• Selected
• Entire List

Abstract:
This is an essay on Professor Brian Tamanaha's book, "Law as a Means to an End: Threat to the Rule of Law" (Cambridge Univ. Press 2006), and what Tamanaha describes as the danger that legal instrumentalism poses for the rule of law. It claims that though Tamanaha successfully traces the rise of legal instrumentalism over the last two centuries, the reader comes away wondering why Tamanaha seems so fretful about the strength of belief in the rule of law or what accounts for the desire to affirm a non-instrumentalist view of law in the face of the contrary march of history.

The essay offers an answer to these questions. It claims that one source of resistance to the seemingly inexorable progress of legal instrumentalism lies in the non-rational, temporally unbounded human yearning that the rules that guide our lives should deserve our allegiance because they represent a transcendent structure of meaning. Our opposition to legal instrumentalism reflects "faith in the rule of law," a belief that the law is something other than merely a means to resolve our ordinary conflicts, and that it bestows worth and possibility to its adherents beyond their historical context.

Drawing from Tamanaha's excellent history of the rise of legal instrumentalism, the essay reinterprets what Tamanaha repeatedly emphasizes as the crucial contemporary instrumentalist danger - our growing inability or unwillingness to believe that the law is anything but a tool to advance interest - as loss of faith in the rule of law. The essay thus offers a counterpoint to Professor Adrian Vermeule's reading of the book, arguing that Vermeule may be mistaken in analogizing Tamanaha's thesis to a kind of secularized Pascal's wager. The essay concludes by considering whether there is any value in faith in the rule of law and what that value might be.

Abstract:
The problem of religious learning is that religion - including the teaching about religion - must be separated from liberal public education, and yet that religion cannot be entirely separated if the aims of liberal public education are to be realized. It is a problem that has gone largely unexamined by courts, constitutional scholars and other legal theorists. Though the Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence and scholars frequently urge favored policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has been paid to the nature and depth of the problem itself. As a result, discussion about religion's place in public schools often exhibits a haphazard and under-theorized quality. Yet without a deeper understanding of the relationship between religious learning and liberal public education, no edifying policy solutions are likely in an area so fraught with constitutional complexity and high emotion.

This Article aims to fill that gap by giving the problem of religious learning its due. It offers a detailed theoretical account of the relationship between religious learning and the cultivation of the civic and moral ideals of liberal democracies. It draws on that account to develop a unique model of religious learning within liberal learning that takes its cue from the historic purpose of the public school. Since even today it is widely supposed and insisted that public schools still serve a vital role in developing civic and moral ideals in young people, this Article's comprehensive examination of the problem of religious learning is both timely and necessary if the seemingly intractable skirmishes over religion, education policy, and constitutional law are capable of even a modest reconciliation.

Constitutional Law, Education Law, Law and Society, Public Law and Legal Theory, Religion

Abstract:
The rise of the religious, or faith-based, prison at the turn of the twenty-first century bears witness to the remarkable resilience of religion in shaping the philosophy of punishment. In the last decade, prisons that incorporate religion in various ways have sprouted around the country and there are strong, albeit preliminary and inconclusive, indications that inmates who participate in religious instruction and programming recidivate at significantly lower rates than those who do not. The early success of these programs (and, some say, the preferential treatment accorded to participants in them) has resulted in high demand and long waiting lists. Spurred by its initial success, Florida has recently opened its second faith-based prison, this one for women, and more such programs are presently being planned and implemented.

Religious prisons raise serious questions of constitutionality and effectiveness, and most of the critical commentary to date has focused either on the considerable Establishment Clause concerns or the programs' inconclusive recidivism results. This article explores the criminological commitments of religious prisons. Though religious prisons serve rehabilitative aims, this article emphasizes the importance of their retributive goals - what Professor R.A. Duff has termed the censure-communicating purpose of punishment and the Three 'R'S of Punishment, repentance, reform, and reconciliation - in justifying the use of religious programming in prisons. The paper offers an argument to skeptics who claim that religious programming serves no purpose absent an unequivocal showing of rehabilitative effectiveness. It claims that even if the evidence of reduced recidivism has been inflated or manipulated, as many critics claim, religious programming may be justified theoretically by reference to its potential for a special manifestation of penitential retribution that might advance secular ends.

