Ciceronian Review

School of Night

The Elements

A small flame flings itself about,
a wittering, an astronaut,
riding the kindled air above
the burgundy chrysanthemum.

The flame, the red, the window's view,
are the locus, fine netting for a haul
of happiness in a peopled room --
but mind is more than merely eye.

Mind is also fingers, primed
at once to manoeuvre, and move.
Include, then, that beat-up bicycle outside,
in the failing evening.

            Anne Rouse, from The School of Night

Secrets

The December issue of The Atlantic has a short essay by Bill Simon on attorney-client confidentiality – part of his on-going jeremiad against it. It is immediately followed by a piece arguing for reporter shield laws. The editors must have been amused by the juxtaposition, and I am happy to report that I was as well. On interesting aspect of the two essays is that each is premised on empirical claims yet none of the positions – to my knowledge – have ever been subjected to testing. The basic idea behind the attorney client privilege is that it enhances communications and allows attorneys to counsel clients to abide by the law. Simon argues that there is little or no such effect. I don’t know of any testing one way or the other on the question (and I doubt it would be practicable). The essay on reporter shields also talks about how confidentiality results in disclosures which inure to the public good, disclosures which are in danger of drying up without a shield. Again, no one, to my knowledge, has ever tested the claim. All of the scenarios are plausible, which means that the arguments are, in a curious sense, speculative.

 

The NY Times Book Review included a long review of the new book by Ms. Robinson: Gilead. I read only as far as the second column where I hit the following phrase by the reviewer: “fierce calm.” Holy West Wing Bat-writer! Stones and bones! 

I can’t see caring about a review by one who writes so badly.  The book has, however, been reviewed in just about every magazine on earth – it is even mentioned in Gourmet.

Comparative Reviews

It has been a few days since posting.  It took longer than I thought it would to resurrect.  Perhaps it is because I have misplaced the crystal sphere which should surround -  oh, wait, sorry, wrong cult. 

Himmelfarb's book was reviewed in the NYRB, largely to devastating effect by Alan Ryan.  It was also reviewed recently in the November 12 TLS by Jonathan Clark.  It is not quite so unforgiving as Ryan's, but the TLS review is also, all in all, not positive.

There is also a review of Waldron's book on Locke, referenced in a recent comment here.  The review was a might short to get much sense of the argument.  It notes that for Waldron, Locke's egalitarianism is founded in his Christianity.  (I will add it to the long list of books to be read.)  Interesting as a piece of intellectual history, but I don't see that it could be more -- or more specifically, I don't see how anyone could make the argument that one needs a Christian foundation to egalitarianism as an aside.  That Locke grounds his view in a church is not exactly a compelling argument for anyone else to follow.  I should note that the reviewer (John Tasioulas) is also skeptical of a Rawlsian approach to political theory.  Ahh, it is getting coolish in these parts.   

And there is a review of Larry Kramer's book on the US Constitution (see Kramer v. Kramer  and this below).  It can be found here.  It is a good deal longer and more detailed than the Tribe review, but it comes to relevantly similar conclusions.  (Even though they let me do reviews from time to time, I think this a good resource - Groucho was not right about everything.) There is also a review of Randy Barnett's book, which I mention as I have written a fair amount it at this site.   

GEN

Today I received a copy (with subscription offer) of Genetic Engineering News.  Of course I will read the issue before deciding on a subscription.  But this is a rather odd thing for me to receive.  I did not solicit it.  It was directed to me at the office.  But neither I nor anyone in the office practice IP or even transactional work generally.  None of the litigation in the office now (or as long as I have been here) involve topics even remotely connected to genetic engineering (not even regulatory work).  So I am at a loss for the reason the publisher decided to send the magazine to me. 

Maybe it is a comment on job security?

Kramer v. Kramer

In the letters section of the NYT Book Review Sunday, Larry Kramer responded to Tribe's review of Karmer's book.  Kramer says, among other things:

Rather than reviewing my book, Tribe has written a common lawyer's brief, employing the sorts of tricks lawyers use to diminish a position they must attack: overreading, underreading or simply misreading complex arguments; taking snippets of quotations out of context; attributing contrived motives to an author or far-fetched consequences to a position; and so forth. No one doubts that Tribe is a good lawyer, and this stuff may be permissible in advocacy. It is, however, and for good reason, generally treated as inappropriate in serious debate.

(Emphasis added.)  I find it interesting that the Dean of Stanford law school has such a low opinion of lawyers, and, in particular, litigators.  If Dean Kramer was not advocating, what was the point of his book?  I also wonder what "serious debate" refers to -- not academic reviews and interchanges, which reguarly include all of the listed tricks.   Come to think of it, so does the letter.  Well, that's what you get in  reading the daily press.

Griffith Going, For Now

It now appears that Thomas Griffith will not be confirmed, at least until next year. As stated before, I think he should not be confirmed to the bench because I believe he engaged in unauthorized practice of law for three years while in Washington. I also believe his current conduct in Utah constitutes unauthorized practice of law. According to the Salt Lake Tribune, Griffith ran into trouble on two fronts. Some opposed his confirmation for reasons like those mentioned above.

