick Garnett on January 17, 2012 at 06:31 PM in Rick Garnett | Permalink | Comments (12) | TrackBack
Friday, January 13, 2012
Olin-Searle-Smith Fellowships for would-be Prawfs
I thought some readers might be interested in the Federalist Society's Olin-Searle-Smith Fellowships for "top young legal thinkers the opportunity to spend a year working full time on writing and developing their scholarship with the goal of entering the legal academy." Some super-able relatively junior prawfs have been launched by these Fellowships. More information here.
Posted by Rick Garnett on January 13, 2012 at 04:32 PM in Rick Garnett | Permalink | Comments (7) | TrackBack
Wednesday, January 11, 2012
Court unanimously embraces the ministerial exception in Hosanna-Tabor
I confess, I expected the usual "decision in late June," but I'll certainly take this: In an opinion for a unanimous Court, Chief Justice Roberts ruled in Hosanna-Tabor that the Constitution requires a ministerial exception, and that the exception applied in that case. Importantly, the Chief Justice rejected the idea -- it "misses the point," he said -- that a religious institution must assert a "religious reason" for an employment decision in order to trigger the Constitution's limits on government involvement in the selection of ministers. Also very important, I think, was the Court's clear rejection both of the Sixth Circuit's "count up the hours" approach to identifying "ministers" and its emphasis on the fact that the teacher in this case had "job duties" that "reflected a role in conveying the Church's message and carrying out its mission." In other words, the exception is clearly not limited to ordained clergy.
Many of us have blogged often about the case and the questions it raises. I'm sure the conversation will continue. Suffice it to say (for now) that, in my view, this decision is important, correct, and welcome.
UPDATE: Here's my insta-punditry, at USA Today, about the case:
At a time when the elected branches of government seem divided and dysfunctional, and when candidates in primary elections struggle to magnify every disagreement, it was nice of the Supreme Court, led by Chief Justice John Roberts, to remind us today that clear, efficient, consensus, and correct decisions about things that really matter are still possible . . .
Posted by Rick Garnett on January 11, 2012 at 10:48 AM in Rick Garnett | Permalink | Comments (4) | TrackBack
Thursday, December 22, 2011
Holiday cards, former students . . . and The Circle of Life
I'm one of those tree-killing, self-indulgent people who imagines that sending out 3"X 7" Christmas cards with "smiling family in front of the year's best backdrop" pictures is actually a welcome and meaningful way of maintaining relationships with friends and aquaintances, old and new. Facebook, twitter, e-mail, postage-hikes, and increased environmental awareness notwithstanding . . . I can't stop.
This year, I was particularly struck by the fact that some of the similar (though, of course, more tasteful and engaging) cards I received from former students revealed that, well, they are doing really interesting things, forming and nurturing growing families, and maybe (like me) aging a bit.
I worry that this sounds patronizing, and I hope it doesn't. The point is not, "Awww, the little dears!" Instead, for me, there's something, well, nice about being reminded that these former students of mine, who have become my friends, are closer, in a way; they have joined me in the business -- the vocation -- of integrating life, work, family, community. Once, I was (or, I tried to be) their teacher; now, we are in this together. I know this sounds awfully Lion King / Circle-of-Life-ish but . . . oh well. Happy Hol(y)days.
Posted by Rick Garnett on December 22, 2011 at 01:14 PM in Rick Garnett | Permalink | Comments (0) | TrackBack
Burt, "In the Whirlwind"
My teacher Robert Burt (Yale Law School), has published a new book called "In the Whirlwind: God and Humanity in Conflict." Here is the blurb:
God deserves obedience simply because he's God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God's authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.
In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God's relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.
Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.
Looks fascinating!
Posted by Rick Garnett on December 22, 2011 at 11:40 AM in Rick Garnett | Permalink | Comments (1) | TrackBack
Sunday, December 18, 2011
"Our Boggling Constitution" wins! Congrats to Paul!
