Archive for category: Law

Pete Hileman on Differing Perceptions of Ferguson

07 Dec
December 7, 2014

Pete Hileman, who runs a wonderful legal clinic in an underserved area of Philadelphia, recounted his conversation with a co-worker about Ferguson in a recent letter to his supporters.  (The subject line of the letter was “Am I a Racist?”)   I found the exchange extremely helpful, and asked Pete if I could post it.  The remainder of this post is Pete’s description of the conversation:

“Ever since the grand jury verdict was announced in Ferguson I have been struggling with my views on race. Jaimee was really upset with the decision, and after the long Thanksgiving weekend we had a chance Monday to talk about it as a staff. It was an honest, open and healthy discussion. I shared that I had grown up in Abington in the 60s during the race riots and recall that school was closed because someone got stabbed in the bathroom. Jaimee gave me her heart felt perspective as the descendant of slaves. I am the descendant of lawyers and judges. We are one in Christ, but she is a black urban Christian and I am a white suburban Christian. Is it possible for us to see it the same way? We moved into a mostly African American neighborhood 9 years ago and we have great neighbors who really watch out for us. My next door neighbor trains Philly cops and he explained to me what Officer Wilson should have done, and it became clear that if he had been there, this wouldn’t have happened. Police shootings happen, all too often. But when are they racially motivated? What part of our criminal justice system is still racist? What would a truly blind justice system look like?

I struggle with my knee jerk reaction to defend the police officer, and to look at Michael Brown as a big scary bully. Jaimee helped me understand that he is someone’s son and brother and friend and can’t be judged by the bully appearance on that video. He is not a demon. He did not want to die.  I tend to believe the officer’s story, but my neighbor can’t imagine why he would have shot so many times. Getting out your gun is the last of the 5 stages of engaging someone on the street.  We have had some break-ins at our house, and our neighborhood has had a lot of robberies and burglaries. Police arrested two kids across the street who had shotguns. I’ve seen terrifying violent rumbles on the subway and on the street.  A white cop was shot by a black man at our local Dunkin Donuts not long after we moved in. The assailants are mostly black men. Can I even say it? Jaimee explains the dynamic of being raised as a black young man in the city. Elijah Anderson wrote a classic book called The Code of the Street, which is a bit dated but explains the causes of violence in our neighborhoods where Michael Brown lived. I guess the bottom line is that I just can’t ever know what it is like to be a black man. So I have to take my friend’s word for it when they tell me that they experience discrimination every day.

We are a diverse group, and of course we’ve met many many wonderful black men and woman. Their faith is especially deep, and rich, and precious. It drew us to this work. The gospel makes the difference, so that is what we offer people. And a good church. We all need that, Michael Brown and Officer Wilson. And now the choking case in Staten Island and the boy shot in the park in Cleveland. The issue is not going away – we want to do something about it. So we do expungements, and see lots of black men who have turned their lives around. We help them with their custody cases so that they get a chance to be good father’s to their children. I was part of a Fatherhood Initiative and gave a Fathering book to a new client and he read it and enjoyed it and gave me a book to read.

So we are all learning, and struggling, with our sin, to live by faith.”

Benny Tai and the Hong Kong Protests

03 Dec
December 3, 2014

Benny Tai, one of the original leaders of the Hong Kong protests (featured in a long Wall Street Journal interview last summer), is a law professor at Hong Kong University whose expertise includes Constitutional law and, interestingly, training for civil servants.  While I was in Hong Kong last month, I had the great privilege, thanks to a mutual friend, of meeting him in his tent in the midst of the protests in the Admiralty section of downtown Hong Kong.  His tent is a large structure—somewhat like the tents people rent for graduation parties and the like—that serves as a command center, complete with televisions and ten or twenty people milling around.

When I walked up to the tent, wondering if I was in the right place, Benny and several people around him jumped up and walked over to meet me.  I felt pretty impressed with myself at first, thinking that my reputation must have preceded me (as we used to say).   Later that day, I learned the real reason I was instantly recognized: my friend had sent a text to Benny, telling him I was on my way and that he should be on the lookout for someone who looked like a tourist.

Two things that Benny said when we talked keep coming to mind as the situation has deteriorated in Hong Kong in the last week or so:  he repeatedly emphasized how fluid the situation is—that it could suddenly shift in any direction—and he also emphasized his particular interest in dispute resolution.