Religion, Prisons

Abstract:
This is a critical review of Professor Marci A. Hamilton's book, God vs. The Gavel: Religion and the Rule of Law (Cambridge Univ. Press 2005). It focuses on Hamilton's conception of what she terms "the public good" and its application to the relationship between government and religious institutions and believers. The review offers several criticisms of Hamilton's public good and argues that the conception she advocates is ambiguous, unstable, and frequently merely a stand-in for her policy preferences on a variety of issues. The review considers the ways in which religion or religious interests could ever play a role in Hamilton's public good, concluding that Hamilton's profound disillusionment with religion has led her to vest an unjustifiably high degree of trust in the legislature to determine moral worth.

Free Exercise Clause, Legal Theory, Public Good

Abstract:
Can an actor justify criminal conduct when he was criminally culpable in creating the conditions making it necessary? Virtually every American jurisdiction that has addressed the question answers that he cannot and bars the necessity defense under those circumstances. Whereas scholars have uniformly condemned that response, this Article takes the very different view that the exclusion of the defense for purposeful, knowing, and reckless criminal conduct that directly causes the allegedly justified act represents a sound retributivist check on what is an otherwise cruder evaluation of whether conduct is socially valuable, worthy of praise or, in a word, justified. Criminal "created culpability" is circumstantial data that bears crucially on the criminal law's retributivist function - that wrongful conduct deserves punishment, not praise - and its inverse relationship to justification. Failing to account for criminal created culpability renders the concept of justification itself defective because it ignores precisely what is at the heart of any plausible theory of justification: that under certain circumstances an otherwise criminal act is not wrongful and should not be punished. This Article explains the relationship between criminal created culpability and justification, and suggests a rebuttable presumption procedure to ensure that the retributivist concerns animating created culpability are incorporated and weighed appropriately in assessing whether conduct is justified.

Abstract:
This essay considers the project of reduction in criminal law theory in a narrow, but paradigmatic, doctrinal context - the choice of evils or necessity defense. Many scholars take the view that the only conceivable explanation for the choice of evils defense must be uncorruptedly consequentialist. There can be no other fundamental explanation, it is said, for a defense that at bottom always must issue in a cost/benefit analysis - a weighing or comparison of the illegal evil that must be done against the evil that will thereby be avoided - than a concern for increasing, or maximizing, social welfare.

Against these views, this essay argues that some of the doctrines which adorn the choice of evils defense are worthwhile precisely because they instantiate values that are in direct and irreconcilable conflict with consequentialism. It develops this claim by considering one of these adornments - the widely adopted doctrinal rule that an actor who is criminally culpable for causing the conditions leading to a choice of evils should not be permitted to assert the defense. The essay offers a retributivist explanation for the exclusion where the actor was purposely and criminally culpable for creating the necessitous conditions and discusses how this justification is in tension with the consequentialist aims of the defense. It then considers whether, in light of this tension, a “hybrid” theory of justification - modeled on hybrid theories of punishment - might best explain the defense. But in the end it rejects that possibility. Hybrid theories, no less than their pure-bred cousins, are inclined toward precisely the types of totalistic explanations that are seemingly confounded by the culpability-in-causing exclusion. The collision of values highlighted by the problem of the choice of evils intimates a different conclusion, one that echoes the deep pluralism constitutive of criminal law itself.

Abstract:
In this piece I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress - a topic of recent attention and debate - will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes' state-of-nature political theory to shed light on the frayed relationship between the legislative and judicial branches. Second, I contend that the public's growing distrust of the judiciary, rooted in a widespread cultural embrace of criticism as an absolute social good, is contributing to the breakdown between the branches. I argue that this 'culture of criticism' enables Congress to threaten removal opportunistically and thereby assert its power over the judiciary. Finally, I consider and reject two frequently espoused solutions to this problem - greater public education about the judiciary and more speech - and conclude that there is no feasible prescription to remedy the current state of affairs.

Constitutional Law, Judiciary, Legal Theory