Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘live in person’

Elena Kagan on “taking big questions and making them small”

On Sept. 12 Justice Elena Kagan spoke at Hannah Senesh Community Day School in Brooklyn, interviewed by journalist Dahlia Lithwick. Steven Mazie, Supreme Court correspondent for The Economist, covered the speech on Twitter and a print account by Rob Abruzzese at the Brooklyn Daily Eagle confirms the same general points. From Mazie’s account, slightly edited for readability:

KAGAN: People viewing the judiciary as legitimate is part of the “marvel” of the third branch of government.

But that’s fragile. People can lose that faith in “unelected, pretty old” justices. If we lose that, we’re losing something incredibly important to American constitutional democracy.

This is a dangerous time for the court, because people see us as an extension of the political process. “It’s dangerous if in big cases, divisions follow ineluctably from political decisions.”

You have to try as hard as you can to find ways to avoid 5-4 decisions “by taking big questions and making them small.” Recently, we’ve had good practice in that. During 8-member court, we had to try hard to avoid 4-4s and find consensus. Sometimes it had a ridiculous air to it, “since we left the big thing that had to be decided out there.”

We kept on talking until we achieved consensus, and CJ Roberts gets huge credit for that.

I cited this passage Monday at Cato’s Constitution Day as going far to explain several cases this past term in which Kagan took an important role, including Masterpiece Cakeshop (where she and Justice Stephen Breyer joined conservatives in deciding the case on different grounds than those most strenuously contested), Lucia v. SEC (in which she wrote for the court to decide a structural question on administrative law judges narrowly while sidestepping contentious issues of separation of powers and presidential authority) and above all in the partisan gerrymandering cases (decided unanimously without addressing the principal merits, and with a Kagan-authored concurrence on behalf of the four liberals).

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September 12 roundup

  • Peer-to-peer car sharing platforms could reduce the costs of car usage, unless elements of rental car industry manage to strangle it through regulation [Jonathan M. Gitlin, ArsTechnica on Illinois Gov. Rauner’s veto of a bill to cripple startups] Are we headed toward a legal requirement that cars be designed to sense that a driver has high blood alcohol and not function then? Does it matter whether the car is self-driving? [Nicole Gelinas]
  • “11th Circuit rages against ‘incomprehensible’ shotgun complaint, concludes lawyer’s intent was delay” [ABA Journal]
  • Quackery and bluster define the lawsuit filed by NY, MD, NJ, and CT attorneys general against Congress’s curtailment of state and local tax (SALT) deduction [Reilly Stephens; more, Howard Gleckman, Tax Policy Center]
  • “Conservative/Libertarian Faculty Candidates Are Hired By Law Schools Ranked 12-13 Spots Lower Than Equally-Credentialed Liberal Applicants” [James Cleith Phillips via Paul Caron/TaxProf]
  • Coming next week: I’m set to host and moderate a Sept. 20 forum at Cato in D.C. on the Indian Child Welfare Act. Featured are three lawyers who have been involved in high-profile ICWA litigation, Timothy Sandefur of the Goldwater Institute, Matthew McGill of Gibson Dunn, and Charles Rothfeld of Mayer Brown and Yale Law School [details and registration; event not livestreamed, but video to be posted later]
  • And now for something completely different: “Charles Evans Hughes and Chevron Deference” [Gerard Magliocca]

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Cato adoption conference now online

More kids find homes when government doesn’t stand in the way: videos are now online from Thursday’s successful Cato adoption conference. They include a first panel on discrimination law and religious agencies:

A keynote address on international adoption by Harvard law Prof. Elizabeth Bartholet:

And a final panel on policy obstacles to adoption.


I figure in all three sessions, in the first as introducer/panelist and in the other two as moderator.

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U.S. House moves to side with religious agencies in adoption debate

Three years ago I took a critical view of the trend in many states and cities toward excluding from publicly funded adoptive placement of kids in public care relatively conservative religious agencies that decline to handle placements to families outside their belief group, to non-traditional families such as same-sex couples and single parents, or both. In recent years the ACLU and like-minded groups have stepped up the pressure with lawsuits in states like Michigan aimed at excluding these groups from access to public money unless they take all kinds of families.

Now a bill called the Child Welfare Provider Inclusion Act (H.R. 1881/S.B. 811), passed by the House of Representatives as a rider on the pending Labor/HHS appropriations bill, would prohibit states from taking adverse action against foster care and adoption agencies on the grounds that they refuse to engage in referrals, placements or other services that conflict with their religious or moral convictions. States found to have violated the rule would be subject to loss of 15 percent of their federal child welfare funding. The rule broadly prohibits “discriminating or taking an adverse action against” agencies and would give agencies broad legal remedies including attorneys’ fees.

I haven’t had a chance yet to review all the details of the bill, which in any case would need approval of the Senate and President before becoming law. The Ethics and Religious Liberty Commission of the Southern Baptist Convention (ERLC) and U.S. Conference of Catholic Bishops have papers in favor of the measure and Human Rights Campaign against.

In the mean time a well reported, balanced piece by Gillian Friedman on the controversy mentions tomorrow’s (Thursday’s) Cato conference in D.C. on adoption policy [Deseret News; more/related, Bobby Ross, Jr., Religion News Service in March] The panel on this subject leads off the conference, and includes Assistant Professor Stephanie Barclay of the J. Reuben Clarke School of Law at Brigham Young University; Sarah Warbelow, Legal Director at the Human Rights Campaign; Prof. Robin Fretwell Wilson of the University of Illinois College of Law; and me.

