Mirror of Justice

Program on Church, State & Society essay-writing competition

The Program on Church, State & Society is hosting, again, an essay-writing contest (for law students and recent graduates) on religious-liberty topics.  There's more information here.  Consider submitting a paper!

Smarick on "How Catholic Social Teaching Can Help Today"

I am a fan of Andy Smarick's Substack, "Governing Right", and particularly appreciated this entry, from a few weeks ago, on Catholic Social Teaching.  Here is a bit:

CST is a sturdy but continuously evolving body of thought that relates to social life. It speaks to the dignity and role of individuals, how we form various associations (e.g., families, organizations, towns), who possesses different types of responsibility and authority, and much more. All of this can inform our understanding of how best to lead in public life.

CST has had a significant influence on my thinking because it is shaped by two quite different but equally valuable lines of reasoning: 1) Immutable moral principles, and 2) the practical wisdom that comes from engaging in social life.

You would, I’m sure, expect the first given that CST is a product of a 2,000-year-old faith tradition. Indeed, CST articulates firm, permanent views on a range of moral issues, like the sanctity of life, the meaning of human flourishing, and the nature of virtuous and improper action.

The second line is less obvious and far less appreciated. It also distinguishes CST from most ideologies purporting to understand and improve society. CST’s practical wisdom comes from the Catholic Church’s millennia-long parish- and diocese-based arrangements and its fundamental commitment to service, particularly of the disadvantaged.

Prof. Carl Esbeck on the Church-Autonomy Doctrine

Few have written as much -- and, more important, as well -- on church autonomy in American law as has Prof. Carl Esbeck (Missouri). He has posted this new paper, "Church Autonomy, Textualism, and Originalism:  SCOTUS's Use of History to Give Definition to Church-Autonomy Doctrine (which is forthcoming in the Missouri Law Review).  Here is the abstract:

Church autonomy is a First Amendment doctrine altogether distinct from the more familiar causes of action brought under the Establishment Clause and the Free Exercise Clause. The principle of church autonomy was first recognized by the Supreme Court of the United States in the post-Civil War case of Watson v. Jones (1872), holding that civil courts must not be drawn into resolving religious questions or settling disputes over church polity. And early this century, in the unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the theory of church autonomy took on its most fully developed form as a constitutional immunity from government regulation where it “interferes with the internal governance of the church.”

While the Supreme Court’s general language concerning the scope of this immunity provides helpful starting points, more systemization is needed to solve the inevitable disputes over fine points and close cases. The place to begin is identifying the full subject-matter range of the high court’s caselaw. In such a survey, church autonomy sets apart as immune five individual domains: the resolution of religious questions or disputes; a church’s choice of polity; the administration of rituals and access to sacred places; the terms of employment of clergy and other ministers; and the admission, discipline, and dismissal of church members.

The Hosanna-Tabor Court went on to hold that further refinements concerning the package of lawsuits that fall into one of these zones of church autonomy are to be found by reference to the nation’s founding. In following this interpretive rule, the scope of church autonomy is given definition by events where the founders spurned federal authority by refusing to become engaged with the internal operations of a church. This makes sense because all thirteen states in rebellion had been British colonies, and the Church of England was the archetypical state establishment. As a loyal arm of the Crown, the Church of England’s establishmentarian model was widely distained by American Patriots.

The final part of the article follows the interpretive rule in Hosanna-Tabor by cataloguing events in which prominent individuals, in their roles as continental and later federal officials, declined to exercise authority in circumstances that give definition to the domains of church autonomy. These events, most little known, include a request by New York delegates to have the Continental Congress alter the Anglican Book of Common Prayer; a French proposal forwarded to the Confederation Congress to sanction a Catholic bishopric in America; a request—later waylaid—to that same Congress to approve the opening of a Catholic seminary; and multiple refusals by the Jefferson Administration to get involved in ecclesial appointments and other quarrels internal to the Catholic church in the Louisiana Territory. These examples and others give historical underwriting to church autonomy theory as grounded in the actions of federal officials in the early republic.

As The Man might say, "download it while it's hot!"

 

Conedera review of Hittinger's "On The Dignity of Society"

Over at First Things, Fr. Sam Conedera has a review of Russ Hittinger's (excellent) new book, "On the Dignity of Society:  Catholic Social Teaching and Natural Law".  Russ is, of course, indispensable reading on both topics.   Here's a bit from the review:

The individual has dignity—he is made in the image of God—both because of the excellence of his rational nature and because he is able to cause good in others. The same, Hittinger argues, is true of the social order. A society is not a mere aggregate.

