Monday, August 29, 2016

Rumors of Our Death Have Been Greatly Exaggerated

Mark Graber

The New York Times editorial page today announced the death of political history.  This may well be true of history departments, but the more accurate statement is that political history has migrated from history to political science. As this week's American Political Science Association convention demonstrates, prominent senior (think Sandy, Rogers Smith, Steve Skowronek, Karen Orren, etc.), mid-career (think Julie Novkov, Keith Whittington, Pamela Brandwein, etc.), and younger (think Emily Zackin, Anna Law, Mariah Zeisberg, Eric Lomazoff, etc.) are all engaged in what might be considered political history (and profuse apologies to the numerous friends not named).  There may be a lot to be said about what happens when political history is done by political scientists rather than historians (we call it "political development"), but calling the field dead is confusing what may be happening in one discipline with what is not happening in the academy at large.

Sunday, August 28, 2016

More on the University of Chicago letter on “trigger warnings” [II]

Mark Tushnet

I once sat in on a class in which the instructor was trying to get students to see one aspect of the difference between tort and criminal liability – that tort liability requires realized harm whereas criminal liability can be imposed even if no harm ensues from the criminalized act. The instructor framed the discussion with what seemed at the outset to be an offhand personal anecdote about his recent – quite irresponsible – behavior while driving. But, he told the students, everything worked out fine – no one was hurt and he got home without incident. The point of the anecdote, in context, was to show that he might have been criminally liable for reckless driving but could not have been held liable in tort because no harm occurred. My immediate reaction to the anecdote was that it was a quite brilliant way to make the distinction vivid. It was, however, a pedagogic failure, because students were so distracted by their outrage at their instructor’s reported irresponsible behavior that they couldn’t focus on the substantive point. (To be clear, I had no idea then, and have no idea now, whether the events the instructor recited actually happened; he told the story with such vividness that listeners could certainly have thought they did occur.)

Some pedagogic choices can fail because the reaction of one, two, or many students obstructs their ability to see the underlying point the instructor is trying to make. There are many examples of this, and many don’t involve trigger warnings. Sometimes those of us who teach cases discover that a family member of one of the parties – or even one of the parties – is in our class. We have to decide how to deal with that in a way that won’t interfere with the student’s learning. (I once had Joshua Locke, the student denied a scholarship in Locke v. Davey, in my class on the First Amendment, and I worried about how I was going to teach that case. As it happened [at least in my memory], he wasn’t in class on the day we dealt with it; I like to think that he made a gracious choice to stay away.) I regularly teach material dealing with whether nonrenewable body parts should be available for sale. (I use variants on an example of a student selling a finger-tip that will enable Eric Clapton to continue to give great pleasure to those, including the seller, who listen to his guitar playing.) I have learned to raise, during the discussion (if a student doesn’t do so), the possibility that opposition to selling such body parts can arise from taking “unmodified” bodies as normative (that is, you don’t have to be a hard-line libertarian to think that such sales should be permitted; maybe being a disability rights activist is enough), and I hope that I would have learned to make that point more quickly if I had in the class (as I have in other classes) students with prosthetic limbs.

That, I think, is what discussions of trigger warnings should be about – whether pedagogic choices made in a different era, with a different set of students with different values and known backgrounds from those today, should be adhered to. An example: I can imagine – because I think I did it many years ago – referring in a class discussion of Everson v. Board of Education to Justice Jackson’s dissenting reference to Lord Byron’s description in Don Juan of Julia, but I certainly wouldn’t do so today; the pedagogic benefit, which is minor, is clearly outweighed by the interference the reference would cause, particularly because there are many other ways of making Jackson’s point.

