Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, June 30, 2016

Catholic legal education and "no place to use" a law degree

Most readers of MoJ are aware, I trust, that law schools have encountered a bit of rough sledding over the past several years.  The New York Times recently published (yet another) feature on law school troubles, this time focusing on Valparaiso.  The story included -- along with some questionable assertions -- profiles of struggling law grads that warrant serious reflection.

One other aspect of the story that cannot go unexplored is the headline -- "An expensive law degree and no place to use it."  The suggestion that law degrees are "expensive" relative to the earning power they bring is a different story that I'll leave for the economists to sort out, though I agree that law schools need to be -- and are being -- more cognizant of cost than they were in the past.  I'm more interested in the charge that many law grads have "no place to use" their degrees.

If, as the article asserts, the market for new lawyers is "saturated" -- a proposition that is highly contingent on geography, even when it comes to traditional JD jobs -- we need to think about the assumptions we make as to who can best utilize a legal education and how.  What value do we bring, and to whom? For Catholic law schools, this is not just a matter of responding to market pressure, but of living out our mission.  As John Paul II reminded Catholic intellectuals (and as Cardinal George later reminded Catholic university professors):

You too are solidly involved in a prophetical task of forming sensitive consciences capable of saying no to death, to hatred, to violence, to terror, to error, to evil, to degradation, but saying yes to the good, to the beautiful, to truth, to justice, to responsibility, to life, to peace, to love. You must take on your responsibility consciously. Your contribution in this field is a conspicuous and precious one. The young who have contact with you . . . let all these be aided by you to enter sagely and rationally into a vision of life in human society which promotes the common good of all.

Or as John Paul II explained in Ex Corde Ecclesiae, the Catholic university “assists each of its members in achieving wholeness as human persons.”

This warrants a much larger conversation, but for purposes of a blog post, I'll emphasize three implications:

1) The mission of Catholic legal education, and the strength of the particular law school communities that can be formed by that mission, position Catholic law schools to prepare students to thrive in the relationships that will distinguish the lawyers who achieve professional success in an increasingly commodified and routinized market for legal services.  

2) Catholic law schools that integrate the analytical rigor of common law training with insights from Catholic social teaching can equip students -- especially international students -- for positions of influence that require more nuance than a categorical embrace of unfettered capitalism or socialism; and

3) Access to justice should be a rallying cry that finds fertile ground among the stakeholders of Catholic law schools, drawing support for scholarships and post-graduate fellowships aimed at addressing the need for lawyers among the poor and middle class, especially in small towns and rural areas across the country.  To the extent that the market for lawyers has been "saturated" in some areas of the country, that's because the business model does not function in a way that permits legal needs to be met.  Catholic law schools should be part of the solution.

In an increasingly regulated world that cries out for creative problem solving, there should always be a "place to use" a law degree in a way that provides a livelihood and advances the common good, and Catholic law schools should be leading the way forward.

June 30, 2016 in Vischer, Rob | Permalink

Islamic Constitutionalism

I have argued against anti-Sharia laws in the U.S., but I have steered clear of debates about Sharia as applied in Muslim-majority countries. In light of outrageous examples of how Sharia is interpreted and enforced in some areas of the world today, fears about Sharia are a leading source of anti-Muslim sentiment. To the extent that Muslims favor Sharia, it is taken as evidence of Islam’s incompatibility with the premises of the American political system. But what if today’s Sharia-based governments are themselves misguided interpretations of Muslim history – not just in terms of the law’s content, but in terms of the legal order underlying the law’s application?

Asifa Quraishi-Landes has published her lecture, Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible. She traces the “separation of legal authority in pre-modern Muslim lands that has all but disappeared today” between “siyasa, created by the rulers, and fiqh, created by the fiqh scholars.” As Muslim-majority countries emerged from colonial rule, they maintained a centralized, monistic legal order:

This colonialist mutation of legal-political systems in Muslim-majority lands has, sadly and ironically, created theocratic-leaning Muslim governments. But it is not the integration of religion and state that has caused these new Islamic theocracies. Rather, it is the integration of religion with legal monism that has created this phenomenon. . . . [W]ith independence in the twentieth century, many Muslims organized themselves into social and political organizations (often called “Islamism”) to remedy the wound of the colonialist purging of sharia in Muslim lands. But these Islamists operated with a rather stunning amnesia. Rather than looking to Islamic history for alternative arrangements of legal and political authority, they instead took the nation-state structure inherited from their European colonizers for granted, and simply concentrated their efforts on making that central state “Islamic.” . . . .

