Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, May 3, 2017

Confident Pluralism in Corporate Legal Theory

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. 

May 3, 2017 in Vischer, Rob | Permalink

Thursday, April 13, 2017

Society's Guilt and the Church's Witness

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. 

April 13, 2017 in Vischer, Rob | Permalink

Sunday, April 2, 2017

Restoring the Soul of the University

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.

April 2, 2017 in Vischer, Rob | Permalink

Wednesday, March 29, 2017

The Ethics of Cooperation and the Contraceptive Mandate

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.

March 29, 2017 in Vischer, Rob | Permalink

Saturday, March 18, 2017

Is polite debate ever a luxury we cannot afford?

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.

March 18, 2017 in Vischer, Rob | Permalink

Thursday, March 16, 2017

Deans of Catholic law schools object to elimination of LSC

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

Mick Mulvaney

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.

Sincerely,

 

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

 

Kevin Cieply

Ave Maria School of Law

 

Annette E. Clark

Seattle University School of Law

 

Phyllis L. Crocker

University of Detroit Mercy School of Law

 

Matthew Diller

Fordham University School of Law

 

Stephen C. Ferruolo

University of San Diego School of Law

 

Jose Frontera

Pontifical Catholic University of Puerto Rico Law School

 

Alfredo Garcia

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

 

Jane Korn

Gonzaga University School of Law

 

Maureen Lally-Green

Duquesne University School of Law

 

Paul McGreal

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

 

John Trasviña

University of San Francisco Law School

 

William Treanor

Georgetown University Law Center

 

Robert K. Vischer

University of St. Thomas School of Law (MN)

 

Michael Waterstone

Loyola Law School, Los Angeles

 

Institutional affiliations are listed for identification purposes only.

March 16, 2017 in Vischer, Rob | Permalink

Monday, March 13, 2017

Response to Marc re Christian persecution narrative

Just a few quick points in response to Marc's disagreement with my original post:

1) I wholeheartedly agree that the global persecution of Christians is a crisis that demands our attention.  The survey that I referred to in my post asked respondents to compare Muslims and Christians in terms of discrimination experienced in the United States.

2) I agree with Marc that it is possible "[a] person could perceive certain threats to religious liberty and not others, and still make contributions to the protection of religious liberty." In the case of evangelical Christians evaluating religious liberty threats in our country today, I do think that the failure to recognize Muslims as a legitimate object of religious liberty concern will, over time, weaken religious liberty for all.  Christian support for so-called "anti-Sharia" legislation is one example.  As Christians lead the charge to deny zoning permits for mosques in some communities, is there a danger of creating precedent (legal or political) for denying permits for churches -- especially churches espousing disfavored beliefs about foundational commitments of the emerging political order -- in other communities?  Does the failure of (some) Christians to speak up against the demonization of American Muslims -- and the day-to-day implications of that demonization in the daily lives of American Muslims -- smooth the way for the demonization of conservative Christians?

3) I don't believe that we should remain silent about discrimination against Christians until we reach some sort of "real persecution" tipping point, but we should be specific and restrained in pointing it out (as I have tried to be).  The persecution narrative among American Christians gives us ample resources to resist oppression if and when it comes; our too-easy embrace of that narrative, though, can limit its power when we need it most.

March 13, 2017 in Vischer, Rob | Permalink

Sunday, March 12, 2017

Religious liberty and the Christian (pop) culture of persecution

I grew up listening to Christian rock -- Larry Norman, Randy Stonehill, the 77s, Jerusalem, etc. -- and one notable theme throughout the genre is that Christians are separate from the world.  There are upsides to being formed in this worldview (an emphasis on holiness and courage) and big downsides (a lack of accountability for the common good and a tendency to see persecution around every corner).  By the time DC Talk hit it big in the 1990s, I was not listening to much Christian rock, but the group apparently embraced the theme with gusto. 