Instructors use trigger warnings, when they do so in a sensible manner, to maximize their pedagogic effectiveness as instructors: They want to include material whose content might distract students who weren’t prepared for it, and hope that the warning will be enough to reduce the distraction to a level where the substantive point can still be made. These choices are bound up with a lot of other pedagogic judgments – Can one make the substantive point by using other material? Will giving the trigger warning itself distract students, as they wonder, with respect to each item up for discussion, whether that was what the trigger warning was about? So, it’s quite silly to say, as the University of Chicago letter did, that the University “does not support” giving trigger warnings. At the very least, instructors should have the freedom to make a responsible decision that giving a trigger warning will, in the circumstances, enhance pedagogic effectiveness. If the University doesn’t support their doing so, it doesn’t care about good teaching.

[I should note that Geof Stone, appearing on CNN, “explained” the letter by saying that the letter meant that students shouldn’t expect the University, taken as a whole, to be a safe space as defined, not that there weren’t some venues that might well be safe spaces within the University; and that the University didn’t support trigger warnings in the sense that it didn’t require instructors to give them. Ho hum. And the dean of students should take a course in effective communication so that he learns to say what he – as “explained” – means. I should add that I credit Geof's account of what the letter should be taken to have meant, on the assumption that people who say things are trying to make sense; I'm more suspicious about the actual motivation, which I suspect was to signal that the University of Chicago wasn't committed to what political conservatives have come to disparage as political correctness.]

Saturday, August 27, 2016

More on the University of Chicago letter on "safe spaces" [I]

Mark Tushnet

The widely noted University of Chicago letter to freshman is, I’m afraid – with due respect to my friends there – basically quite stupid (in the words that have attracted the most attention). The phrasings are either transparently false or so vague as to obstruct rather than facilitate clear thinking about the issues the letter purports to address.

Quoting: “We do not condone the creation of intellectual ‘safe’ spaces where individuals can retreat from ideas and perspectives at odds with their own.” That’s either false or an indication that people should think carefully about sending their children to the University. Consider some examples: A war veteran is assigned a dormitory room with a roommate who is aggressively anti-the-war-in-which-the veteran-served. Almost every evening the roommate seeks to engage the veteran in a conversation about the injustice of the war and of specific incidents during it. The veteran goes to the appropriate university authorities and asks to be assigned a different roommate, saying, “I’m perfectly happy to engage in a discussion of the war in a military history class, a philosophy class on justice in wartime, and in many other places. But in the evening I just want to kick back and relax, and study for my classes. My room, in short, should be a safe space with respect to conversations about the war.” I think the university might well be irresponsible if its only response were, “Grown-ups have to learn how to work out for themselves the resolution of these kinds of disputes.” (That’s the “think carefully about sending your kids to the University” prong.) And, in my view, it wouldn’t be acting badly if it reassigned either the veteran or the roommate to another dormitory room, thereby "condon[ing] the creation of [an] intellectual 'safe space'" for the veteran. (That’s the “it’s false” prong.)

Or consider variations on the widely known case of Christian Legal Society v. Martinez, the outcome of which conservatives have vigorously criticized. One way of putting the claim by CLS in that case is that the members of the organization were entitled by the Constitution to have a safe space within which they could explore those aspects of Christianity that they chose to explore. Again, they might well be willing to discuss evidence for miracles and other features of Christian belief in other venues, such as classes in the history of religion, but they want somewhere that they can explore the questions they find most pressing. Allowing non-Christians into the association makes that difficult. A variation would be an association of Jewish students who wanted to exclude from their meetings neo-Nazis who wanted to discuss the “evidence” presented in the Protocols of the Elders of Zion. These, and similar cases that are readily imaginable, show that universities can, and sometimes should, “condone the creation of intellectual safe spaces” of the sort the letter describes.

To the extent that there’s something coherent underlying this aspect of the letter, it is that the university does not condone the creation of safe spaces in certain venues. But then all the interesting work lies in identifying the venues. As far as I can tell, there are several candidates. The first and most obvious is the classroom. Even there, though, sometimes the university should condone the creation of a space in which there is a sharp restriction on “ideas and perspectives different from” the ones being offered in the class. Consider a course described clearly in the catalogue as a course dealing with Austrian economics, with a syllabus whose readings focus tightly on that topic. Students who want to discuss Marxist economics can, I think, properly be silenced in that class – perhaps as long as there is some other university-based venue in which they can explore Marxist economics – so that students only interested in Austrian economics can get on with their studies of that topic. Again – a safe space for the study of Austrian economics.

