Sunday, January 24, 2021
Alan Brownstein (UC-Davis) and I have published the above-titled article, subtitled "A Dialogue on Religious Liberty and Equality." You can download it here. I've respected Alan's work--its carefulness, clarity, and honesty--for a long time and am very happy we've been able to do this together. From the abstract:
This essay is a collaborative effort to engage in a dialogue on church-state issues that are often hotly debated in our society. Each of us has strongly held positions on the disputes we plan to discuss. Our purpose here, however, is not to present our own views as forcefully as we can. Instead, our goal is to move away from the bitter polarization and demonization that characterizes so much of the arguments about law and religion today. We are searching for ways to discuss and resolve difficult church-state issues that may reduce acrimony and divisions within our society, foster bridge building among divergent communities, identify common ground and provide opportunities for compromise.
It's forthcoming in The Journal of Appellate Practice and Process, a publication provided to every federal and state appellate judge in the nation. The dialogue format--each of us writing specific sections with responses from the other, rather than trying to homogenize our views in a singe text--allows us, we hope, to present disagreements clearly while also suggesting places of common ground and potential solutions.
This is the third and final in a series of posts about my experiences teaching in person last semester during the pandemic at a Catholic law school. The first post was about health and safety for teaching in person despite the contagion. The second post was about educational quality given the accommodations necessary to teach in person during a pandemic. This post is about fostering community in challenging times with social distancing.
Community as a Hallmark Value at the University of St. Thomas School of Law
Fostering community among students, faculty, and staff is a hallmark at the University of St. Thomas School of Law. It is one of the visible attributes that draws prospective students and that is frequently emphasized by our current students and alumni. As more than one person has said, community is simply baked into our DNA at St. Thomas. If you ask a typical St. Thomas law student what stands out about the law school experience, he or she is quite likely to speak to a positive atmosphere that nurtures students and draws people together.
Now many law schools tell prospective students that they have a strong community and portray images of community in publicity brochures and alumni magazines. Assertions of a supportive community are easily uttered. For the University of St. Thomas, we fortunately have considerable concrete evidence that our community is genuine and distinctive.
First, in national surveys of law student engagement, law students at the University of St. Thomas consistently report they are happier and feel more supported. UST law students are much more positive about their law school experience than is generally reported at other law schools.
Second, I take an anonymous survey of students in my Professional Responsibility class each spring when they are more than half-way through their legal education. Substantial majorities of our students report each year that they are more committed to and even happier about their choice to become lawyers than when they began their legal education. By contrast, across the country, many law students become disenchanted by the end of their first year, and upper-level students often express regret about their decision to go to law school.
Third, in yet another survey, which is publicly available, our students vote regularly in the Princeton Review to include us among the top ten law schools for “Best Quality of Life.”
Now some law deans and professors would openly or quietly disclaim that community should be a signature characteristic of legal education. The purpose of law school, they would say, is to effectively prepare students to pass the bar and competently engage in the practice of law. Others might say that a law school as part of a university should be first and foremost about demanding critical thinking and challenging students with new ideas, rather than seeking to flatten out student experience into an anodyne good feeling. And in public law schools, there are constitutional free expression expectations that restrict efforts to vigorously press a particular theme, which in the legal academy can become ideologically rigid.
I believe that the University of St. Thomas has generated a sense of community that is neither heavy-handed in approach nor indifferent to differences in viewpoints. To be sure, as a private and faith-based law school, we would have the freedom to choose a motivating theme, even if it trespassed on freedom of thought or excluded contrary points of view. But that is not our path. We do not assume that any human institution, including the Catholic Church, has a monopoly on truth. Especially when it comes to law and public policy, the Church encourages prudential judgment and respects the expertise of others in translating values into policy. Moreover, we embrace ideals of academic freedom in our encouragement of intellectual exploration. As I say when describing our Catholic identity to students, we are always Catholic, but we are not only Catholic. We welcome the expression of values and the sharing of insights from all traditions, while not neglecting the Catholic Intellectual Tradition.