Muslim history shows that theocracy is not the inevitable result of every religious government, and secularism is not the only way to solve religious differences. For religious Muslims, it bases the legitimacy of state action directly on sharia principles. For secularists, it requires state lawmaking to be justified on something other than religious pedigree. It does this by articulating a model of government in which religious laws (fiqh) are only one of a two-part sharia-as-rule-of-law system, the other being state lawmaking based on human determinations of the public good (maslaha). This bifurcated system of law provides a way for a Muslim government to formally recognize fiqh rules without imposing them on those who do not want it.

The whole paper is worth reading.

June 30, 2016 in Vischer, Rob | Permalink

Wednesday, June 29, 2016

What is the anthropological vision of work in a world in which work is unnecessary?

I have always suspected that the movie "Wall-E" was a more accurate glimpse of the future than I care to admit -- how do we get our minds around a world in which technology has made systemic underemployment a permanent and growing reality?  An experiment in Oakland is hoping to begin providing some answers from a public policy standpoint.  For MoJ purposes, how does and should the Church engage this (apparent) social trajectory?  The Church has taught the "value of work not only because it is always something that belongs to the person but also because of its nature as something necessary." (Compendium of the Social Doctrine of the Church para. 287)  But how do we honor its necessity to human identity and meaning when it is no longer necessary to the economic functioning of society?  Our political leaders are unlikely to provide much guidance in the near term -- bringing jobs back to the U.S. by negotiating "great deals" -- is not a long-term answer.  In addition to the other grounds on which the Church has resisted certain technological innovations, should we also resist innovation that defies the commitment to work as a necessary expression of the human person's dignity?  I think the answer to that is no (or we should have been protesting long before now), but here's the unavoidable question that follows: what is the role of work in an authentic anthropology of the human person when work is no longer economically necessary for a large portion of the population?  If these questions have already been explored through the lens of Catholic intellectual tradition, I'd welcome pointers on where to find those conversations.

June 29, 2016 in Vischer, Rob | Permalink

Wednesday, June 22, 2016

Trump and the Idolatry of Safety

Yesterday Christian leaders gathered in New York at Donald Trump's behest. Aside from bizarre elements (e.g., Trump wondering whether he could bring us back to the day when attending Sunday School was "automatic"), the attraction of many Christian leaders and laity to Trump based on their understandable longing for safety in a dangerous world, particularly when the price of that safety is the abandonment of certain Christian values and principles, stands as a stark reminder that golden calves come in many forms. 

Shortly after the Orlando massacre, I noted that Trump retweeted someone's undoubtedly heartfelt message imploring the candidate to "please make us safe."  This simple retweet, to me, captures one (of many) disturbing element(s) of Trump's candidacy.  He is inhabiting the biblical role of Aaron, playing on the people's fears and anxieties and offering a golden calf for their worship -- in this case, the idol is our own safety.

Though the dangers take new forms, we have lived in a dangerous world since the Fall.  Political candidates can and should offer new ideas to address those dangers, but unrealistic promises that safety is achievable should be met with skepticism.  A candidate's promise of safety rises to the idolatrous level, in my view, when the prescribed means of guaranteeing safety require us to reject the God-inspired lens through which we are called to view the world.  Trump's statements and policy proposals regarding Muslims and Mexican immigrants, for example, are in significant tension with the Gospel's demand for solidarity and recognition of human dignity. 

I do not mean to suggest that debates about stricter immigration policies or the consideration of religion's role in terrorism are categorically beyond the pale.  The more obvious problem comes from stigmatizing groups -- as Trump frequently does -- instead of engaging ideas -- as Trump appears to avoid whenever possible.

On this front, John Inazu's important book, "Confident Pluralism," is instructive, especially chapter six.  Building on insights from Erving Goffman and Lee Bollinger, John explains why confident pluralism "rejects stigmatizing others through our speech," but does require us "to distinguish between stigmatizing and causing offense."

Trump suggests that safety is achievable if we reject "political correctness" and demonstrate the courage to do what needs to be done to root out the dangerous "others" in our midst.  It is an illusory promise of safety through a quite real imposition of stigma, and we should reject both the means and the ends.  God calls us to faithfulness, not to safety.

