Mirror of Justice

Are Catholic law schools wise stewards of their students' debt?

I agree with Rick that the legal profession's academic woes should not nececessarily reduce our commitment to the law as a humane discipline.  However, I do believe that all law schools -- Catholic law schools in particular, I would hope -- should use this time as an impetus to think carefully about the concept of stewardship as it applies to legal education.  It seems that Catholic law schools have largely been indistinguishable on this front, simply following the crowd in asking how much the market can bear in terms of tuition hikes, reduced teaching loads, swanky new centers, and the chase for LSAT/GPA profile rather than asking whether they are being wise stewards of their students' (not-yet-existent) financial resources.  So I applaud a school like Washington & Lee for making an effort to connect their students more directly with the work they will do as lawyers.  I am concerned about the pressure that places on other important aspects of the curriculum, especially the interdisciplinary aspects of the curriculum, but I applaud them for thinking seriously about whether the current model of legal education is in keeping with students' long-term interests. 

To be clear, I am among those chasing the crowd -- I love reduced teaching loads, swanky new centers, and a class with an impressive LSAT/GPA profile.  So I'm not exactly sure if and how law schools should look different -- after all, a higher US News ranking allows me to bask in some reflected glory is in our students' long-term employment interest -- but when we think about new expensive initiatives, we should ask whether the initiative justifies increasing our students' debt load.  One of the unfortunate results of the great rankings chase is that the students with the less rosy job prospects are subsidizing the education of the students with the rosier job prospects.  Those same students are also paying my salary.  So is it important that law students have the opportunity to learn and reflect on the insights that Rawls or Maritain have for law, politics, and citizenship?  Absolutely.  Should a Catholic law school be making "splashy" hires by letting a big name carry a three-credit-per-decade teaching load consisting only of their seminar, "Things Rawls and Maritain Might Say to Each Other if They Were in My Kitchen?"  Probably not.  Further, I'm not sure if Catholic law schools can justify relying on the market as an indicator that their tuition rates are in keeping with their students' long-term interests.  There appears to be a bottomless reservoir of young people willing to incur huge debts for a degree that does not always make economic sense.  Leading figures within the Catholic intellectual tradition have generally been unafraid to tell people when they're making decisions that are detrimental to their long-term flourishing.  Catholic law schools, it seems to me, should pay attention to our students' long-term flourishing even when -- especially when -- they're willing to pay any price for a law degree.

Genentech's lessons for the Bishops

Perhaps the Bishops would have escaped criticism for raising concerns about the health care reform bill if they had taken greater pains to conceal their role?

Religious Legal Theory at Seton Hall

I'm in beautiful Newark, where Seton Hall is hosting a marvelous conference titled Religious Legal Theory: The State of the Field.  Most of the conversations are of direct interest to MoJers.  In my own remarks, I tried to lay out some of the methodologies marking Catholic legal theory, distinguishing CLT that proclaims from CLT that describes, and distinguishing the prophetic from the pragmatic.  I also described my hesitation when a newspaper reporter interested in my forthcoming book asked "So are you Catholic?" after we had discussed a couple of cases involving Catholic Charities:

Perhaps my fear is that the religious label, especially the Catholic label, will be an easy way to pigeon-hole me and more easily dismiss my opinions as pre-ordained conclusions dictated by the fact of my submission to an authority beyond reason, rendering them less authentic and even less human.  In this regard, my hesitation likely reflects my own misconception of what it means to be a Catholic legal scholar and about what it means to be a Catholic.  My faith should be the impetus to delve even more deeply into the heart of what it means to be human, to grapple unflinchingly with the reality of our existence.  In a real sense, Catholic legal theory exhibits much of the same promise and peril of my own personal faith journey.  When I use faith as an escape, when I toss off trite prayers to numb myself to the tragedy that unfolds around me, rather than praying to express and share in the depth of that grief, I am rightly dismissed by the grieving.  Similarly, when I use faith in my scholarship as a bludgeon to wield against those who reject my worldview, or when I dress up my unsupported assertions as self-evident simply because they come from my faith tradition, I am rightly dismissed by those legal scholars who are authentically struggling with the question of how imperfect people should govern themselves in an imperfect world.  The Catholic legal theory project has much to contribute to the legal academy, starting with the anthropological question of what it even means to be human.  Our contribution depends not just on the relevance of our answers, but also on the humanity with which we extend those answers.