Rather, at the University of St. Thomas, we seek to foster a community that is diverse in every way, that consists of people who disagree passionately about matters of values and who draw their most deeply-cherished beliefs from a variety of backgrounds and traditions. What is distinctive for us is to celebrate this diversity and see it as an entry point to draw everyone together. As our Vision Statement defines community, “[w]e foster a diverse environment in which each student feels supported in his or her unique journey from law student to lawyer and called to share his or her gifts to enrich the collective learning community.”
The crucial link that brings us together is a very intentional attempt to talk across the political, cultural, and religious divisions that plague our country. Our sense of community is a bridge, a search for common ground. In so doing, we discourage the demonization of different viewpoints or the presumption that those who disagree with us are acting in bad faith. At the same time, we encourage speaking truth to power and shedding light on uncomfortable realities and damaging attitudes that others might wish to avoid. Far more than is true at most other law schools, UST law students who espouse quite conflicting positions on legal and political issues are in conversation with each, attend programs sponsored by groups with a different perspective, and collaborate on ventures to to better understand alternative viewpoints and find a common ground if possible.
Saturday, January 23, 2021
This guest post was written by Professor David Smolin from Samford University’s Cumberland School of Law. Smolin is the Harwell G. Davis Professor of Constitutional Law and Director, Center for Children, Law and Ethics.
Setting the Record Straight: Fulton v. City of Philadelphia
By David Smolin
As an academic who studies adoption, foster care, and children’s rights—and an adoptive parent myself—I am a bit surprised by some of the rhetoric surrounding Fulton v. City of Philadelphia. Understandably, lawyers have to make legal arguments—but often what gets lost are important facts that provide the context necessary to understand and evaluate these legal arguments. This is an important Supreme Court case, but not for the reason that some seem to think. This case will not affect the ability of same-sex couples to foster or adopt anywhere in the Country(same-sex foster care is legal in all 50 states). But it will have an important impact on the number of agencies and foster families available to care for foster children nationwide. Here are the three biggest misconceptions I have seen in how this case is discussed.
#1: Foster care is primarily about the recruitment and certification of foster parents.
Philadelphia has tried to keep the focus on certification, but that’s only one part of a more complex puzzle. Lost in today’s discussion is the fact that foster agencies provide ongoing support for the families that choose to partner with them—and that many families choose a particular agency because its services and support system are different from that of other agencies. Some agencies hire staff with language and cultural competences to better serve Latino communities. Some agencies participate in training programs and certifications to better serve LGBTQ couples, youth, and families. Some agencies recruit through churches and can provide emotional and spiritual support to foster families who want an agency that understands and affirms their deep religious commitments. Fostering in partnership with a private agencies is not “one and done”—it is an ongoing process. Burnout is high for foster parents; it’s an arduous and emotionally-draining undertaking. But families will stick with it longer if they have the training, support, options for respite care, and help they need. Agencies matter. They are not simply identical widgets churning out foster parents. They each play a unique role in a diverse, healthy child welfare system.
#2: Home studies require mere pro forma box-checking.
At oral argument in Fulton, the Supreme Court asked a few questions suggesting a misunderstanding of a foster care home study (the process by which families become certified to care for a foster child in partnership with a specific agency). For example, one Justice asked whether Catholic Social Services could certify foster parents without evaluating their marriage, while another asked whether Catholic Social Services could perform a same-sex home study but include a disclaimer expressing their disapproval of the relationship. I see several problems with this line of thinking.
