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Steve Shiffrin
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The cases involving religious freedom and the contraception mandate were decided yesterday. Some of the reporting discussed the case as if it showed the problems of a 4-4 division of the Justices on the Court. I do not agree. Aside from arguments about a perceived lack of justification for exempting some groups and not others from the mandate, the religious employer claimants argued that if government required the insurance companies selected by the employers to provide contraceptives over the employers’ objection, this would constitute a high jacking of the employer’s insurance program and would make them complicit in what they regard as sinful activity. The Little Sisters and other litigants also objected to the notice required by the government. The government required that the litigants inform the government that they objected to providing contraceptives and that they include the names of the insurance companies. At oral argument, counsel for the... Continue reading
Posted May 17, 2016 at ReligiousLeftLaw.com
I rarely have trouble determining who to vote for, but deciding between Clinton and Sanders in the New York primary has not been easy for me. For a long time, I supported Clinton. I thought Sanders was helping the cause of the left by moving her to the left, but that he could not accomplish his goals with a Republican House. I thought she was smart, generally Progressive, more qualified, more likely to get things done, unfairly vilified, and I believed it was past time that a woman be elected President of the United States. I still think all of that, but I am voting for Sanders. The easy reason is that Clinton will win New York, and votes for Sanders will send a message that the heart of the party is and should be moving to the left. But there is more. At the moment, the polls show that... Continue reading
Posted Apr 17, 2016 at ReligiousLeftLaw.com
The cases involving religious freedom and the contraception mandate took an interesting turn last week. Aside from arguments about a perceived lack of justification for exempting some groups and not others from the mandate, the main arguments of the religious employer claimants were that if government required the insurance companies selected by the employers to provide contraceptives over the employers’ objection, this would constitute a high jacking of the employer’s insurance program and would make the employer complicit with the provision of contraceptives. This is a rather extravagant view of moral complicity particularly given the public moral objection to its provision. It is at odds with standard Catholic teaching on moral complicity as the discussion by Cathleen Kaveny makes clear (cited by Michael Perry on this site here). The claim of the Little Sisters of the Poor might be more attractively stated if it argued that it had religious objections... Continue reading
Posted Apr 6, 2016 at ReligiousLeftLaw.com
With the passing of Justice Scalia, and with the nomination of a centrist judge who probably will not be confirmed, we should ask what difference it would make a newly elected Democratic President appointed a liberal judge creating a liberal majority on the Court. Most recognize that the general trend of decisions by the Court in which Justice Scalia played an important role would be quite different than they are now. That Court undermined health, safety, and environmental regulations and otherwise acted in ways celebrated by the Chamber of Commerce. It overturned the Voting Rights Act, and it upheld state regulations designed to make it more difficult for Democrats to vote. It used the First Amendment to overturn campaign finance regulations and was on the verge of using the same amendment to weaken unions. The Court smothered dissent: upholding bureaucrats who sought to censor the speech of public employees, students,... Continue reading
Posted Mar 20, 2016 at ReligiousLeftLaw.com
The tale of this election is that those candidates who are running against the “Establishment” are doing very well. There is obviously something to this, but it obscures the actual workings of American politics. Just for starters, Hilary Clinton won Nevada on Saturday propelled by African-American and Latino voters. Those voters would be surprised to learn that they are part of the Establishment. And, of course, except for some of them, they are not. What people mean by the Establishment refers variously to the Washington Establishment, the Business Establishment, and the Media Establishment or all three. What this “description” slides over is that none of these Establishments are monolithic. Is there anyone who thinks that Washington is monolithic? The Media? More interesting is the claim that Business is the establishment. On this theory, Donald Trump is a narcissistic member of the Establishment, and I believe he is precisely that. Bernie... Continue reading
Posted Feb 21, 2016 at ReligiousLeftLaw.com
The Republican claim that nominations for the Supreme Court have not been approved during election years is simply false. President Reagan’s nomination of Justice Anthony Kennedy was approved by a Democratic Senate in 1988. Mitch McConnell and Charles Grassley were among those who voted for Kennedy. It is not clear whether Republicans like Ted Cruz have forgotten or are lying. Continue reading
Posted Feb 18, 2016 at ReligiousLeftLaw.com
Justice Scalia has rightly been described as an influential Justice, but the nature of that influence needs to be put into perspective, and the desirability of that influence needs to be questioned. Recent commentary mentions Justice Scalia’s influence in advocating for originalism, a theory of constitutional interpretation that would honor the original text of the Constitution and its meaning as understood at the time of the text’s adoption. There is no question that Scalia had a substantial effect on the debate in the academy regarding the proper mode of constitutional interpretation. He did not initiate the debate. His intervention was preceded among other things by the writing of Raoul Berger and the pressing of originalism by Edwin Meese, the Attorney General in the Reagan Justice Department. Nonetheless, Scalia was a great writer and rhetorician. His advocacy had a profound effect on law students and legal scholarship. But his influence on... Continue reading
Posted Feb 18, 2016 at ReligiousLeftLaw.com
Last week Chief Justice Roberts delivered a Law Day speech in which, according to the Washington Post, he complained that partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees. By players in the political process, Roberts does not mean that the Court’s decisions have no impact on the political process. Rather he means that the Court’s decisions are not made in the same fashion as legislators. Instead, he maintains that the Court often makes decisions that are contrary to their policy views. Though he did not say so, presumably his vote upholding the Affordable Care Act would be one such case. He surely would not have voted for the Act if he were in the legislature, but many things are within the power of the legislature, not just those that track the... Continue reading
Posted Feb 10, 2016 at ReligiousLeftLaw.com
