Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Friday, July 25, 2014

Dinesh D'Souza and "Playing Notre Dame"

This Atlantic article, "Whatever Happened to Dinesh D'Souza?," is an interesting account of how D'Souza went from writing seriously intended (if debatable) conservative books on multiculturalism, education, and politics to peddling s--t about Obama's Kenyan "rage" against  America. The thesis is that D'Souza decided that trying to persuade thoughtful people on the other side wasn't worth it (didn't sell books etc.), and just started preaching to the choir. Something that could certainly be said about many smart people today, left and right,  who write stuff far below their brainpower. 

But here are my favorite sentences in the article:

Yet failing to take on the best arguments of the other side—“to play Notre Dame” in the words of Charlie Peters, editor emeritus of Washington Monthly—carries risks. D’Souza’s subsequent books and films testify to the intellectual pitfalls of ignoring the critics. His demonization of President Obama is a case in point.

They're my favorite, of course, because of the "play Notre Dame" metaphor. (Here's another example of it.) If Protestant/secular quarterbacks/intellectuals are going to take on the best on the other side, they have to mix it up with the fighting Irish. Let's remember, however, how many other Catholic schools have serious Catholic intellectuals (especially in the law schools, of course!), and also serious sports traditions--whether it's St. John's and Villanova basketball, or St. Thomas's potency across the big Division III sports.

July 25, 2014 in Berg, Thomas | Permalink

Thursday, July 24, 2014

"Intellectual Property and Religious Thought" Papers and Foreword

The papers from the St. Thomas Law symposium on "Intellectual Property and Religious Thought" have been published.  I'm confident they'll be a great resource for future reflection on this now-vital subject.  My foreword to the symposium is available on SSRN.  All of the papers are available here.  Some of the papers are also on SSRN (see this earlier post).  Here'a taste from the abstract to my foreword:

The time is ripe for wider exploration about how religious themes, practices, and communities may inform IP law and policy....

This foreword summarizes the symposium papers, which fall into three categories: "God, Ownership, and Intellectual Creation"; "Life Patents, Religion, and Social Justice"; and "IP, Religion, and Social Relationships/Obligations." Symposium contributors include IP legal scholars Margo Bagley, Shubha Ghosh, Roberta Kwall, Bashar Malkawi, Alina Ng, and David Opderbeck, and religion/ethics scholars Audrey Chapman, Marco Fioretti, Paul Griffiths, and Jeremy Stern.

The foreword concludes with brief reflections on future directions in research and practice. First, religious reflections on creativity and ownership should influence the practice of religious communities and individuals, quite apart from the content of civil law. Second, with respect to law and policy debates, religious thought may “root” themes such as social obligation, or the sense of creativity as a gift, “in a richer social imagination that gives them meaning and weight,” as David Opderbeck puts it. Finally, religion has particular relevance to issues concerning IP, trade, and development in the global South--partly because many developing nations are deeply religious, and partly because religious agencies do much of the on-the-ground humanitarian work on matters with IP ramifications such as health care and agriculture.

July 24, 2014 in Berg, Thomas | Permalink

Sunday, July 20, 2014

How the Turn Against Religious Exemptions Will Likely Set Back ENDA

In The Atlantic, Molly Ball describes how some advocates for gay rights fear that the intensifying opposition to religious exemptions among other proponents will push back the passage of the Employment Non-Discrimination Act, the major piece of gay-rights legislation in Congress. Legislation with protective accommodations remains an essential strategy for giving respect to both sides in a genuinely pluralistic society.

July 20, 2014 in Berg, Thomas | Permalink

Friday, July 18, 2014

Richard Land, "The Culture Warrior in Winter"

The National Journal profiles/interviews Richard Land, who was formerly head of the Southern Baptist ethics and policy shop in DC and a leader among social-conservative activists.  It's a very interesting exploration of Land's career and the uncertain future for conservative evangelicals in the social/political sphere.