First, home studies are far more personal, intimate, and invasive than most imagine. Social workers conducting home studies go far beyond inspecting the physical residence. Home studies focus on the relational aspects of a prospective foster or adoptive family, including the marriage or intimate partnership, relationships with children, extended family, community, friends—potentially even aspects of a couple’s sex life. “Sexual orientation cannot be ignored in the assessment process, because an individual’s sexuality is an aspect of who they are as a total person and will impact on their life as a parent.” (https://www.researchgate.net/publication/6301781_Assessing_lesbian_and_gay_prospective_foster_and_adoptive_families_A_focus_on_the_home_study_process)
Because foster children typically come from a background of trauma, a foster or adoptive home must be relationally solid enough to absorb the difficult behaviors common with traumatized children An in-depth evaluation is necessary to ensure that agencies are entrusting vulnerable children only to stable, safe, and emotionally healthy foster families. Anything less than a thorough evaluation could endanger foster children, and could put an agency’s license at risk—when a private agency approves a foster parent, it is “vouching” for that parent’s home, and adverse outcomes call the agency’s abilities and judgment into doubt.
For this same reason, the belief that if the government shuts down a faith-affirming foster agency, all its foster families would simply “transfer” agencies is misguided. There is potential loss and disruption to foster families in losing a trusted partner in their foster care journey and adjusting to a new social worker who doesn’t understand their case or their foster care history. The recognition that their agency has lost its role precisely because it adheres to a faith shared by the foster parents would create a disincentive to continue as a foster parent.
The process of recertification (by which a foster family may, in some cases, partner with a new agency) may also serve as an additional disincentive to continuing, even more so if foster parents fear that the same criteria applied to excluding their former agency will eventually be applied to them as foster parents. Hence, one cannot assume that all existing foster parents would go through this process of transferring and being recertified by a different agency. Losing any qualified foster parents would lead to placement disruptions and would harm the foster children in their care.
Second, asking objecting faith-based agencies to perform home studies for same-sex couples with a “disclaimer” stating that the agency doesn’t endorse the couple’s relationship is a non-starter.As explained in #1 above, when foster parents partner with a foster agency, this results in an ongoing relationship between the agency and the foster parents. Many agencies will regularly check in with their foster parents. It is crucial that this is a relationship of trust and support. Foster parents must feel comfortable talking frankly with their agency, flagging any potential problems, and asking for help when it is (inevitably) needed.
The idea that a couple would want to engage in a partnership with an agency that cannot affirm their marriage defies logic.Philadelphia even seems to understand this, telling prospective foster parents to find an agency that is the “best fit” for them.
#3: Alleged dignitary harms to adults are more important than the best interests of children.
Let me say this first: regardless of the outcome in Fulton, same-sex couples will still be allowed to—and encouraged to—foster and adopt in all 50 states. With that said, an undue focus on dignitary harms for foster parent applicants obscures what is in the best interest of foster children.
Philadelphia and the ACLU argue that the hypothetical referral of a same-sex couple from Catholic Social Services to another nearby foster agency (there are close to 30 private agencies in the City) justifies completely excluding this agency from the foster care system. This means that all foster families whopartner with Catholic Social Services will have to be recertified (see #2) and that Catholic Social Services’ decades of experience and unique ability to recruit foster families from Philadelphia’s Catholic community will be lost.
I see at least two problems with this argument. First, there are adult dignitary harm on both sides. The dignitary harm a same-sex couple might face from potentially being referred to another agency (remember, no same-sex couple had actually approached Catholic Social Services seeking to foster), or which occurs simply from knowing that Catholic Social Services is allowed to continue its historical role, is countered by the dignitary harm women like plaintiff Sharonell Fulton experienced when the city government told her that it was closing down the foster agency with which she has partnered for over 25 years. Knowing your agency was shut down because it shares your faith is also a dignitary harm.
Second, the government is placing these dignitary harms to adults above what is in the best interest of children—namely, to maximize the number of foster parents available to serve children in need. This misses the point of who a foster care program is meant to serve: children in need, not potential foster parents.
On this last point, I have not seen any convincing evidence that excluding faith-based foster care agencies increases the number of homes available for foster children in need. In fact, some evidence indicates that faith-based agencies can recruit families that others can’t and provide wrap-around support services which help foster parents serve longer. Much of this evidence is outlined in several Supreme Court amicus briefs, including my own.