A second candidate for an appropriate venue in which there are no safe spaces are the university’s common areas. Here – maybe – the Chicago letter’s position might have some bite, in proscribing the creation of exclusive “free speech zones” in university common spaces, thereby making other zones “safe spaces.” I’m unsympathetic to the idea of exclusive free speech zones, but I confess that I can’t get too excited about their creation as long as they aren’t overly restrictive. For example, it’s not obvious to me that a university should be criticized for excluding “free speech activities” (suitably defined) from heavily trafficked areas when it has experience showing that such activities in those areas impedes students’ ability to get to their regularly scheduled classes on time (though a lot of work is hidden in the phrase “suitably defined”).

A final candidate are the common areas on residential dormitories. Here, I think, the question is the extent to which the roommate case I opened with extends outside the physical space of the room itself. I take the Chicago position to be that, whatever the resolution of the roommate case, the corridors and other common spaces in residential dormitories will not be “safe spaces.” To which my reaction is, “The letter is a rather exaggerated way of saying that.”

So, I think, when the conservative-tinged politically-correct overtones of the Chicago letter are put aside and its intellectual content examined, there’s really not much there.

More later on “we do not support so-called ‘trigger warnings,’” which, if taken seriously (which later “explanations” show it should not be), is an interference with sometimes appropriate pedagogic choices some instructors make.

Friday, August 26, 2016

University Speech and "Safe Spaces

Mark Graber

Dr. Naomi Graber on the University of Chicago and "safe spaces." Seems right to me.

Dear Dr. Ellison, 
In your welcome letter to freshman, you maintain that "you do not condone the creation of intellectual 'safe spaces' where individuals can retreat from ideas and perspectives at odds with their own." You seem to feel that students cannot "speak, write, listen, challenge, and learn, without fear of censorship" in such "safe spaces." I respectfully suggest that you do not understand the concept of "intellectual safe space." 
Here is my conception of "safe space," which I include on all of my syllabi for classes that include discussion: 
Discussions as "Safe Space" 
One of the advantages of the college classroom is that it gives students an opportunity to try out new concepts, arguments, and ideas, even though they may be somewhat “half-baked.” Often there will be no “right” or “wrong” answer, merely opinions or positions that are well- or poorly-supported. You should feel free to throw out “half-baked” ideas just to see if they work. 
You may be surprised to find support among other students. Other times you may find that the notion does not hold water, and may be discarded. That is also okay! Trial and error is an essential part of the learning process, and your discussion grade is based on participation, not on “correctness”; you will not be penalized for being “wrong” during discussion sections. In this light, it is imperative all discussions sections remain respectful and collegial. Inevitably, everyone at some point voices an unpopular opinion, or takes a position that turns out to be unsupported, if not in this class, then at some point in the future. We ask that you challenge ideas, not people. 
In my experience, students cannot "speak, write, listen, challenge, and learn" without feeling safe from reprisal, either from their professors or from their colleagues. Students should have a place where they can challenge and be challenged without being demeaned or having their grade lowered, a place where they can learn to admit that they're wrong and not be ridiculed for it. (This is not to say that I do not grade on being right or wrong in my classes---students are tested on facts using traditional exams, and essays are graded on whether or not arguments are well-supported.) There should be room in college for students to fail safely, to re-think and re-conceptualize without worrying about ad hominem attacks. That, to me, is how a classroom should be considered a "intellectual safe space," and from speaking with friends and colleagues, that seems to be the working definition most faculty use. Your chimerical "safe spaces" where "individuals can retreat from ideas and perspectives at odds with their own" do not exist in any of the classrooms I have ever been in. 
Far from "fostering the free exchange of ideas," you are telling students they should expect intellectual intimidation, that disagreement itself is unsafe, and that they should always been on the defensive. "Suit up," you tell them, "because this is going to be a fight." I prefer the metaphor of discussions as collective exploration where discoveries are made, rather than as battles which are won or lost. I encourage you to explore how your faculty might be using the term "safe space" before you condemn it.
Naomi Graber, Ph.D.
Hugh Hodgson School of Music
University of Georgia

