Jason Samuel as Judge Poser

Blawg Review #69

It’s been sometime since I’ve actively blawged (or bloged, whichever you prefer). My hectic 2L year and busy summer account for that. Whoever said that the second year of law school is easier lied. Whereas most other Blawg Reviews have been organized around a theme or a certain presentation, I have decided to approach this week’s review more eclectically. Attribute it to my uncertainty about which field of law has yet to interest me, or to a returning blawger just trying to makes sense of it all.

Blawg Review #69: Preview

Yes, you've come to the right place!

Welcome to my blog, Unlearned Hand.  This upcoming Monday, August 7, 2006, I will be hosting the next Blawg Review, Issue #69, a roundup of interesting blawg posts of the week.  I've recently done a bit of housekeeping to prepare for my turn at hosting.  While I haven't yet decided on a theme or a particular style of presentation, I have been forwarded some rather interesting, if not also eclectic posts.  I encourage you to post something of your own or suggest something you've read from this past week.  Refer to the Blawg Review submission guidelines (or this submission form) if you're interested in either. 

I look forward to seeing you back here on Monday!

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!)

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]

 

Because you're a Catholic, you must be a "living Constitutionalist"

In a Boston Globe piece, Faithful Interpretations, Drake Bennett attempts to popularize Sanford V. Levinson's taxonomy relating a jurist's religiosity to his interpretive method.  Levinson, a law professor at the University of Texas at Austin,  "argues that the tenets of Catholicism need not be seen merely as a competing set of dictates to be reconciled with constitutional law on fiercely contested issues like abortion, capital punishment, and sodomy."  [Der.]" Instead, he proposes using Catholic ideas about tradition and scripture as a lens through which to examine American attitudes about the Constitution, a founding document that has been venerated and fought over in much the same way that Catholics and Protestants have fought over the Bible." 

Those couple sentences peaked my interest, indeed.  I thought I'd be reading how a jurist's personal beliefs have some bearing on his interpretive method.  While not necessarily the case, I thought, perhaps, there's some correlative relationship between Originalists and Catholicism (err, Thomas and Scalia).  Instead, either though the sloppiness of the author or Levinson, the whole idea of looking to the jurist's religion to explain his interpretive method now seems like a sloppy way to explain what could be an interesting phenomenon.  Levinson's exercise can be reduced to psychologizing jurist's behavior. 

Robert P. George, a juristprudent scholar at Princeton, was quoted in the piece, but only limitedly.  I wish we could have read more of what he had to say.  There's no doubt to me that he had more to say on the topic given his extensive work in this area.  The little Bennett quotes from him, I believe, completely undermines Levinson's project.  Levinson is committing a categorical error really.  The institutions of American law and the Catholic Church are entirely distinguishable.  For that reason, George says, Levinson's project fails.  For it cannot explain how a jurist's religious belief bears on his interpretive method.

Levinson--or Bennett--admits so much in the end: "Levinson readily admits his contrast between legal ''catholics" and ''protestants" is more of a heuristic than ''a hard-and-fast scientific truth." He makes no claim that knowing how a judge spends his Sundays will explain his rulings."

Mark Levin makes a good point

Mark Levin makes this point.  I agree.

Link: Bench Memos on National Review Online.

We've discussed at length what should or should not be asked John Roberts, and how he should or should not answer. What bothers me about this nomination is that conservative senators and commentators (not here) are blowing a great opportunity to engage the Left on judicial philosophy. We should engage on the commerce, religion and takings clauses. We should engage on so-called privacy rights and abortion. We should challenge the Left's equal protection jurisprudence (including, in my view, the inevitable decision on same-sex marriage) and Congress's legitimate power to reduce (or expand) judicial jurisdiction. Instead, conservative senators and commentators are surrendering the field with defensive and bureaucratic arguments. We should debate the proper role of the Court, not side-step it. The Court is too powerful and the justices are out of control. From partial birth abortion and eminent domain to foreign law and due process rights for unalwful enemy combatants, the public stands with us.

"Judicial Mainstream" a Categorical Error?

One phrase that we're likely to encounter when we read or listen to commentary about the potential nominee to the Supreme Court is "judicial mainstream" (e.g. Sen. Schumer on Meet the press on 7.10.05). 

He said:

We hope there'll [sic] be a nominee that even though their views don't agree with ours are at least within the mainstream some--a judge who will meet the one test that really matters, they will interpret law, not make it.

The irony of his phraseology, i.e. "they will interpret law, not make it," I will cover sometime in the future.  His whole statement, in which he referred to a judicial mainstream, is typical of rhetoric we hear from those opposite the president on the ideological/political spectrum. Really, this rhetoric is slowing being adopted by fellow conservatives.  Perhaps conservatives have always used this phrasing to describe an ideal candidate for the Supreme Court.  To whomever we can trace its origin, really, is unimportant  What matters is what is meant by "judicial mainstream" or just "mainstream" in reference to the judiciary. 

Stare Decisis 1

Helvidius at Ex Post raises some of the same questions I've been wondering recently, which have to do with stare decisis. 

Stare decisis is not mandated by the Constitution. It is, according to Justice Frankfurter, "a principle of policy." Not many people think, however, that precedent should play no role in constitutional adjudication. Robert Bork concedes in The Tempting of America that at some point a previous, incorrect decision may "have become so embeeded [sic] in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed."

Does this mean, however, we're to apply SD consistently, and in every case where precedent speaks?-Regardless of the outcome?

Analagous Reasoning

In a recent post, the Maverick Philosopher touches on analagous reasoning.  Since the post touches on analagous reasoning, the sort meant often by legal reasoning, or more simply "thinking like a lawyer," I figure those interested in either law or philosophy, or both, may be interested.

I'll say this about analogies. An analogy is a comparison. To have a comparison, you have to have two things. (One cannot compare a thing to itself). Given that there are two things being compared, there must be one or more properties in respect of which the two things differ.

Leiter Reports: Originalism Redux

Link: Leiter Reports: Originalism Redux.