What is more, result-orientated attempts to argue otherwise miss the mark. For example, two professors purport to find, based on “preliminary” analysis of data, and interviews with professionals perhaps selected or self-selected for sympathetic viewpoints,that excluding a faith-based agency in Boston did not have any negative effect on the child welfare system. Their eagerness to come to conclusions based on their admittedly “preliminary” analysis suggests that they began with a preferred conclusion and then went looking for data in support.
For example, as evidence they claim that the number of “days in care” (i.e. the total number of days a foster children spends in a foster home) “slightly decreases” after the agency was shutdown. Even assuming the numbers are accurate, a decrease in the number of “days in care” may be either a positive or a negative child welfare outcome. The number of “days in care”could drop because of a shortage of foster care parents to provide such care, because children are being returned inappropriately to abusive and neglectful homes, or because children “aged out” of foster care. It could also result from unrelated changes in the community, particularly because the result is one of “slightly” decreasing. Simply put, a decrease in “days in care” without more doesn’t tell us much of anything about the health of a child welfare system. No wonder this analysis was presented as “preliminary” by the authors. It is incomplete.
Even if one credited the authors’ conclusions, it is telling that they admit: “None of this is to say that things could not turn out differently in another context where a transition is managed less well.” This is quite an admission in a context where child welfare systems notoriously are not managed well, with the majority of states having experienced a federal court consent decree due to chronic mismanagement. One cannot count on a seamless and well-organized transition in child welfare systems which have been known to literally lose track of the location of children in care, with one study finding more than 60,000 children listed as missing in America’s child welfare system since 2000.
* * *
Looking at Fulton from the perspective of what is best for current and prospective future foster children, it is easy to see why excluding faith-based agencies from the foster care systemsolely because of their religious objections to same-sex marriage is a bad idea. The child welfare systems in the United States arechronically overwhelmed and frequently mismanaged and need all the help available from diverse elements of society, including the religious agencies and persons who have throughout the history of the system provided critically important services and homes for children. In this context of constant crisis for America’s foster care children, valuing the dignitary interests of some (but not all) impacted adults, above the needs of traumatized, abused, abandoned, and vulnerable children, would be a tragically unjust choice.
I would add, as I stated in the Statement of Interest in a Fulton amicus brief, that I support “both the inclusion of LGBTQ persons as foster and adoptive parents, and also … the inclusion of religious agencies and religious adoptive and foster parents, including those whose religious beliefs do not accept same-gender marriage.” America’s children really do need all of us, and the adults have to figure out a way to work together toward that end.
January 23, 2021 | Permalink
Friday, January 22, 2021
Like many Americans, I'm concerned about the power Big Tech wields over our economy, over the ways we obtain (and are influenced by) information, and over our personal data. That said, Amazon’s termination of Parler from its web-hosting service after the attack on the U.S. Capitol appears to have been sensible and legal. Yesterday a federal district court judge rejected Parler’s request for a preliminary injunction, and it may be helpful to summarize the judge’s decision before the legal merits get spun beyond recognition in the never-ending tumult of our culture wars.
The facts: starting in mid-November, Amazon began notifying Parler of problematic content on its platform. (I won't offer examples of the many posts encouraging violence against specific individuals, but you can see for yourself if you search for Amazon's response brief to Parler.) After the U.S. Capitol attack on January 6, content encouraging violence continued to grow on Parler. The Parler CEO acknowledged a backlog of 26,000 posts that violated its community standards yet remained on its service. On January 9, Amazon announced that it would suspend Parler’s account, and Parler sued.
Note that this case has nothing to do with the First Amendment, which applies only against the government, not against a private company like Amazon. Parler did not even allege a First Amendment violation. So what did Parler claim?