This understanding of what makes a society is crucial for explaining the relationships among the “three necessary societies,” namely, family, polity, and Church. Each of these societies is grounded in the natural social tendency of the human person; each has ends that are given either by nature or by grace, rather than by human will; and each has a distinctive mode of authority. According to Hittinger, one flaw of political modernity is the failure of states to recognize or respect diverse modes of authority in civil society. The modern state reduces group-persons to mere partnerships, disregarding the principle of subsidiarity, on which different societies—family, Church, and so on—have their own proper functions and their own authority. (Importantly, as Hittinger insists, subsidiarity is about doing things not at the “lowest” level, but at the “proper” level.)

 

Jon Schaff on Andrew Willard Jones's "The Church Against the State: On Subsidiarity and Solidarity"

This review, at the "Front Porch Republic" blog, by Jon Schaff, of Andrew Willard Jones's new book, The Church Against the State: On Subsidiarity and Solidarity, might be of interest. A bit:

The Church Against the State attempts to lay out a comprehensive Christian political theory that stands in stark contrast to the liberalism that has dominated the Western world for nearly four centuries. In doing so, Jones juxtaposes the commitment to subsidiarity, most thoroughly fleshed out in the Catholic social thought of Pope Pius XI, with the notion of sovereignty, undergirded by the Peace of Westphalia in 1648. What emerges is a stunningly broad and detailed analysis of both liberal and Christian politics. . . . 

Those concerned with the aggressive liberalism of our day while pondering what a Christian politics might look like will benefit from Jones’s expansive knowledge. This book serves as a warning to those Christians who wish to “heighten the contradictions,” to use the tactics of the hostile Left against the Left, who see politics as an “us against them” fight to the death. Jones’s work should caution us against the temptation to use the power of the state to further apparent Christian ends. The politics Jones advocates seems to be one of decentralization married to a hearty evangelization. As Augustine noted, the Christian citizen is actually the best citizen as he has virtue and the common good as his goals. . . .

Symposium: "In Search of Common Ground: Religion and Secularism in a Liberal Democratic Society"

I'm looking forward (and I'm sure fellow MOJ-er Tom Berg is, too!) to this symposium, being sponsored by the Chicago-Kent Law Review: 

Over the past several decades, America’s religious diversity has continued to grow rapidly, as have the percentages of Americans who either are not religious or are not affiliated with a specific religious group or denomination. At the same time, America’s deepening cultural and political divisions have often followed these expanding religious fault lines. These developments have raised new challenges for defining the relationship between law, religion, and secularism under the Religion Clauses of the First Amendment and beyond. At the Chicago-Kent Law Review’s Symposium, leading law-and-religion scholars who represent a broad spectrum of views will explore a range of doctrinal issues – such as free exercise exemptions, government expression and funding, and the meaning of religion under the First Amendment – and will discuss how people who hold very different worldviews can live together in contemporary society.

The public is welcome to sign-up and participate so . . . "see" you there!

Important Church-Autonomy Opinion by Judge Bumatay in the Ninth Circuit

In a Ninth Circuit en banc case called Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Judge Patrick Bumatay has (what the kids call) a "banger" of an opinion on the church-autonomy doctrine and the institutional dimension of religious freedom more broadly. It's a must-read for anyone interested in the topic.  

You can read more about the case's background and context at the Becket Fund's website.  Here's just a tiny bit:

That structural rationale persisted throughout the Middle Ages. See Roscoe Pound, A Comparison of Ideals of Law, 47 Harv. L. Rev. 1, 6 (1933) (“In the politics and law of the Middle Ages the distinction between the spiritual and the temporal, between the jurisdiction of religiously organized Christendom and the jurisdiction of the temporal sovereign ․ was fundamental.”); see also Carl H. Esbeck, The Establishment Clause as Structural Restraint on Government Power, 84 Iowa L. Rev. 1, 50 n.206 (1998).

Take the Investiture Conflict of the 11th century. It typified the battle for church independence. There, the Papacy fought against the Holy Roman Empire for the ability to appoint its own bishops—a power then vested in the emperor. The conflict was “jurisdictional” as the church sought “liberation of the clergy from imperial, royal, and feudal domination and their unification under papal authority.” Gregory A. Kalscheur, S.J., Civil Procedure and the Establishment Clause: Exploring the Ministerial Exception, Subject-Matter Jurisdiction, and the Freedom of the Church, 17 Wm. & Mary Bill Rts. J. 43, 61 (2008) (simplified). The church first championed “freedom of the church” because it believed the Pope sovereign over such appointments. See Charles J. Reid, Jr., The Spirit of the Learned Laws, 1 Wash. U. Global Stud. L. Rev. 507, 529 (2002) (quoting the Dictatus Papae to show how the church advocated for “papal sovereignty”); see also Richard W. Garnett, “The Freedom of the Church”: (Towards) an Exposition, Translation, and Defense, 21 J. Contemp. Legal Issues 33 (2013) (drawing on the Investiture Conflict to delineate the substantive content of libertas ecclesia—“freedom of the church”).

