Mirror of Justice

Webinar with Stuart Banner on "The Decline of Natural Law"

The McCullen Center at Villanova will host a webinar on Tuesday, September 21 at 4:30pm EDT featuring Stuart Banner of UCLA Law speaking about his book The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped (Oxford University Press, 2021) with commentary from Michelle Madden Dempsey (Villanova) and Jeffrey Pojanowski (Notre Dame). Registration and details available here.

Program on Church, State & Society 2021 fellows share summer experiences

Three Notre Dame Law students gained valuable exposure this summer in the area of religious-institutions practice. Sponsored by the Law School’s Program on Church, State & Society, each summer fellow assisted a religiously affiliated organization.

Read about their fellowship experiences here: https://churchstate.nd.edu/news-events/news/program-on-church-state-society-2021-fellows-share-summer-experiences/

Initiative on Restorative Justice & Healing at St. Thomas Law

St. Thomas Law opened its doors twenty years ago last month, and one way we are celebrating is by redoubling our commitment to live out our distinctive Catholic mission in ways that meet the needs of our society.  Last week, we launched the Initiative on Restorative Justice & Healing, a coordinated effort to leverage our expertise and resources to help restore relationships fractured by injustice, with a particular focus on racial injustice, sexual abuse by clergy and institutional failures within the Catholic church, and societal polarization.  Directed by my faculty colleague Fr. Dan Griffith, this project is a great example of our mission in action, demonstrating the importance of integrating legal acumen with empathy, concern for the whole person, and the transformative power of human connection.  Fr. Griffith and Professor Hank Shea, a former federal prosecutor, have been co-teaching a course on restorative justice for several years, and we will look to expand those efforts to include a hands-on restorative justice practicum course, community partnerships, externships, lectures, conferences, training sessions, and broader visibility into ways that restorative justice practices can help bring healing to our communities. 

With an understanding of justice as right relationships, we believe that this work can be a core component of Catholic legal education. 

This video (created by Hunter Johnson) is a helpful introduction to the role that restorative justice has played in the resolution of clergy sexual abuse cases in our Archdiocese, and this video of last week's launch event provides a preview of the Initiative's potential impact.  Restorative justice pioneer and former Wisconsin Supreme Court Justice Janine Geske will chair the Initiative's advisory board.

Case Prompt for Notre Dame Law School’s Sixth Annual National Appellate Advocacy Tournament for Religious Freedom

Just released - the case prompt for this year's National Appellate Advocacy Tournament for Religious Freedom.

Download NDNAAT 2021-2022 Case File

The tournament takes place (virtually) Friday, October 8, 2021 through Sunday, October 10, 2021. 

There is still room for a few more teams. To register, see this link:https://shop.nd.edu/C21688_ustores/web/product_detail.jsp?PRODUCTID=8367&SINGLESTORE=true

Questions regarding the tournament should be directed to Zahraa Nasser at [email protected]

A second, more skeptical assessment of United States v. Texas

As a counterpoint to yesterday's earlier optimistic assessment, here's a second, more skeptical assessment of the complaint in United States v. Texas (W.D. Tex. 2021).

For standing purposes, the three counts can be grouped into two categories. 

Count I asserts irreparable injury to the sovereign interest of the United States in ensuring that individual federal constitutional rights "remain redeemable in federal courts." ¶ 13. Although portions of the complaint read at times like the U.S. is asserting individual rights as an association might assert the rights of its members, that does not seem to be what's going on here. These allegations of the complaint instead seem to be focusing on ensuring the enforceability in federal court of individual rights only insofar as those rights relate to the interest of the United States as a sovereign in ensuring such enforceability. Put another way, it seems as if the United States is asserting  a sovereign interest theory based on the combination of (1) infringing "the constitutional rights of the public at large," and (2) blocking "the injured members of the public from challenging that law in court." ¶ 44.  This seems to be a novel theory of sovereign-interest standing, but perhaps novelty calls forth novelty. In any event, let's put it aside for now and come back to this one after looking at the other category.

Counts II (preemption) and III (intergovernmental immunity) rest on a more familiar theory of injury, namely that the Texas Heartbeat Act conflicts in various ways with the operations of the federal government through effects on officials, employees, and contractors. Assuming that this kind of injury is a kind that counts, the United States still seems to have a California v. Texas problem of showing "actual or imminent" injury that is "fairly traceable" to "allegedly unlawful conduct."  The key paragraph here is ¶ 78:

The United States has an “actual and well-founded fear that” the arms of the state that Texas has enlisted will enforce the law directly against it and its agencies, as well as against the public at large, whom the State has endeavored to keep from challenging the statute. Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). There is a self-evident risk that at least one of the many state actors capable of enforcing the law would sue in the case of a violation, and that the state’s judicial apparatus would adjudicate that claim. 