First, Parler alleged that Amazon’s termination of service violated the Sherman Act because it was “designed to reduce competition in the microblogging services market to the benefit of Twitter.” To prove a violation of the relevant portion of the Sherman Act, Parler needed to show 1) the existence of an agreement; and 2) that the agreement was an unreasonable restraint of trade. Unfortunately for Parler, there was no evidence of an agreement between Amazon and Twitter to harm Parler in order to help Twitter. Contrary to Parler’s allegation, Amazon does not currently provide online hosting services to Twitter. According to the court, Parler has provided “only faint and factually inaccurate speculation.”
Second, Parler alleged that Amazon breached their contract by failing to give Parler 30 days’ notice before terminating services. Parler did not deny that content on its platform violated Amazon’s Acceptable Use Policy, and Parler failed to note that the contract permits Amazon to terminate immediately in the event of a breach.
Third, Parler alleged that Amazon intentionally interfered with its business expectancy, which requires evidence of interference with its business “for an improper purpose or [using] improper means.” The court ruled that Parler raised no “more than the scantest speculation” of improper purpose, and the evidence suggests that Amazon’s action “was in response to Parler’s material breach.”
The court concluded that “the likelihood of Parler prevailing on its claims is not a close call,” as Parler’s allegations “are both inaccurate and unsupported.” Further, the court “rejects any suggestion that the public interest favors requiring [Amazon] to host the incendiary speech that the record shows some of Parler’s users have engaged in.” Parler’s motion for a preliminary injunction was accordingly denied.
We need to sort through difficult issues regarding the power that a few large technology companies have accumulated, and we need to try to do so without reflexively grabbing for the familiar lenses provided by our highly partisan political environment. Catholic legal theory should have something to say about all this. Amazon's decision to stop hosting Parler is not the proper vehicle for that conversation – based on the evidence offered, the decision appears to have been morally prudent and legally justified.
A moral theologian urges Pope Francis to bring his forceful defense of prenatal children into a more central place of his pontificate. It is time to stand up firmly and forcefully for their dignity in a culture which increasingly seems them as disposable thing that can be violently discarded.
January 22, 2021 | Permalink
Wednesday, January 20, 2021
I don't think this piece, in America, is actually about what is in the title. I am, to be sure, a fan of John Courtney Murray's work, and I agree with the piece's author, Prof. Massimo Faggioli (Villanova) that:
One of Murray’s most important contributions . . . is the principle of the distinction between state and society, and the conviction that the state is limited in its role toward society. “State is distinct from society,” he asserted, and “government submits itself to judgment by the truth of society; it is not itself a judge of the truth in society.”
Faggioli goes on to say that "[i]n the present moment, Murray’s assumption must be revised: Our societies have become more pluralistic and more secular, while political identities have often become more strongly linked to religious belief." I'm not sure what this means. That is, it's not clear to me why these observations about our "societies" and "identifies" have any implications for Murray's emphasis on the aforementioned "distinction."
In any event, the distinction matters. Faggioli, strangely, seems to think that the threat to this distinction is (again) "the culture wars" or the asserted emphasis by "culture war[riors]" on "non-negotiables." In fact, though, the most potent challenges to this distinction, and all that it protects and facilitates, are coming (and will increasingly come) from "progressives" who believe that the state should insist on, and use its various tools to bring about, congruence between (a) the egalitarian rules that constrain state action and (b) the practices, norms, and commitments of non-state communities and institutions. In other words, the "healthy secularity" that Murray supported never meant, for Murray, that the Church should welcome being re-made by licensing and funding conditions.
Tuesday, January 19, 2021
David Flatto joined the First Things podcast to discuss his recent book The Crown and the Courts: Separation of Powers in the Early Jewish Imagination.
January 19, 2021 | Permalink
January 19, 2021 | Permalink
Monday, January 18, 2021
Sunday, January 17, 2021
As we reflect on the life and ministry of Martin Luther King Jr., my friend Yohuru Williams and I have published an op-ed in today's St. Paul Pioneer-Press about how insights from our experience teaching "Race, Law & U.S. History" may help guide difficult conversations in the days ahead. An excerpt:
When we portray progress on racial justice as a simplistic good-versus-evil battle, we are setting ourselves up for disappointment. Progress requires us to recognize the scourge of racism, but it also requires our best thinking to discern what will prove most effective in addressing it in a complicated world. Cartoonish renderings of complex issues only serve to further divide rather than create the opportunity for constructive engagement around important issues that deserve not only our full attention but the best of our energies.
