February 04, 2014
What has changed over 10 years? What hasn't?
Ten years ago, when I was asked about joining a blog dedicated to Catholic legal theory, I confess that I wasn’t entirely sure what a blog was. And while I had some ideas about Catholic legal theory, even those were a bit murky. I’ve learned a lot about both in the past decade thanks to the merry band of bloggers and readers who have gathered here regularly.
Today I spend a lot more time thinking about Catholic legal education than Catholic legal theory. Ten years ago may seem like it was a high-water mark for law schools’ interest in Catholic legal theory – lots of well-attended conferences, new journals sprouting up, two new Catholic law schools that were intentional about building mission-centered programs, faculty hiring at several schools that suggested a high value on Catholic legal scholarship, etc. This burst of activity has plateaued over the past several years, but I do not think it represents diminished interest in Catholic legal theory as much as a recognition that legal education in general is in a period of profound challenge and change. The pressures that Catholic legal theory faces today in terms of maintaining traction and momentum in the U.S. legal academy are more about the pressures that U.S. legal education faces in general. Three come to mind.
1. It’s all about employment. Law schools have always cared about their graduates’ employment outcomes, but greater transparency and more granular data have now increased pressure to marshal all the assets of the law school in an effort to improve employment prospects. This often affects faculty hiring and the priorities of existing faculty. Teaching and writing in areas where there are jobs have become more of a focus. Hiring the candidate who wants to write on subsidiarity (e.g., me) may not be as attractive in the current environment.
2. Marketing Catholic identity to prospective law school applicants is insufficient, standing alone, to draw students. To be clear, Catholic identity is still a strong draw for some applicants, but they also need to know how that identity enhances their professional preparation.
3. Tighter budgets mean less money for travel, conferences, and journals.
These pressures are not necessarily bad things; they simply require Catholic law schools – and faculty at non-Catholic law schools who teach and write about Catholic legal theory – to be more intentional and creative in showing students (and administrators) why they should care about our shared project.
It will be fascinating to watch how this unfolds over the next ten years. A few very tentative predictions:
1. Faculty scholarship, including scholarship related to Catholic legal theory, will become more student-centered. Teaming up with interested students to work on research, including students in advocacy projects that flow out of research, and articulating the impact of research will become more prevalent. I know that all of this already happens at law schools, but I think the trend will accelerate. (Most) law schools cannot afford to devote significant resources to activities that are not noticed or appreciated by students. It is possible to include students more proactively in the Catholic legal theory project, and we will work on finding new ways to do so over the coming years. (At St. Thomas, our Murphy Institute for Catholic Thought, Law, and Public Policy has been doing a great job on this front.)
2. Catholic legal education will become more international. Catholic identity remains a strong draw in other parts of the world, especially Latin America.
3. There will be much more focus on whole-person formation. With the rise of MOOCs and more “accessible” methods of legal education, there will be a powerful story to tell about the distinction between formation and information transfer. Catholic legal education needs to lead on formation.
While there will be changes, the core of the Catholic legal theory project will, I hope, remain centered on the same question – what is the nature of the human person, and what does that mean for law? It is a conversation that we are privileged to engage, and I appreciate Rick’s stewardship of this unique venue over the past decade.
October 31, 2013
Law and the BibleI highly recommend the hot-off-the-presses Law and the Bible: Justice, Mercy and Legal Institutions. Edited by Bob Cochran and David VanDrunen, each chapter is coauthored by a legal scholar and biblical scholar. On the law side, participants include Bill Brewbaker, Daivd Skeel, Roger Alford, Barb Armacost, Randy Beck, David Smolin, Bob Cochran, John Nagle, and Joel Nichols. The book is worth the purchase price simply for the privilege of reading Bob Cochran and (the late) Dallas Willard reflect on Jesus and the civil law. This is an example of Christian legal scholarship that should spark many helpful conversations within and outside the academy.
