Master Metaphors and Double-Coding in the Encounters of Religion and State

That term “existential encounter” is meant to convey several important ideas. First, it suggests that what is at stake here is not merely a set of legal doctrines or policy prescriptions, but something deeper and more constitutive. The sovereign nation-state, in some sense, looks out at the world around it and sees other entities that do not easily fit into its own internal sovereign architecture. Some of these are other nation-states. Some might be other types of essentially secular, but non-state, human associations. And others are, or should be, communities—large and small, organized or not, united or splintered—whose normative commitment is to a transcendent source of meaning and obligation. In all these cases, the sovereign state must step outside a purely internal frame and try to make sense of the existential Other. Second, though we can try to articulate purposes and justifications for the legal structures arising out of this encounter, they are not at the end of the day reducible to purposes and justifications. On this score, it is useful to compare the existential encounter to the sort of I-Thou relationship described by Martin Buber. That is to say, it is a meeting of selves before it is an analysis of normative structures. Third, the encounter between church and state, though this piece is not actually required by Buber’s description of the I-Thou relationship, is powerfully two-sided. Just as the state needs to make sense of the religious nomos and decide how to understand the boundaries of competence and deference between the two realms, religious communities need to make sense of the state and decide to what extent its claims can be accommodated within what might otherwise seem the absolute and cosmic claims of divine governorship. Fourth, while these master metaphors of jurisdiction, sovereignty, and dialogical encounter are by some lights jurisprudentially radical, their practical normative payoff is—at least in the abstract—more complicated and open-ended. Religious traditions can recognize the legitimacy and authority of the state without necessarily subordinating themselves to it in all cases. And, the state can acknowledge the claims of religious communities without necessarily deferring to them

Whereof One Cannot Speak: Legal Diversity and the Limits of a Restatement of Conflict of Laws

Symposium: Preparing for the Next Century-A New Restatement of Conflicts

Vested Rights, Vestedness, and Choice of Law

The choice of law revolution is under attack. In a familiar pattern, once-new critiques have become old verities, and are now themselves ripe for dethronement. This Article is one piece of that revisionist campaign. It differs from some of the rest of the genre, however, in both focus and intent. To my mind, the vested rights tradition in whose overthrow the current orthodoxy was born combined a jurisprudential core with a set of further premises and details. The American choice of law revolution attacked the core and the additional premises and the additional details. The reassessment now beginning to stir has on the whole taken the critique of the core for granted, while attempting to revivify some of the rest. My own strategy, by contrast, will be to concede most of the periphery and to work at tightening, explaining, and justifying the core

Ironies in the City: Reflections on Steven Smith\u27s Pagans and Christians in the City

(Excerpt) Nevertheless, some deep ironies and puzzles run through the text of Pagans and Christians. Smith is too careful and subtle to ignore these undercurrents entirely. But it will be worth bringing them to the surface, not only for their own sake but because they might help suggest an alternative to Smith’s most rough-edged claims. My aim in this essay is not merely to nitpick. Any work as magisterial as Smith’s book will generalize and elide along the way. But I do hope by the accumulation of details to suggest a fundamental worry that goes to the most charged words and phrases at the heart of the book’s title— “pagans” and “culture wars.

The Maps of Sovereignty: A Meditation

A few years ago, some students at my school formed a group to discuss Native American issues. One of their posters featured a multiple-choice question. I do not recall the exact words of either the question or the answers, but a paraphrase will do. The question was, how many sovereign governments are there in the United States? The first answer was one. The second answer was fifty-one. The third answer was fifty-two or fifty-three or thereabouts, adding Puerto Rico and such to the list. The fourth answer–the right answer–was a number in the high three digits, or fifty-some plus the number of American Indian tribes. The point was that Indian tribes, the first occupants of this land, must be included in the tally of sovereign governments that now share jurisdiction in that land

Whereof One Cannot Speak: Legal Diversity and the Limits of a Restatement of Conflict of Laws

Symposium: Preparing for the Next Century-A New Restatement of Conflicts

Pluralities of Justice, Modalities of Peace: The Role of Law(s) in a Palestinian-Israeli Accommodation

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A Tale of Two Clauses: Search and Seizure, Establishment of Religion, and Constitutional Reason

This Article dissects two developments in widely separate areas of American constitutional law—the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause. These two stories might seem worlds apart, and they have not previously been systematically examined together. Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise. These three phenomena occur in other contexts, too, but they appear with special clarity and a stark cumulative force in the two stories on which this Article focuses. The most evident of these three common threads is a shallow and distracting focus on psychological reactions and affects. Another is the doomed effort, apparent in both contexts, to ground legal values in empirical facts—an effort found in other current legal strategies such as “original public meaning originalism.” The third is the failure to see that legal techniques that can make sense to solve hard cases at the edges of doctrinal categories must sometimes be distinct from the deeper principles that motivate and shape the categories themselves. This Article examines the doctrinal development of both the “reasonable expectation of privacy” and “endorsement” tests. It also contemplates their possible fates as each comes under increasing practical and conceptual pressures. At the end of the day, the Article is, in some respects, a plea for at least a certain sort of legal formalism—not the illusory axiomatic, determinate, legal formalism that was the straw man of legal realists, but a more modest, yet self-confident, formalism that understands law’s distinctive role, in concert with other normative languages, in both framing and shaping the world in which we live

The Nagging in Our Ears and Original Public Meaning

The debate over how to understand the meaning of legal texts once pitted intentionalism against a variety of other views united by the conviction that a legal enactment takes on a meaning not reducible to anybody’s mental state. Both these approaches are supported by powerful intuitions. This Article does not try to referee between them. Instead, it takes aim at a third set of views— theories of “original public meaning”—that in recent decades has upended the traditional debate and has now become gospel for the new majority on the United States Supreme Court