Saturday, January 16, 2021
This is the second in a series of three posts about my experiences teaching at a Catholic law school in person during the pandemic. The first post was about safety for teaching in person. This second post is about educational quality. And the third and final post next week will be about fostering community in challenging times.
Premise of Superior Quality of In-Person Teaching:
I begin this post by forthrightly stating my premise that teaching in a classroom to students who are physically present to each other and to the professor is superior. I genuinely believe that this is the ideal setting for legal education. Of course, a pandemic can make a mockery of the ideal.
Even in normal times, I acknowledge exceptions to this premise, such as a special unit of one or two credits for subject that by its nature requires less of a synchronous dialogue. And there is value in an online course designed for students who are unavoidably remote, such as during a summer session for students working elsewhere. For a fully online course, assuring educational quality requires precise organization, development of asynchronous online elements to engage students, use of technology with video and interchange elements, etc. As the experts and those who teach online regularly know, a fully online class demands intense prior planning and rigorous attention to best practices.
But for the typical doctrinal law school course, in-person instruction is better. And for the course that primarily involves a back-and-forth dialogue between the professor and students, in-person instruction is essential to keep the entire class engaged.
And we have good evidence for these conclusions from this past spring. A survey conducted by Thomson Reuters, “Law Schools and the Global Pandemic,” found that a large majority of law students found it difficult to stay engaged with fully online courses, with 39 percent finding it very difficult and 23 percent agreeing it was difficult. Unfortunately, the same survey showed that only about as third as many professors, 14 percent, recognized this as a serious problem. From the professor’s perspective, he or she may have had a satisfying discussion online with the students who were called on for that day and then subjectively judge the day’s class to be a success. But the professor didn’t realize that a larger group of students were tuning out.
As one student told me, online classes during the pandemic have been “prime territory for distraction.” We have to remember that our students who are accessing a class at home, rather than being situated in a classroom designed for instruction, have multiple distractions that are calling constantly to them.
But our ideals cannot always be realized. We now are struggling with the Covid pandemic, which demands creative accommodations and empathy for the difficulties so many face. The hard reality is that not everyone can be in person, whether a professor or a student, even if that state, city, or university permits in-person instruction. We must remember that many of us simply do not have such a choice, either by reason of their own health risks or those of loved ones. And if anyone has to be online, there are reasonable arguments that being fully online avoids some of the complications of dividing between those students who are in-person and those who are remote. We all long for the return of normalcy, where these questions are not before us.
I focus here on those of us who are fortunate to have a choice and who thus are able to teach in person to students who can attend in person. I contend here that the complications can be overcome and that high quality education can still be achieved. In other words, I believe if you can do it safely, then it is worth the candle.
For those of us able and dedicated to continuing in person instruction, we had to make two key accommodations: (1) a hybrid setting in which some students were in person and others online, and (2) social distancing and mask-wearing for those in person. Let me speak to each.
Challenges of the Hybrid Combination of In-Person and Online:
I know of at least one law school that told incoming first-year students they must be in person for the fall or accept a deferral to the following year. But of the law schools that offered any in-person instruction, most allowed students to choose whether to attend in person or simultaneously attend remotely. What then of the quality of instruction for those who are in person, while the professor is juggling responses to online students as well? And what of the quality of instruction for the remote students who are listening in on the in-person class? For the first question, the impact on those in-person by the hybrid format proved to be minimal. For the students online, the situation was definitely more complicated, but in the end I think the question whether educational quality was maintained received a qualified “yes.”