This morning’s newspapers suggest that Benny is playing precisely that role.  The student leaders who have been the principal face of the movement this Fall seem to have boxed themselves into a corner: by insisting that they will not settle for anything else that complete democracy in the election of Hong Kong’s leader, a demand that it’s impossible to imagine China agreeing to, the students do not seem to have left room for a compromise that might be acceptable to everyone.   With frustration growing even among supporters as the protests continue to snarl Hong Kong’s streets, Benny seems to be encouraging to students to back off, at least a bit, in the hope of averting further violence.

Law, Violence and Ferguson

03 Dec
December 3, 2014

My friend John Inazu, a law professor at Washington University who is spending this year at the Institute for Advanced Studies in Culture at the University of Virginia, posted an interesting little essay (here) last week on the relationship between law and violence.  He draws on a classic article by the late Yale law professor Robert Cover.  Cover’s article begins with one of the most famous lines in twentieth century legal scholarship: “Legal interpretation takes place on a field of pain and death.”

Is Religion Irrational?

15 Sep
September 15, 2014

In Why Tolerate Religion?, the book that provided the theme for my Veritas Forum conversation with Brian Leiter last week, Brian defines religion (which is notoriously difficult to define for the purposes of the Constitution’s protection of religious freedom) as consisting of 1) categorical demands on a believer; 2) insulation from the evidence of science and common sense; and 3) a source of existential consolation.  The first and third components strike me as accurate; the second doesn’t.

Defining religious belief as irrational seems to suggest that materialists—those who believe that the physical, material world is the only reality—reach their conclusions about the nature of our existence based on an assessment of evidence, whereas religious believers simply make a leap of faith. In reality, each of us weighs the best evidence we can find about the nature of our existence, and we draw our conclusions based on good but incomplete information.  Materialists and Christians weigh evidence differently– Christians find the evidence of Jesus’s resurrection compelling, for instance, whereas materialists do not– but both weigh evidence and draw the best conclusions they can.

In describing religious belief as insulated from evidence, I think Brian may be thinking about religious doctrine, rather than religious belief. Religious doctrine may have components that are not based on ordinary evidence, or cannot be assessed based on ordinary evidence.  But when a religious believer concludes (either initially, or after a period of doubt) that a set of beliefs is true, he or she is assessing evidence, just as a materialist is.

Brian’s book is quite provocative (and frustrating at times for a Christian reader) but well worth reading. In our conversation, we concluded that we actually agreed on the underlying legal issues 84% of the time.

Why Tolerate Religion? (Veritas Forum)

11 Sep
September 11, 2014

For those who happen to be in Chicago, the University of Chicago philosophy and law professor Brian Leiter and I will be doing a Veritas Forum  on the question “Why Tolerate Religion?” at Northwestern’s law school at 6pm Central/7pm Eastern tonight.  For those who aren’t in the neighborhood, the Forum will be livestreamed here.  We’ll be discussing the question whether religion should continue to be given special protection in American law.  Brian is much more skeptical of the special treatment for religion than I am, so it should be an interesting conversation.

Puerto Rico’s Debt Crisis

11 Aug
August 11, 2014

Unlike Detroit, municipalities in Puerto Rico currently cannot file for bankruptcy.  Here is a little op-ed on the question whether Congress should amend the bankruptcy laws to permit Puerto Rico’s municipalities, and perhaps Puerto Rico itself and states like Illinois, to file for bankruptcy.

The Gordon College Controversy

18 Jul
July 18, 2014

Gordon College has been swept up into a controversy over a forthcoming executive order that will forbid the government from contracting with organizations that discriminate on the basis of gender identity or sexual orientation.  Frictions between sexual orientation and religious freedom are emerging as the key test of American pluralism in the coming years.  Media coverage in the Boston area the past two weeks has not been encouraging, but there are hints that a more reasonable tone is emerging.  After reports that Gordon’s accreditation will be under review this Fall, for instance, the accreditation agency has now clarified that there is absolutely no risk to Gordon’s accreditation.  I wrote a little column about the controversy here.

Hobby Lobby

01 Jul
July 1, 2014

As everyone who reads this post is no doubt aware, the Supreme Court ruled yesterday that religiously oriented for-profit corporations have religious freedom rights under the Religious Freedom Restoration Act.  As a matter of statutory interpretation, the Court’s conclusion that some for-profit corporations have religious freedom rights strikes me as fairly clearly right, as I argued in this op-ed about Hobby Lobby a few months ago.  (The Court seems likely to reach the same conclusion as a matter of constitutional law if the question whether for-profit corporations can be covered by the Free Exercise Clause arises in the future).  RFRA applies to “persons,” a term that nearly always includes corporations, not just natural persons, in legal contexts.  And no one doubts that many (non-profit) corporations are covered by RFRA.  After all, most churches are technically corporations.

