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Steve Shiffrin
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Thanksgiving is a day inspired by a group of refugees – the Pilgrims. It is hard for me to heap admiration on the Pilgrims. They were a group escaping from England to achieve their own religious freedom. But they persecuted those who did not follow their own crabbed version. Harold Meyerson today has an excellent Washington Post column (see here) in which he draws attention to the irony that Republicans on a day inspired by refugees are doing their best to deport immigrants and prevent refugees from arriving on their shores. Narrow as the religion of the Pilgrims might have been, it was not a religion of personal fear in this world and certainly not a religion of selfishness. Nonetheless, I am even more drawn to E.J. Dionne’s wonderful column today. See here. Thanksgiving is a day for gratitude. And he says that “Gratitude requires the swift, the strong, the... Continue reading
Posted 5 days ago at
On her Facebook page, Taryn Mattice links to a must read post by Jim Wallis on how to react to ISIS. Among other things, he argues that the kind of measures urged by Republicans are exactly the reactions that ISIS would welcome and would assist their recruitment efforts. Wallis argues that "To win the 'war' against ISIS, we must win the moral narrative – we must reveal ISIS’s distortions and lies and thus destroy their moral and religious legitimacy to those they seek to recruit. The best way to defeat bad religion is with good religion, and the better way to defeat religious fundamentalism is from within rather than trying to smash it from without." He argues that "Continuing to supply the narrative ISIS that clearly wants – dropping more bombs, invading more countries, refusing more refugees, offering our hate in response to theirs, and 'showing no mercy' as some... Continue reading
Posted Nov 21, 2015 at
Eric Schneiderman, the New York Attorney General, has declared that daily fantasy sports games are a form of illegal gambling, but I think his claim is spurious. Gambling is generally illegal if it is based on luck rather than skill, but the line between the two is unclear. I will focus on baseball because I know it somewhat better than other sports. Everyone would agree that the real game of baseball is a game of skill. Try throwing a 93 mile per hour fastball or hitting one. The better teams tend to prevail over the course of a season. Yet baseball games are often decided by a matter of inches. Even the best of batters have little control over where a ball goes. To be sure a batter can deliberately hit some pitches to the right side of the infield, but nobody has the precision to hit the ball between... Continue reading
Posted Nov 12, 2015 at
Fox News reporter Jesse Watters was recently thrown off campus while asking students questions primarily about liberal bias in the university. On camera, he asked Senior Director of Media Relations John Carberry why he was being asked to leave and Carberry in his best imitation of an imperial bureaucrat said he would send him a statement. Carberry proceeded to send a statement asserting that Cornell does not discriminate in hiring on the basis of politics, a statement that notably did nothing to explain why Cornell threw Watters off campus. When airing the segment Bill O’Reilly said to Watters, ““Don’t they understand that they look 18 times worse than if they’d just left you alone?” Mr. Carberry violated the first rule of public relations: never make matters worse by making public relations the story and above all, don’t appear to be covering up through censorship. Apparently, Vice President of University Relations... Continue reading
Posted Oct 30, 2015 at
Vice President Biden has decided not to run, but it is worthwhile to consider one of the problems he would have confronted if he had run. I have in mind the Catholic problem. It is not the same problem John Kennedy faced when he ran for President. The concern then was that he would be a puppet of the Vatican. Kennedy argued to the Houston Ministerial Association that he favored religious freedom, separation of church and state, and that he would follow his conscience rather than the impositions of religious prelates and he trusted that a Protestant would do the same. I wish he had made the point that it was part of Catholic doctrine that a person should follow his conscience rather than the views of Church leaders when he could not bring himself to agree. But Kennedy’s speech opened the door for him to run for the Presidency... Continue reading
Posted Oct 25, 2015 at
City, Town, and Village Courts in New York State essentially entertain the same types of cases including traffic, small claims, landlord tenant disputes, violations, misdemeanors, and felony preliminary hearings. To qualify to be a City Court judge in New York, you would need to be a member of the New York bar and have practiced law in New York for at least five years. To be a Town or Village justice, you would only need to be a resident of the town or village, be at least 18, and not have committed a felony. In New York State 72% of the Town and Village Justices are not lawyers. Many are quite smart and well educated. The County in which I live is investigating whether to seek legislation reforming this system. The Town and Village judges argue that the current system has worked for more than a century, that they are... Continue reading
Posted Oct 15, 2015 at
