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April 06, 2006

Orders in the City

Cardinal Levada has directed Catholic Charities of San Francisco to stop placing children in need of adoption with homosexual couples. In response, the board passed a strongly worded resolution condemning the Cardinal and his policy. (The text of the policy is here.) As my girlfriend predicted, Catholic Charities has not been obeying Levada's directive.

Now the Thomas More Law Center has filed suit against the city of San Francisco, suggesting that their resolution violates the establishment clause because it impermissibly "disapproves of" a particular religious belief. I haven't read the complaint, but at that level of generality the case seems pretty unlikely to get off the ground.

But presumably the goal is not victory so much as tarring the city of San Francisco as anti-Catholic in the public eye, and I confess that some of the phrasing in the original condemnation seems unduly nasty. Does it matter that the "meddl(ing)" Vatican is a "foreign country"?

[Thanks to Marty Lederman for the text of the resolution.]

UPDATE: And here are some further thoughts on the last point from Eugene Volokh.

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Judging Under Uncertainty

I now have before me a copy of Adrian Vermeule's lovely new book, Judging under Uncertainty: An Institutional Theory of Legal Interpretation. While I have mentioned the book before, it is now in final form. (It now, for example, briefly takes on Justice Breyer's Active Liberty). I continue to disagree with some local points (e.g., Vermeule's attack on the historical pedigree of judicial review, and perhaps more generally his belief that the Constitution does not itself set more ground rules about the permissible scope of second-order interpretative rules) but the local points are minor and contestable, and the global argument is the important (and strong) one.

Vermeule's global argument is that legal interpretation is inherently situated in institutional contexts-- in other words, that it makes no sense to ask "is textualism the right way to read a text" but rather that one must always ask, "what text-reading procedure should a given legal institution, given its capacities, limitations, and competitors, employ?" Vermeule's deceptively simply answer is that judges should read clear texts textually and defer unclear statutes and constitutional provisions to agencies and legislatures respectively.

I am not so sure that these are the right institutional answers, but it seems to me that Vermeule unquestionably shows that lots of other people haven't even been asking the right questions.

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Choice of Law Research Agendas

John Pfaff wonders if criminal law scholars spend too much time looking at federal courts and an insufficient amount of time looking at the state criminal law system. If so, he wonders why. I had always assumed it was because the rewards to publishing an interesting piece on federal criminal law are roughly 10-50 times greater than publishing an interesting piece on a given state's criminal law, since the piece will be of interest to those who work in any jurisdiction (since almost all criminal law scholars in a given state seem also to be familiar with the federal criminal law of that state). So even if each given state is vastly under-investigated, it's the uncerainty about transferring results across markets that make people reluctant to invest in location-specific assets.

But it may be bad form to make an untutored guess about an empirical law problem. I had also always suspected that this is why public interest litigation outfits are often so eager to pursue federal-constitutional as opposed to state-constitutional claims. Win a case on the Louisiana Constitution and it is good only in Louisiana. Win one on the meaning of the federal Constitution, and you can cash it in anywhere. (Ditto for constitutional law scholars. Why would Harvard hire an expert-- even the pre-eminent expert-- in Alabama constitutional law?)

If this is right, you might expect more serious empirical research into the criminal law systems of states that house major law schools and lots of empirical scholars. Don't know if that's the case.

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