April 02, 2020
[O]ne can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.
This approach should take as its starting point substantive moral [sic] principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality [even wrong ones, apparently!], and that the promotion of morality is a core and legitimate function of authority...
[C]ommon-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being....
The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,” and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.
One hopes this does not mark the arrival of a "Harvard School" of constitutional fascism!
March 05, 2020
November 12, 2019
July 15, 2018
May 04, 2018
The recent tax records show that school’s 88-year-old founder, Thomas Brennan, a former Michigan state Supreme Court justice who stepped down as Cooley’s president in 2002, has continued to be paid more than $329,000 a year as an emeritus professor even though he works only five hours a week. An audit released last year revealed that under his contract, Brennan is entitled to receive a salary “based on two times the salary of a Michigan Supreme Court Justice, plus certain other benefits, until his death.”
The school said Brennan was also unavailable for an interview. He has continued to speak out publicly, however, through his “Old Judge Says” blog, in which he offers commentary that might easily be perceived as anti-Islamic, homophobic and radically insensitive. In a 2016 post, he remembered with affection the blackface minstrel shows of his youth. He recalled how he and his brother performed in local minstrel shows in the Detroit area, “our faces blacked to the teeth.”
“In these days of political correctness, the whole idea of minstrelsy seems preposterous,” he wrote. “But the truth is that minstrelsy was fun.”
Other blog posts have criticized the move in Southern states to remove the statues of Confederate Army generals from public spaces. “Political correctness is running amuck,” he wrote. “The Civil War did in fact occur. And there were good people on both sides.” He has labeled Islam “a primitive belief system which comingles [sic] religious doctrine with civil law.” He described the 2015 Supreme Court ruling that guaranteed the right to same-sex marriage as “evil.” The decision, he said, meant that “our beloved nation will slide further toward Armageddon.”
Quite a racket the old parochial bigot has going!
April 27, 2017
I could not agree more with Northwestern Dean Dan Rodriguez:
Whittier's sudden closing is obviously a tough thing for current students and faculty. Perhaps the decision will be unraveled in the face of public pressure or via littigation. Yet there seems precious little basis to jump into a matter whose complex issues are essentially private, despite the efforts of many in and around the school to make this into a public spectacle. Perhaps bloggers should neither aid nor abet these efforts.
The hubris of the unknowing.
Sometimes Stephen Diamond (Santa Clara) has been a voice of reason amidst the mindless blather about law schools in most of cyberspace (and I have linked to him on a number of occasions over the years), but here he has completely missed the boat: the general legal market has been improving, true, but it is hardly mysterious why an institution would close a law school where far fewer than half the graduates even pass the bar. Diamond just politely ignores all the relevant facts about how this school's graduates have been faring, and, of course, is ignorant of the actual finances of the school.
But far more egregious is the presumptuous intervention of Robert Anderson, Associate Professor of Law at Pepperdine. Faculty members at Whittier are going to lose their jobs, and some may never work again as law teachers or work again at all. Yet Anderson has the audacity to scold them for not having taken an early retirement in the financial interest of the school. Seriously? Does Prof. Anderson pay the bills for any members of that faculty, does he know about their college-age children or their elderly parents or their chronic medical conditions that require a salary and a health insurance plan? Does he know that a job is not just a paycheck for many people (maybe not Robert Anderson), but a focal point of purpose and meaning in a life? Does he know that many did take early retirement a few years ago, and that others might have quite reasonably believed that the school's fortunes, now that both its faculty and student body were smaller, would rebound?
I'm sure Anderson doesn't know any of these things, he's just another blogging blowhard who has decided to use someone else's misery as an opportunity to attract some attention to himself. Anderson is guilty of far worse than unknowing hubris.
UPDATE: Some choice quotes from Prof. Anderson's posts:
"The reason Whittier is closing is because of intransigent, highly paid, unproductive law professors hang around for decades even when they haven't published anything or updated their courses since they were doing the Macarena."