The panic about the possibility that giant corporations will now start demanding exemptions for numerous laws seems wildly exaggerated.  The majority limited its holding to closely held corporations like the two corporations in Hobby Lobby, leaving open the question whether a publicly held corporation could qualify.  I think the logic of the majority’s opinion would extend to a religiously oriented public corporation, as Justice Ginsburg points out in her dissenting opinion, but I suspect that very few large corporations could demonstrate that they are religiously oriented.

In the next wave of cases, a lot will turn on courts’ application of RFRA: how they interpret the questions whether a law imposes a substantial burden on religious freedom (yes in Hobby Lobby, due to the stiff fines if the companies failed to provide the coverage); whether the government has a compelling interest in applying the challenged regulation (the majority assumed it did in Hobby Lobby); and whether the government has used the least restrictive means of achieving its objective (no, because the government could have simply paid for the four drugs in question itself, or offered the same accommodation its offered to religious nonprofits).

One interesting question is whether Hobby Lobby has implications for other areas involving the rights of corporations.  I think it does.  In this op-ed posted this morning, I speculate about possible implications for future campaign finance cases.

I’ll probably have more to say about Hobby Lobby soon …


“I” and “We” in Town of Greece

07 May
May 7, 2014

In this week’s big Religion Clause case, the Supreme Court upheld the practice in Town of Greece, New York of permitting local clergy to open legislative sessions in prayer.  Rather than appointing a permanent chaplain to deliver bland, nonsectarian prayers, Town of Greece selected a different chaplain each month, rotating through the religious congregations listed in the phone book.  Two residents alleged that the practice violated the Establishment Clause, because the vast majority of the chaplains were Christian, and because many of the prayers invoked Jesus and were otherwise sectarian in nature.   The Supreme Court disagreed, siding with Town of Greece by a 5-4 vote.

The case has been construed as a big victory for Christian churches, and in a sense it is.  But Christians and Christian churches should be careful what they wish for.  Local governments that adopt the Town of Greece model will need to invite adherents of all perspectives to take their turn leading prayer.  After listening to the prayers of atheists and wiccans, as well as other religions, some public prayer advocates may conclude that opening legislative sessions in prayer isn’t such a wonderful idea after all.  I doubt that the new case will prompt thousands of local communities to follow Town of Greece’s lead.

When Christian pastors do pray before legislative sessions, non-Christian hearers will be listening very carefully to the pronouns they use.  In church and in other Christian settings, we often preface our statements with “we pray” and conclude by saying “we pray Jesus’s name.”  This isn’t likely to go over so well before a legislative session, which suggests that when Christians or adherents of other faiths pray in the legislative setting, they will need to be careful to say “I pray,” without presuming on their hearers.  It’s the kind of attention to pronouns many of us are familiar with when we offer grace before meals with non-Christian friends in our own homes.


30 Apr
April 30, 2014

Many readers who find their way to this blog will remember a blog called Less than the Least that I co-authored with criminal law scholar Bill Stuntz from early 2008, shortly after Bill got a cancer diagnosis, until Bill’s death in March 2011.   (The blog is online here, and Bill’s cancer posts are here).  This blog is inspired by that one in many ways.

Every few months I get an email from a friend, often someone I first met through Less than the Least, proclaiming that he or she has just written a rather “Stuntzian” article.  By Stuntzian, the friend means counterintuitive, or puncturing the conventional wisdom in some way, often by flipping it on its head—as with Bill’s argument that the Warren Court’s decisions enhancing the Constitutional rights of criminal defendants may actually have left poor defendants worse off.  The friends’ emails always add a dollop of Stuntzian humility—saying, for instance, that they of course have not written a truly Stuntzian article, just a pale approximation.

For those who are interested in other top scholars’ engagement with Bill’s work, the essay collection The Political Heart of Criminal Justice (edited by Mike Klarman, Carol Steiker, and me) is just out in paperback from Cambridge University Press.  It’s a wonderful book, and one of the paperback’s many attractions is that you don’t need to take out a mortgage to afford the purchase price.