June 22, 2016 in Vischer, Rob | Permalink

Wednesday, September 16, 2015

Conscience claims by government officials

For those who have not grown weary of the debate over Kim Davis, I have an op-ed on the topic in today's Minneapolis Star Tribune.  I consider myself a strong supporter of the liberty of conscience, but I am troubled by her actions. Here's an excerpt:

I believe that our debates over conscience should focus on whether accommodating the claim of conscience would jeopardize access to a good or a service deemed essential (by the state) for full participation in society. Because of the importance of religious liberty and the unavoidable messiness of living in a world of moral conflict, I have objected when the state’s disregard of a provider’s claim of conscience appears to be animated by a desire to avoid potential affronts to a customer’s sense of dignity — for example, when the state penalizes a photo agency for refusing on religious grounds to shoot a same-sex wedding even though many other competent photographers are available. While I object to dignity-driven state prohibitions in the market for goods and services, an employer could legitimately decide that an employee’s conscience-driven refusal of service sends a message inconsistent with the moral claims embedded in the employer’s marketplace identity.

By the same token, the government should have some discretion to decide that its public officials must execute the full scope of the law and serve all members of the public legally entitled to a good or service. If the state of Kentucky wants to create an accommodation for Davis that still maintains full access to marriage for same-sex couples, I wouldn’t object. The problem is empowering Davis to decide on her own whether her denial of access is consistent with the public norms that the state wants to champion. If we value a vibrant moral marketplace, institutional actors, not just individual employees, must have a degree of discretion to shape their identities and messages within the marketplace. The government should have similar discretion.

September 16, 2015 in Vischer, Rob | Permalink

Tuesday, September 8, 2015

Reflections on a shared mission

Last week St. Thomas Law School's Murphy Institute co-hosted a conference with the Von Hugel Institute at St. Edmund's College of Cambridge University.  At the conference dinner, I offered brief remarks on why such partnerships are so important:

My colleagues and I are grateful for the hospitality you’ve shown us, and for the time and effort you’ve invested in helping us organize this conference on the religious and moral dimensions of questions regarding the patentability of life products and processes. It is not often I feel almost apologetic explaining that we represent a 130-year old university, but by Cambridge standards, I feel obliged to reassure you that we are really here for the long haul and are not just a flash in the pan. This collaboration between our institutions is well-suited to the test of time for reasons that warrant at least a few moments of reflection.

 

The University of St. Thomas School of Law has a mission statement that dedicates us to “the integration of faith and reason in the search for truth through a focus on morality and social justice.”  One of the many ways we try to live out that mission is through the work of the Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy.  The Murphy Institute’s work, in turn, is greatly enhanced through institutional partnerships, such as the one we are building with the Von Hugel Institute here at St. Edmund’s College at Cambridge University.  As a preface for my toast, I’d like to articulate three reasons why this partnership is so crucial to our work.

 

First, this partnership will produce a broader and richer conversation. As a gathered assembly of law professors, theologians, philosophers, practicing attorneys, and policy advocates, I hope we can agree that conversations matter; the conversation has intrinsic value that is not contingent on any particular outcome or lack thereof.  Both the Murphy and Von Hugel Institutes are committed to bringing insights from the Catholic intellectual tradition into some of our most pressing legal and policy conversations – conversations where, too often, such insights are raised only on the margins, if acknowledged at all.  By partnering, we can widen the circle of participation, expand our platform, and reach new venues.

 

Second, this partnership will produce insights of greater scholarly depth and real-world impact.  The concepts we explore – human dignity, the preferential option for the poor, the universal destination of goods, solidarity, and subsidiarity, among many others – can fruitfully be engaged by individual scholars on their own initiative.  But these concepts are sufficiently important to warrant sustained and serious engagement over generations of scholars – a quality of engagement that can best be facilitated by institutions.  By partnering, we can leverage our distinctive strengths, pool resources, and tap into new circles of expertise and influence.

 

Third, this partnership can be a source of mutual encouragement, support and even accountability as we work to stay faithful to our missions.  Higher education is not immune from the general pressure in our society to produce measurable outcomes in the most efficient way possible.  There’s nothing inherently wrong with assessment or efficiency, but we need to be careful that this narrowing focus does not allow technical questions of “how” to obscure deeper questions of “why.”  As we’ve already seen at this conference, our mission is the impetus for big questions.  What does it mean for law if all creation is a gift?  What is the nature of the human person, and why should the political community care?  Is human dignity an infinitely malleable concept, or does it have an unshakeable core that can shed light on our most intractable conflicts and confusions?  These are just a few of the questions that may fall out of favor within the surrounding academic and policy-making circles, but that we must continue to revisit if we are faithful to our founding visions.