Julia Marley, writing for Commonweal, has a fascinating take on how DC Talk's smash hit "Jesus Freak" might have helped shape today's pro-Trump evangelical mindset:

“Jesus Freak” articulated the way the evangelical church thought of itself: marginal, scorned by mainstream culture, and, importantly, the victim of violence rather than its agent. The song’s speaker aligns himself with two characters. The first is a shirtless street preacher with “Jesus Saves” tattooed on his stomach, who we can assume disturbs the people he attempts to convert—we’ve all passed such a street preacher, careful to avoid eye contact. The second character is John the Baptist, who is also scorned. “The words that he spoke made the people assume / There wasn’t too much left in the upper room,” the song continues. But John had more to deal with than an audience rolling its eyes: Herod has him executed. Here lies the crucial sleight-of-hand of the song: we move seamlessly from a man who presumably retains the freedoms of speech and religion (even if his audience ridicules him), to a man assassinated by the state for expressing his religious beliefs. The song conflates criticism of Christianity with the persecution of Christianity. It elevates the eccentric to the status of martyr.

When I was probably 8 years old, I remember a playmate -- a Catholic no less! -- calling me "a church weirdo" because my family attended services three times each week (twice on Sundays, once on Wednesdays).  It was a cruel and careless comment, but in my mind, it fed directly into the other messages I was hearing about the Christian life being one marked by persecution of the martyrdom sort.  It contributed to a sense of being separate, shunned, and targeted.  That's a lot to place on a single comment from an 8 year-old, but that's how narratives are reinforced from one generation to the next. 

I think Julia Marley ends up overstating her case when she argues that "[c]onservative Christians see religious pluralism—and the state’s reflection of that pluralism—as encroaching on their right to practice their own faith."  In many cases, conservative Christians are not objecting to the fact of religious pluralism -- they're objecting to the imposition of a secular orthodoxy that does make the practice of their faith more difficult, at least when the implications of their faith extend to the public square.  

Still, Marley makes an important point to the extent that the evangelical subculture has proved to be fertile ground for political messages that elevate the persecuted status of American Christians beyond what any reasonable interpretation of the facts warrant and that -- even more dangerously -- pushes concern about discrimination against non-Christians to the margins.  This was borne out in the results of a recent survey:

Overall, people were twice as likely to say Muslims face discrimination as they were to say the same thing about Christians. Democrats were four times more likely to see Muslim vs. Christian discrimination, and non-religious people more than three. White Catholics and white mainline Protestants were both in line with the American average: Each group was roughly twice as likely to say Muslims face discrimination compared to how they see the Christian experience.

 

The people who stuck out, whose perceptions were radically different from others in the survey, were white evangelical Protestants. Among this group, 57 percent said there’s a lot of discrimination against Christians in the U.S. today. Only 44 percent said the same thing about Muslims. They were the only religious group more likely to believe Christians face discrimination compared to Muslims.

Why should we care?  Because religious liberty is only as strong as the degree to which it protects the most vulnerable among us.  If millions of Americans who (should) care deeply about religious liberty fundamentally misperceive where the most potent threats are aimed, religious liberty for all is on shaky ground.  This is an argument that some conservative Christians are championing -- Robby George and Russell Moore are two leading examples -- but it faces an uphill climb, in part because Christians have been hearing about our own persecution for a very long time. 

Christian leaders and scholars need to cultivate a new commitment to discernment: distinguishing between the discomfort of holding increasingly unpopular beliefs and the real persecution that -- thus far, at least -- been far more prevalent in our lyrics than in our legal system.  

March 12, 2017 in Vischer, Rob | Permalink

Saturday, March 11, 2017

How countercultural can a Catholic university be?