Thus, in both ancient and medieval times, the church's basis for autonomy rested on structural grounds. Because God committed authority over spiritual matters (like the burning of incense or appointment of clergy) exclusively to the church, the state lacked authority over such matters.

Be still, my heart . . . 

John O'Callaghan on "No Mercy From a Distance"

My friend and colleague John O'Callaghan (Notre Dame, Philosophy) gave a great talk, the other day, at Providence College, on "Aquinas on Compassion and Natural Friendship."

Mercy is often thought of in our culture as an act of forgiveness of some offense, whether civic or personal, that reduces or eliminates punishment that is due for that offense, and is dominated by questions of justice. That sense of mercy is hard to square with other uses of the term that suggest something more like assistance to those in need, as in the religious notion of “works of mercy” directed to the poor and suffering. It is also hard to square with the sense that mercy requires compassion, suffering with another, a compassion that is not necessarily required by forgiveness, and may even be at odds with the justice of punishment. Thomas Aquinas provides an account of mercy that helps us understand how it differs from forgiveness and necessarily involves compassion for those who suffer. The ground for his understanding of mercy is that such compassion is grounded in natural human friendship. But the idea of natural human friendship is perhaps even more at odds with our modern sensibilities in which we typically think that while justice binds us, we are nonetheless free to choose our friends as we like. If Aquinas is correct, we do not have such freedom, and are more bound by mercy grounded in natural friendship than we are by justice.

Check it out!

21 Years of Mirror of Justice

Well, I forgot to post yesterday, which was the 21st anniversary of the first post at Mirror of Justice. (I think I have law students who were born after that first post.) A lot has happened since then (besides 2 papal conclaves, 6 presidential elections, and two Notre Dame losses in the National Championship game). Obviously, we MOJ-ers have not been posting as much here as we did in the past. (I blame Twitter, BlueSky, Substack, etc.)  Still, after many thousands of posts and many millions of page views, I believe that it remains important for lawyers, legal scholars, law students, and -- well -- everyone to think about the implications of Christianity for law, legal practice, legal education, and the legal enterprise.

I am working on some revisions, changes, adjustments, re-presentations, etc., for MOJ, so stay tuned.  And, for old times' sake, go read our first post, here:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

A few things about this blog and us:

1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.

2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.

3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.

4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.

5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)

6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!

Pres. Biden commutes most federal death sentences

A report on today's announcement is here.  Here's a bit:

“Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole,” Biden announced in a statement released Monday.

Notably, the president did not commute the sentences of three people whose crimes included mass shootings or acts of terrorism: Dzhokhar Tsarnaev, one of two brothers responsible for the deadly Boston Marathon bombing in 2013; Dylann Roof, a White nationalist who massacred nine people at a historically Black church in Charleston, South Carolina, in 2015; and Robert Bowers, who killed 11 worshippers at Pittsburgh’s Tree of Life Synagogue in 2018.

“These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder,” Biden said, referring to his Justice Department’s halt on federal executions.

I would welcome legislation (federal and / or state) that abandoned capital punishment as a sanction. At the same time, I do not believe that capital punishment violates the Constitution (and so judges should not use creative interpretations to bring about abolition) and I also think it is not consistent with the role of the "executive" to, in a blanket way, effectively nullify legislative and electoral choices. It would have been, in my view, better had Pres. Biden, when he was Vice President Biden, used his influence, and large congressional majorities, and political capital, to work for a legislative repeal.

It also seems to me that the reasons the President gives for commuting most of the federal death sentences apply with equal force to the "high profile" ones he is letting stand. If anything, his decision not to commute in the cases where it would be politically controversial to do so is inconsistent with his (correct) concern that political considerations distort the application of capital punishment.

I hope, though, that this news prompts legislative actions in the states, such as this one in my own state of Indiana.

Hittinger on "The Dignity of Society: Catholic Social Thought and Natural Law"

My copy of Russ Hittinger's new book -- which pulls together and synthesizes a lot of his great writing on the Catholic Social Teaching tradition, natural law, social-ontology, political theology, and more -- just arrived. It looks to be a perfect Christmas gift! Get yours ASAP!

Happy Repeal Day!

On this day, in 1933, the 21st Amendment was ratified, repealing the 18th, which had provided for the prohibition of the "manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes[.]" For an excellent book about the Prohibition experiment, its history and context, and its (very interesting) legal and constitutional implications and legacy, check out Daniel Okrent's Last Call.