 

Human beings have an infinite capacity to empower our insecurities to distract ourselves from the pursuit of truth.  For academics, the recurring temptation is to chase prestige.  We pursue cleverness for the sake of appearing clever. We strive to be the first to proclaim an idea, not because the idea is worth proclaiming, but because novelty can too often be invoked as a proxy for insight.  Our mission is too important to let this happen.  And so, if you raise your glasses with me, I’d like to toast the new partnership between the Murphy and Von Hugel Institutes; my hope is that the partnership will extend over many years and be marked by a collaborative, thoughtful, and bold stewardship of questions that may otherwise recede from view.

September 8, 2015 in Vischer, Rob | Permalink

Saturday, September 5, 2015

Patents on Life: the future of life-patenting

As the conference draws to a close, there was a roundtable discussion looking to the future of life-patenting:

Martin Gouldstone, Head of Lifesciences Advisory for BDO, reflected on industry concerns over gene patenting. Government funding of medical research has declined in many countries, and regulatory obstacles to approval have increased (for understandable reasons).  Estimates of the average cost of bringing a drug to market range from $800M to $1.4B and chances of any particular drug making it to market are very small. Industry is under enormous pressure to replace lost revenue as some big-revenue drugs are going off patent. Companies are beginning to pool resources on research and development and are doing swap deals where companies trade inventories to leverage strengths. Genomics revolution is also driving innovation, and it's just beginning. Challenge is keeping up with speed of technological advances. There is also real danger with the innovation --presented with a future in which 3D printing permits individuals to download and create the bubonic plague, for example, the need for strong regulation is obvious.

Dr. Thana Campos, Van Hugel Institute Research Associate, discussed the phenomenon of universities securing patents for the fruit of its research. She explored the tension between the university mission of disseminating/extending knowledge and the premises of the patent regime.  University patents boost university revenue, facilitate more transfer of technology from universities to business partners, and support further innovation and economic development. However, knowledge sharing and spillover are key paths of intellectual development in a university; this is hindered by patents. 

Dr. Calum MacKellar, Director of Research at the Scottish Council on Human Bioethics, served as facilitator, and he prompted discussion by asking whether Dr. Frankenstein should have been permitted to patent his creation.  Paul Heald pointed out that a patent doesn't give him the right to make the monster or let the monster run amok; it only empowers Dr. Frankenstein to prevent others from making his monster. The problem is not patentability.

A former patent judge asked why churches don't participate in the patent process itself, raising moral concerns as part of the process.  A bioethicist speculated that the issues are sufficiently murky morally and technically complicated that churches don't feel comfortable jumping into the process in any particular case.  A bishop in the audience observed that, at least in the U.K., people will listen to lay experts more than they will listen to bishops.  Another representative of the Church pointed out that the Church is heavily engaged at the level of principle, and he was met with a response that engagement at that level is not sufficient.

Bishop John Sherrington recognized the need for the Church to translate its usual concepts (e.g., common good) into terms that resonate more broadly in these debates. He also reminded participants of Pope Francis's admonition to recognize the real persons before us as the starting point in addressing social issues.

The conversation was robust and relevant. As MoJ's Tom Berg observed in his closing remarks, the Church's rich history of reflection on the meaning of property and economic life, its interest in rigorous and empirical argument, and its global dimension make the Church an essential partner in these conversations. 

September 5, 2015 in Vischer, Rob | Permalink

Patents on Life: the patent system, human rights, and politics

The Patents on Life conference continues:

Ingrid Schneider, professor of political science at the University of Hamburg, discussed patent governance, ethics and democracy.  She sees a legitimacy crisis because of an overexpansion in terms of size and an overreaching of traditional boundaries of patent protection.  The patent system is governed by insiders -- a specialized epistemic community with too little responsiveness to the political process and civil society.  Blurred boundaries: 1) boundary between discovery and invention (i.e., reflecting a judgment that technology should be accessible to all); and 2) the ordre public and public policy clause (i.e., reflecting a judgment that no one should have access to the technology in question).  The ordre public exclusion is designed to function as an ex ante control of the social desirability of an invention. There is a concern that the patent community (applicants, attorneys, examiners, specialist judges) exerts more influence on patent law than the legislature does. Do patent offices view applicants as customers, and if so, what does that mean for the public policies underlying our patent system? She explored the patentability of human embryonic research techniques as an example of these dynamics.