October 26, 2013
Polyamory and self-denial
More often than not, non-monogamy leads to the demise of relationships, said Karen Ruskin, a Boston-area psychotherapist with more than two decades of experience in couples counseling. Instead of focusing on the primary relationship, partners are turning to others for fulfillment.
"Even if non-monogamy is consensual, it's still a distraction from dealing with each other," said Ruskin, author of "Dr. Karen's Marriage Manual."
"It all goes back to choice. Non-monogamy is choosing to be with someone else instead of being attentive to your spouse when the relationship is troubled."
One key will be whether there is still traction in society for the idea that self-denial (or at least self-discipline) can be essential to personal growth, moral accountability, and long-term fulfillment. Polyamory, as I understand its portrayal, is attractive because monogamy is hard. Exclusive and total self-giving to one person may be under strain in our modern practice of marriage, but it is at least still discernible in the concept. For polyamory to take hold as a legitimate alternative, we will take another (large) step back from the idea that self-denial in the structuring of our intimate relationships is ever a worthwhile aspiration.
In our society's emerging acceptance of same-sex relationships, I don't think that self-denial as a legitimate and relevant aspiration was rejected categorically, but its specific implication -- celibacy for gays and lesbians -- was deemed too costly. It's much more difficult for polyamorists to make the same claim about monogamy.
This doesn't mean that the legal treatment of polaymory will be different -- i.e., will courts or legislatures just choose a Lawrence-like shrug of the shoulders when faced with normative questions regarding the structure of consensual intimate relationships? -- but I think the arguments for distinction are available, and I think the path toward social acceptance will be slower.
June 29, 2013
Final HHS ruleThe final rule re the HHS contraception mandate has been issued. Here is the HHS press release. The bishops are withholding judgment for now.
NYT publishes nuanced review of George
In case you missed it, the New York Times ran a fairly positive review by Kay Hymowitz of Robby George's "Conscience and Its Enemies." An excerpt regarding Robby's opposition to same-sex marriage:
To chalk this up to homophobia is to miss something crucial; George is relying on philosophical ideas that predate the modern concept of sexual identity and that lead him to reject all extramarital — and even some kinds of marital — sex. The more pertinent philosophical objection is that his reasoning about the nature of marriage, however well pedigreed, is so far removed from most people’s lived experience that it will be inconsistent with their intuitions about the human good. George might counter that contemporary liberal secularists have no coherent philosophy of marriage, reasoned or intuited. About that, he is almost certainly right.
June 06, 2013
AALS call for papers
Section on Law and Religion Call for Papers for January 2014 AALS Annual Meeting Program:
“Cooperating With Evil, Complicity with Sin”
From Alan Brownstein and Joel Nichols, Program Chairs for AALS Section on Law and Religion:
The AALS Section on Law and Religion invites the submission of papers or abstracts (no more than 5 pages) for the purpose of selecting one or two speakers for a panel at the Section’s program at the January 2014 AALS annual meeting in New York. The program is scheduled for Saturday, Jan. 4, 2014, from 2:00-3:45. Other invited speakers will also be on the panel. The program description follows:
What does it mean for religious believers and groups to refrain from “cooperating with evil?" When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby "complicit" with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients.
Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation. This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law.
Submission Deadline and Procedures: Deadline is August 15, 2013. Abstracts should be submitted by email to Joel Nichols, Univ of St. Thomas (MN) School of Law, firstname.lastname@example.org
Proposal Requirements: An abstract of not more than five pages, or a completed paper.
Presentation and Publication: Any speaker chosen from this call will be expected to produce an original substantial paper, or to have already produced a substantial paper, a draft of which will be available to be posted on the AALS web site prior to the annual meeting and that will be published in the University of St. Thomas Law Journal (MN) during the 2013-14 academic year.
