Monday, June 12, 2017
I have an op-ed in the Minneapolis Star-Tribune explaining why it is difficult, in light of current American law, to interpret Saturday's nationwide "anti-Sharia" marches as anything other than anti-Muslim. An excerpt:
The religious terms of an agreement do not and should not prevent courts from enforcing it. Just as the rule of law is not threatened when courts apply canon law in handling a bankruptcy case for an archdiocese or enforcing an arbitration agreement based on biblical principles, the rule of law is not threatened when Muslim litigants order their lives in keeping with their faith.
The most recent anti-sharia initiatives reflect a change in strategy — instead of forbidding courts from considering sharia law, they prohibit the enforcement of any foreign law that would result in the violation of a constitutional right. These new laws are of no practical effect — we do not need new statutes to tell judges not to violate the constitutional rights of litigants. (That’s what the Constitution is for.)
These newer initiatives may be without practical effect, but they’re not meaningless. They — like the marches convened on Saturday — are packed with meaning that is not lost on Muslim Americans. The aim of these efforts is not legal reform — it is fearmongering.
Feedback, as always, is welcome.
Senator Kirsten Gillibrand is the latest reminder of an unfortunate lesson the Democrats have drawn from President Trump's election: show your populist streak by swearing more in your speeches.
Jeet Heer now argues in the New Republic that we need more of this, not less:
The new wave of swearing isn’t the cause of a breakdown in civility, but a symptom of a national crisis. These are dire times in the U.S. The president is a manifestly unfit kleptocrat who may have obstructed justice, but he’s not going to be impeached anytime soon because he has the support of his party. The only proper response is a full-scale attack on the political system, which requires rallying the public by letting them know just how foul things are—a task best accomplished with foul language. Trump represents an existential threat to American democracy. In this state of emergency, there’s no room for wimpy euphemisms and lofty rhetoric.
Lovely. Nothing is off limits, of course, because we have never faced such an existential threat to our political system! A leader could invoke "the better angels of our nature" in 1861 because that leader probably knew nothing about national division and discord. If that leader had ever encountered a Trump-sized threat, he'd have been invoking fewer angels and dropping more F-bombs. And why raise a hand to stop the demolition of traditional norms of civility -- norms that, I feel obliged to point out, bear no culpability for the economic dislocation at the root of our current "anti-establishment" moment -- when we can grab a sledgehammer and join in the fun?
Well, at least the election has caused Democrats to rethink their litmus test on abortion rights. Oh wait.
Monday, June 5, 2017
DePaul law prof Julie Lawton has posted a new article, “Teaching Social Justice in Law Schools: Whose Morality is It?” Professor Lawton argues that “requiring law student participation in pro bono and legal clinics serving the indigent, as a condition of their graduation, is an improper imposition of my personal social justice morality upon my students.” She explains:
When there are a limited number of legal clinics at each law school and the majority of those legal clinics are serving low to moderate-income clients, mandating legal clinics is akin to mandating participation in social justice issues, similar to mandatory pro bono service. This mandate of social justice service suggests an unwarranted imposition on a student’s moral independence.
An imposition on “a student’s moral independence?” I always assumed that one core purpose of a profession is to identify and maintain prudent impositions on its members’ “moral independence.” If independence from such fundamental (I thought) moral claims as serving the poor is a virtue to be cultivated among our students, should we also avoid requiring them to participate in any exercise that may risk inculcating within them a respect for the rule of law or commitment to personal integrity? And should we be urging the ABA to pull back from its insistence on imposing particular views on the wisdom of confidentiality, competence, diligence, and candor?
Should law faculty proceed carefully when teaching contested moral and political issues to make sure that students are exposed to the best arguments on all sides? Absolutely. That's a worthy pedagogical objective to ensure that we're training critical thinkers who are effective advocates. It's not about equipping our students for lives of "moral independence," whatever that means. Navigating our biases effectively as teachers does not mean that a law school needs to avoid staking out a position on the basic moral norms that contribute to the animating vision for a particular school or the profession as a whole. We should be explicit and deliberate in discerning and conveying those basic moral norms. This is (I hope) obvious for those of us who work at Catholic law schools, but the conversation about moral norms shouldn't be absent from non-religious law schools either. Such conversations are a big part of what it means to be a profession.
Tuesday, May 16, 2017
I've posted a new paper that might interest MoJ readers, How Should a Law School's Religious Affiliation Matter in a Difficult Market? Put simply, I aim to help deans and faculty "explain why prospective students who are told repeatedly that law school is a risky proposition should care that our law schools have religious affiliations."
