Friday, August 24, 2007

Laycock vs. Hamilton

This is probably the most scathing book review I've ever seen:

Douglas Laycock*

Reviewing God vs. the Gavel: Religion and the Rule of Law. By Marci A. Hamilton.

* * *

The legal claim in God vs. the Gavel is that only legislatures may decide,
and that judges may not. The legislature must enact specific rules for religious exemptions; it may not enact religious exemptions under a generally applicable standard to be interpreted by judges. Professor Marci Hamilton briefly argues for this claim in Chapter Ten.

The rest of the book is a poorly executed rant -- disorganized, selfcontradictory, and riddled with errors. Chapters One through Nine make a much broader legal claim that is quietly abandoned in Chapter Ten. Chapter Ten suggests that her position may not be as extreme as it often sounds, but this appearance of moderation is too little, too late, to save a dreadful book. Elsewhere I have praised Hamilton’s judgment, but this time there is nothing good to say.
After dissecting Hamilton's argument, and discussing numerous basic factual errors, Laycock concludes with this:
Legal scholars may be advocates, and they may reach out to nonscholarly audiences, but every scholar has a minimum obligation of factual accuracy and intellectual honesty. God vs. the Gavel does not come close to meeting either standard. Nor does it offer a sustained argument for its legal claim about the institutional competence of courts and legislatures. Its many footnotes offer the patina of scholarship, but there is no substance of scholarship. This book is unworthy of the Cambridge University Press and the Benjamin N. Cardozo School of Law.
Whew. Hamilton briefly responds here, and then Laycock has a rejoinder here. I think Laycock pretty clearly gets the best of the exchange.

I also found interesting what Laycock says about why courts are better than legislatures in their ability to investigate facts (contrary to what Hamilton and many other people assume):
Each side is guaranteed a fair and equal opportunity to present its evidence and arguments. Litigants may invoke the judicial process as of right; unlike legislators, judges cannot simply ignore questions presented to them. Because each side has an advocate to marshal its case, it is far more likely that a judge will hear the most important evidence than that a Congressional committee will. Witnesses can be effectively cross-examined, which is rare in legislative hearings. Judges are overworked just as legislators are, but in an important case presenting a serious constitutional question, judges can usually commit substantial blocks of time. Judges do not wander on and off the bench while hearings continue in their absence. All judicial proceedings are on the record, and ex parte contacts are forbidden. When a judge makes up her mind because a campaign contributor talks to her before the hearing begins, it is corruption; when a legislator does the same thing, it is business as usual.

(Hat tip: First Things.)


Blogger Chris said...

Well, at least she won Boerne.

12:48 PM  

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