Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, December 20, 2021

Some Holiday Reading

I have been a bit remiss on blogging about Volume 21, Issue 2 of the Journal of Appellate Practice & Process.  Honestly, it has been a busy semester.  But, this issue is important, so I thought I would highlight a few articles in case folks have extra time to read during the holidays. As just a reminder, Volume 21, Issue 2 addresses the thorny issue of what judges and lawyers can do ameliorate the divisions in our country. I have previously blogged on the prefaces and on articles by Chief Justice JoAnn B. Jayne, Lance B. Wickman, Erwin Chemerinsky, and Therese M. Stewart.

Today I am going to blog on two additional articles.  The first is by Prof. Michael S. Greve. Prof. Greve tackles the question of "what judges might be able to do as judges" to "ameliorat[e] the bitter contentions and partisan polarization that afflict our politics." Prof. Greve argues that judges "should strive to remain an institutional haven from a turbulent, divisive politics." They can do this, he explains, by adopting a more minimalist role--by focusing on a dispute resolution model over a law declaration model. Prof. Greve gives a few examples of where the Court can start this transition, including the difficult question of standing.  As Prof. Greve explains, 

Dispute resolution will sharply circumscribe the universe of plaintiffs who may invoke the power of federal courts, the nature of their claims, and the nature and the scope of the available remedies. The claims must be claims of right; they must be the plaintiffs’, not some third parties’; and the remedies must be limited to the plaintiffs and their particularized claims.

Prof. Greve's article is especially timely as we unpack the report from President Biden's Supreme Court Commission. 

The second article that I want to highlight was co-authored by Prof. Thomas C. Berg and Prof. Alan Brownstein.  The unique approach of the article is explained in the first paragraph:

This essay is a collaborative effort to engage in a dialogue on church‒state issues that are often hotly debated in our society. Each of us has strongly held positions on the disputes we discuss. Our purpose here, however, is not to present our own views as forcefully as we can. Instead, our goal is to move away from the bitter polarization and demonization that characterizes so much of the arguments about law and religion today. We are searching for ways to discuss and resolve difficult church‒state issues that may reduce acrimony and divisions within our society, foster bridge building among divergent communities, identify common ground, and pro-vide opportunities for compromise.

What better way to find solutions than to bring people together to reasonably discuss the issues.  And reasonably discuss is exactly what Prof. Berg and Prof. Brownstein do. Together in a point/counterpoint format they address some of the thorniest First Amendment issues, including public funding for religious institutions and religious exemptions to neutral laws. In the process they do find areas of agreement, and areas where they will not agree.  Prof. Brownstein also shares a fascinating personal story about prayer in public school (see footnote 89). But, as they admonish, in addressing conflicts on religious liberties issues, "[e]ach side will have to recognize that its own claims will ultimately be stronger and more credible if it acknowledges and makes room for reciprocal claims by the other side." I have certainly found that true in practice.

We hope that our readers have a safe and relaxing holiday season.

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