The Green Bag has honored Paul Horwitz's "Our Boggling Constitution: or, On Taking Text Really, Really Seriously" (which appeared in Constitutional Commentary) as one of 2011's pieces of "exemplary legal writing." The short, and very funny, piece is here:
This light essay takes a jaunty two-step beyond textualism and beyond intra-textualism, and offers a new approach to constitutional interpretation: intra-intra-textualism. Just as textualism involves taking the whole text of the Constitution seriously, and intra-textualism involves taking the words of the Constitution seriously, so intra-intra-textualism proposes that we take the letters of the Constitution seriously. Inspired by Boggle, and by the various text-twist type games I can't seem to stop playing on my Iphone, intra-intra-textualism, or "Our Boggling Constitution," argues that if the words of the Constitution have authoritative interpretive meaning, then so must its letters -- especially when they are jumbled together and rearranged. Besides offering new sources of legitimacy, flexibility, and professional advancement, Boggling Constitutionalism, unlike most other theories of constitutional interpretation, is also fun for the whole family. This humor piece, which was initially published anonymously, is a nominee in the Green Bag Almanac & Reader's list of exemplary legal writing over the past year.
Posted by Rick Garnett on December 18, 2011 at 05:27 PM in Rick Garnett | Permalink | Comments (4) | TrackBack
Monday, November 21, 2011
Complaints about law schools as efforts to shift costs to law schools
Just a quick thought on the David Segal piece, following up on Matt's and Michael's posts: First, I think we are all sensitive to the fact that a great many of our students and recent graduates are anxious about the job market for lawyers and about the heavy weight of student-loan debts, and articles like Segal's reflect (even if they also exploit) that justifiable anxiety. And, one does not have to be the scam-blogger to think that those of us who are blessed with the opportunity to teach and write about law have a moral obligation to prioritize the task of reducing (even though we cannot eliminate) that anxiety, in every way that we can.
That said, I thought the Segal piece was, at the end of the day, off-base. It has its true, and truthy, moments, but it seems to take as its starting point a claim about legal eduation that is clearly false, namely, that there is something new about the fact that law schools do not produce graduates who are, at graduation, practicing lawyers, but instead produce graduates who have been comprehensively trained and pushed (we hope) to "think like lawyers." There never was a time, though -- or, there hasn't been a time since Langdell, etc. -- when recent graduates were "practice ready" and, if anything, today's graduates are the beneficiaries of more practical and experiential opportunities than were available before law professors got side-tracked by "chin stroking" scholarship.
I think that what's going on here is not that courageous voices-of-reform are urging a return to a better time of more "practical" legal education -- a time before those gosh-darn crits and economists forgot about the need of the bench and bar for more useful treatises -- but is instead that law-firm partners, confronted with the fact that clients are no longer willing, as they long were, to pay for the work of young associates (and thereby both subsidize the apprenticeship of those young lawyers and enable partners to take home more money than their own billables would warrant), are finding it convenient to take advantage of the anxieties caused by the economy (and perhaps also by the publicly-subsidized over-production of lawyers) and to dress up as "calls for reform" their efforts to shift the work (and costs) of training and apprenticeship -- work that was always more theirs than the law school's -- to law schools.
In other words, in the spirit of "not letting a crisis go to waste," I think this piece is (yet) another example of dressing up familiar (and often self-interested) complaints about legal education as insightful and brave calls for urgently needed reform. We are in a recession, and our law schools are producing more lawyers than, it appears, the legal sector is able (or willing) to absorb. This is a problem, but it has nothing to do with what's in law-review articles.
Posted by Rick Garnett on November 21, 2011 at 12:11 PM in Rick Garnett | Permalink | Comments (36) | TrackBack
Friday, November 04, 2011
Get your "First Amendment Stories"!