Thursday, August 25, 2016

Brexit, Farage, Mississippi, and secession

Sandy Levinson

As the New Yorker reports, the narcissistic sociopath running for President on the Republican ticket brought Nigel Farage, the former leader of the United Kingdom Independence Party and a major proponent of Brexit, to Mississippi to rally the troops for the candidate (who has repeatedly praised Brexit and the spirit of restoring self-government ostensibly behind it).  Given that there is no evidence whatsoever that Mr. Trump has the slightest knowledge of American history,which would require reading a book (even several books), he is presumably ignorant of the fact that the most immediate implication of Brexit for American audiences is the legitimacy secession of states from the United States itself.  That might, of course, continue to have some appeal to at least some of the angry white audiences who find the sociopath appealing. 

And there may even be something to be said for secessionist movements.  After all, in my musings about whether the United States will survive the current election, I have suggested that Pacifica or New England (and some states farther south) might well consider seceding if the narcissistic sociopath is elected.  And Doug Bandow, a fellow at the Cato Institute, took Brexit as the occasion to ask "Is It Time for An American Exist, or Amexit"?  And, in a long essay in a book that I edited for the University Press of Kansas on Nullification and Secession in Modern Constitutional Thought (to be officially published early next month), I note that the intellectual hero of the Second Vermont Republic, one of the many secessionist movements within the United States, is George F. Kennan, who advocated, near the end of his life, basically returning to a form of the Articles of Confederation in which the country would consist of nine "republics," including New England, Texas, etc., plus three "city-states" or New York, Chicago, and Los Angeles, what Kennan called a total of "twelve constituent entities" in a radically revisioned notion of the "United States."

Unless one is willing to walk substantially down the secessionist path, though, it is difficult in the extreme to figure out what Mr. Farage--whose animosity toward the European Union was based substantially on xenophobia and racism (to the extent those can be distinguished)--has to contribute to the contemporary discussion in this country.  But, of course, we are being told, increasingly, that the narcissistic sociopath will refuse to accept the legitimacy of a Clinton election.  Should that in fact be the case, then the alternatives would seem to be one of the following:  1) an "inner immigration" in which one would retreat to one's garden but otherwise refuse to accept the meaningfulness of continued membership in or obligations to the American polity; 2) recourse to the Second Amendment and engaging in armed revolt against what is described as an illegitimate and oppressive government; or 3) collective secession by states with suitable majorities.

I suggest that the moderator of the first debate, coming up in roughly a month, ask the narcissistic sociopath what the implications are of his continued attempts to delegitimize the almost certain victory of his opponent.  (A question about etiquette:  Should former Secretary of State and Senator Clinton shake the hand of a person who refers to her only s "Dishonest" or "Crooked" Hillary Clinton.  I personally think not.  After all, when I successfully represented a member of the Ku Klux Klan being denied his First Amendment rights to march in Austin, Texas, that did not entail that I had to shake his hand.  I only had to argue that even louts have constitutional rights, which is clearly the case.  But he remained a lout.)  Incidentally, it's also fair to ask Secretary Clinton if she is prepared to concede the election to the narcissistic sociopath and urge her supporters to accept him as a legitimate President.  The relevance of such questions, for both candidates, is precisely what makes this the most freighted election since 1860.   

I am following my general practice of allowing comments.  But I implore those who do so to waste no time or space discussing the merits (or lack of same) of Secretary Clinton or even the validity of my description of the Republican candidate as a narcissistic sociopath.  The only discussion I am interested in concerns the message that one thinks is being sent by the entrance of Nigel Farage to the contemporary American political stage. 