One of the (many) not-done things on my list of "things I'd like to do as a law professor" is a seminar-course, based on Okrent's book, about Prohibition (broadly understood), including its connection to immigration, anti-Catholicism, the rise of federal criminal law, census and districting shenanigans, legal moralism, etc.  Someday . . . 

Viva Cristo Rey!

In my experience, homilists in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

"The Father of the School Choice Movement"

James Schuls (Missouri) has a fascinating piece in the latest Journal of School Choice called "The Father of the School Choice Movement", about Fr. Virgil Blum. I am more than a little bit sheepish about the fact that I'd never heard of Fr. Blum! Here is the abstract:

Milton Friedman is widely considered the intellectual father of the school choice movement. While Friedman deserves much credit, Father Virgil Blum stands out as an influential figure in the nascent school choice movement. Using archival research, this paper examines Blum’s contributions to the movement. From his 1954 doctoral dissertation, which made the legal case for funding religious schools, to his 1958 book, Freedom of Choice in Education, and his decades-long career as a professor, Blum was a tireless advocate for educational freedom. While Friedman made the market argument, Blum made the legal, moral, and religious freedom arguments for school choice.

 

 

"On the Dignity of Society: Catholic Social Thought and Natural Law"

Well, it's Russ Hittinger on Catholic Social Thought so, "self-recommending" but . . . if you are in or near Chicago on November 7, don't miss this event at the Lumen Christi Institute:

 

Russell Hittinger has long been one of the world's leading scholars of Catholic social teaching and natural law theory. His most recent book, On the Dignity of Society, presents the fruit of his mature thinking on fundamental issues in Catholic political thought. Rooted in Thomistic philosophy and natural law theory, but also animated by his study of St. Augustine and thus sensitive to historical contexts and arenas for moral and theological disputation, Hittinger articulates the deepest principles of the Church's social teaching and sheds considerable light on their historical applications. At this event, Profs. Mary Hirschfeld and R. H. Helmholz will discuss Hittinger's latest work, and the event will conclude with a response from Prof. Hittinger. 

On Saturday, Russ Hittinger and Scott Roniger will lead a master class titled "What Is a Society? On the Coherence of Catholic Social Thought from Pope Leo XIII to Pope Francis."

A great opinion, and win, in an important religious-freedom case

Out of a federal district court in North Dakota, courtesy of Judge Daniel Traynor, here  Download Gov.uscourts.ndd.65135.31.0 is an excellent opinion, granting a motion for a preliminary injunction filed by the Catholic Benefits Association (represented by the great Martin Nussbaum and his team) in a case involving (yet) another administrative/executive effort to limit religious freedom.  I particularly enjoyed this footnote:

"Unchecked government power creates martyrs like Dietrich Bonhoeffer, imprisoned and
executed for expressing opposition to euthanasia and the persecution of Jews; Miguel Pro, arrested
and eventually executed for violation of Mexico’s anti-Catholic Calles Law; and Thomas More,
famous for being executed by the British king for the crime of not saying anything."

Viva Cristo Rey!

Scholarly Impact and Catholic Legal Education (Part Four)

[This is the last in a series of four posts. This post is new this year, adapted from the introductory remarks to our report of the new Scholarly Impact Ranking for 2024.]

Be encouraged, my colleagues in the legal academy. Those long days, weekends, semester breaks, and summers devoted to legal scholarship can make a difference. Believe it. Intelligence, nuanced understanding, critical analysis, and creative resolution matter more, that is true. But don’t belittle the value of basic hard work in building a scholarly profile for any law professor. And that scholarly diligence should pay dividends in multiple ways, perhaps including the scholarly impact of your work by drawing citations from other scholars.

The cynic may reply that hard work simply does not result in greater scholarly visibility, unless the scholar is already at a top ranked law school. The skeptic doubts that greater productivity and higher quality work achieved through longer hours makes any difference in scholarly impact. Legal academia is too hierarchical, and rank positions are too fixed for one person working hard to make a difference, so says our detractor.

I respectfully, but strongly, disagree. To say that it is difficult to move upward should never be mistaken to mean that it is impossible.

There is ample evidence that individual scholarly achievements do matter, both to that individual scholar and to the law faculty on which he or she currently serves―or the law faculty that later recruits that individual for a lateral move. One of the distinct pleasures in conducting our Scholarly Impact Ranking every three years is to see the impact made by law professors at a variety of law schools.

Individual scholarly successes aggregated for a law school’s tenured faculty may also make a substantial difference. Law faculties as a collection of individual scholars can and do change in composition, sometimes dramatically, which then changes the scholarly portrait projected into academia.