Being asked to reflect -- and articulate those reflections publicly -- on the Catholic legal theory project was a helpful impetus to step back and wrestle with the question, what is the difference, if any, between a Catholic doing legal theory and "Catholic legal theory?"  A further impetus is David Skeel's articulation this afternoon of (evangelical) Christian legal theory, which sounded, as Skeel framed it, a lot different than Catholic legal theory -- i.e., directed toward an audience of one's co-religionists, best pursued as a side-interest to "regular" scholarship (at least pre-tenure), and still difficult to discern except on the margins of the legal academy.  (On this last point, the rollicking response to Skeel's article on Christian legal scholarship continued today, with David Caudill's "On Skeel's Rhetorical Invention of a Failed Project.")  A recurring issue for me is the extent to which Christian (or Catholic) legal theory needs to be explicit about its underlying religious commitments in order to fit within the genre (and should it even be a genre?).  I also enjoyed listening to thoughtful papers from Bob Cochran, John Coverdale, John Nagle, Marc Poirer, and Sam Levine.  More tomorrow . . .

The IRS must stop the Bishops from being political!

I expect to hear crazy calls for the IRS to investigate the U.S. Conference of Catholic Bishops for making their views known regarding the Stupak amendment.  I don't really expect to hear them from sitting members of Congress.  Representative Lynn Woolsey, displaying both political intolerance and ignorance of the law, laments:

When I visit churches in my district, we are very careful to keep everything “non-political” to protect their tax-exempt status. 

The IRS is less restrictive about church involvement in efforts to influence legislation than it is about involvement in campaigns and elections. 

Given the political behavior of USCCB in this case, maybe it shouldn’t be.

The well-formed conscience as the "certain" conscience

MoJ reader Robert King offers some thoughts on our conversation about the Catholic voter and conscience:

While in the process of investigating, the individual should give the benefit of the doubt to the Church; and only when every avenue of research has been exhausted can one claim to act contrary to Church teaching in following one's conscience. The Catechism says (1790) that our obligation is to obey the "certain judgment" of our conscience. While our conscience remains uncertain, our obligation is to seek correction of our ignorance.

The less well-formed one's conscience is, the less is one's responsibility for one's actions -- to the good or to the evil. But one action for which one will always be fully responsible is to seek ever-fuller formation of one's conscience.  In short, it is not so much that one "is only obligated to follow a well-formed conscience," but that only a well-formed (i.e., certain) conscience obliges one "against the requirement of ecclesiastical authority."

I'm not sure that equating "well-formed" with "certain" is consistent with Fr. Araujo's interpretation.  There are many instances where one can imagine a Catholic voter feeling certain about the moral truth of her conviction even when it conflicts with Church teaching.  At that point, it seems, we must either defer to conscience or to ecclesiastical authority.  For example, if a Catholic voter in the 18th century, after prayerful reflection and study of relevant teachings, became certain that religious liberty is a fundamental element of a just society, should she have advocated (and voted, if given the opportunity) for religious liberty, or should she have deferred to Church teaching (at the time) against religious liberty?  My understanding of Robert's position is that she should act pursuant to her conscience; my understanding of Fr. Araujo's position is that she should defer to Church teaching.