For my each of my two Civil Procedure sections (that is, with the main section broken into two during the pandemic), we began the semester with approximately 38 students in person and 6 online. For those 38 attending in person, the simultaneous participation of a small number online did not appear to have any impact. So for in-person students, the quality question goes to the impact of social distancing and mask wearing (discussed below), rather than how they received instruction. Since instruction was directly from the professor, with participation by others students who were also physically present, things were much the same as usual. As I noted in the first post, students repeatedly commented how much they appreciated the opportunity to attend law school in person, despite the accommodations that had to be made to make it possible during the pandemic.
For the smaller number of students who were online (because they could not safely attend in person), a hybrid setting was more of a challenge. The university sought to address this by setting up a second monitor for the professor in the classroom on which would appear the online students. For me with my approach, that proved unworkable and so I quickly abandoned it (although I understand other colleagues found it helpful). I had all students — both those in the classroom and those who were remote — sign in to Zoom so that we could all participate in polling questions. As a consequence, the second monitor showed everyone, not just the online students. Moreover, the second monitor was set in front of me so that I could see it, which meant that its placement physically blocked my view of several students in the classroom. In addition, having two monitors awkwardly affected how the cursor moved, jerking between the two monitors. So I turned it the second monitor off and moved it away.
Another technological problem was that online students had difficulty hearing what the in-person students were saying. For the most part, online students had no difficulty hearing me, as long as I stayed behind the podium (which during the pandemic was expected anyway). But early on, it was nearly impossible for online students to hear the students in the classroom. The university adjusted the microphones in the classroom, which helped but remained imperfect. I tried to remember to restate the questions or frame my answer for the benefit of the online students, which online students indicated got better as the semester wore on.
Two technology features also enhanced educational quality for online students especially, but also for in-person students:
I enjoyed speaking about the relationship of substantive and procedural ideas of justice to the rule of law and stare decisis on this panel, part of The International Forum on the Future of Constitutionalism's "Global Summit" organized by Professor Richard Albert. In my remarks, I argued against a thin, purely proceduralist view of the rule of law and stare decisis, and also against a morally thick, substantive view of the rule of law and stare decisis. I urged an intermediate possibility. As the rule of law seems to be in the air, so to speak, I thought I would reproduce my remarks. They are below.
I want to reflect on the relationship of substantive political morality to the rule of law and stare decisis. On some accounts, the virtues of both the rule of law and stare decisis are purely procedural. On other accounts, the rule of law incorporates thick, substantive conceptions of political morality. For example, a set of substantive human rights as defined by an international body or other community. Or some thick, substantive ideal of equality or justice. Interestingly, people do not take this second view about stare decisis, the obligation of courts as a general matter to stand by a prior precedent even when they disagree with it. So far as I know, nobody thinks stare decisis contains an ideal of human rights, for example.
So, which account is right? There are a few possibilities. One possibility is that the rule of law *and* stare decisis both embody purely procedural ideals, and that those arguing for a substantive political morality within the rule of law are wrong. A second possibility is that the rule of law embodies substantive political morality while stare decisis does not. That is, the rule of law and stare decisis are relevantly different on this score. And a third possibility is that both the rule of law and stare decisis incorporate procedural and moral values. Now, even though as I indicated, nobody takes this view as to stare decisis (though some do as to the rule of law), I actually think this is the correct position.
But the type of substantive political morality incorporated within the rule of law and stare decisis is not the sort of thick view of the second possibility—equality or human rights or liberty or antidiscrimination, for example. It is instead a kind of political morality related to the procedural virtues of both.
Let me briefly describe the first two views. I’ll then take on the third view, sketching Lon Fuller’s position and extending it in ways that thicken it somewhat, but not all the way, so to speak. Not to oatmeal or gruel thickness, but more like to lobster bisque or vichyssoise thickness.