Matt Bai has written a wonderful book about political reporting entitled All the Truth is Out: The Week Politics Went Tabloid. The central claim of the book is that the reporting about Presidential candidate Gary Hart marked a fundamental change in political reporting. According to the Boston Globe, Bai shows that the reporting was bad for Hart and bad for democratic life. I think Bai is torn on the question (he does an excellent job of reporting both sides). In the end, however, he regrets the tabloid turn, and though he has great admiration for Hart, he pulls no punches in reporting about his weaknesses. Gary Hart you may remember was the front runner for the Democratic nomination and a strong favorite to win the Presidency in 1988. He led George H.W. Bush by 13 points and only 11% of the electorate was undecided. Moreover, he was a brilliant candidate,... Continue reading
Posted Sep 27, 2015 at
Approximately 25% of the U.S. News evaluation of American law schools is based on the quality of the student body, and the lion’s share of that criterion is based on the grade point averages and LSAT scores of the student population. Ten per cent of that assessment is related to the acceptance rate. This grade point and LSAT part of the evaluation system has quite pernicious effects. It used to be that the vast majority of law school financial aid was distributed on the basis of need. No more. Now schools throw money at those students that can help the collective GPA or LSAT at the particular levels of the class that U.S. News employs. Morever, the money is doled out in a highly strategic way. There is little point in offering money to a student accepted at a higher ranked school. Indeed, serious gamers of the system might deny... Continue reading
Posted Sep 14, 2015 at
Last week 130 religious, education, civil rights, labor, LGBT, women's, and health organizations wrote a letter to the President to complain about a 2007 Office of Legal Counsel opinion (see here) that a religious organization (World Vision, Inc.) providing secular services to guests on a non-discriminatory basis with the assistance of Federal funds had the right under the Religious Freedom Restoration Act to restrict its hiring to those who share the religion of the religious organization. See here. The 130 complained that the "broad" ruling constituted a "blanket override of a statutory non-discrimination provision," and argued that the government's interest in preventing religious discrimination is compelling. They worry that the ruling might support discrimination against LGBT workers or could be used to deny health services to undocumented children. To be sure, preventing discrimination on the basis of religion should ordinarily be considered a compelling government interest. If the Sierra Club... Continue reading
Posted Aug 30, 2015 at
Scott Walker is well known for his bulldog-like attacks on constituencies not devoted to Republicans. So he has attacked public and private unions. And his most recent budget would slash “$250 million from the University of Wisconsin, one of the country’s great public institutions of higher education, and [would ensure] that most K-12 school districts will get less funding than they did last year.” See Washington Post. Most important for my purposes Mr. Walker sought to remove tenure protection for professors at the University of Wisconsin. As the Post reports, this move would seriously harm the school’s ability to attract and retain talented faculty. Of course, this has attracted criticism, but coming to his rescue in the editorial pages of the Wall Street Journal (where else) come John O. McGinnis and Max Schanzenbach (see Wall Street Journal (subscription may be required)) to defend the proposal as a wonderful cost savings... Continue reading
Posted Aug 20, 2015 at
In 2009 Michael Jordan sued Jewel Food Stores among other things for appropriating his name for commercial purposes without his authorization violating his so-called right to publicity. I put the case on an exam, and recently noticed that the case is scheduled for trial in December. Already the case stands for several important points. But, first the facts. When Michael Jordan was admitted to the Naismith Memorial Basketball Hall of Fame, Sports Illustrated put together a commemorative issue and offered Jewel Food Stores a free ad if it would display the issue in each of its 175 markets in Chicago. Jewel agreed and was given a full page ad on the inside back cover. Jewel’s ad featured some shoes on a hardwood floor with the number 23 (Jordan’s number for most of his career – Jewel does not sell shoes). The ad said that Jordan was a Shoe In. It... Continue reading
Posted Aug 10, 2015 at
Princeton’s Robert Wuthnow, one of the leading sociologists of religion, has an illuminating article in First Things on the increasing unreliability of even prominent national polls on religion. As he observes in a crucial passage, “As public confidence in polls has tanked, so has the public’s willingness to participate in polls. Response rates have declined precipitously. In the 1980s, the typical response rate was in the 65- to 75-percent range—the range to which serious academic and government surveys aspire and frequently achieve. By the late 1990s, response rates had fallen to 30 to 35 percent. Currently the typical response rate is 9 or 10 percent, and rates rarely exceed 15 percent. In other words, upwards of 90 percent of the people who should have been included in a poll for it to be nationally representative are missing. They were either unreachable or refused to participate. Wuthnow identifies the characteristics of... Continue reading
Posted Aug 5, 2015 at
