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Vischer, “Martin Luther King, Jr. and the Morality of Legal Practice”

Next month, Cambridge University Press will publish Martin Luther King, Jr. and the Morality of Legal Practice: Lessons in Love and Justice by Robert K. Vischer (U. of St. Thomas School of Law). The publisher’s description follows.

This book seeks to reframe our understanding of the lawyer’s work by exploring how Martin Luther King Jr. built his advocacy on a coherent set of moral claims regarding the demands of love and justice in light of human nature. King never shirked from staking out challenging claims of moral truth, even while remaining open to working with those who rejected those truths. His example should inspire the legal profession as a reminder that truth-telling, even in a society that often appears morally balkanized, has the capacity to move hearts and minds. At the same time, his example should give the profession pause, for King’s success would have been impossible absent his substantive views about human nature and the ends of justice. This book is an effort to reframe our conception of morality’s relevance to professionalism through the lens provided by the public and prophetic advocacy of Dr. King.

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Leeson on The Law and Economics of Monastic Malediction

Peter T. Leeson (George Mason U.) has posted “God Damn”: The Law and Economics of Monastic Malediction. The abstract follows.

Today monks are known for turning the other cheek, honoring saints, and blessing humanity with brotherly love. But for centuries they were known equally for fulminating their foes, humiliating saints, and casting calamitous curses at persons who crossed them. Clerics called these curses “maledictions.” This article argues that medieval communities of monks and canons used maledictions to protect their property against predators where government and physical self-help were unavailable to them. To explain how they did this I develop a theory of cursing with rational agents. I show that curses capable of improving property protection when cursors and their targets are rational must satisfy three conditions. They must be grounded in targets’ existing beliefs, monopolized by cursors, and unfalsifiable. Malediction satisfied these conditions, making it an effective institutional substitute for conventional institutions of clerical property protection.

Posted on by Marc O. DeGirolami · 3 Comments

On the Texas Cheerleader Religious Banner Controversy

Here is the controversy:  Some cheerleaders at a Texas public school wish to display signs and banners with religious messages on them at high school football games (e.g., “If God is for us, who can be against us?”).  Nothing about the signs involves the public school, other than that the venue in which they are displayed is at a public school football game.  The public school superintendent banned the signs.  And a state court judge in Texas has issued a temporary injunction against the government from forbidding the cheerleaders from displaying their signs.  The injunction is here, but it says nothing about the merits.

And here is the New York Times story today: It doesn’t really discuss the law much but instead paints a sort of man-of-conscience-against-a-hostile-world picture of the superintendent, just as it did for a recent story in Rhode Island involving a student who opposed the display of some religious language on a sign in a public school.  I’m sure the superintendent in the Texas case is a very nice man who is just trying to do his job.  It’s probably too much to ask of the Times that it stop the irritating practice of painting American communities as villains.  They’re probably just composed of people who are doing their best to live according to their own lights of the good life, and in ways that at least one court believes the law permits.

It’s a shame that the Times story doesn’t discuss more about the law.  From what I understand (though I could be wrong) the issue was originally that legal counsel for the superintendent believed that the banners violated the Establishment Clause as interpreted by the Supreme Court in the Santa Fe case.  But at some point that defense to the lawsuit dropped out, and now both sides agree that the signs do not violate the Establishment Clause (I find this representation at p.5 of this motion by the Texas Attorney General to intervene in the case).  It seems that the issue now turns on whether the speech here is characterized as public or private speech.  But this is confusing to me, because Santa Fe involved exactly the issue of whether the speech was public or private — the majority and the dissent disagreed on that question.  The Court in Santa Fe held that the school-instituted two-step election process, in which a student vote about whether a message would be communicated was followed by another vote about who would deliver the message, was basically the government’s impermissibly majoritarian policy and therefore government speech.  Obviously the situation is different in this case, and it would require a significant extension of Santa Fe to cover the cheerleaders’ signs.  But I do not understand why, per the representation of the Texas AG, all sides agree that Santa Fe does not apply.  Perhaps readers can offer illumination.

UPDATE: Do see Paul Horwitz’s discussion of the case here.  Paul points out that the NY Times also has an editorial out today in which it  characterizes the cheerleaders’ actions as a violation of Santa Fe (as explained above, I do not think this is accurate if the facts are as reported), and official support for the cheerleaders’ actions as follows: “These officials are blind to the dangers to religious freedom when government shifts from being neutral about religion to favoring a particular one. “