Tuesday, August 23, 2016

The Greatest Constitutional Protestant of the Twenty-First Century

Richard Primus

So far, anyway.

For the last ten years or so, I’ve had a framed New Yorker cartoon on the outside of my office door.  It’s a courtroom scene, with a man sitting on the witness stand, being cross-examined by a lawyer.  The witness is speaking.  The caption reads as follows: “As a matter of fact, I have read the Constitution, and, frankly, I don’t get it.”

I love that cartoon for more than one reason.  One is the way the joke deflates the implicit grandstanding of the cross-examining lawyer, who has presumably just thundered “Have you read the Constitution?” at the witness.  I’ve also thought that putting that cartoon on my door might be a hospitable gesture toward introductory students, who might be coming to my office because of their own feeling of not getting something.  But there’s also a deeper reason why I’ve had an affinity for that cartoon, a reason tied to a point about constitutional theory.  The witness is speaking an important truth, though perhaps not consciously: reading the Constitution is not, in fact, the best way to get it.  That’s not to say that reading the Constitution isn’t important.  Of course it is—it’s hard to have a good grasp of constitutional law without reading the Constitution.  But constitutional law is a great deal more than, and sometimes in tension with, the text of the Constitution.  So if you read the Constitution and stopped there, you probably wouldn’t get it.

In Sandy Levinson’s wonderful typology of Protestant and Catholic constitutionalism, that
perspective makes me a Constitutional Catholic, at least on the first of Levinson’s two questions.  For the sake of quick review: Levinson’s first question is “What is the Constitution?”  The Protestant answer is “A document,” and the Catholic answer is “That document, and also a broad apparatus of practices and traditions and received understandings about American government.”  Levinson’s second question is “Who is authorized to interpret the Constitution?”, and the Protestant and Catholic answers are, respectively, “Anyone who can read,” and “Only those who have been specifically authorized to do so,” the latter answer coming down essentially to the federal judiciary acting as a priesthood. 

I largely agree with Jack Balkin’s suggestion that Catholicism and Protestantism in Levinson’s system can profitably be understood as a nested opposition rather than a strict dichotomy—but that’s beside the point for the moment.  For the moment, I’ll say that I’m a Catholic on Question 1, albeit a Catholic who thinks it’s important to be attuned to the way that all those things that “aren’t” the document shape our understanding of what the document means, such that the boundary between what “is” and “isn’t” in the text is not always straightforward.  Both in my writing and in my teaching, I try to draw attention to the limits of the text and the role of other sources of constitutional authority.  To make the point that just reading the Constitution, though important, isn’t enough.

That said, I also try to make sure that my students understand the power of Constitutional Protestantism.  If you’re trying to win a case in court, or a cause in politics or in the broader public discourse, you’re often well advised to present the Constitution—the document—as plainly on your side. 

This summer, we all met the man whom I regard as the greatest Constitutional Protestant of our time: Khizr Khan.  He played the part perfectly, on both of Levinson’s questions.  Khan brandished his copy of the Constitution—the physical document—the way a Bible-thumping preacher brandishes his sacred text, like a magical artifact with the power to ward off evil.  And the power of Khan’s rhetorical question to Donald Trump—“Have you even read the U.S. Constitution?”—lies in the idea that anyone who reads the thing will understand plainly what it means. 

It will have been lost on nobody, of course, that Khan’s line at the Democratic National Convention--"Have you even read the Constitution"--is also the cross-examining lawyer’s line in my New Yorker cartoon.  But that lawyer is the butt of the joke, and Khan should be understood—I say this without hyperbole or irony—as a hero of the Republic.