Conscience and the Catholic voter in Maine

We've talked about conscience and the Catholic voter before on MoJ, but it's worth revisiting in the context of the Maine same-sex marriage vote.  The notion that a person is only obligated to follow a well-formed conscience is in some tension with significant strands of the Catholic tradition, including the writings of St. Paul, Thomas Aquinas, Peter Abelard, and Albert the Great.  In the estimation of these and other leading figures, the culpability lies in the poor formation, not in obeying the conscience that results from the poor formation.  Besides running counter to much that has come before in our faith tradition, framing the Catholic voter's obligation as a duty to disregard her own conscience in the voting booth, rather than a duty to prayerfully and intentionally seek to form her conscience in the light of Church teaching, also raises tension with democratic notions of citizenship.

UPDATE: Greg Kalscheur brings to my attention this quote from Cardinal Ratzinger's Commentary on section 16 of Vatican II's Pastoral Constitution on the Church in the Modern World:

Over the pope as the expression of the binding claim of ecclesiastical authority there still stands one's own conscience, which must be obeyed before all else, if necessary even against the requirement of ecclesiastical authority.  [The conscience of the individual] confronts him with a supreme and ultimate tribunal[,] which in the last resort is beyond the claim of external social groups, even of the official church.

Cultivating a Franciscan sensibility among lawyers

Even in his first post, Bob Hockett has contributed significantly to the Catholic legal theory project. There is a lot to explore along the lines of his Franciscan worldview and its implications for our understanding of lawyers and the work they do.  I write only to note my admiration for his progression from Augustinian to Thomist to Franciscan.  More often, I think, we start out as Franciscans and move in an Augustinian direction -- filled with wonder and awe for the particulars of creation when we're young, then gradually overtaken by the reality of sin, retreating into a defensive, or at least wary, posture toward creation.  I know I could benefit from having a few more daily "Thou" encounters with my surroundings.  Maintaining a sense of the sacred in our everyday encounters, despite our familiarity with the sinfulness that is never far from the surface of those encounters, seems to be an especially pressing challenge for lawyers.  Can legal educators play a role in helping lawyers meet this challenge? 

"Two there are?"

Do claims for negligent hiring, retention, and supervision against the Catholic Church stemming from clergy abuse violate the First Amendment?  A federal court says not necessarily. 

Family Law as Social Insurance

Anne Alstott has posted a new paper, Private Tragedies? Family Law as Social Insurance, that may be of interest to MoJ readers.  From the abstract:

In this essay, I suggest that family law constitutes a form of social insurance, supplementing public programs that address life risks including poverty, unemployment, and disability. Both family law and social insurance recognize some relationships (and not others) and protect against some risks (and not others). Further, both systems of law can be understood as distributing risks ex ante - rather than simply addressing failure ex post.

To make the discussion concrete, I focus on two cases, one involving spousal support and disability, and the other involving child support for multiple families. The cases illustrate the interdependence of financial entitlements in family law and in social welfare and demonstrate that a range of changes in family law, social insurance rules, or other elements of law could alter the distribution of life’s risks - and thus the likelihood and consequences of apparently “private” tragedies.

The essay also builds on these examples to outline a larger project. Today, large-scale social insurance programs shield individuals against disruptions in working life, including retirement, disability, and unemployment. And yet disruptions in affective life - a divorce, a breakup, a parent’s exit, even living without a family - can impose equally severe shocks on individual lives. While at first it may seem uncomfortable to consider personal relationships a matter for state concern, I suggest that the normative theories and analytical tools used in structuring conventional social insurance can also be brought to bear in considering the possibility of insurance for disruptions in affective life.

The thesis has some potentially disturbing statist implications for how we understand "family," but I won't comment further until I actually read the paper.

Garnett on Catholic judges

The AP reports on a speech given by Justice Alito yesterday in which he expressed frustration regarding persistent questions about having six Catholics on the Supreme Court.  Our own Rick Garnett is quoted in the article expressing support for Alito's conviction that Catholic justices can be trusted to do their jobs.  Rick says, "It's not the calling of a Catholic judge to enforce the teachings of the faith. It's the calling of a Catholic judge, as well as he or she can, to interpret and apply the laws of the political community."  I agree with Rick's view, but I don't think everyone does.  Roy Moore, Robert Cover, and Antonin Scalia (at least on the death penalty) come to mind.