Here's the abstract:
For religiously affiliated law schools, a broad and deep understanding of professional formation should lie at the heart of our reason for being and should grow out of our own religious traditions, allowing us to educate the whole person. Articulating and cultivating this deeper understanding of professional formation is essential for deans of religiously affiliated law schools today as we seek to demonstrate the connection between our religious identity and the value proposition our schools offer to our current and prospective students.
Feedback is welcome.
Wednesday, May 3, 2017
I've posted a short essay in tribute to my colleague Lyman Johnson that may be of interest to MoJ readers, especially those who have enjoyed John Inazu's recent work on pluralism. Here's an excerpt:
Lyman has been a prime mover in bringing pluralism to corporate legal theory. He embraces the pluralist label, noting its importance as to both corporate form and corporate purpose. Relying on work regarding mediating structures, Lyman notes that there is "no reason why, with respect to business corporations, there cannot be a pluralism of market-oriented entities designed to advance different purposes," recalling Robert Nisbet’s emphasis on how mediating structures grow out of "shared ‘communities of purpose.’" He insists that "the law should facilitate, not impede, the design of ever more refined firm structures." Pluralism is important to his work.
But Lyman is not just a corporate legal theory pluralist; he’s also a Christian. In his calling as a Christian law professor, it matters not just that he champions pluralism, it matters how he does so.
Thursday, April 13, 2017
For your Holy Week reading, I recommend Wilfred McClay's essay, "The Strange Persistence of Guilt," published in The Hedgehog Review. McClay asks, "How can one account for the rise of the extraordinary prestige of victims, as a category, in the contemporary world?" As a society "that retains its Judeo-Christian moral reflexes but has abandoned the corresponding metaphysics," we retain the burden of sin-shaped guilt but lack "the transactional power of expiation without which no moral system can be bearable." This helps explain why "claiming victim status is the sole sure means left of absolving oneself and securing one's sense of fundamental moral innocence."
Others, including David Brooks, have commented on this essay. I'm most interested in McClay's conclusion:
[T]he persistent problem of guilt may open up an entirely different basis for reconsidering the enduring claims of religion. Perhaps human progress cannot be sustained without religion, or something like it, and specifically without something very like the moral economy of sin and absolution that has hitherto been secured by the religious traditions of the West. . . . without the support of religious beliefs and institutions, one may have no choice but to accept the dismal prospect envisioned by Freud, in which the advance of human civilization brings not happiness but a mounting tide of unassuaged guilt, ever in search of novel and ineffective, and ultimately bizarre, ways to discharge itself.
The capacity of "religious beliefs and institutions" to function as a bulwark against this social phenomenon assumes, of course, that they are not themselves compromised by said phenomenon. In some circles within American Christianity, there has been a tendency to view life in a pluralist society through a victimhood lens. In other circles, the metaphysical foundations of Christian grace appear to have weakened considerably. So as we journey into the Paschal Triduum, it bears noting that we are recalling theological truths that are the best type of counter-cultural claims -- i.e., claims that resonate with an authentic and desperately needed vision of the human person.
Sunday, April 2, 2017
Intervarsity Press has published a promising new book, "Restoring the Soul of the University," in which the authors insist that "Christian universities can recover their soul―but to do so will require reimagining excellence in a time of exile, placing the liberating arts before the liberal arts, and focusing on the worship, love, and knowledge of God as central to the university." (HT: TaxProf) Since I haven't read the book, I can't guarantee that the authors -- Perry Glanzer, Nathan Alleman, and Todd Ream -- offer big ideas that haven't been proposed by previous contributors to this genre. Even if the same basic insights repeat themselves, though, I think the insights gain new depth and nuance depending on the context in which they're offered. In this case, the context is promising for at least three reasons: 1) the authors are affiliated with Baylor, a university that has experienced turmoil stemming from its efforts to reclaim a robust Christian identity and (more recently) achieve prominence in college sports; 2) the book is coming out in the wake of an election in which white evangelicals propelled to victory a presidential candidate who was dismissive of the sort of intellectual pursuits embodied by the very idea of a university, Christian or not; and 3) over the past few years, American universities have become significantly less hospitable to claims rooted in traditional Christian morality, particularly around issues of sexuality.
Here's a quote from the authors that suggests they appreciate the scope of the challenge:
We think Christians should be romantic realists. Our love for God and faith and hope in God should lead us to be optimistic about the creative and redemptive work in which we are involved.
In our own research, we continually find inspiring examples taking hold around the world. For example, African Christians have created more institutions of higher education in the past two decades than the rest of the world combined. Not surprisingly, this growth happened when various African nation-states dropped their monopolies on higher education. Christian higher education tends to prosper when freedom for civil society flourishes as well.