In the current issue of The Hedgehog Review, Chad Wellmon has an essay titled "Whatever Happened to General Education?" that is worth your time.  He uses his experience chairing a University of Virginia curricular reform committee as a lens through which to view the history of general education in America, tracing back to the late nineteenth century.  He wants to answer this basic question:

Since at least 2000, faculty at several universities—including Harvard, Stanford, and William and Mary—have attempted to reform their curricula. They have issued reports lamenting the lack of a coherent, common experience and the absence of a shared intellectual project. Yet many of these reports have had a negligible impact, whether because of delayed votes, infinitely reconstituted committees, or faculty exhaustion. Why?

I'll let you judge the persuasiveness of his answer(s), but this paragraph jumped out at me as particularly depressing, in which he discusses the work of Thorstein Veblen, a sociologist who dismissed American universities as "little more than 'competitive businesses'" as far back as 1918:

It remains to be seen what will become of UVA’s proposed curriculum. Veblen had little confidence that universities could reform themselves, not because he considered faculty members institutionally inept or the “captains of erudition” brilliantly conniving. He doubted the possibility of change because he doubted that American culture could change. “The popular sentiment,” he wrote, fully embraced the notion that “businesslike administration [was] the only sane rule to be followed in any human enterprise.” The broader culture didn’t have the ethical resources to imagine goods and ends that were not simply economic. And, so, absent other moral imaginations, the practices and virtues that had come to organize and sustain universities were those of businesses whose only good was economic utility.

In the constant struggle to maintain the institutional integrity of Catholic colleges and universities, we often hear the diminishment of meaningful Catholic identity framed in terms of a failure of leadership or lack of will on the part of the faculty.  Those might be immediate causes, but they should not distract from the deeper question: To what extent can any institution that depends on the surrounding culture chart an entirely different course than the surrounding culture?  If American culture lacked the requisite non-economic moral imagination a century ago, are we any more confident in our prospects today?  Even working in a meaningfully Catholic law school, many of our mission-driven decisions will, at some point, require translation into utilitarian terms in order to ensure that they gain traction with a broad set of stakeholders.  Especially when a university reaches a certain size of operation and scale of aspiration, can the hoped-for impact of our work truly run counter to culture?  Or are we better understood as being shaped and carried by culture, all the while looking for opportunities to nudge culture in ways that are shaped by our founding missions (the interpretation of which is, almost invariably, shaped by the broader culture)?  If so, does the Catholic higher education project remain worthwhile, or is it time to reject the accrediting agencies and retreat to the catacombs to begin teaching by the candlelight of a more deliberately and rigidly defined subculture? (My quick answer to cut the suspense: yes, the project remains worthwhile, though that answer may not hold for all time and every place.)

This is not a new conversation for MoJ, but it may bear revisiting at this cultural moment. In full disclosure, my reaction to the Wellmon essay was undoubtedly influenced by the fact that I read it soon after reading several reviews of Rod Dreher's The Benedict Option - a book I have not yet read but will.  More to come.

March 11, 2017 in Vischer, Rob | Permalink

Friday, March 10, 2017

Was Sally Yates relying on Ronald Dworkin? If so, is that a problem?

Brad Wendel has posted a critique of Sally Yates' justification for her decision not to enforce the Trump administration's travel ban.  An excerpt:

Whether the order is lawful will be determined by the courts. What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advisor should be informed by the best view of the law sounds very much like the position of Ronald Dworkin, who argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, considered from the standpoint of the community’s political morality. The interpretation must fit with past legal decisions, but the judge’s aim is also to show the community’s legal practices in their best moral light.  I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this essay to seek to persuade legal advisors – whether to the government or a private client – that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality.

Wendel's scholarship is always worth reading, and this essay is no exception.  In previous work, I've pushed back a bit on his recurrent thesis that a lawyer's duty of loyalty to the client is vindicated through the lawyer's duty of loyalty to the law, period.  My core concern with Wendel's approach is that our focus on the client as a citizen may obscure a view of the client as a person, though the dynamics are a little different in the context of a government lawyer, and I share his misgivings about Yates' explanation.  If you're interested, you can read a fuller explanation of my reservations with Wendel's approach here.

March 10, 2017 in Vischer, Rob | Permalink