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!
April 01, 2020
...since she has unnecessarily humiliated a member of her faculty and violated his academic freedom. I don't often agree with Eugene Volokh (UCLA), but I agree with his criticism of the Dean's handling of this situation. (For earlier discussion of these issues, involving another Dean who did not understand his obligations, see here.)
March 30, 2020
Would triage plans for the use of ventilators (etc.) that favored those who were younger and healthier violate civil rights law?
March 25, 2020
Some law schools (including some that didn't have real grades to start with) have switched officially to pass/fail as classes move online; others have not. Law professor Jonathan Adler (Case Western) argues against switching to P/F, while Noah Zatz (UCLA) argues in favor. My own view is that it probably depends on the school and the course, and that there is no "one size fits all" answer. (An example: I can imagine a school switching a course to P/F for all students if the instructor falls ill for several weeks; or a school might allow students afflicted with illness or caregiving responsibilities to switch to P/F as needed.) I will note that the economic fallout from the pandemic will almost certainly affect law firm hiring significantly, meaning that actual grades will be more important for students than before (again, how important will depend on the school, but we know from the Great Recession of 2008 that all schools will be affected, even if to differing degrees). Mandatory P/F may hurt some students if they are competing against students from schools that continued to grade.
UPDATE: I'm told that many students at Harvard Law School objected when the Dean announced they were switching to P/F.
March 21, 2020
March 20, 2020
March 19, 2020
The UCLA Federalist Society had the temerity to invite Professor Doriane Lambert Coleman from Duke Law School, a former competitive female athlete who has written carefully and thoughtfully about the complex issues raised by the participation of trans women in female sports (see, e.g., this article). The UCLA Law School chapter of the NLG decided to disrupt the event, apparently wholly unaware of the NLG's traditional staunch support for academic freedom, most famously during the Mcarthy era, but continuing to the present. As the former faculty advisor to the NLG chapter at the University of Texas, I decided to point out their betrayal of NLG principles on Twitter; I was then derided as a "neoliberal white man" by these law students (and then subjected to a bizarre defamatory outburst by one Stephano Medina, who also turns out to be a UCLA 3L and not, as I had thought, a creepy teenage boy in his mother's basement). What an embarrassment.
March 18, 2020
March 14, 2020
March 09, 2020
This is an open thread for law faculty to post about what their schools are doing: e.g., cancelling classes, "remote" teaching or exams, cancelling conferences, prohibiting faculty work-related travel etc. Feel free to link to public resources/statements by your schools. Submit your comment only once, they are moderated, and may take awhile to appear.