Friday, January 15, 2021
Thursday, January 14, 2021
My love letter to my country in the form of a brief essay: "Whither Dialogue After the Capitol Riot?" has just been posted on Emory University's Center for the Study of Law & Religion Canopy Forum. It includes a few practical ideas for building a conversational bridge in the midst of the currently intense political polarization. Suggestions include focusing our efforts on "listening to understanding", and cultivating a relationship of trust with a "buddy" who can help us to hear how we might sound in the ears of someone on the "other side."
January 14, 2021 | Permalink
Notre Dame Law School Moot Court Board is pleased to announce its Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom, taking place Friday, April 9, 2021 through Sunday, April 11, 2021.
Every year, teams from law schools across the country participate in our Tournament, arguing before a mock Supreme Court of the United States. We hope you will join us this spring to celebrate student scholarship, appellate advocacy training, and address challenging questions involving the First Amendment. Be sure to mark your calendars, and we hope to see you (virtually) for this exciting event!
Tournament takes place: Friday, April 9, 2021 through Sunday, April 11, 2021 Formal registration opens: January 21, 2021
Tournament Fee: $300 per team Prompt released: February 1, 2021 Briefs due: March 27, 2021
If you have any questions or would like to reserve space for your team(s) before formal registration opens, please contact Natalie Piazza, Tournament Director, at [email protected]
January 14, 2021 | Permalink
Wednesday, January 13, 2021
Tuesday, January 12, 2021
Over the next week, I plan to post three observations from my personal experiences teaching — and teaching in person — at a Catholic law school during the pandemic. In today’s post, I’ll address the question of health and safety for faculty and students in an in-person classroom environment, while a virulent disease rampages through our society. In the next post, I’ll discuss effectiveness of education given the constraints of a hybrid in-person/online format and social distancing with masks. In the third post, I’ll discuss the unprecedented challenges during the pandemic of fostering a sense of community, which is a central part of our mission as a Catholic law school.
Like other universities and law schools, we deferred to each professor’s (and student’s) judgment as to whether appearing in the classroom was safe. For the law school, we ended up (for first-year students) with more than 80 percent of our course sessions being offered in person, through the voluntary choices of teaching faculty, including myself. Our mostly in-person availability for first-year classes proved to be very popular with incoming students, several of whom told me that it influenced their final choice among schools, especially as the other two law schools in the Twin Cities had moved almost entirely online.
The University of St. Thomas, and the law school, devoted the months since the pandemic lock-down in March to plan for returning to in-person teaching in the fall. The dedication of the administration, information technology experts, and support staff cannot be praised enough. They made sure that we had the necessary technology to simultaneously provide in-person instruction and include students who had to remain online. They prepared each classroom for the necessary social distancing and essential sanitation.
Monday, January 11, 2021
Sunday, January 10, 2021
Citing the teachings of the Catholic Church, University of Notre Dame President Rev. John I. Jenkins, C.S.C., called today on President Donald J. Trump to commute the scheduled executions of death row inmates next week, including a woman on Tuesday, at the federal penitentiary in Terre Haute, Indiana.
Full article here: https://news.nd.edu/news/notre-dame-president-father-john-jenkins-calls-on-president-trump-to-commute-upcoming-executions/
January 10, 2021 | Permalink
I participated in this panel at the Federalist Society's annual academic conference last Friday. The discontent sampled here came largely from the non-standard direction, though not entirely. Perhaps of special interest for MOJ: I'm coming to think that Kevin Walsh and Jeff Pojanowski (among others) have hit on a correct insight that a crucial inflection point on the issue of discontent concerns the necessary relationship (or not) between originalism and legal positivism, something I touched on in my comments. Other discontent, raised by other commenters, involved the relationship of originalism and legal conservatism, and I thought it interesting to hear how other speakers conceived the former and the latter.
Saturday, January 9, 2021
Thursday, January 7, 2021
Wednesday, January 6, 2021
A reminder that papers for our new writing competition must be submitted by February 15th, 2021.
Full details here: https://churchstate.nd.edu/home/notre-dame-program-on-church-state-society-writing-competition/
January 6, 2021 | Permalink