Shamelessness ahead: First Amendment Stories (Foundation 2011), edited by Andrew Koppelman and some guy named Garnett, is out and available. Buy yours today, here. It would make a wonderful ____ gift for, well, anyone. The stories of 17 of the Court's most interesting and important free-speech and religious-freedom cases and controversies -- from the Sedition Act to the Ten Commandments and football-prayer and lots of ones in between -- are explored in depth by a diverse group of First Amendment scholars, including Prawfs' own Paul Horwitz and guest-blogger Scott Moss. As Larry Solum might say: "Highly recommended" and "[buy] it [whether or not] it's hot"!
Posted by Rick Garnett on November 4, 2011 at 04:30 PM in Rick Garnett | Permalink | Comments (0) | TrackBack
Letters of recommendation, and gratitude
A few months back, I received the file that "my" judge had kept on me. It contained our correspondence, before and after the clerkship, and a few other snippets and photos that I imposed on him over the years. It also contained the letters of recommendation that my professors and law-firm supervisors had submitted on my behalf. Reading those letters, I was (not to sound too melodramatic or cheesy) really overcome with gratitude to those who wrote them. Putting aside the fact that, in accord with tradition, they made me sound better than I was or am, I was struck by the fact, or reminded again of the fact, that it is primarily because of others' help, encouragement, pushing, and -- yes -- generous writing of rec-letters that I am enjoying the work that I so enjoy now. I cannot pay these folks back, but I was, after reading through the file, reminded of the importance of "paying it forward."
Posted by Rick Garnett on November 4, 2011 at 02:27 PM in Rick Garnett | Permalink | Comments (4) | TrackBack
Monday, October 17, 2011
Smith on "Freedom of Religion or Freedom of the Church?"
As Paul mentioned, the other day, one of the papers that was presented at the (excellent) "Matters of Faith" conference at Alabama was Steve Smith's Freedom of Religion or Freedom of the Church? You can get a version of the paper on SSRN (here). Here is the abstract:
This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of "religion," or that it creates or accepts a special category of "religion" that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church - a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the "inner church," so to speak). The section then relates how this commitment to freedom of the church - both the institutional church and the inner church - came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.
My first reaction to this (as per usual, for Steve) fascinating paper, and to Steve's presentation at Alabama, was "crap. What's left for me to say, for the 30 years or so until I retire? Time to re-tool as a Third Amendment scholar . . ." Thinking about it more, at the conference and on the plane home, I asked myself what the implications for judicial doctrine and practice would be, were the First Amendment to be understood (as I think I think it should be) along the lines Steve suggests. Three come to mind:
First, the Religion Clauses -- specifically, the "secular purpose" requirement -- would no longer have a job to do in identifying the constitutional limits on morals legislation. There are, certainly, such limits, and should be, but the enterprise of finding them would not involve trying to identify and categorize as either "religious" or "secular" the purposes or motives that were thought to produce that legislation.
Second, the Supreme Court's Smith decision would be, pretty much, right, at least when it comes to exemptions for religiously motivated conduct from otherwise religion-neutral and (truly) generally applicable laws.
Third, the project of evaluating symbolic expression by governments and public officials would be taken from "endorsement test"-wielding judges and given to citizens, acting in and through politics, and (I hope) taking seriously the demands of civic friendship, and plain old common decency, in a diverse political community.
Anyway, check out the paper.
Posted by Rick Garnett on October 17, 2011 at 02:19 PM in Rick Garnett | Permalink | Comments (0) | TrackBack
Monday, October 10, 2011
Religiously Affiliated Law Schools reception at AALS hiring conference
For all current and aspiring law faculty who are attending the upcoming hiring conference, here (thanks to Tim Zinnecker and "The Faculty Lounge") is the information about this year's reception sponsored by the Religiously Affiliated Law Schools and the AALS Law and Religion section. I am not going to the conference this year, but have always enjoyed this reception in the past.
