Category: Religion


“Religious Arguments in the Law” or “Reasoning in God’s Presence”


Vic Fleischer had a really interesting post on religion and tax policy over at a
Conglomerate that shouldn’t be lost in all of the Disney noise. He writes:

There is no question that one needs a theory of distributive justice to form a complete picture of tax policy. Some people may derive that theory from religious faith, others from philosophy. I have no problem with those who derive their preferences from religious faith. As a matter of scholarly discourse, I find it more useful to concentrate on the philosophy side. And even within philosophy, convincing others that one approach is better than another feels to me like trying to convert someone to another faith. As a tax policy scholar, I have no comparative advantage here.

Implicitly I’m arguing that traditional tools of tax policy, including public finance economics, can sometimes lead us to demonstrably right and wrong answers about the design of a tax system. I am a skeptic about the ability of law professors to convince anyone that the top marginal rate should be 35% by appealing to Rawls OR the Bible. But I do I have a lot of faith, so to speak, in tax law scholarship and economics to speak to the proper design of the system.

There is a lot of stuff going on in these sentences. First, Vic’s argument seems a bit confused about the nature of normative reasoning. In good economic fashion, he seems to be suggesting that theories of distributive justice are a kind of preference. (E.g. “I have no problem with those who derive their preferences from religious faith.”) This, it seems to me, is fundamentally mistaken. Kaplow and Shavell aggressively pursued this line of thinking in Fairness versus Welfare, and I think that when they stray from positive economic analysis into the realm of normative argument their results are a rather dismal failure. (In my opinion, Jules Coleman offers the most trenchant criticisms in his review The Grounds of Welfare, 112 Yale. L. J. 1511 (2003)). Their failure, however, does not come because normative argument is useless, but rather because they made bad normative arguments. In a nutshell, the problem with their approach is that distributive justice is not simply an input into a personal utility function. It is also a claim about the nature of moral reality, and as such it has a truth value independent of whether or not any particular person prefers it or not.

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Guilty as charged . . . see you at church (Part II)

From the Associated Press:

Racist Man Sentenced To Attend Black Church

A judge has sentenced a suburban Cincinnati man to attend services for six weeks at a black church for threatening to punch a black cab driver and using racial slurs.

Last year, I blogged on Prawfsblawg about a case where a judge sentenced substance abusers to church time. Much of what I wrote then applies now as well:

In general, I think that sentences to church time raise some serious red flags, and present quite a bit of potential for abuse. But I’m wondering about scenarios in which there is a good reason to offer alternative church sentences. Say that you’re a judge in a small town in Kentucky or Alabama or West Virginia, and you’ve got a batch of DUI’s and drug-possession cases. Your town doesn’t have a strong network of social service agencies, but it does have a strong local church which runs a highly regarded, historically effective 12-step program for addicts and alcoholics.

Is it wrong to offer some of these convicts the option of going to the local church 12-step program instead of jail time? On the broader level, what should the judge do in cases where it looks like there is a genuine rehabilitation benefit to be gained from channeling some convicted people to a religious organization that has an effective social network that will help them overcome their problems? Is the judge’s only option “sorry, I’ve got to send you all to the slammer”? On the one hand, there are fairness issues for prisoners who do not wish to attend church services. On the other hand, there could be a real loss in rehabilitation for prisoners who would be willing to work with the social programs operated by a church.

In this case, the judge may honestly believe that special benefits can be achieved by sending the offender to a Black church. The question that I would ask is whether similar benefits could be achieved through less potentially problematic avenues. Why not send the fellow to the local NAACP office?


Finding God in the Appellate Brief: A Quick Follow-Up

My post on finding God in the appellate brief has garnered a bit of attention, some appreciative and some not (see the second comment). I did want to clarify what I meant by the reference to God, which seems to have upset some people. First, I am not claiming that good briefs are written by God or under some sort of divine inspiration. Nor am I suggesting that believers write better briefs than unbelievers. Both of these claims strike me as patently absurd. Rather, I wanted to point out that a well-written brief exhibits a kind of beauty, the beauty of reason. A well-played game of chess shows the same sort beauty. My point is that this beauty can be taken by the believer as a trace of the presence of God. Not, mind you, as evidence of God’s exclusive handiwork, nor as evidence of superior moral or even intellectual merit. Rather, it is simply another trace of divine beauty in the world. Put in other terms, the point of the post was not to claim special merit for religious lawyering (whatever that might look like), but rather to see in good lawyering — religious or not — some spiritual beauty.

The other purpose of the post, of course, was to drop a wholly gratuitous reference to Matthew Arnold.

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Finding God in Chess and the Appellate Brief

chess_piece_photo.jpgWhen my professional life is going well it consists of reading and writing appellate briefs. Fortunately, this is not nearly as pathetic as it sounds.

At its most basic, an appellate briefs is a written argument presented to a court explaining the claims of your client and how those claims are supported by the law. As such, it represents one of the great triumphs of human civilization. I am serious. Law rests on a basic commitment to resolving the disputes of human life by resort to reason rather than violence. In the days before appellate briefs (or something like them) we resolved disputes through blood feuds, trial by combat, or by throwing women into ponds to see if they floated. Deliciously dry and intricate arguments about precedent, controlling authority, pleading, and statutory construction represent one of the few unequivocal leaps forward in human history. Post-modernism, historical relativism, and skepticism of Whig history all have their place, but at the end of the day, the rule of law is simply a lot better than trial by combat. Generally speaking, the progress of reason is told in Enlightenment terms as a story about the ebb of faith down the shingles of Dover Beach. However, it is possible to see the triumph of reason in the brief in terms of an older vision of reason: The trace of the divine.

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Mormons Pick Nominees, Part II

I’m starting to see a strange pattern here. First it was Ginsburg. LDS Senator Orrin Hatch has publicly taken credit for Clinton’s decision to nominate both Ginsburg and Breyer, writing of a discussion with the former president:

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

And with Orrin Hatch’s advice and consent, first Ginsburg and then Breyer were confirmed. (There are conflicting views as to what this means).

Now, LDS Senator Harry Reid claims to be the inspiration behind the Miers nomination:

At the meeting we had with the president last week, we were in the office he has there; I was there, Frist was there, Leahy was there, and Specter was there, plus Andy Card and the vice president. I said, “The vice president got here in a very unusual way. He was chosen by you to find a candidate to be your vice president. You liked the person in charge of finding a candidate better than the people he chose.” I said, “I think that rather than rather than looking at the people your lawyer’s recommending, pick her.”

As a church member myself, I’m pleasantly surprised by the trend. Three of the last four nominees were initially suggested by co-religionists? Not bad, not bad at all. Perhaps we’re not electable as presidents, but it looks like we’re doing alright being the power behind the throne.

I would post on this issue further, but I’ve got to run and go refine my short list. Just in case the President calls to ask me about nominees.

(Cross posted at Times and Seasons).