When a law school experiences an atypical number of retirements or departures of tenured faculty, followed closely by a greater than usual number of new or lateral hires, the institution has a prime opportunity to build a stronger scholarly profile. We see multiple examples of law faculties that have moved up in the Scholarly Impact Ranking precisely because they have succeeded in making great hires, including lateral hires, that have boosted that school’s impact.

In our 2021 ranking, we reported that the law faculty at Viginia had climbed several positions from #16 in 2018 to arrive in the top 10 and tied for #9 for 2021. This result was not a surprise to careful observers of the legal academy, as Virginia had recruited more than half a dozen highly cited lateral scholars in the recent past. Showing the stability of our ranking, Virginia remains in the top 10 for our 2024 ranking.

For 2024, another law school has made dramatic upward movement into the top 25. In our 2021 ranking, Emory had been ranked at #36. In this 2024 ranking, Emory has moved dramatically up to #18. As with Virginia in 2021, this outcome for Emory is not mysterious. Comparing its tenured faculty roster in 2021, Emory saw double-digit additions and departures before this updated 2024 study. The incoming faculty members―at least half of whom were moving from law schools outside of the top 25 in scholarly impact―have a collective citation mean that is well above the overall mean for the Emory faculty (and more than double the mean for departed or retired faculty). In sum, Emory added citation strength through its faculty hires, which not surprisingly added up to a significant upward move in our Scholarly Impact Ranking.

Onward and upward, Fellow Scholars!

Scholarly Impact and Catholic Legal Education (Part Three)

A few days ago, after reporting the 2024 update to the Scholarly Impact Ranking of law faculties (here), I began a series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education. This is the third of four posts in the series.

The first point, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often assigned to religiously-affiliated law schools.

My third point today is that, as Catholic Christians, we have been called to share the Gospel, both directly and indirectly.  The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than Saint John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae:   “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”

For some of us on law school faculties, that directive means writing on Catholic legal theory and applying Christian-grounded principles to the legal and social issues of the day.  For all of us, it means conducting the search for the truth with integrity and dedication.  The search for the truth is hard work — and for Catholic academics that hard work requires scholarly engagement.

Turning again to the words of Ex Corde, for a Catholic university

Included among its research activities, therefore, will be a study of serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, the protection of nature, the search for peace and political stability, a more just sharing in the world's resources, and a new economic and political order that will better serve the human community at a national and international level. University research will seek to discover the roots and causes of the serious problems of our time, paying special attention to their ethical and religious dimensions.

Through our work — through the excellent quality, regular production, and integrity of our work (comporting with the standards of our discipline) — we may have a significant influence on the development of the law and of the legal culture.  As my former Dean (and now President) Rob Vischer has written (here), “a fundamental mission of law schools is to advance knowledge and thereby contribute to human flourishing.”  For religiously-affiliated law schools, Vischer says, our mission includes “producing scholarship aimed at bringing a more just world into view.”  And this scholarly mission can resonate with and be integrated into our teaching and collaborative work with students.  To again quote Rob Vischer, we should not neglect “the formative potential of inviting students to be active participants in a law school's scholarly culture.”

On the call to challenge and inform the culture, Ex Corde speaks as well to the vital importance of scholarly work:

By its very nature, a University develops culture through its research, helps to transmit the local culture to each succeeding generation through its teaching, and assists cultural activities through its educational services. It is open to all human experience and is ready to dialogue with and learn from any culture. A Catholic University shares in this, offering the rich experience of the Church's own culture. In addition, a Catholic University, aware that human culture is open to Revelation and transcendence, is also a primary and privileged place for a fruitful dialogue between the Gospel and culture.

We cannot fully participate as academics in the search for the truth without also contributing to the scholarly literature, which reaches audiences both within and beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed.

What a tremendous privilege!

Scholarly Impact and Catholic Legal Education (Part Two)

Recently, I reported the 2024 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here.

Three years ago, I posted a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  I am revising and re-posting those, as they remain just as salient today, along with a new post of encouragement.  This is the second in the series of four.

The first point, which I made in a post last week, is that a meaningfully Catholic law school must be an intellectually engaged law school.  Intellectual excitement and depth cannot be sustained without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point goes not only to Catholic legal education, but Catholic higher education in general:  Through our scholarly excellence and prominence, we witness to society the vibrancy of intellectual discourse by persons of faith.