I may have a limited imagination, but it never occurred to me that anyone would deny that the murders in Charleston's Emanuel African Methodist Episcopal Church were racially motivated. I did not even think Fox News could be so clueless. Similarly, when John Russell Houser opened up fire in a crowded theater showing Amy Schumer's Trainwreak, is it difficult to suppose that his views of women were a major part of his motivation? He kills two women in a theater showing a movie written by and starring a feminist who he would surely find threatening. Is it really all that mysterious? Should we be irretrievably puzzled, or is the hate crime explanation the most plausible? For a strong argument in favor of the view that we need to start enacting and naming hate crimes against women, see this excellent post by Elizabeth Licorish in the Huffington Post. Continue reading
Posted Jul 30, 2015 at
70 Years after the War Blessed are the peacemakers – Now especially, peace must not depend upon weapons To our Brothers and Sisters in Christ and to All Who Wish for Peace The Catholic Bishops’ Conference of Japan issued messages marking the end of the Second World War in 1995 (Resolution for Peace -- On the 50th. Anniversary of the End of the War) and 2005 (Peace Message After 60 Years From the End of War World II -- The Road To Peace Based On Nonviolence -- Now Is The Time To Be Prophetic). In this year in which we mark the 70th anniversary of the end of the war, we wish to once again declare our commitment to peace. 1. The Church Cannot Remain Silent in the Face of Threats to Human Life and Dignity For the Catholic Church, this is a noteworthy year because it marks the 50th... Continue reading
Posted Jul 25, 2015 at
The press coverage of the same-sex marriage case was not uniformly distinguished. Particularly problematic were reports that evangelical ministers would combat the Court’s decision by refusing to have same sex marriages in their churches. The implication was the Court decision had something to say about what happens in churches. It, of course, had zero effect on the decisions religious leaders are entitled to make and act upon in determining who can and cannot be married in their houses of worship. The Court’s decision had absolutely nothing to say about what happens in any part of the private sector. Only in rare cases, does the Constitution reach beyond the regulation of government action. Nothing in our Constitution prevents a private employer from discriminating on the basis of sexual orientation, let alone dictating to a minister who he or she shall marry. I don’t expect that our law will ever intrude on... Continue reading
Posted Jul 19, 2015 at
The dissents in the same sex marriage case have been much criticized. But George Will deserves the prize for the most spectacular criticism. Chief Justice Roberts wrongly (see here) maintained that the only case supporting the majority’s decision was Lochner v. New York, a decision in 1905 invalidating a New York law setting maximum hours per day and week for bakers. Lochner has long been recognized as a dirty word. It is the poster child for what can go wrong in constitutional law. A court imposes its own economic theory in ways permitting employers to exploit workers and at the same time overrides the deliberative choices of a democratically elected body by reference to a pseudo-constitutional right. In his syndicated column this week, George Will comes forward to claim that Lochner was rightly decided. (See here). He thinks that “America urgently needs many judicial decisions as wise as Lochner.” As... Continue reading
Posted Jul 15, 2015 at
This is cross-posted from the Hill with Bob Hockett's permission. Greece's current travails offer many lessons, but they are not those that some seem to believe. This is not a story about corruption or profligacy, even if there has been some of that, as there always is. Nor is it a matter of "Greek vice" and "German virtue." It is a story about incomplete economic — hence political — unity among states. And this is a story that not only Europeans, but Americans and others, all should take heed. ADVERTISEMENT Begin with a fundamental datum: Some European economies — particularly those in the north — have long been commercial and industrialized. Others — particularly those in the south — remain to this day much more traditional and agricultural in character. This means that the northern economies produce and provide more in the way of high value-added, manufactured goods and services,... Continue reading
Posted Jul 10, 2015 at
The opinions in Obergefell v. Hodges have been much discussed. The dissents claim that Justice Kennedy’s majority opinion violates principles of self-government by imposing its subjective will to resolve an issue that should be resolved in the democratic process. Much commentary rightly observes that the dissenters believe in self-government except when they don’t, e.g., when they override the will of elected representatives who pass affirmative action programs or campaign finance legislation. The dissenters would respond that those instances are different because fundamental constitutional rights were at stake in those cases. But the majority in Obergefell also concluded that fundamental constitutional rights of due process and equal protection are implicated in the state’s denial of same-sex marriage. The dissents deny the existence of a liberty right because same-sex marriage is not deeply rooted in the nation’s traditions. The majority argues that this is the wrong standard. According to Justice Kennedy, the... Continue reading
Posted Jul 5, 2015 at
Although he agrees with the result, Cornell Law Professor, Michael Dorf exclaims that Justice Breyer’s majority opinion in the recent Texas license plate case (Walker v. Texas Div. Sons of Confederate Veterans) is “so badly reasoned that it cannot be taken seriously.” See here. In that case, Texas refused an application for a license plate with a Confederate flag on the ground that it was offensive. The relevant part of the licensing scheme was one in which “sponsors” submitted proposals for new specialty license plates including a draft design and a nomination for the government agency that would receive funds derived from the plate. The relevant statute provides that the Department of Motor Vehicles Board shall design the license plate in consultation with the applicant. It may refuse the proposal if the contents of the plate would be offensive to any member of the public or if the nominated agency... Continue reading
