Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Saturday, June 29, 2013

Final HHS rule

The final rule re the HHS contraception mandate has been issued.  Here is the HHS press release.  The bishops are withholding judgment for now.

June 29, 2013 in Vischer, Rob | Permalink | Comments (2)

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 29, 2013 in Vischer, Rob | Permalink | Comments (3)

Thursday, June 6, 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, joel.nichols@stthomas.edu

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.

June 6, 2013 in Vischer, Rob | Permalink | Comments (0)

Monday, 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. 

April 15, 2013 in Vischer, Rob | Permalink | Comments (10)

Tuesday, 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.

March 26, 2013 in Vischer, Rob | Permalink | Comments (0)

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.

March 26, 2013 in Vischer, Rob | Permalink | Comments (1)

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.


March 26, 2013 in Vischer, Rob | Permalink | Comments (0)

Friday, February 22, 2013

Is it socially acceptable to hire an opponent of SSM to write a comic book?

I've been intrigued by the protests targeting DC Comics for the company's decision to permit an anti-SSM advocate to write part of the Superman series.  This represents part of a troubling trend not just to challenge anti-SSM advocates on the merits of the issue in the public square, but to push them to the margins of society.  But here are my questions: is the problem with these protests that they're seeking to deny a publicly prominent employment opportunity to an individual based on his political views, or that they're seeking to deny a publicly prominent employment opportunity to an individual based on his opposition to SSM?  In other words, would the protestors be on firmer ground if they were seeking to organize a boycott of DC Comics for hiring an outspoken opponent of interracial marriage to write for the Superman series?  As SSM becomes more widely accepted, do we need to be prepared to defend the social inclusion of a wider variety of unpopular views?

February 22, 2013 in Vischer, Rob | Permalink | Comments (6) | TrackBack (0)

Monday, January 21, 2013

A Christian law school in Canada?

Canadian law school deans are opposing the creation of a new Christian law school at Trinity Western University because of the university's "community covenant" prohibiting homosexual conduct.

January 21, 2013 in Vischer, Rob | Permalink | Comments (6) | TrackBack (0)

MLK and the Morality of Legal Practice

If you're looking for a suitable gift for a loved one on MLK Day, I suggest this hot-off-the-presses new book, Martin Luther King Jr. and the Morality of Legal Practice: Lessons in Love and Justice.  Here's the blurb:

This book seeks to reframe our understanding of the lawyer's work by exploring how Martin Luther King Jr. built his advocacy on a coherent set of moral claims regarding the demands of love and justice in light of human nature. King never shirked from staking out challenging claims of moral truth, even while remaining open to working with those who rejected those truths. His example should inspire the legal profession as a reminder that truth-telling, even in a society that often appears morally balkanized, has the capacity to move hearts and minds. At the same time, his example should give the profession pause, for King's success would have been impossible absent his substantive views about human nature and the ends of justice. This book is an effort to reframe our conception of morality's relevance to professionalism through the lens provided by the public and prophetic advocacy of Dr. King.

January 21, 2013 in Vischer, Rob | Permalink | TrackBack (0)