But others opposed his confirmation because of views expressed as a member of the Task Force on enforcement of Title IX. There is something sad, and wrong-headed, about opposition on those grounds. Unless his view was that Title IX was unconstitutional, it is hard to see how the subject is relevant to his confirmation. (If he believes Title IX is unconstitutional, his views on the legal question are way out in left field, sufficiently far to raise question of competency. But I assume that is not the case, or it would have been in the news report. So his views about Title IX are not to the point.) It is sad because he is faced with opposition on grounds unrelated to the office or his qualifications, which really are political in the order partisan sense. It adds to unnecessary and improper politicizing of judicial appointments. His views hardly suggest an inability or disinclination to separate his quotidian political views from performance of the judicial office. It ultimately undermines the legitimacy of opposition grounded in more basic political issues, like reproductive rights. The opposition on this ground is pointless in a practical sense. This is not a topic on which a significant group of senators will block Griffith’s nomination. It trivializes other reasons for opposing other nominees. It wastes capital. I suspect such impractical and ill-thought out attacks end up impairing the credibility of advocates. In fact, it sometimes seems to me that such ‘campaigns’ are run by the RNC because they are self-defeating for feminist and allied views.

It is worth noting that Hatch’s nominees in Utah have turned out to be pretty good and interesting judges. One example is Paul Cassell whose decisions on mandatory sentencing are quite interesting.

Still A Miss I Think

Some further words (from a commentator and my responses) on religion and politics are below the fold.

Update:  I have added some material from my interlocutor which, for irrelevant reasons, arrived after I posted.  They are in bold for ease of reference.)

Return

When I saw this headline, my first thought was that the deer really are fighting back.  Turns out not. 

Response to Kerr

Prof. Kerr comments on my remarks concerning Volokh on religion and political argument:

What is your support for the claim that the political community is founded on essentially secular grounds, such that religious arguments are not legitimate?  Is that a descriptive, historical claim?  Is it an argument about the Constitution?  The Establishment Clause?  The Enlightenment? Or is that a normative claim?  Your argument seems to hinge on this assumption, but many people disagree with it and (as best I can tell) you have not provided any basis for it.

Kerr makes a very good point (actually, several of them). I could dodge by saying I was just trying to lay out the argument for concern about explicitly religious political argument, and did not endorse it, but that would hardly be true.  I was, but I also think something like it is right, and so was advocating  as well.  So, to answer Kerr’s points:

(1) An historical case can be made (for those thinking that original political commitments are decisive). Although there is no serious doubt that the country and its political leadership did not have any developed wholly secular political theory, it is also the case that there is a good argument that the views are fundamentally deist, and so do not invoke biblical foundations. I should add immediately that the case is hardly decisive, and the evidence, as I understand it, is quite muddled. There is nothing unreasonable about rejecting my interpretation of the historical point, however.

The historical point is important in relation to the degree one is committed to originalist political theory as controlling legitimate political engagements. Within the context of Constitutional law, originalism in various forms has a good deal of attraction, a good deal to be said for itself. It is, however, unclear why one’s approach to interpretation of the Constitution should have any special role to play in determining the bounds of legitimate political discourse, which is not, after all, legal argument.

Finally, on this point, I do not think the historical question is either decisive or even very important. I think the argument can and should run independent of the settled views of historians about the founding population. It is more properly a problem within liberal political theory as theory, which I turn to below. Hence, the fairly narrow range of tolerated religious views at the founding is not a matter I think significant, but it is a potential problem for those who believe that legitimate political argument is tied to history.

(2) The argument against direct religious political argument does not have to have an historical foundation (i.e., it does not have to be an account of originalist political theory). I take the question to be directed at the bounds of legitimate political engagement for those now in this liberal political democracy. For present purposes, I think that is fundamentally a normative question. (Pretty plainly political argument in fact is directly based on religious sources, which has led to the question of propriety.) I think the aim is to provide a foundation for argument that the actions of the state are, in some non-prudential sense, binding. For that to happen, the grounds of decision-making need to connect to common sources of authority. Those lie, I think, very near the surface of things, not deep. To the extent feasible, political argument should tie to those kinds of grounds, i.e., to grounds which are open to agreement by contending factions without the necessity of abandoning their respective fundamental moral beliefs. All of which is a somewhat inarticulate Rawlsian account.

I do think that such an account of political relations flows out of Enlightenment philosophy and political theory. But I can’t say if that does or should matter.

Clear Miss

As host to Carnival, I do not intend to do much blogging this week.

However, I do want to remark on an argument advanced by Prof. Volokh.  (Here and here.)  The gist is that it is a confusion (at best) to argue tha it is wrong for the religious to attempt to impose their religious values through legislation, because moral values all end up as assumptions and there is no reaonsable basis for sorting them.  Volokh lays it out in more detail and with a bit more care, but the central argument is there.  It is wrong, and pretty clearly wrong.  Volokh trades on ambiguity in the notion of reasonable.  His line requires that in the absence of proof to certainty, assumptions are on par with each other.  There are a host of things wrong with this sort of thinking.  First of all, there is no need to insist on certainty, and no reason to think of certainty in this context as a standard of deductive proof.  Second, there is no genuine distinction on the sort of standard Volokh is using.  Deductive proofs are based on asumptions of various kinds, which cannot themselves be proven within the same system.  Third, there is a great difference between a value argument founded on publicly shared values and one founded on revelation.  The complaint within the poltiical sphere turns on the nature or the political association.  Volokh seems to presume that the political association is bare majoritarianism.  That is a mistake.  It is doubtfula  political community could survive on such a basis, and it is reaosnably clear that the US is not such a polity even if one were possible (or should I say practicable?).  Fourth, the notion that values are indistinguishable, which is what V's position ends up, is very hard to make sense of, for a variety of reaosns related to the nature of the expressions used and the nature of the values.  (He could, however, simply deny that anyting was going on, but then his libertarianism would be pointless) .  I will try to develop this in reasonable detail later in the week.