Selection and Eligibility: Selection will be by blind review. Under AALS rules, only full-time faculty members of AALS member law schools are eligible. Faculty at fee-paid law schools; foreign, visiting, and adjunct faculty members; graduate students; fellows; and non-law-school faculty are not eligible. AALS rules require any speaker to pay the annual meeting registration fee and travel expenses.
April 15, 2013
Why the "Nazi essay" teacher was wrong (and why he wasn't)I've been a little uncomfortable with the uproar against the Albany teacher who assigned his students to write a persuasive essay from the Nazi perspective that Jews are evil. Yes, given our history, the particular conclusion assigned was bound to shed more heat than light no matter how noble the teacher's intentions were, with foreseeable harm to members of the community. And more broadly, any such assignment is very problematic if not done in a context where the objectives were obvious and there were an entire series of projects through which the students were asked to assume counterintuitive positions. I also have doubts as to whether such an assignment could be pulled off smoothly with such a young age group. However, I also agree with Ken Kersh's point that simply asking students to adopt a moral conclusion:
deprives students of a deep understanding of how it is that people can actually hold those views, and still go to church and sleep well at night -- to understand themselves to be doing the right thing. Besides making students shallower people where it comes to understanding history and political and social thought, it make them shallower in the understanding of themselves: only by seeing how odious and unjust ideas issue from sophisticated and powerful logics (typically in conjunction with intense emotions), can they begin to feel the necessity of continually examining themselves, asking how in their own time and place they might be following similar logics and scripts, both time-tested and new. Learning how others think –- including badly -- is a critical part of learning to think effectively themselves.
When I teach our Foundations of Justice course, I ask students to argue both sides of the abortion issue -- not because I want them to conclude that moral truth is in the eye of the beholder, but because I believe that they will be better advocates when they have put themselves in the shoes of those who oppose their views. Now assigning to high schoolers a proposition that demonizes a religious minority is a much different notion than a case law-driven exercise in advocacy for law students, and so I agree with those who question the high school teacher's prudence in selecting that particular topic, but I'm leery of any emerging tendency to equate categorically the assigned content with the pedagogical objective.
March 26, 2013
What is wrongful discrimination?
I've tried to dial back our society's emerging presumption that "discrimination" is always bad, as have others (including Rick). Re'em Segev has a new paper offering a working definition of "wrongful discrimination" that might shed more light than heat:
Discrimination is a central moral and legal concept. However, it is also a contested one. Particularly, accounts of the wrongness of discrimination often rely on controversial and particular assumptions. In this paper, I argue that a theory of discrimination that relies on premises that are general (rather than unique to the concept of discrimination) and widely accepted provides a plausible (exhaustive) account of the concept of wrongful discrimination. According to the combined theory, wrongful discrimination consists of allocating a benefit that is not supported by a morally significant fact (a valid reason), or in a way that involves distributive injustice, or both.
Roberts on Berry on SSM
As the Supreme Court takes up the marriage question, Christopher Roberts offers an interesting reflection on Wendell Berry's recent reversal on the question:
Berry’s talk does not hold together either in its logical implications or with the vast majority of his prior work, yet it makes some rhetorical sense if he is merely distancing himself from bigotry. But if so, he protests too much. His speech concludes with some lovely and mystical words about the interconnectivity of all creation, and it’s clear that he imagines himself on the side of the gentle and good. But as his own substantial earlier work demonstrates, and as should have been obvious to a man of his public experience, not every commitment to traditional marriage is irrational and poisonous. Berry’s philosophical shortcuts in this talk are not benign.
The nones' retention problem
Michael Gerson offers more statistics about Americans' declining attachment to institutional religion. One statistic had escaped my attention previously:
According to Pew, 74 percent of the nones grew up in a religious tradition of some sort. Yet while conversion has increased the ranks of the nones, retention is not particularly good. Protestantism, for example, loses about 20 percent of those raised Protestants. Of those raised unaffiliated, 40 percent fall away from the non-faith and rebel toward religion, making for a new generation of awkward Thanksgivings.