Posted Jun 21, 2015 at
The recent case of Elonis v. United States involved the publication by Elonis of threats on a Facebook page (dressed up as rap lyrics) directed against his wife, co-workers, a kindergarten class, and members of law enforcement. Elonis argued that the First Amendment protected his rap lyrics, e.g., “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave.” But the Court avoided the First Amendment issue by concluding that the jury instructions were defective because they authorized conviction if the communication would cause a reasonable person to believe a threat had been made regardless of the speaker’s intent. The Court ruled that negligence was an insufficient... Continue reading
Posted Jun 10, 2015 at
What should the word religion mean in the First Amendment? The Pew Forum recently released the results of a survey revealing that nearly 23% of Americans describe themselves as religiously unaffiliated – as atheist, agnostic, or more typically “nothing in particular.” See Pew Forum. Should this mean that this group should receive no protection under the Free Exercise of Religion Clause of the First Amendment? I leave aside the fact that the majority of this group believes in God, but does not affiliate with an institutional church. The Free Exercise Clause should centrally be read to protect freedom of conscience whatever its source. When government forces someone to do something they feel morally obligated not to do or forbids someone not to do something they feel obligated to do, a just system would recognize that this burden on freedom of conscience is at least regrettable and often impermissible. Sometimes burdens... Continue reading
Posted May 25, 2015 at
U.S. News and World Reports claims to perform a service for students when they rank schools. In fact, the rankings are harmful to students in significant ways. It is not just that the academic rankings are marred by those who game the system and by the fact that everyone who ranks the schools has only fragmentary knowledge of the schools they rank. Much more serious is the impact of the weight the magazine gives to the grade point averages and test scores of the admitted students. In order to compete on these measures, first undergraduate schools and in the last decade law schools are spending millions of dollars throwing money at students who will help their average GPA or test scores in order to hold their U.S. News ranking or to move up in the rankings. The result, of course, is that students who do not get merit scholarships are... Continue reading
Posted May 11, 2015 at
Saturday, Neesa and I went to watch the St. Louis Cardinals play the Cincinnati Reds with our youngest son Jacob. Around the third inning Neesa turned to me and said: “I have never seen so many white people in one place.” There were many black employees, but it wasn’t until the sixth inning that I saw a single African-American fan. Of course, there were many more, but the largest racial group in St. Louis is African- American, and it was obvious that African-Americans are not supporting the team in the numbers one would expect or that one might see in Chicago, New York, or Los Angeles (the latter having I would argue the most racially diverse crowd in baseball). So what is the problem? Until Neesa spoke, I did not notice what many African-Americans know very well. See here. In 2014 there were no African-American players on the Cardinal team... Continue reading
Posted Apr 19, 2015 at
Liberals think it obvious that evangelical Christians should not have a constitutional right to discriminate in hiring or in deciding which customers to serve on the basis of sexual orientation. I agree with these conclusions, but I think the question whether good faith religious liberty claims should be respected in the case of customer discrimination should be regarded as a closer question than most liberals would concede. It is not that I have appreciation for the religious position taken by evangelicals. I enjoyed a sermon on Easter by a Methodist minister who said she regarded those who discriminate on the basis of sexual orientation as wolves masquerading as the Lamb of God, and she found it hard to believe that Jesus died on the cross, so that Christians could discriminate against people on the basis of who they love. Nonetheless, religious liberty claims should not be dependent on whether we... Continue reading
Posted Apr 8, 2015 at
The announcement that Chuck (Mr. Wall Street) Schumer has been tabbed to lead the Democratic Party in the Senate is a vivid reminder that the Democrats have been captured by big money. The Democrats can talk economic populism, but those who bankroll the campaigns call the shots. This is not a new development. Citizens United aggravated the problem, but the Democratic reliance on business financing goes way back. It is certainly more than 30 years old. Indeed, I am looking forward to reading The American Three-Party System: Hidden in Plain Sight which details the intrusion of the Corporate Political Party into the Democratic Party. Robert Kuttner himself has a good account in his 2008 book The Squandering of America of the corruption of the Democratic Party by big money. Kuttner for many years has observed that the Republicans have a natural fundraising advantage. Their deregulation message is just what business... Continue reading
Posted Mar 30, 2015 at