July 18, 2014 in Berg, Thomas | Permalink

Monday, July 14, 2014

Robert Christian on Obama's Pro-Family Proposals

Robert Christian, of the Millennial blog and Democrats for Life, writes at Time of the President's policy proposals at the recent White House summit on working families:

The leaders and members of the Church are the perfect partners in this push for economic justice and stronger families. From supporting the Pregnant Workers Fairness Act to minimum wage increases to a paid family leave program, Catholics should take up the battle to provide American families with the flexibility, support and economic security they need to thrive in the 21st Century.

July 14, 2014 in Berg, Thomas | Permalink

Sunday, July 6, 2014

Fr. Snyder from Catholic Charities USA to St. Thomas

The Rev. Larry Snyder, president of Catholic Charities USA since 2005, is returning to the University of St. Thomas (one of his alma maters) to serve as vice president for mission.  This is great news for the university.  He has done admirable work at Catholic Charities, and he's contributed valuable insights (e.g. here) on how law and policy can help facilitate, and partner with, faith-based and other community organizations to serve and empower those in need.

July 6, 2014 in Berg, Thomas | Permalink

Douthat on Religious Liberty and the Social Contributions of Religious Organizations

Ross Douthat in the NY Times observes that the Hobby Lobby owners' corporate conscience has led to some good things for workers, including  a high minimum full-time wage and Sundays off. (Wait: why does Hobby Lobby get to impose its Christian beliefs on its customers who might have a need to do their shopping on Sundays?) Of course, there's a quarrel over how consistently socially responsible Hobby Lobby is. But as Douthat says, "this isn’t just a point about the company’s particular virtues"; most of it is about religious organizations that serve those in need:

The entire conflict between religious liberty and cultural liberalism has created an interesting situation in our politics: The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol.

Most of the commenters, unsurprisingly, are having none of it. But, as always ... it's the open-minded middle you have to reach. Not Times commenters.

The religious organizations that reach out beyond their church's members--and as a result are increasingly threatened with regulation conflicting with their beliefs--want "freedom to serve," in the words of the Catholic bishops' religious-freedom fortnight that just ended. Yes, there are tough issues about ensuring full participation of GLBT people, women, and others in society. But the resolution of those issues has to make room for full participation of faith-based service organizations as well.

An excerpt from my own work on "progressive arguments for religious organizational freedom," which fleshes out the same argument with supporting evidence (footnotes omitted):

[I]t is ironic and mistaken for progressives to deny or minimize religious-freedom protection for faith-based service organizations, as the original HHS exemption did. Works of justice, mercy, and service lie at the core of many religious faiths, but especially those that describe themselves as “progressive.” These works also rank among the features that progressives, religious or not, value most in religious organizations.

Continue reading

July 6, 2014 in Berg, Thomas | Permalink

Thursday, July 3, 2014

Hobby Lobby and the Apocalypse

I have a not-too-long spot on NPR's Morning Edition from today, partially making the case that Hobby Lobby will not bring about radical consequences.  On the other hand, Seth Rogen, an expert on apocalypses, thinks it will.

July 3, 2014 in Berg, Thomas | Permalink

Wednesday, July 2, 2014

More Comments on Irony and Tragedy

Marc and I are engaged in a fun (for us, at least) dialogue about the "tragic" versus "ironic" approaches to religious liberty questions and probably other legal/social disputes too.  I've described the ironic approach, in the tradition of Niebuhr's The Irony of American History, as calling for humility and self-examination even in our most strenuous arguments against opponents, because our virtue can easily transmute into vice, while self-examination may make us see commonalities with, or virtue in, our opponents.  Marc, in turn, has defended the tragic approach laid out in his fine book, on the ground that it takes more seriously the often-unbridgeable gulfs between beliefs and ways of life that contend with each other.