Stephen Colecchi, director of the Office of International Justice and Peace at the United States Conference of Catholic Bishops, spoke about lessons from Catholic social teaching pertaining to life patents. What is the impact of life patents on persons who live at the margins? The Church has expressed concern that technological development has not been accompanied by development of human responsibility.  He discussed resources that the American bishops bring to the debate: 1) Catholic social teaching; 2) relationships with the Church in the developing world; 3) experience on the ground working to address challenges in the developing world.  He identified four principles to guide the debate: 1) respect for rights of indigenous people; 2) careful balance of property rights and social welfare; 3) concern that commercial interests are favored over common good; and 4) need for transparency. Nevertheless, multinational corporations exert much more influence on IP than Church or other civil society organizations do. It will be critical that the Church continues to engage in a manner that compensates for the power imbalance between richer and poorer nations, and between civil society and the corporate sphere.

Justin Turner, barrister and former member of the Gene Therapy Advisory Committee, discussed the treatment of embryonic stem cells before the European Patent Office. To draw a conclusion about the morality of a patent claim, an examiner must draw on the constitutional traditions of the country as well as international treaties. One must take a broad view. Is terminating an embryo generally contrary to morality?  No -- there is no unitary principle that terminating embryonic life is immoral; we have the morning-after pill, embryos are necessarily terminated in the course of IVF, etc. Embryos do not have a right to life for purposes of patent law's morality exemption. Patent claims have been rejected but tribunals have not directly answered question of whether it is contrary to morality. He believes that religious politics are playing an important role in the patent system's treatment of the issue; his concern is that the religious objections are not vented properly in the decisions.  The legal tribunals should squarely address whether these patents would be contrary to morality.

September 5, 2015 in Vischer, Rob | Permalink

Patents on Life: shortcomings and ideas for improvement

More from the Patents on Life conference:

Dr. Julian Cockbain, a European patent lawyer and bioethics expert, compared European and American law on the patenting of human body materials. European patent law has taken a wrong turn by claiming that a discovery is not a discovery as such if it has a "technical effect" when in use -- e.g., a gene producing a protein, adrenaline producing an effect on the heart.  Also, elements isolated from the human body are patent-eligible even if they are identical to elements occurring naturally in the human body. This renders the exclusion of discoveries toothless.  American courts have been much more reasonable on this front.  Dr. Cockbain sees a potential way out for European courts because Article 52 of the EPC requires an inventive step, and discoveries do not entail an inventive step.

Dr. Katerina Sideri, an IP advisor at the Agricultural University of Athens, discussed germ line interventions as an example of patents and the moral limits of markets. Patent law's morality exclusion should address not just access and delivery, but problem of commodification.  Our understanding of morality must go beyond individual rights and autonomy. Can we find alternative ways to incentivize the development of technology? Especially in biotech, patent offices should be science/technology offices that link to broader political processes.

September 5, 2015 in Vischer, Rob | Permalink

Patents on Life: a view from the European Patent Office

Day 2 of the Patents on Life conference has begun.

Christopher Rennie-Smith, former chair of the Biotech Board of Appeal and former member of the Board of Appeal at the European Patent Office, spoke on life-form patents before the European Patent Office. There is no overall provision re patenting life forms in the European Patent Convention (EPC), and general exclusions do not include any life form, so life forms that are novel, inventive and industrially applicable are patentable. Article 53 excludes when contrary to "ordre public" or morality; and excludes plant or animal varieties or essentially biological processes for the production of plants or animals. "Morality" has been defined in case law as the belief that some behavior is right and other behavior is wrong founded on the totality of accepted norms rooted in the culture inherent in European society.  There is no definition of "animal variety" or "essentially biological process."  He discussed the case of the Harvard oncomouse, which presented the question whether Article 53 would function as a bar given the suffering of the genetically manipulated animals and possible risks to the environment posed by the release of manipulated animals. In the end, claims limited to a transgenic mouse (but not a transgenic rodent) succeeded. The method of producing the transgenic mouse was deemed not "an essentially biological process."

September 5, 2015 in Vischer, Rob | Permalink