Jason Samuel as Judge Poser

Red Mass for this Sunday, October 2, 2005

A3G, the Article III Groupie, reminded me that this weekend Theodore Cardinal McCarrick, Archbishop of Washington, D.C., will be saying the Red Mass. 

This mass is celebrated at Saint Matthew's Cathedral on the Sunday before the opening of the Supreme Court's term in October. The homilist is traditionally a prominent member of the Catholic hierarchy and Supreme Court justices, cabinet officers and members of the local judiciary traditionally attend to invoke God's blessing upon the administration of justice....At a brunch that follows the Mass the Society recognizes lawyers who have volunteered their time to represent indigents in the Archdiocesan Legal Network.

October 2, 2005  52nd  Annual Red Mass 
The Cathedral of St. Matthew, Washington, D.C., 10:00 a.m. Mass
Principal Celebrant and Homilist: His Eminence Theodore Cardinal McCarrick
Brunch following Mass at the Capital Hilton Hotel

What's with the different oaths?

Did you notice that Chief Justice Roberts was sworn in with the following oath:

I, XXX, do solemnly swear, that I will support and defend the Constitution of the United States, against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office of which I am about to enter, so help me God.

But the code specifies:

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.” (28 USC 453).

What gives?  I'm sure it's noting really, but I just wondered.

John G. Roberts Links and Interactives

Congratulations!

Citing to Foreign Law

Dan Kahan, of Georgetown’s Exploring International Law blog, posted a link to the AP coverage (with excerpts) of Justice Ginsburg’s recent remarks at a recent New York City Bar Association reception. The lecture, which was given by Mary Robinson, former president of Ireland, was in Justice Ginsburg’s honor. Justice Ginsburg remarked: “I will take enlightenment wherever I can get it…I don't want to stop at a national boundary.”

How can we interpret the justice’s remarks in light of the current debate on the matter of citing to foreign law. Truly, I don’t know how to interpret the justice’s mention of enlightenment. For one, I find it an interesting choice of words. If we assume the common usage of “enlightenment,” then the justice most probably meant learning, “education that results in understanding and the spread of knowledge.”

In her recent article, which I posted about here, Mary Ann Glendon suggested that this process of “learning” is selective, and I will add results-oriented: “The problem is not reference to foreign law: It is how foreign law is used by judges who usurp powers reserved under the Constitution to the people and their elected representatives, and whose desire to "learn" is limited to finding arguments in support of conclusions that have little constitutional warrant. The learning process of the foreign law enthusiasts, moreover, is selective.”

Glendon then quotes Scalia’s take that those who cite to foreign law are merely “looking over the heads of the crowd and picking out their friends.” That is to say, in light of Justice Ginsburg’s comment, that those who cite to foreign law are not so much open to the diversity of law on any topic but choose, instead, to focus on those foreign laws that lend support to a pre-determined result. This is explained by Glendon later in her piece that those who cite to foreign law ignore the diversity and difference in foreign laws: “They have shown no disposition to explore why most democracies take a different view from theirs on exclusion of illegally obtained evidence, regulation of abortion or separation of church and state.”

Given the diversity in and of foreign law, enlightenment to/of others’ ways is perhaps a pretext to add support not otherwise lent by our domestic law. That conclusion is, to be sure, quite cynical, but not improbable. As Glendon, whose expertise is in comparative law, suggests, there is a definite difference in the way other legal systems conceive the rules of evidence, regulate abortion, or how religion and government should interplay. Those justices who’ve taken to citing foreign law have not taken any care to account for the foreign law in opposition to their opinion/holding. A natural conclusion is that citing to foreign law, as it is practiced, is self-serving and results-oriented. This betrays the semantics of Justice Ginsberg’s comment, which referenced enlightenment, not a results-oriented endeavor.

The next topic I’m interested in exploring is how we can apply the idea of incommensurability to the relevance of foreign law to our legal system.

Law Justice_Ginsburg foreign_law

Catholic Legal Theory @ Objective Justice

I've started a regular thread on the topic of Catholic Legal Theory at Objective Justice, which is edited by Sean Sirrine [here too], a fellow law school student.

Sean invited me some time ago to contribute weekly on the topic but I have only gotten the time today to begin.  It's a modest beginning to a topic to which I hope to one day contribute substantively.  Please visit! (And comment!)

The Best Ks Case Ever!

Though I don't believe we ever covered this case in my K class, here's what one K professor has to say about the best K case ever.

In any event, I thought I'd bring to the attention of our readers a truly great modern contracts case, Tongish v. Thomas, 51 Kan. 728 (1992).  As I tried to explain to my students last week, this case has it all: a deep problem of what expectation damages mean; a great illustration of the efficient breach problem; fun facts (a non-party to the litigated contract, but a crucial actor in the way the case comes out, is "Bambino"); and an opportunity to explore a key question about the nature of the law of promises -- does it matter why we breach contracts?

Owen the next appointee?

SCOTUS blog gossips:

John over at John in Carolina notes that Robert Novak is reporting that President Bush met secretly last week with Priscilla Owen, strongly indicating, in Novak's view, that the President will select Judge Owen to replace Justice O'Connor.

From Novak's story: "According to White House sources, Bush met secretly with Owen last week. While not decisive evidence, this was no mere get-acquainted session beginning a long exploration."

Do I need a Phd?

There's an interesting debate here on the necessity/sufficiency of having a doctorate degree in a cognate discipline for JDs who do interdisciplinary work. [HT Mirror of Justice]  Dan Solove, it should be clear from reading his post, is responding to Brian Lieter's post, who has a PhD in philosophy and is a professor of philosophy at the University of Texas's law school. 

I had asked The Maverick Philosopher a similar question.

Before I considered going to law school I considered going to graduate school. Sometimes I believe I should've done just that. Since starting law school, and having professors here who have advanced degrees in disciplines other than law, I believe a doctorate in a cognate discipline can enhance one's scholarship. And while it may enhance one's scholarship, it doesn't have to do so necessarily.

Brian Lieter says, however, that to do cutting edge interdisciplinary work the PhD training is essential. Some searching of the academic, peer-reviewed journals would answer this question, but I wonder how many professors with just JDs are published in peer reviewed journals? I understand the inherent deficiency of journals that aren't peer reviewed, (i.e. law reviews) but to believe the sin qua non of doing cutting edge work is publication in a peer reviewed journal might be overstating the case. One commenter reminded us of using the usefulness of scholarly work as a measure of "cutting edge," which isn't too bad an indicator if you ask me. If the likes of Leiter (JD, PhD) get to define "cutting edge" then we may unfairly discount what might otherwise be novel, noteworthy scholarship were not the lack of letters after its author's name.

[Comments open]
[Updates below the fold]

 

In re: Professor Alan Dershowitz

[Cross posted here.]

With the passing of Chief Justice Rehnquist we've witnessed no shortage of experts telling us how the chief justice either enhanced or endangered American life.  This blawg hasn't been immune from this syndrome.  [I cite here, and here.]  When commenting on the Rehnquist legacy, the new norm of incivility in politics means being a witness to positive and respectful comments along with retrospectively hypercritical ones.  Even his colleagues on the court, sans Souter, shared their thoughts, all positive.  The blogosphere offers the simple, to the heartfelt, to the disdainful.  Alan Dershowitz, the Felix Frankfurter Professor of Law at Harvard Law School, has through two opportunities, and more to come, I am sure, taken to disparage Chief Justice Rehnquist.