Posted by Rick Garnett on October 10, 2011 at 02:29 PM in Rick Garnett | Permalink | Comments (0) | TrackBack
Tuesday, October 04, 2011
Berg et al. on "Religious Freedom, Church-State Separation, and the Ministerial Exception"
Tom Berg, Carl Esbeck, Kim Colby, and I co-authored an amicus brief , on behalf of Prof. Eugene Volokh and a diverse range of religious groups, in support of the Hosanna-Tabor school, whose case is being argued in the Supreme Court tomorrow. We also contributed a streamlined version of the brief to the Northwestern University Law Review Colloquy; the paper is not available yet at Colloquy, but it is available here, on SSRN. Here's the abstract:
The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism – the project of protecting political freedom by marking boundaries to the power of government – has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects – as ours does – both the importance of, and the distinction between, the spheres of political and religious authority is one in which the fundamental rights of all are more secure. A government that acknowledges this distinction, and the limits to its own reach, is one that will more consistently protect and vindicate the liberties of both individuals and institutions.
The "ministerial exception," at issue in Hosanna-Tabor, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Because any worthwhile account of religious freedom would respect the authority of religious communities to select freely their own clergy, ministers, teachers, and doctrines, any such account must include something like the ministerial-exception rule. Reasonably constructed and applied, this rule helps civil decision-makers to avoid deciding essentially religious questions. In addition, and more importantly, it protects the fundamental freedom of religious communities to educate and form their members. Although the exception may, in some cases, block lawsuits against religious institutions and communities for discrimination, it rests on the overriding and foundational premise that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law's corrective reach. The civil authority – that is, the authority of a constitutional government – lacks "competence" to intervene in such questions, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdiction.
Posted by Rick Garnett on October 4, 2011 at 03:59 PM in Rick Garnett | Permalink | Comments (6) | TrackBack
Monday, October 03, 2011
Teaching Prohibition in Constitutional Law
Last Spring, as I was teaching my first-year Constitutional Law course, I was listening to Daniel Okrent's very engaging book, "Last Call: The Rise and Fall of Prohibition." In many ways -- some of which I'd appreciated before, and others I hadn't -- the book's subject connected interestingly with the big questions and themes of the first-year course (which, at Notre Dame, focuses on "structure"). I had so many occasions to refer to the book in class, I started to worry that my students were getting the idea that I am obsessed with alcohol and its regulation.
A few years ago, Eugene Volokh and others helped me to appreciate the ways in which the Second Amendment can serve as a "teaching tool" in Constitutional Law. It strikes me that the experience with Prohibition - how it came about, what it tells us about constitutional amendments and grassroots political movements, how it connects with questions about the census, redistricting, federalism, and the Fourth Amendment, etc. - could serve, similarly, as a teaching tool or vehicle. Have any Prawfsblawg readers or bloggers taught Prohibition, or used it as a lens through which to look at the Constitution and constitutional law? Any suggestions about how it could be done?
Posted by Rick Garnett on October 3, 2011 at 05:05 PM in Rick Garnett | Permalink | Comments (2) | TrackBack
Friday, September 23, 2011
The "Lawless" law-clerk-hiring process
Today's edition of the New York Times has an article about the law-clerk-hiring process called "Judges Compete for Law Clerks on a Lawless Terrain." "Lawless" or not, I know that I'm finding the terrain increasingly difficult to read, navigate, and guide. The combination of "the Plan" and OSCAR was, if I remember correctly, supposed to make the hiring process more regular, orderly, and transparent -- for the benefit of judges, faculty, and students alike -- but those hopes do not seem to have been realized.
For those of us who follow, and participate in, the process, I suppose there was nothing new in the piece (though I was struck by the fact that -- counting only electronic submissions to federal judges -- there were about 382,000 applications filed last year). We already knew, for example, that many judges are interviewing and hiring law-school graduates (as opposed to rising third-year students) "off plan", that some judges schedule, and then cancel, interviews, and so on.