My Catholic law-professor brain saw in Khan’s speech what it usually sees in the best performances of Constitutional Protestantism: conviction, and strength, and also some corner-cutting, at least as measured by a certain set of standards that I would apply to speech or writing in an academic space.  After Khan asked if Trump had even read the Constitution, and offered to lend Trump his copy, Khan went on to direct Trump to look for the words “liberty” and “equal protection of law.”  Those words are in the Constitution, of course.  But I’d be disappointed in any of my students who did not recognize, at the end of an introductory course, that Khan has not made his case against Trump merely by pointing out that those words are in the document.  It’s not clear from the text of the Constitution what “liberty” means, as applicable to a conflict between Khan and Trump.  And even the most awful of Trump’s suggestions about immigration policy or banning Muslims from entering the United States might not contravene anything the text of the Constitution says about “equal protection of [the] law[s],” if only (and perhaps not only) because those words are addressed, as a textual matter, to state governments rather than to the federal government.  To see why Trump’s policy prescriptions here are flagrantly unconstitutional, which they are, one needs to do more than read the text of the Constitution.

But to scold Khan for those reasons might be to practice a sort of Catholicism that justifies a Reformation.  Or, put more soberly: It might be the case that there are times and places for Constitutional Catholicism and times and places for Constitutional Protestantism, or that there are different roles in which these different approaches are appropriate.  A speech at a political convention is neither an article in a law review nor a class at a law school.  And the summer of 2016 might be a moment for Protestantism in the name of—well, of liberty, and equal protection of the law.  And the Constitution. 

I’ve taken the New Yorker cartoon down from my door.  Maybe in better times I will put it up again.