 

Throughout American history — and with increasing tendency today — persons of devout religious faith have often been discounted in academic and other elite cultural circles, sometimes regarded as intellectually inferior.  As but one pertinent example, those who study reputational-based rankings of law schools (such as the U.S. News ranking which gives considerable weight to reputational surveys) have observed a “religious law school discount.”  See Monte N. Stewart & H. Dennis Tolley, Investigating Possible Bias:  The American Legal Academy’s View of Religious Affiliated Law Schools, 54 J. Legal Educ. 136 (2004). A law school that is religiously affiliated is likely to be downgraded an ordinal ranking level or more — due to poorer survey scoring by academic peers — when compared to otherwise equivalent law schools on objective measures such as student profile, employment statistics, faculty scholarly impact, etc.  The strongest counterpoint to this "religious law school discount" is to prove the falsity of the anti-intellectual stereotype by encouraging our colleagues to perform even better than scholars at our peer institutions without a religious affiliation.

If Catholic legal education (or Catholic education in general) is to be acknowledged as intellectually fit, then faculty at Catholic institutions must be intellectually engaged.  By producing excellent and well-written legal research, sharing our legal scholarship with others, and receiving deserved accolades for our work, we thereby enhance the intellectual reputation of Catholic legal education.

A half century ago, Monsignor Tracy Ellis provoked Catholic higher education through a speech and monograph titled, “American Catholics and the Intellectual Life.”  Monsignor Ellis indicted Catholic colleges for failing to build a strong scholarly culture, leading to the disrepute of Catholic higher education.

Tom Mengler — who is President at St. Mary’s University in San Antonio and previously was dean at the University of St. Thomas School of Law and the University of Illinois College of Law — wrote thoughtfully about Monsignor Ellis in a piece published several years ago in the Journal of Catholic Social Thought titled “Why Should a Catholic Law School Be Catholic?” (here)

Monsignor Ellis blasted away at the anti-intellectualism of the American Catholic and the mediocrity —- especially the scholarly mediocrity — of American Catholic colleges and universities. Ellis wrote that the lack of an intellectual and scholarly tradition within Catholic higher education [was] a kind of self-imposed ghetto mentality * * *.  [In the early twentieth century, Catholic colleges] emphasize[d] what Ellis called a narrow vocationalism and anti-intellectualism.

* * * By all accounts, Ellis’s tiny book had enormous impact on Catholic higher education. Just a few years after Ellis‟s book was published, Father John Cavanaugh, formerly Notre Dame’s president, credited Monsignor Ellis with upgrading scholarship at Catholic universities across the country.  At most of the major Catholic universities — throughout their academic departments, including within the law schools — scholarship suddenly became a more important focus.

In our Catholic law schools, we are the heirs of Monsignor Ellis’s intellectual legacy.  And the need for a vibrant scholarly culture in Catholic higher education remains as compelling.  As I’ll turn to with the third point later this week, the additional challenge today is to ensure that our scholarly excellence includes a critical mass of distinctly Catholic or Catholic-inspired work to influence the larger society for the good.

Garnett & Barclay on religious-freedom laws and abortion regulations

Along with my colleague, Prof. Stephanie Barclay (Georgetown), I have a short essay up at City Journal, explaining why Indiana's religious-freedom protections do not require exemptions from that state's abortion regulations.  Here's a bit:

In Dobbs v. Jackson Women’s Health Organization (2022), the U.S. Supreme Court abandoned its mistaken rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), affirming that American political communities are constitutionally permitted to regulate abortion. Soon after Dobbs, Indiana enacted Senate Enrolled Act No. 1 (what we call the “abortion law”), which prohibits abortion except when a pregnancy seriously endangers a mother’s health or life, a pregnancy is the result of rape or incest, or the unborn child has a “lethal . . . anomaly.”

Several claimants challenged the abortion law as a violation of Indiana’s Religious Freedom Restoration Act. They argued, in other words, that because the abortion law imposes a substantial burden on their religious exercise, rooted in the sincerely held religious belief that abortions are sometimes not only permissible but required, they are entitled to an exemption from the law. A number of legal commentators have advanced similar arguments. And in the spring of 2024, an Indiana appeals court agreed, for the most part, with the challengers’ claims. While acknowledging that the federal and state constitutions permit Indiana to regulate abortion, the court concluded that the challengers were likely to succeed with their claim that the state cannot justify enforcing the abortion law in cases where such enforcement burdens religious exercise.

The court of appeals was wrong, though, and Indiana’s supreme court should reject its reasoning (as we have argued in an amicus brief). Indiana, quite appropriately, protects the fundamental right to religious freedom. That right, however, does not entitle the claimants to an exemption from the state’s duly enacted and constitutionally permissible abortion law.

Scholarly Impact and Catholic Legal Education (Part One)

A few days ago, I reported the 2024 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded. The post is here. and the full report is here.

Every three years, I also post to Mirror of Justice a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  Over the next week, I'll repost revised versions of these posts, as they remain just as salient today, and will also a post of encouragement for legal scholars.

