Law - Opus Publicum

September 2, 2014 Law

Consistent Legal Scholarship?

Eric Posner has called attention to his occasional coauthor Adrian Vermeule’s forthcoming article-length critique of Philip Hamburger’s most recent book, Is Administrative Law Unlawful? (If you don’t want to wait for the review to appear in the pages of the Texas Law Review you can access a copy at SSRN here.) Over at The Originalism Blog, Michael Ramsey opines that Vermeule’s critique of Hamburger is inconsistent with Vermeule’s defense of the imperial Presidency in the last book he coauthored with Posner, The Executive Unbound. Vermeule has since shot back that there is no inconsistency between Executive and his current critique of Hamburger (though without explaining why). Interestingly, Vermeule has “den[ied] that consistency is a virtue for academics.” Does he mean all academics or just legal academics? And regardless, why?

August 21, 2014 Law

Eucharistic Lawsuit, Contra Volokh

So, some group of Satanists is planning a “Black Mass” where they will, among other things, desecrate an allegedly consecrated Host, that is, the body, blood, and soul of our Lord Jesus Christ. Some have raised questions over whether or not the Host has actually been consecrated; others have asked how it is this Satanist group has come by this Host. Now it has come out that the Archbishop of Oklahoma City — where this Mass is, allegedly, going to be performed — is suing to have the Host returned to them. Eugene Volokh, a law professor at UCLA and the founder of the Volokh Conspiracy web-log, has weighed-in on the matter here. He draws some analogies in order to determine, in the abstract, if the Catholic Church has a legal interest in the return of the Host. Upon learning of the Satanists’ claim that they have a “double agent” priest within the Church who supplied them with the Host, this is what Volokh has to say on the matter:

August 14, 2014 Law

Legal Bias

Eric Posner and Adam Chilton of the University of Chicago Law School have just posted a new working paper, “An Empirical Study of Political Bias in Legal Scholarship.” For any who have spent time in and around the legal academy, the abstract won’t contain any surprises:

July 28, 2014 Catholic Social Thought, Law

Legal Realism and Conceptual Clarity

Two Catholic bloggers/writers of rather different ideological temperaments — Elizabeth Stoker Bruenig (ESB) and Pascal-Emmanuel Gobry (PEG) — got into an interesting, but somewhat strange, back-and-forth last week over the proper Christian conception of property rights. (You can find a brief summary here.) I call it strange because the term “legal realism” was thrown around to mean something other than what “legal realism” has, conceptually speaking, meant for nearly a century. According to ESB, legal realism — or Christian legal realism or Augustinian legal realism or whatever — , when applied to property at least, is the view that rights are conventional and can be rearranged across time and location. Or, as PEG summarizes, legal realism, according to ESB, “is merely a descriptive theory, not a prescriptive one, and that all it does is note that different property arrangements exist at different times.” But that’s hardly a novel insight. The opening paragraphs of Gaius’ Institutes, where the great Roman jurist distinguishes the civil law from what he calls the law of nations, is predicated on the rather banal observation that different polities have different laws, though Gaius certainly believed that there were laws — the law of nations — which were universally held valid. If anything, a descriptive account of different legal rules — or that there are different legal rules — today falls under the umbrella of legal positivism. The question which legal theorists of different stripes have wrestled with for centuries is not whether legal rules are different, but whether they are right. Even when legal positivists claim to engaged in a purely descriptive enterprise, there is a not-so-subtle normative claim embedded in their thinking that the validity/invalidity of a particular legal rule or system cannot be properly adjudicated. As men embrace and discard different conceptions of justice, different legal orders will emerge. So what then is legal realism?

July 28, 2014 Law

Panhandling

The topic is a bit local, but for those interested in what I write about when I am not blogging, my latest piece for the Michigan-based Bridge magazine, “Anti-Panhandling Ordinances Should Offend our Moral Conscience,” is available for reading. The title should tip you off concerning the message.

July 22, 2014 Law

The Malaysia Airlines Tragedy and International Law – Postscript

I promise to return to “regularly scheduled programming” soon, but for reasons which I alluded to in my first post in this series, my free attention has been fixed on the downing of Malaysia Airlines Flight 17 (MH17) and the international response to it. My intention with this series was to clarify, in as simple of terms as possible, the primary international legal issues brought up by this tragedy, including what, if anything, will be done to bring the perpetrators to justice. While we are a long ways away from knowing the full story, new details are increasingly suggesting that the Russian state, directly or indirectly, had some involvement in the destruction of a commercial airliner and the deaths of 298 human beings. In this final post I want to touch on a few hypotheticals and address some questions I have been asked in other forums about the legal fallout to this tragedy. At this point I am still inclined to write a great deal in pencil, but I do think there is enough hard “stuff” out there that we can begin thinking seriously about what type of legal response can be expected.

July 18, 2014 Law

The Malaysia Airlines Tragedy and International Law – Part Three

In this my third and final post (for now) on Malaysia Airlines Flight 17 (MH17) and international law, I will look at assigning civil liability for the crash and which party will ultimately be left footing the bill. This is not an easy matter to unravel and it could take the better part of a decade or more to sort everything out, especially if any of the blame can be assigned to Ukraine or Russia (more on that in a moment). As it stands right now, I am writing under the already well-supported assumption that pro-Russian separatist militants operating in eastern Ukraine were the ones who launched the missile strike that brought down MH17. The unknown which may, or may not, alter the nature of my analysis is if Russian military forces were involved and to what extent.