"The unfortunate truth of this story [about Whitter] is that none of this needed to happen..... The number of retirement-age faculty was (and is) enormous, likely larger than it has ever been. If faculties had looked beyond their own personal financial self interest they could have easily contracted to meet the market demand and avoided the disastrous effects that have afflicted law students and now law schools. Sadly, the very faculty members whose institution provided them an outrageously rewarding career over many decades seemed the least likely to 'pay it forward' by helping to reduce expenses....Thus, the story of Whittier is a story of generational wealth shifting that is seen throughout tuition dependent law schools, and indeed throughout our country."
November 02, 2016
UPDATE: Now 23 of the professor's colleagues have called on the faculty member to resign if the allegations are true. That reflects poorly on them, and suggests they have no regard for contractual and constitutional rights to academic freedom, including the right to engage in racially insensitive extramural speech. Absent a finding that the professor treats students or colleagues in racially discriminatory ways, there is no reason for the faculty member to resign (apologizing might be a good idea though!).
ANOTHER: The Daily Mail (not my favorite source, though they often get the facts out quickly on stories like this) reports that the offending faculty member was Prof. Nancy Shurtz, and gives some context for why she was dressed that way at the Halloween party.
HERE IS A BETTER SOURCE identifying Prof. Shurtz, and includes a statement from her.
STILL ANOTHER: Prof. Shurtz issues a written explanation and apology. She exercised bad judgment. Her 23 colleagues exercised even worse judgment. It's now their turn to apologize!
September 22, 2016
Tennessee Law Prof. Glenn Reynolds--aka, "InstaIgnorance" as I used to call him back in the day--has Twitter account suspended after encouraging motorists to run down protesters in Charlotte
Several readers have flagged this story for me. Reynolds is a benighted soul, alas. A criminal law colleague calls to my attention:
TN Code § 39-12-102 (2015)
(a) Whoever, by means of oral, written or electronic communication, directly or through another, intentionally commands, requests or hires another to commit a criminal offense, or attempts to command, request or hire another to commit a criminal offense, with the intent that the criminal offense be committed, is guilty of the offense of solicitation.
(b) It is no defense that the solicitation was unsuccessful and the offense solicited was not committed. It is no defense that the person solicited could not be guilty of the offense solicited, due to insanity, minority, or other lack of criminal responsibility or incapacity. It is no defense that the person solicited was unaware of the criminal nature of the conduct solicited. It is no defense that the person solicited is unable to commit the offense solicited because of the lack of capacity, status, or characteristic needed to commit the offense solicited, so long as the person soliciting or the person solicited believes that either or both have such capacity, status, or characteristic.
I doubt there will be a prosecution, but who knows? His real mens rea is more likely "dumb and insensitive" than "malicious."
UPDATE: Lawyer Jason Walta writes:
I'm kind of bemused by the seemingly shocked response of the chancellor and law dean. Have these people never met Glenn Reyonolds? Were they previously unaware that he's on faculty there?
The fact of the matter is that this stuff is Reynolds's entire métier, stretching back to when he called for vigilante executions of "looters" during Katrina or lauded William "Gosh I didn't mean to shoot my wife in the head" Burroughs as some kind of Second Amendment hero.
February 19, 2016
UPDATE: There's a longer article on this brouhaha here. I find I agree with a lot of what Mike Seidman (Georgetown) is quoted in the article as saying in the wake of this dispute. In general, institutions should not adopt positions; faculty should adopt positions. But the convention of recognizing and mourning the passing of a member of that community is so well-established that I don't think anyone could imagine that such official expressions mean that everyone in the community has the same views about an individual's life and career. I doubt there has been a more severe critic of Justice Scalia than my colleague Judge Posner, and yet Chicago, of course, also mourned Justice Scalia's passing and recognized his professional career, as one would expect. I am sure no one thinks this means that Judge Posner is now retracting his previous criticisms of Justice Scalia's jurisprudence!