Whenever a report or study is published on the scholarly activities of law professors, it is likely to provoke some critical responses questioning whether legal scholarship has any practical value. Someone is likely to argue yet again that law professors spend too much time on scholarly writing at the expense of their teaching responsibilities.

In my view, this suggests a false conflict between scholarship and teaching. We should not view scholarly work and teaching as competing with each other, rather than understanding that the intellectual preparation found in scholarly research and writing is complementary to greater depth in teaching.  As we wrote in our 2018 report on scholarly impact:

Why would students want to learn from the law professor who arrives at the classroom podium only after abandoning rigorous written engagement with legal problems? How can we expect students to be inspired to professional leadership, masterful and dedicated client representation, and principled law reform if their professors do not exemplify the intellectual curiosity, the breadth of thought, and the conscientious inquiry of a legal scholar?

When I am asked, with respect to my own institution, the University of St. Thomas, whether we should continue to strive for scholarly excellence and national scholarly prominence or whether we should devote greater attention to teaching and enhancing professional formation, my answer is an unequivocal “yes!” We as tenured faculty members need to step up and work even harder to achieve excellence in both responsibilities.

Moreover, it bears reminding, even if the teaching and counseling duties of tenured faculty have increased during the academic year, the long, glorious months of summer would remain. At most law schools, few students are in school and few classes are being taught during the summer and those that are taught during summer are rarely taught by full-time faculty. Given that luxury of uninterrupted weeks of work time, most tenured faculty have been given more than ample opportunity to produce one or two major works of scholarship each year.

I want to address today a more pointed question: How important is scholarly impact to a Catholic law school?

For three reasons, I think the scholarly mission of the tenured (and tenure-track) law faculty takes on added importance for the Catholic law school: (1) an intellectually engaged law school culture requires scholarly-engaged law faculty; (2) a scholarly-prominent Catholic law school is a strong witness for the intellectual vibrancy of scholars of faith; and (3) a Catholic law school through the scholarly work of its faculty influences for good the culture in which it is situated.

I’ll say a little more about the first of points below and then follow up with the other two points in separate posts over the next week.

On my first point, a law school that is meaningfully Catholic in character will be grounded in the Catholic intellectual tradition, while giving careful attention to and including faculty who work from other intellectual traditions and scholarly movements. Indeed, one of the signature virtues of the Catholic intellectual tradition is that it is enriched by other traditions as well. A law school cannot be an intellectually vigorous place without faculty who are engaged in the quintessential intellectual activity of scholarly research and writing. One can best convey to students the excitement and meaning of intellectual discourse, along with the satisfaction of applying reason informed by theory to new situations, when one is doing that hard scholarly work oneself.

I recall a law professor from another law school many years ago who referred in casual conversation with me to the “scholarly” faculty at yet another law school (that shall remain unnamed). She characterized them as a genuinely scholarly faculty because, even though no one on that faculty produced much in the way of scholarly publications themselves, the faculty gathered every couple of weeks in the faculty lounge to discuss a recent scholarly article written by someone elsewhere. At the time, I thought how odd it would be to describe the faculty at a school of music as musically engaged, even though none of the faculty wrote music or played instruments, but instead gathered frequently to listen to and discuss music written and played by others.

If we are to bear witness to the Catholic intellectual tradition — and other intellectual disciplines — we must be thinking hard about those matters. And that means writing about them. We all know that a student can listen to a classroom discussion without thinking. And, as we’ve all experienced, especially when trying to read a legal text late in the evening, a person can read without thinking. But no one can write without thinking. Putting pen to paper (literally or figuratively through a keyboard) demands an engagement for which no discussion group, conversation, or attendance at a lecture by someone else can substitute.

By engaging in scholarly writing of our own, we enhance our ability to critically examine the previously published scholarship of others, and we frequently discover the greater persuasiveness of prior scholarly work when we take the time to examine it in our own work. As I often am reminded in doing research, it is very easy to unfairly criticize the scholarly work that someone else has done, only to find when actually engaged with the same issues and materials in doing one’s own work, that the prior researcher did very well with what she had before her. One is rightly skeptical of purported scholars who pontificate on the work of others but have not done the heavy lifting of laboring in that field themselves.

More to come.

Ranking the Scholarly Impact of Law Faculties -- 2024

Every three years, I lead a team at the University of St. Thomas (Minnesota) to study the scholarly citations of thousands of tenured law professors (involving some half-a-million citations) to measure the scholarly impact of American law faculties, that is, whether other scholars are actually relying on their written works of scholarship.  Using the basic methodology pioneered by Professor Brian Leiter at the University of Chicago, we rank approximately the top third of law schools.