Saturday, August 20, 2016

Jan Deutsch: An Appreciation

Mark Tushnet

         Musing as I do on occasion about the legal academics who have most influenced my way of thinking about law, Jan Deutsch is one of the top three. I can’t say that I was a “student” of Deutsch; I took one class and one seminar from him. The class was Corporations, and all I remember from it are two episodes. In the first he engaged in a sustained line of questioning of my classmate Richard Diamond, at the end of which he asked, “So, now, Mr. Diamond, do you see your behind in front of you?” – a pointed way of saying that he had managed to get Richard to answer one question, then another, then another, to the point where his final answer contradicted the one he originally gave.[1] I can’t fully reconstruct the second incident, but its thrust was that in making a corporate deal we would react differently were we told to meet a lawyer with responsibility for the deal on a street corner where he’d be wearing a trench coat or told instead to go to the offices of Jones, Day (a law firm at which Deutsch had worked) and meet the lawyer there. I now understand the point of the observation to be that law is backed up by a set of social expectations that are never fully captured in the formal law – something of a “law and society” observation – but I can’t say that I understood it that way then.
       The seminar was a different matter, and it is one of three encounters with Deutsch’s thought that decisively shaped the way I think about law. The seminar was “Law and Psychiatry,” and it was usually co-taught by Professors Joseph Goldstein and Jay Katz. It was a “hot ticket” when I was at Yale, because Professor Goldstein had an “in” with Judge David Bazelon of the Court of Appeals for the District of Columbia Circuit, and Judge Bazelon was what we’ve now come to call a feeder judge to the Supreme Court’s liberal justices. As a result, ambitious Law Journal editors competed for seats in the seminar. I took the seminar because, perhaps oddly, I was actually interested in the subject. My family was quite psychoanalytically oriented: An uncle was an influential figure in the Los Angeles psychoanalytic community, and my older sister and her husband were both analysts. And, as it happened, Professor Goldstein was on leave that semester, and Deutsch taught the seminar with Professor Katz.
          At some point in the seminar the light went on in my head. As I came to interpret the conversations in the seminar, Professor Katz was defending the proposition that the kinds of clinical judgments trained professionals reached embody a distinctive – and perhaps ineffable – form of knowledge, and that those clinical judgments were quite different from the kinds of rule-guided judgments lawyers were trained to make. As the semester developed, I saw that Deutsch was repeatedly making the point that rule-guided judgments were not in principle different from clinical ones (or, to put the latter in terms more congenial to lawyers, from all-things-considered judgments). I’m not sure that I would have put it this way at the time, but Deutsch’s argument, as I came to assimilate it, was that the equivalences ran both ways: A clinical judgment was just the result of an accumulation of rule-guided judgments that could be teased out through careful analysis, and the judgments reached in a system of complex rules could never be fully justified by any identifiable subset of rules. In some sense, I think, that was where I began to think about the so-called indeterminacy thesis associated with critical legal studies (and before that, with legal realism).
        My second encounter with Deutsch came in reading his article, “Precedent and Adjudication,”[2] which simply blew me away. I continue to recommend it to students as probably the best article in constitutional law – ever. As I describe it, the article consists of Deutsch’s almost literal dissection of a single Supreme Court opinion. Its underlying structure, though not its surface, is this: Take the opinion, rearrange its paragraphs, and you discover that the rearranged opinion means something quite different from the original – even though the words in the “two” opinions are exactly the same. The lesson to be drawn from the article is a simple but I think quite deep one: What a decision said to be a precedent means is determined not by the opinion itself but by what later judges make of it. Or, a precedent is what later judges say it is. In that sense, later judges can’t “distort” or “mangle” precedents – and, importantly, they can’t be constrained by precedents either.[3]
My final encounter came quite a bit later. At some point, probably while we were in law school, Duncan Kennedy (the second in the array of legal academics who shaped my thinking) communicated his enthusiasm about Deutsch’s article, “Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political Science.”[4] I read the article, but couldn’t see why Duncan was so enthusiastic about it. Re-reading the article a few decades later, I did. Again, as I describe it, the article is a complete deconstruction of Legal Process thinking, taking it seriously on its own terms and exposing its internal contradictions. As I came to see things (which is not to say, as things really were), Legal Process scholars presented themselves as the sophisticated heirs to Legal Realism, but without the reduction of law to politics that they associated with the most hard-core Realists. True, they agreed, we were irreducibly divided over questions of the substantive policies our polity should pursue but, they contended, we could agree on a “principle of institutional settlement” according to which we would assign authority to make substantive policy choices to an array of institutions with distinctive characteristics. And, importantly, the principle of institutional settlement was a-political, and so it sustained the distinction between law and politics.[5] 
Deutsch’s article accepts the Legal Process premises at every point up to the principle of institutional settlement. But, it shows, exactly the same reasons Legal Process scholars gave for accepting the proposition that we could not come to an a-political agreement on substantive policy were available – and were equally cogent – with respect to the principle of institutional settlement. The distinction between law and politics that Legal Process scholarship tried to reconstruct collapsed once again. 
All three encounters led me to what I suppose some might think are banal insights. My experience in the legal academy suggests otherwise. The idea that there is a real difference between all-things-considered judgments and rule-guided ones is an important theme in much contemporary scholarship, for example, and of course the effort to sustain a distinction between law and politics continues with no less zeal than ever before.
But, for me, Jan Deutsch was there already.

[1] I’ve never been able to do that with a student, and not, I think, because my students wouldn’t be as astute as Richard in being able to provide answers to each question as it arose.
[2] 83 Yale L. J. 1553 (1974).
[3] Another connection to the indeterminacy thesis, I suppose.
[4] 20 Stan. L. Rev. 169 (1968).
[5] Whether the best Legal Process scholars thought that the principle of institutional settlement was indeed a-political is unclear to me. I have in mind the stunning passage in Hart & Sacks where the authors ask, about a specific choice among institutional decision-makers, whether the Chamber of Commerce and the Soviet Politburo would reach the same conclusion. I’m inclined to treat that as a genuine question on the authors’ part, which could be given either answer. And, if the answer is “No,” the implication is that the principle of institutional settlement is not a-political.

Friday, August 19, 2016

Kathleen Brady's The Distinctiveness of Religion in American Law

Andrew Koppelman

Religion is something special in American law.  A swelling army of scholars think this is unfair.  Kathleen Brady's new book, The Distinctiveness of Religion in American Law, shows how and when equality between religion and nonreligion became the central theme of religion law scholarship, and offers an original and important response that will persuade almost nobody.

I have reviewed the book for a forthcoming issue of the Journal of Religion.  A draft is now on SSRN, here.

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