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Save the date: adoption and foster care conference at Cato July 19

Details and registration here:

Panelists include Walter Olson, Senior Fellow, Cato Institute, Robert A. Levy Center for Constitutional Studies; Stephanie Barclay, Assistant Professor, J. Reuben Clarke School of Law, Brigham Young University; formerly Legal Counsel, Becket Fund for Religious Liberty; Sarah Warbelow, Legal Director, Human Rights Campaign; Robin Fretwell Wilson, Roger and Stephany Joslin Professor of Law, University of Illinois College of Law; Elizabeth Bartholet, Morris Wasserstein Public Interest Professor of Law, Harvard Law School; Faculty Director, Child Advocacy Program; Margaret Brinig, Fritz Duda Family Chair in Law, Notre Dame School of Law; Mark Montgomery, Professor of Enterprise and Leadership, Grinnell College; coauthor, Saving International Adoption: An Argument from Economics and Personal Experience; Irene Powell, Professor of Economics, Grinnell College; coauthor, Saving International Adoption: An Argument from Economics and Personal Experience; and Ryan Hanlon, Vice President of Education, Research, and Constituent Services, National Council for Adoption.

America has developed its own decentralized and pluralist approach to adoption, with a wide variety of both private and public actors helping match children with the families they need along several paths: adoption of older children in public care, including the foster-to-adopt path; adoption of newborns; and international adoption. But services for children in public care have been swept up in controversy over what if any role is appropriate for religious and other agencies that decline to work with gay parents or that give preference to cobelievers. The rate of international adoption, once hailed as a success, has plunged in recent years. Meanwhile, the domestic foster care system has long been beset by policy challenges.

How can government policy best avoid placing obstacles in the way of finding permanent homes for children? Are there ways to respond to legitimate concerns about international adoption, such as official corruption, that do not simply close down that process? What is the role of pluralism, and can groups with differing objectives and fundamental premises work side by side?

Cato’s half-day conference, featuring keynote speaker Elizabeth Bartholet, a Harvard law professor and noted adoption expert, will air a variety of informed views. Topics will include the conflict between LGBT advocates and some conservative religious agencies over the latter’s participation in state child placement systems; sources and possible solutions of the crisis in international adoption; and the proper role and practical effect of birth mother choice.

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Save the date, Feb. 8: Lenore Skenazy speaking on the sex offender registry

Coming to Cato in Washington, D.C. noon Feb. 8, register or watch online:

You May Be a Sex Offender if…

Featuring Lenore Skenazy, Author and columnist, founder of Free-Range Kids; with comments by Dara Lind, Senior Reporter, Vox; moderated by Walter Olson, Senior Fellow, Cato Institute.

In 1994, responding to a terrible murder, Congress passed a law requiring all 50 states to set up sex offender registries. Now many states closely control where and with whom persons on the registries may live, while public maps showing offenders’ places of residence lead to social shunning and occasional harassment. They also scare parents from letting their children play outside.

But does the registry make kids any safer? Lenore Skenazy, the New York newspaper columnist famous for letting her 9-year-old son ride the subway alone and founding the “anti-helicopter parenting” movement, has found that offender maps have helped shape public perceptions of a society rife with child-snatching. That led her to other questions: Who gets on the list? Could you, or someone you love, wind up on the list? How about getting off it?

Lenore Skenazy has spoken around the world on the costs of irrational fears of risk to young people and is the president of the new nonprofit dedicated to overthrowing overprotection, Let Grow. Commenting on her remarks will be Vox senior reporter Dara Lind, who has written on how the registry system fits into the wider scheme of criminal justice sanctions and how it may affect recidivism.

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Emily Yoffe at Cato Dec. 5

Mark your calendar for the afternoon of December 5, when I’m delighted to be hosting and moderating acclaimed writer Emily Yoffe, author of the recent blockbuster Atlantic series (parts one, two, three, earlier coverage here and here) on the problems with campus sex-misconduct tribunals. Washington Post columnist Ruth Marcus will offer commentary. Be there or plan to watch online (register).

Yoffe, whose earlier adventures include a seven-year stint writing the popular Slate advice column “Dear Prudence,” was recently interviewed about her work by Robby Soave for Reason. And relatedly on campus conduct, KC Johnson and Stuart Taylor Jr. report in a new Weekly Standard piece that federally mandated Title IX training mangles forensic principles and steers campus administrators to findings of “guilty.”

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Watch: videos from Cato conference, The Future of the First Amendment

Watch: videos now online from last month’s Cato conference, The Future of the First Amendment. I talk religious freedom on a panel with Robin Fretwell Wilson of the University of Illinois Law School and John M. Barry, author of Roger Williams and the Creation of the American Soul:

Eugene Volokh gives a keynote speech on the “revolution in remedies” that is changing libel and privacy law, which “ties in with technological change” in the nature of media, over a period in which there has been virtually no change in the substantive doctrine of libel:

Other panels include a discussion of the remarkable findings of a new Cato poll on free speech and presentations on a diverse array of other topics including European regulation of online media, commercial speech, and campaign finance.

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