Law Asks for Trust

(Excerpt) This Article offers a reading of chapters 1 and 2 of the book of Genesis, informed by concerns for the social effects of law. Part I considers the implications of God\u27s method of creating the world by speech in the first chapter of Genesis. Part II turns to God\u27s prohibition against eating the fruit of the tree of the knowledge of good and evil. The content of the prohibition and the nature of the threatened penalty suggest that the prohibition is a rule against disobedience generally, paradigmatic of a general claim by God to be the ruler. With the creation of the woman out of the side of the man, the story gains social complexity with important implications for the role of trust. Part III considers the intimacy between God and the man suggested by the creation of the woman. At the same time, the woman became for the man-and vice versa-a new locus of trust, one who shared something with him that they did not share with God-humanity. Part IV explores the implications of this reading of Genesis for the effects of law on social relationships. In particular, this Article argues that Genesis suggests that law always entails a request from the lawmaker to the subject for trust

The Arc of the Moral Universe : Christian Eschatology and U.S. Constitutionalism

This Essay first attempts to understand how a contested Christian doctrine found its way into constitutional law. It does so through a reverse genealogy of ideas—an archaeology, perhaps. The Essay begins by sketching how U.S. constitutionalism, in both theory and doctrine, reflects the belief that the “arc of the moral universe is long, but it bends toward justice.” It then suggests that underlying this constitutional theme is a merger of two features of American civil religion: the tradition of treating the Declaration of Independence and the Constitution as the central texts of a sacred canon and the belief that America has a special moral destiny. The Essay then unearths the religious streams contributing to the doctrine of moral destiny. Each of them reflects a position on Christian eschatology. The first is the postmillennial movement among mainstream and evangelical American Protestants beginning in the Second Great Awakening, a movement that birthed a wide range of associational efforts to promote social progress. The second and third were both influenced by the Hegelian school’s philosophy of history, in which God is synonymous with human conscience, social conflict, and an inexorable trajectory of moral progress. These streams include the liberal Protestant movements of the late nineteenth and early twentieth centuries, and the deliberate secularization of historical eschatology by pragmatists like John Dewey. The stream nearest in time to the constitutionalization of this doctrine was the religious leadership of the civil rights movement, especially Martin Luther King, Jr. Together, these streams leant rhetorical power to President Kennedy’s appeal to the Puritan image of America as a “city upon a hill.” The Essay concludes by reflecting on this development. Scholars have not appreciated how much U.S. constitutional law reflects American civil religion, which itself reflects the various and often competing religious beliefs of Americans. Each of these—constitutional law, civil religion, and denominational religion—influences the others. This suggests new challenges for the ideal of governmental neutrality, both among competing notions of American civil religion and among diverse religious groups

Adjudicating Religious Sincerity

Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility of a claimant’s religious beliefs, it may adjudicate whether the claimant holds those beliefs sincerely. Unfortunately, Burwell v. Hobby Lobby introduced confusion. The majority opinion appears to conflate the requirement that a claimant be sincere with the requirement that the claimant show that the government has “substantially burdened” the claimant’s religious exercise. The dissenting opinion, by contrast, suggests that courts simply may not adjudicate religious sincerity. The first of these mistakes muddies the water about the relationship between sincerity and the other elements of a religious accommodation claim; the second illustrates the ongoing confusion for many jurists and scholars about the constitutional concerns surrounding an inquiry into a claimant’s religious sincerity. This Article attempts to defend and clarify the sincerity requirement. Against the scholarly consensus, it argues that courts can and should adjudicate an accommodation claimant’s religious sincerity. Insincere claims impose costs on the government, third parties, and religious liberty itself. Courts can adjudicate sincerity, and reduce these costs, without violating the Establishment Clause. The Constitution’s “no-orthodoxy principle” should be understood to prohibit a court from inferring that a claimant is insincere merely because the claimant’s religious belief is implausible. Otherwise, a court should evaluate a claimant’s sincerity by applying the ordinary rules of evidence. Moreover, when the claimant’s sincerity is not in issue, a court should resist allowing its suspicion to affect the rest of its legal analysis. Finally, the Article clarifies the distinctions between whether a claimant is sincere, whether the claim is based on religious exercise, and whether the government has imposed a substantial burden on that exercise