Yet, since we recognize the sinful tendency in humanity to repress and reduce educational freedom, we also want to be realists. Throughout history, powerful political forces have sought to deform and destroy Christian higher education. Whether it involved the leaders of the French Revolution and Napoleonic wars who helped terminate one-third of Europe’s universities, the leaders of nation-states who appropriated and nationalized Jesuit universities in the 19th century, or the communists who took over whole university systems in the 20th century, politicians seeking domination have often destroyed diverse university systems (and with it, religious universities) to promote their ideological agenda. We thus pray for wisdom and strength for individuals and institutions that currently face those pressures, which could one day include those in North America.
Wednesday, March 29, 2017
King's College philosophy prof Bernard Prusak has put together an interesting symposium on the ethics of cooperation and the Affordable Care Act's contraceptive mandate. He has provided an overview of the contributions by three philosophers and a theologian:
[T]he three philosophers all reject the claim that giving HHS notice of opposition to the provision of contraceptives amounts to impermissible cooperation in wrongdoing. By contrast, Kate Ward [the theologian] concedes that “it is reasonable to regard even so seemingly insignificant an act as signing a document as formal cooperation in offering birth control to employees,” but the focus of her contribution is different: after observing that “determining whether an act is or is not cooperation is not sufficient for determining how one should proceed” and that “cooperation reminds us of the world’s moral complexity and the impossibility of avoiding any contact with evil,” she goes on to evaluate the Little Sisters’ case as an act of protest.
You can read the papers for yourself here.
Saturday, March 18, 2017
Middlebury prof Laurie Essig has published an essay in The Chronicle that attempts to complicate the portrayal of the Charles Murray debacle as a regrettable blow to free speech. This strikes me as the paragraph that does the heavy lifting of her analysis:
The Murray event’s organizers encouraged us to debate his ideas and to counter his eugenicist arguments with evidence and pointed questions. To be fair, many at Middlebury, including the president and the political-science faculty, were worried about censorship and committed to the idea that we must be able to hear ideas we find disagreeable. For people who feel threatened in the current political climate, however, polite debate about disagreeable ideas is a luxury they can no longer afford. We live in dangerous times, when immigrants fear expulsion and hate crimes are on the rise. Personal vulnerability drowns out the fear of censorship.
Under what circumstances should polite debate be deemed a luxury we can no longer afford? If Essig had written that relying solely on polite debate and eschewing other forms of action may be a luxury we cannot afford at certain times, I'd agree wholeheartedly. But unless we're in an emergency situation when polite debate is not a wise investment of time, I struggle to think of a context in which polite debate must be rejected as an unaffordable luxury. Contrary to Essig's assertion that "[t]he right became its own precious snowflake when [Milo] Yiannopoulos talked about teenaged boys as sexual subjects who could consent to sex with adult men," I don't think that CPAC's withdrawal of an invitation to Yiannopoulos shows that conservatives also believe that certain beliefs are inappropriate for polite debate. There are legitimate questions surrounding the wisdom of an organization's decision to provide a platform to a particular speaker, but that does not mean that it's categorically wrong to engage in a polite debate about having sex with boys. There was nothing wrong with members of the Middlebury community condemning the decision to invite Charles Murray to campus; the problem is what happened after the invitation was extended and accepted.
Essig is right to point out that we have to be attentive to ensuring that those impacted by the views being expressed are equipped to participate meaningfully in the debate. The proper response to such concerns is to remove barriers to participation and empower traditionally marginalized members of the community; the proper response is not to dismiss polite debate as an unaffordable luxury.
Thursday, March 16, 2017
Last week, the deans of 25 Catholic law schools delivered a letter to Mick Mulvaney, Director of the Office of Management and Budget, objecting to the elimination of the Legal Services Corporation. With today's news, we have decided to release that letter publicly.
March 10, 2017
Director, Office of Management and Budget
725 17th Street, NW Washington, DC 20503
Dear Mr. Mulvaney:
We write as deans of Catholic law schools in the United States to urge you to maintain funding for the Legal Services Corporation (LSC), the largest funder of civil legal aid in our nation.
The LSC’s 43-year history reflects a bipartisan commitment to address our nation’s glaring access to justice problem. LSC-funded providers have provided a voice to millions of low-income Americans who could not otherwise have afforded legal representation in the midst of some of life’s most harrowing circumstances. The most frequent cases involve family law (e.g., protecting victims of domestic violence, guardianship proceedings), housing (e.g., landlord-tenant disputes, renegotiating loans to prevent foreclosure), helping military families with a variety of legal needs, and consumer issues (e.g., protecting the elderly and vulnerable from being victimized by unscrupulous lenders). These providers help people who live in households with annual incomes at or below 125% of the federal poverty guidelines, a category that includes almost one in five Americans.