With the full study available here, I am pasting the Top 50 below.  Five Catholic law schools appear in or near the Top 50-- Georgetown, the University of St. Thomas, the University of San Diego, Notre Dame, and the University of San Francisco.

In the coming days, I'll renew my thoughts about the importance/value of scholarship at Catholic law schools, which again I share every three years when this study is complete.

Rank	Law School	Weighted Score
1	Yale	1255
2	Chicago	1120
3	Harvard	1016
4	NYU	898
5	Columbia	813
6	Cal-Berkeley	747
7	Pennsylvania	739
8	Stanford	728
9	Vanderbilt	695
10	Virginia	669
11	Duke	636
11	UCLA	636
13	Cornell	612
14	Michigan	571
15	Georgetown	562
16	Northwestern	552
17	George Washington	507
18	Emory	474
18	Cal-Davis	470
20	Fordham	464
20	Texas	464
22	Cal-Irvine	439
23	William & Mary	428
23	Minnesota	427
23	U. St. Thomas	425
26	USC	408
27	Boston University	404
28	Washington University	387
29	Brooklyn	374
30	North Carolina	369
30	Florida	366
30	Utah	364
30	George Mason	361
34	Cardozo	355
34	Ohio State	353
34	U. San Diego	349
34	Florida State	346
38	Illinois	344
38	Notre Dame	338
38	Arizona	332
41	Colorado	328
42	BYU	316
43	Case Western	306
43	Cal-SF	304
43	Kansas	301
43	Arizona State	299
47	U. San Francisco	293
47	Georgia	291
47	Temple	289
47	Washington & Lee	287
47	Chicago-Kent	282

We Are Hiring!

The Catholic University of America, Columbus School of Law, is hiring. Scholars with all different sorts of interests are welcome, though we have particular curricular needs in corporate law, commercial law, professional responsibility, and evidence. We are also seeking candidates who may be interested in participating in our University’s Institute for Latin American and Iberian Studies.

I can attest that it is a very exciting and energizing time to be at our school, as we strive to build a distinctively Catholic institution. Come see what we are about.

Interested applicants should submit their materials to the attention of Dean Stephen Payne, [email protected].

Christian Scholar's Review Interviews on "the Legal Vocation"

Professor Todd Ream of Indiana Wesleyan has conducted a series of interviews with legal scholars on the legal vocation as part of his "Saturdays at Seven" feature on the Christian Scholar's Review. There are interviews there with Professors John Inazu, John Witte, Michael McConnell, Cathleen Kaveny, and me, with one more to follow next week with David Skeel. They offer some nice insight about some of the background and experiences of these folks before they became professors. Here's the one with me.

"Marie Antoinette and the Stories We Prefer To Tell"

Like many, I was . . . underwhelmed by the Opening Ceremonies for the recent Olympic Games in Paris (although, as a longtime heavy-metal fan, I liked Gojira's rendition of "Ah! Ça Ira”, notwithstanding the song's connection with the French Terror). And, I was similarly unimpressed by the gaslighting engaged in by the many commentators (including Catholics who should know better) who played the "ackshully" card with respect to the irreverent depiction of the Last Supper.  

As it happened, I was listening to the the multipart podcast series, by the (excellent) "Rest Is History" team, on the lead-up to the Revolution, which included an entire episode on the extent to which Marie Antoinette became, largely without justification, and in no small part because of the republicans' misogyny and nativism, an object of public odium. Then, to see the (bizarre) decision by the French organizers of the Games to celebrate her murder-by-mob (and, by extension, the general enterprise of Killing-for-Year-Zero) . . . it was quite a thing.  And, this essay, by Joseph Toates, is a very interesting reflection on that decision:

The execution of Marie Antoinette and the treatment of her family is nothing for France to be proud of. Her punishment is the first evidence of a revolution run amok. The spirit of her trial was public vengeance and it can barely be considered a legal proceeding. Her child, age seven, was forced to testify under duress and in prison to incestuous rape by his mother. The effort put forth to bring this particular charge against Marie shows that the trial was not solely about her conduct of affairs of state, but rather about humiliating her publicly. Marie refused to answer the charge in the courtroom, saying it was beneath her dignity as a mother. Killing Marie was not an act of justice. It was extrajudicial public revenge and an act worthy of, if not outright condemnation, then at least very careful reconsideration. The imprisonment and death of her son is a clear example of cruelty and abuse to an innocent child for the sake of convenience and as an act of family retribution.

There is, I'm confident, a connection between the themes/aims of this blog -- i.e., between "Catholic Legal Theory" -- and both (a) Toates's (and many others') reminders of the (very) dark side of the French Revolution and (b) his reflections about the way political/legal regimes choose to (mis)represent their pasts.