Marc also argues that the ironic approach reflects a certain pretense of "knowing," a "clever detachment" that stands in judgment over the parties embroiled in the conflict.  On this last point, a friend of mine who's a student and fan of Niebuhr's work sent me some thoughts that laid out ideas I had only barely expressed in my response:

[T]he ironic disposition cannot be separated from the movement of repentance in Niebuhr's work -- that is, repentance is that movement in which the self transcends itself, its past, the causes to which it has pledged allegiance and see itself and this past and these commitments under the judgement of God. This is not clever detachment. Viewing itself and its past and its commitments under the judgment of God, it is enabled to see how virtuous intentions have gone astray as well as to discern the commonalities of sin between itself and its enemy. This emphasis on repentance is consistent throughout the two volumes of [Niebuhr's major work, The] Nature and Destiny [of Man].

Now, I'm sure that some people would be suspicous that when the self "transcends itself, its past, [and] the causes to which it has pledged allegiance," it is not actually "see[ing] itself ... under the judgment of God" but is instead asserting a kind of radical autonomy. Catholic theologians accused Niebuhr of favoring the autonomous self over the moral guidance of the Christian community.  I'm definitely not an experton these things, but I tend to see that criticism of Niebuhr as overstated.  However, let's set that debate aside.  The relevant point, which my friend expresses better than I had, is that in calling for self-examination and humility, the "ironic" thinker applies--should apply--the same demand to himself.  The kind of "ironic" disposition I'm describing, then, does not claim detachment--or intellectual or moral superiority, except insofar as moments of self-examination and repentance can lead to morally better behavior.

Along the same lines: Marc used an observation from Tom Shaffer to describe the ironic thinker's detachment and perceived superior insight.  My friend restates that quote and takes the analogy in an interesting direction:

"Shaffer [Marc wrote] once described irony as 'what you might entertain if you saw two young lovers standing in a downpour and saying it’s a lovely day.' The observer smiles wryly at the scene, but he stands outside it and senses himself to hover above it. He appreciates the incapacity of the lovers to see what is obvious enough to him—he knows better than they do. It’s raining."

The self in the ironic disposition is not an observer, but one of the two young lovers, who perhaps at a later date smiles wryly at a moment of innocence that was in actuality not quite so innocent as imagined at the time. As he has since discovered that, as a young man, he was still too young to know the full meaning of loving another human being.  T
he movement of repentance does not negate responsibility for the self's obligations. In so far as he reflects upon this past moment of innocence, he does so in order to gain a greater purchase on the meaning of love and the full meaning of loving another human being. Not to negate that obligation or to be an observer who stands outside of it. 

I'm piling on with the words here (sorry Marc!), but I thought that my friend's comments were worth sharing as part of the discussion.

I wonder if "irony," in our current circumstances, bespeaks too much of Letterman or Kimmel snark.  Is there a better term to refer to the disposition I've tried to describe?

July 2, 2014 in Berg, Thomas, Books | Permalink

"RFRA Worked in Hobby Lobby; What's Next?"

I have a piece on the Berkley Center's religious-freedom blog discussing Hobby Lobby's implications and the prospects for RFRAs in the future:

Finally, what will happen to RFRA and parallel religious freedom laws in 15 states? Already one hears calls for amending[*] the federal statute—although a White House source has disclaimed any interest in doing so, and the gridlocked Congress seems unlikely to act. Opponents may try to amend other federal laws to exclude RFRA from applying to them and to amend or even repeal RFRAs in blue states. Those attempts should be resisted. In an increasingly divided society, RFRAs provides a means for protecting dissenters from serious burdens while still allowing government to accomplish its important goals. The Hobby Lobby decision is controversial, but no less so than the decision to mandate contraceptive coverage in the first place. RFRA actually guided the Court toward a decision that can protect the interests of both sides. Let’s remember that in the coming months.

Other very worthwhile reads on the blog from Stanley Carlson-Thies, Kyle Duncan, Tom Farr, Jennifer Marshall, Steve Smith, and Chip Lupu and Bob Tuttle.


[* I fixed a typo here; the blog will be corrected when it refreshes tomorrow.]


July 2, 2014 in Berg, Thomas | Permalink