We recognize the need for difficult fiscal decisions, and the LSC has already worked creatively and diligently to do more with less. From 2007 to 2016, funding per eligible person decreased from $7.54 to $5.85. In 2016, Americans spent millions more on Halloween costumes for pets than on LSC grants.
Further cuts to the LSC would exacerbate a justice gap that remains deeply problematic for a nation committed to the rule of law. According to the World Justice Project’s survey data, the United States ranks dead last (36th out of 36) among high-income countries on the question of whether people can access and afford civil justice. Though LSC-funded programs helped 1.8 million people in 2015, recent studies indicate that 80 percent of the civil legal needs of the eligible population are not being met.
The justice gap should concern all Americans, but we take a special interest in the problem as leaders of our nation’s Catholic law schools. Though we represent law schools of various sizes, with unique histories, serving distinct communities in different regions of the country, we share a commitment to make the justice system more accessible to the poor. This is not just a matter of good citizenship or professional duty, but Catholic identity. As Saint John Paul II explained, “Love for others, and in the first place love for the poor, in whom the Church sees Christ himself, is made concrete in the promotion of justice.” (Centesimus annus ¶ 58) Our legal aid clinics, pro bono programs, and many other school-specific initiatives bear witness to this commitment. Closing the justice gap also relies on support from state and local governments, law firms, foundations, and a broad spectrum of private philanthropy.
The LSC’s support, however, is irreplaceable, not just as a matter of practical reality, but as an affirmation of our political community’s core commitments. The Church teaches that the state is responsible to cultivate the conditions by which “the common good may be attained by the contribution of every citizen.” (Compendium of the Social Doctrine of the Church ¶168) By helping ensure access to our justice system for citizens who could otherwise not afford legal representation, the LSC empowers individuals and families to contribute to the common good by giving them more control over their own lives. The LSC promotes justice by leveling the playing field for all Americans.
A growing body of research demonstrates that investment in civil legal aid yields significant economic benefits for state and local governments. To cite just three of the conclusions supported by recent research:
- Civil legal aid reduces repeat incidences of domestic violence, thus reducing public spending on medical care, special education and counseling for affected children, and police resources.
- Through representation in child welfare proceedings, civil legal aid saves public money by helping children leave foster care more quickly.
- Housing court representation by civil legal aid attorneys saves public money by reducing evictions, unjust foreclosures, and homelessness.
It also bears noting that our support for the LSC does not emanate from our agreement about politics. Over its history, the LSC has been the subject of debates that have led Congress to restrict the permissible scope and aim of funded programs. Included among the activities that the LSC may not fund are lobbying, criminal cases, habeas corpus actions, labor organizing activities, abortion-related litigation, the representation of non-citizens (subject to limited exceptions), class actions, prisoner litigation, welfare reform, and redistricting. While we may not agree with each other on the prudence of these limitations, LSC’s remaining statutory charge lies largely beyond partisan reproach.
Each one of us could share stories of how LSC-funded organizations in our communities have changed lives for the better, not by government handout, but by equipping a trained advocate to come alongside those whose interests are too frequently disregarded and act as their voice, their counselor, and their champion. The LSC’s work provides a daily reminder of government’s capacity to affirm the dignity and worth of every American.
As the late Justice Antonin Scalia stated in his remarks celebrating the organization’s 40th anniversary, the LSC “pursues the most fundamental of American ideals,” for “without access to quality representation there is no justice.”
We appreciate your consideration of our request.
Mark C. Alexander
Villanova University Charles Widger School of Law
Daniel F. Attridge
The Catholic University of America Columbus School of Law
Kathleen M. Boozang
Seton Hall University Law School
Ave Maria School of Law
Annette E. Clark
Seattle University School of Law
Phyllis L. Crocker
University of Detroit Mercy School of Law
Fordham University School of Law
Stephen C. Ferruolo
University of San Diego School of Law
Pontifical Catholic University of Puerto Rico Law School
St. Thomas University School of Law (FL)
William P. Johnson
Saint Louis University School of Law
Michael J. Kaufman
Loyola University Chicago School of Law
Lisa A. Kloppenberg
Santa Clara University School of Law
Gonzaga University School of Law
Duquesne University School of Law
Creighton University School of Law
Rev. Lawrence W. Moore, S.J.
Loyola University New Orleans College of Law
Nell Jessup Newton
Notre Dame Law School
Vincent D. Rougeau
Boston College Law School
Stephen M. Sheppard
St. Mary’s University School of Law
Andrew L. Strauss
University of Dayton School of Law
University of San Francisco Law School
Georgetown University Law Center
Robert K. Vischer
University of St. Thomas School of Law (MN)
Loyola Law School, Los Angeles
Institutional affiliations are listed for identification purposes only.