Fair Notice, The Rule of Law, and Reforming Qualified Immunity

After many well-publicized cases of police wrongdoing, a growing number of courts, scholars, and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss damages actions against officials for violating the plaintiff’s constitutional rights unless a reasonable officer would have known that the right was “clearly established.” Scholars argue that the doctrine impedes deterrence of rights violations and forecloses compensation and vindication for victims.One line of attack has relied on empirical evidence to challenge what scholars take to be the main justification for qualified immunity, that it prevents the threat of constitutional liability from over-deterring effective law enforcement. Yet the Supreme Court has always offered another rationale for the doctrine: it would be unfair to hold officers liable without sufficient notice that their conduct was unconstitutional. Unlike the over-deterrence rationale, scholars have almost entirely ignored the fair notice rationale for qualified immunity.This Article assesses the extent to which the fair notice rationale supports the current doctrine of qualified immunity. It does so by exploring the limits of the jurisprudential principle of prospectivity, which holds that the law must ordinarily apply only prospectively. To approximate the rule of law and to treat subjects with equal dignity, the law must be capable of guiding conduct. The principle of prospectivity obviously applies to retroactive legislation, but unpredictable adjudications also fail to provide such guidance, and they are especially unfair when they impose retroactive moral condemnation. Constitutional liability is often highly unpredictable, seemingly at odds with prior legal duties, and, unlike most tort liability, expresses the community’s moral censure.This Article argues that the fair notice rationale supports qualified immunity in some cases to which the doctrine currently applies, but not to all of them. It supports immunity where an officer could not have reasonably foreseen constitutional liability or public condemnation, but not when an officer acted in bad faith, violated a criminal law, or violated a constitutional rule with an underlying rationale that applies to the officer’s conduct. Taking the fair notice rationale seriously provides a principled roadmap for reforming qualified immunity

American Religious Liberty without (Much) Theory: a review of Religion and the American Constitutional Experiment, 5th edition

Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth);$39.95 (paper); $26.99 (digital). ISBN: 9780197587614

Due Process as Separation of Powers

From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was a court’s role to do so pursuant to established and general law. This principle was applied against insufficiently general and prospective legislative acts under a variety of state and federal constitutional provisions through the antebellum era. Contrary to the claims of some scholars, however, there was virtually no precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the use of property. Contemporary resorts to originalism to support modern substantive due process doctrines are therefore misplaced. Understanding due process as a particular instantiation of separation of powers does, however, shed new light on a number of key twentieth-century cases which have not been fully analyzed under the requirements of due process of law

Adaptive patch foraging in deep reinforcement learning agents

Patch foraging is one of the most heavily studied behavioral optimization challenges in biology. However, despite its importance to biological intelligence, this behavioral optimization problem is understudied in artificial intelligence research. Patch foraging is especially amenable to study given that it has a known optimal solution, which may be difficult to discover given current techniques in deep reinforcement learning. Here, we investigate deep reinforcement learning agents in an ecological patch foraging task. For the first time, we show that machine learning agents can learn to patch forage adaptively in patterns similar to biological foragers, and approach optimal patch foraging behavior when accounting for temporal discounting. Finally, we show emergent internal dynamics in these agents that resemble single-cell recordings from foraging non-human primates, which complements experimental and theoretical work on the neural mechanisms of biological foraging. This work suggests that agents interacting in complex environments with ecologically valid pressures arrive at common solutions, suggesting the emergence of foundational computations behind adaptive, intelligent behavior in both biological and artificial agents.Comment: Published in Transactions on Machine Learning Research (TMLR). See: https://openreview.net/pdf?id=a0T3nOP9s

Effects of bark beetle outbreaks on forest landscape pattern in the southern rocky mountains, U.S.A.