If you are worried about Trump, you will be happy to read a column by Nate Silver. He says, "Trump is not very popular with general election voters. On the contrary, he’s extremely unpopular with independents and would begin the general election race with worse favorability ratings than any candidate to receive a major-party nomination before." See here. Silver has an intriguing analysis of the difficulties influential Republicans face in stopping him and the implications of a Trump nomination for the Republican Party. Continue reading
Posted Jan 26, 2016 at ReligiousLeftLaw.com
Injustice permeates our criminal “justice” system. In theory, our system is not supposed to be an inquisitorial system, but the case law gives the lie to that claim on a daily basis. To be sure, some courts know how to “talk the talk.” The Court of Appeals in New York is one such court. As it said in People v. Anderson, 42 N.Y.2d 535 [1977]: “Ours is an adversarial . . . not an inquisitorial system.” Confessions are to be excluded when Miranda rules are violated (the rules are riddled with police-friendly interpretations that make a mockery of the original decision). Separate and apart from Miranda, a confession must be voluntary. As the Anderson Court explained, a confession is involuntary if it is coerced or otherwise unreliable on the issue of guilt or innocence or obtained or acquired under police methods “so extreme that they violate our notions of fundamental... Continue reading
Posted Jan 25, 2016 at ReligiousLeftLaw.com
Guest Post for Religious Left Law by Vincent Ialenti & Meridian 180 In September 2015, Cornell Law School’s virtual think-tank Meridian 180 brought together anthropologists, legal scholars, a literature scholar, a futurist, a geographer, a corporate lawyer, and philosopher for a lively online conversation about Pope Francis’s 2015 encyclical Laudato Si: On Care for Our Common Home. The goal was to spark more global, intellectual, and frank reflection on how the pope’s environmental thinking could help us re-imagine how ecologies and theologies interrelate in the twenty-first century. Cornell postdocs translated the conversation into Korean, Japanese, English, and Chinese as it took place. We believe Religious Left Law’s readers may be interested in some of the insights, skepticisms, and questions that emerged from our discussions. 1) More careful attention must be paid to the powerful institutions, histories, and thinkers that have served as foundations for Laudato Si’s (progressive) points about Earth’s... Continue reading
Posted Jan 18, 2016 at ReligiousLeftLaw.com
Should the First Amendment be interpreted to protect workers who ideologically object to paying fees to unions who represent them in the collective bargaining process? The question was explored before the Supreme Court in oral argument on Monday in the case of Friederichs v. California Teachers Association, and it appears the Court is about to overrule Abood v. Detroit Board of Education which ruled that the First Amendment provided no protection in these circumstances. As my colleague Michael Dorf observes in his excellent column yesterday, a key moment in the argument occurred when Justice Sotomayor asked the plaintiff’s attorney whether the state could simply fund unions from tax revenues to assure adequate representation for workers in the collective bargaining process. For Dorf, the point of the question is if government can tax to support unions (or, more precisely, tax employees to support unions without violating the First Amendment), why can’t... Continue reading
Posted Jan 13, 2016 at ReligiousLeftLaw.com
Sarah Betsy Fuller, a clinical professor at the Cornell Law School devoted much of her life to combating unjust prison conditions. See here. At her funeral service in 2004, a close friend quoted her as saying that a society should be judged not by its artistic or scientific contributions, but by how it treats its prisoners. Even before Betsy’s death, the Prison Litigation Reform Act (PLRA) imposed burdensome restrictions on getting access to court to challenge unjust prison conditions. As it stands today, a promising alternative to lawsuits is to get the media to shine a spotlight on prison practices. What stands in the way of this is an excessively restrictive interpretation of press rights under the First Amendment. Of course, it makes sense that there is no general public right of access to prisons to interview prisoners. But the public loses when the press does not have such a... Continue reading
Posted Dec 30, 2015 at ReligiousLeftLaw.com
In a recent post at First Things, Mark Movsesian makes some observations about Roger Scruton’s The Future of European Civilization: Lessons for America. Movsesian is particularly interested in human rights which Scruton views as a European religion replacing Christianity, at least for European elites. Scruton faults human rights for lacking grounding and for being indeterminate because of that lack of grounding. That is, there is wide disagreement as to what is and is not a human right. To this, Movsesian observes that Christians disagree about what Christianity teaches in a wide variety of important circumstances. So on this ground, Christianity has no advantage. Movsesian imagines that Scruton might respond that the dominant strand of secular human rights thought denies any objective truth claims, so there can be no objective basis for adjudicating between varying human rights claims. If this were true, however, human rights thought would be indefensible. If there... Continue reading
Posted Dec 22, 2015 at ReligiousLeftLaw.com
One of the great differences between progressives and libertarians is that progressives favor economic regulation and libertarians oppose it. As a constitutional matter, it has long been settled that economic regulation is ordinarily not subject to any serious due process objection. One of the disquieting developments of recent years has been the misuse of the First Amendment to disrupt economic regulations involving speech. Many years ago, Kenneth Karst, one of the great progressive scholars of his generation, argued that some economic regulations involved important human rights that deserved to be subject to serious scrutiny under the due process clause. He had in mind the right to pursue an occupation, and he objected in particular to unnecessarily burdensome occupational licensing requirements. To my mind, the California Bar examination is an outstanding example of an excessively burdensome requirement. It is not just that fewer than half of the applicants passed the examination... Continue reading
Posted Dec 6, 2015 at ReligiousLeftLaw.com
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 Nov 26, 2015 at ReligiousLeftLaw.com
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 ReligiousLeftLaw.com
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 ReligiousLeftLaw.com
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 ReligiousLeftLaw.com
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 ReligiousLeftLaw.com
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 ReligiousLeftLaw.com
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 ReligiousLeftLaw.com
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 ReligiousLeftLaw.com
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 ReligiousLeftLaw.com
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 ReligiousLeftLaw.com