What is to be done? I have no idea. I know that my colleagues in our Career Development Office and on the faculty do what they can to gather all available information about what particular courts and judges are doing, and maybe, in the end, that's all we can do. (Given, however, the extent to which judges are moving off-plan, and given the difficulties in the law-jobs market more generally, I don't see how a school can justify complying with any "Plan"-imposed requirements that they not assist students who apply "early.")
I sympathize somewhat with Judge Kozinski's well known (and quoted in the piece) hostility to "cartels" in and close regulation of law-clerk hiring, but I guess I sympathize more with those students to whom we have to say, when they come to us for advice on how and when to apply for clerkships, that we just don't know. These positions are such wonderful, life-changing opportunities; it seems a shame that the process for securing them is increasingly so mysterious as to be exclusionary.
I'd welcome others' thoughts . . . and advice!
UPDATE: I noticed Dan's post, right after I posted this. As per usual, he's a quicker-thinker than I am!
Posted by Rick Garnett on September 23, 2011 at 02:39 PM in Rick Garnett | Permalink | Comments (2) | TrackBack
Friday, September 16, 2011
Questions by students for prospective prawfs
A law student I know is serving as the student member of his law school's Faculty Appointments Committee, and asked me to ask others: "What would you like to be asked by students in an interview? Think about this in the context of a day full of deans and professors -- what haven't you talked about by the end of the day that students should know about and factor into a hiring decision?"
Posted by Rick Garnett on September 16, 2011 at 04:08 PM in Rick Garnett | Permalink | Comments (8) | TrackBack


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Microsoft Office 2010 Screenshots
See the all-new Visual guide to Office 2010 for screenshot images of the latest version of Office 2010.
See the all-new Visual guide to Office 2010 for screenshot images of the latest version of Office 2010.
When you resize text on a web page, Firefox will automatically resize all the images present on that page in the same proportion.
FeedDemon 3 includes some new features that make this RSS reader almost a perfect Twitter client for Windows. Here's why:
Are you looking for ways to increase the wireless signal strength of that router in your home without having to invest in a Wifi extender? Here's a tip.
Abbyy Mobile OCR Engine SDK that provides tools for developers to create optical character recognition (OCR) applications for mobile or other compact devices now supports the Apple iPhone.
RichCopy is a powerful file copying tool developed for internal use at Microsoft that can significantly improve file copy performance. It is also much faster than RoboCopy or the XCOPY command.
Emulate iPhone. Learn how to switch the user agent of your Firefox browser to iPhone so that websites serve your their mobile or iPhone ready layouts to you.
If you like to listen to Word Documents on your mobile phone or an iPod, check the Save as Daisy add-in available for Microsoft Word.
How to remove the useless files from Windows Vista and recover disk space.
Windows can easily detect external mice and install the appropriate drivers but the problem is that the position of the mouse pointer that you see on the screen is not accurate.
The Acrobat for Outlook add-in lets you send links to files rather than file attachments from within Outlook. Sending links ensures that your recipients can download files from Acrobat.com, regardless of the size or type of attachment.
Google Chrome start page includes a list of most frequently visited websites as well as a list of recently closed tabs – you can duplicate this feature in Firefox with about:tab.
TinySpell is a simple spell checker for Windows that you can use on any application that does not have a native spell checking feature.
GoView from Citrix Online is a simple screen recording, editing and screencast hosting service to help you create screencasts of presentations, product demos and application training.
When you drag and drop files to the command line window, it automatically fills in the complete path of the file.
Learn how to use popular web browsers like Internet Explorer, Google Chrome, Mozilla Firefox, Apple Safari and Opera on your computer without installing any software. You can also run these browser simultaneously on Windows without any hacks.
Folder Size is a freeware that adds a new column in your Windows Explorer to display the size of files as well as folders. For XP and Vista.
The transparent laptop screen you see on the right is no Photoshop trick, but a rather ancient (by internet standards) optical illusion.

subset: commoncrawl


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