Since the late 1990s, extensive outbreaks of native bark beetles (Curculionidae: Scolytinae) have affected coniferous forests throughout Europe and North America, driving changes in carbon storage, wildlife habitat, nutrient cycling, and water resource provisioning. Remote sensing is a cru-cial tool for quantifying the effects of these disturbances across broad landscapes. In particular, Landsat time series (LTS) are increasingly used to characterize outbreak dynamics, including the presence and severity of bark beetle-caused tree mortality, though broad-scale LTS-based maps are rarely informed by detailed field validation. Here we used spatial and temporal information from LTS products, in combination with extensive field data and Random Forest (RF) models, to develop 30-m maps of the presence (i.e., any occurrence) and severity (i.e., cumulative percent basal area mortality) of beetle-caused tree mortality 1997–2019 in subalpine forests throughout the Southern Rocky Mountains, USA. Using resultant maps, we also quantified spatial patterns of cumulative tree mortality throughout the region, an important yet poorly understood concept in beetle-affected forests. RF models using LTS products to predict presence and severity performed well, with 80.3% correctly classified (Kappa = 0.61) and R2 = 0.68 (RMSE = 17.3), respectively. We found that ≥10,256 km2 of subalpine forest area (39.5% of the study area) was affected by bark beetles and 19.3% of the study area experienced ≥70% tree mortality over the twenty-three year period. Variograms indi-cated that severity was autocorrelated at scales \u3c 250 km. Interestingly, cumulative patch-size dis-tributions showed that areas with a near-total loss of the overstory canopy (i.e., ≥90% mortality) were relatively small (\u3c0.24 km2) and isolated throughout the study area. Our findings help to in-form an understanding of the variable effects of bark beetle outbreaks across complex forested regions and provide insight into patterns of disturbance legacies, landscape connectivity, and susceptibility to future disturbance

Effect of Resting Patterns of Tamarins (Saguinus fuscicollis and Saguinus mystax) on the Spatial Distribution of Seeds and Seedling Recruitment

The spatial distributions of dispersed seeds have important evolutionary consequences for plants. Repeated defecations in sites frequently used by seed dispersers can result in high seed concentrations. We observed the resting behavior of a mixed-species group of tamarins in Peru and recorded the occurrence of seed dispersal (over 8 mo) and seed fate (over 11–22 mo) to determine whether the location and use of resting sites influenced the spatial distribution of dispersed seeds and seedlings. The tamarins rested mostly on trees (Saguinus fuscicollis: 60.6%, S. mystax: 89.2%) and dead trunks (S. fuscicollis: 24.4%) and used 61% of their resting sites repeatedly. During both the dry and wet seasons, tamarins dispersed significantly more seeds within resting areas (0.00662 and 0.00424 seeds/m2, respectively) than outside them (0.00141 and 0.00181 seeds/m2). Seed survival and seedling recruitment did not differ significantly between resting and other areas, resulting in a higher seedling concentration around the resting sites. Seed density did not increase with the duration or the frequency of use of the resting sites but did increase when we pooled the seasonal resting sites together in 50 m × 50 m quadrats, ultimately causing a clumped distribution of dispersed seeds. The use of resting sites in secondary forest, particularly during the dry season, allows the creation of seedling recruitment centers for species coming from the primary forest. Our findings show that tamarin resting behavior affects the spatial distribution of dispersed seeds and seedlings, and their resting sites play an important role in plant diversity maintenance and facilitate forest regeneration in degraded areas

The Global Research Neglect of Unassisted Smoking Cessation: Causes and Consequences

Simon Chapman and Ross MacKenzie review the evidence and argue that health promotion messages should emphasize that the most successful method used by most ex-smokers is unassisted cessation