Our Divine Constitution

I am pleased to announce the publication of Our Divine Constitution, 44 Loy. U. Chi. L.J. 1201 (2013). An abstract is below (I realized that I never actually wrote an abstract for this piece, so I whipped this up in the last 20 minutes).

The presumption that God is omnibenevolent—inherently just, wise, kind, and merciful—is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoke of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself. In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.

As always, I'd love you feedback.

Publication Announcement

I'm pleased to announce my paper, Sticky Slopes, has been accepted for publication in Volume 101 of the California Law Review (forthcoming 2013).

Publication Announcement

David Schraub, Comment, The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement, 77 U. Chi. L. Rev. __ (forthcoming 2010).

Sticky Slopes Draft Posted

You can download the full text of the draft at my SSRN page. Below is the abstract:

Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through social exhaustion at grappling with the problem of inequality to seemingly little effect. I argue that attentiveness to sticky slopes is important for two reasons. First, awareness of the prospect of a sticky slope can be important in long term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision.

I'll be presenting this paper at the 2010 Law and Society Conference this May, in a panel entitled "Social Change in Unexpected Ways". The discussant is scheduled to be Gerald Rosenberg, Lecturer in Law and Associate Professor of Political Science at the University of Chicago, and author of The Hollow Hope: Can Courts Bring About Social Change? Any comments you have are greatly appreciated. And I might note, in blogging solidarity, that this paper originally was a blog post I wrote back in May of 2008.

Oh By The Way

I probably should have mentioned this earlier, but oh well.

Next year, when I (finally!) enter law school, I will be doing so at the lovely University of Chicago.

If you're in town, please stop by and say hi as I finally lose my amateur status.

Don't Take The Bait

On the recent Medellin decision, Orin Kerr: "I predict at least a handful of student case comment titles in 2009 that will try to make use of the similarities between the defedant's name and the word "meddling." (For example, "Meddling With the Treaty Power in Medellin," etc.).

He's right, of course, but for the love of God, do not do this. Just. Don't.

David's J.L. & Cool Stuff (Vol. 4)

Adeno Addis, The Concept of Critical Mass in Legal Discourse, 29 Cardozo L. Rev. 97 (2007)

Darryl K. Brown, Democracy and Decriminalization, 86 Tex. L. Rev 223 (2007)

Brent T. White, Say You're Sorry: Court-Ordered Apologies as a Civil Rights Remedy, 91 Cornell L. Rev 1261 (2006)

David's J.L. & Cool Stuff (Vol. 3)

It's been awhile, but thanks to Concurring Opinion's "law review table of contents" project, finding neat articles is easier than ever!

Dan Ortiz, Nice Legal Studies (draft paper).

Katherine Y. Barnes, Is Affirmative Action Responsible for the Achievement Gap Between Black and White Law Students?, 101 Nw. U. L. Rev. 1759 (2007)

And of course....

David Schraub, When Separation Doesn't Work: The Religion Clause as an Anti-Subordination Principle, 5 Dartmouth L. Rev. 145 (2007) [note the pagination is wrong in the PDF].

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Volume Two

Volume One