As thus framed, this is an organizational standing kind of theory that depends on interference with specific federal entities, officials, employees, contractors, etc. But as deployed here—with reliance on "a self-evident risk that at least one of the many state actors capable of enforcing the law would sue" [at least one of the federal entities, employees, officials, contractors, etc.]—-the government seems to be relying on a statistical likelihood theory rejected by the Court in Part III of Summers v. Earth Island Institute (2009). The US will have a chance to submit affidavits or other evidence to flesh out its allegations. But theory itself appears insufficient as pleaded.

It's hard to believe that DOJ would rate the chance as good that these Counts II and III could get through the current Supreme Court on this "self-evident risk that at least one" theory. The alphabet soup of DOL, ORR, BOP, CMS, OPM, and DOD in ¶¶ 47-77 provide an appearance of specificity, but still at too high a level of generality.

So let's go back to the sovereign interest theory in Count I. The government's most expansive precedents here are two Fifth Circuit decisions from the 1960s, United States v. City of Jackson (5th Cir. 1963), and Fla. E. Coast Ry. Co. v. United States (5th Cir. 1965). Each of those cases involved obstructions of interstate commerce (one via racial discrimination in transportation and the other a railway strike). The allegations of United States v. Texas, by contrast, point to an increase in interstate activity due to the in-state abortion restrictions. That kind of activity might be sufficient for federal legislation, but it's hard to see how it's a hook for sovereign-interest standing apart from any particular federal statutory scheme.

The idea that the United States has a sovereign interest to support standing to seek equitable relief enjoining the application of state law whenever that law's operation allegedly invades individual rights is obviously overbroad. That is why the complaint always links this alleged invasion to the foreclosure of judicial review. But as Howard Wasserman has pointed out repeatedly, this depends on the implausible assertion that "defending in state court and appealing to SCOTUS [is] not a traditional mechanism of federal judicial review."  

There's more that can be said, but this is all I've got for now. I'd like to take back my earlier assessment that at least one of the counts will make it to a merits determination (at least by the time the Supreme Court is done with the case; all bets are off for W.D. Tex. and 5th Cir. since I don't know them well enough to have an opinion). But I'll stick with the assessment that "the federal government will lose on all counts whether or not the merits are reached on any of them." We'll see!

An early, optimistic assessment of United States v. Texas

Earlier today the United States filed a complaint against Texas in the Austin Division of the United States District Court for the Western District of Texas. The complaint seeks a declaratory judgment that the Texas Heartbeat Act is unconstitutional in its entirety, along with "[a] preliminary and permanent injunction against the State of Texas—including all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8—prohibiting any and all enforcement of S.B. 8."*

This complaint is a move I've been waiting for since first analyzing the jurisdictional and procedural complications posed by the Texas Heartbeat Act. It's not without its risks to the Biden Administration, but inaction would have been even worse. In a Prawfsblawg comment last Friday morning, I observed that "Texas does not enjoy sovereign immunity in suits brought by the United States. If the United States itself can develop the grounds for injunctive relief against Texas, sovereign immunity would not be a barrier." If the United States wanted to make a particularly forceful claim for attention, I suggested the potential for filing directly in the original jurisdiction of the Supreme Court of the United States. I noted the Court's 1892 decision allowing another case called United States v. Texas to proceed in the Court's original jurisdiction and pointed interested readers to James E. Pfander's important article "Rethinking the Supreme Court's Original Jurisdiction  in State-Party Cases." Those are still good places to start in diving in to some of the jurisdictional issues. Now that we have a complaint to focus on, though, it's better to begin with that.

There are three counts in the portion of the complaint labeled "Claims for Relief":

Count I (Supremacy Clause--Fourteenth Amendment) asserts that "S.B. 8 violates the Fourteenth Amendment of the U.S. Constitution, as elucidated by the Supreme Court in Roe and Casey, by depriving women of the ability to obtain a pre-viability abortion in most cases. S.B. 8 therefore is invalid under the Fourteenth Amendment and the Supremacy Clause." ¶ 82.

Count II (Preemption) contends that "S.B. 8 is preempted by federal law—including the statutes and regulations outlined [earlier in the complaint]—to the extent it prohibits certain pre-viability abortions that federal agencies are charged with facilitating, funding, or reimbursing." ¶ 87. 

Count III (Violation of Intergovernmental Immunity) states that "S.B. 8 directly regulates the activities of the federal government and its contractors, grantees, and nongovernmental partners. S.B. 8 therefore violates the federal government’s intergovernmental immunity and is invalid in such applications." ¶ 91. 

The complaint raises a bevy of complex and novel jurisdictional, procedural, and remedial issues, not to mention the high stakes of the substantive law at issue.

Those high stakes are perhaps the best place to start in analyzing this complaint. This sovereign v. sovereign lawsuit raises the stakes for the Supreme Court's consideration of the ongoing validity of its abortion precedents. The viability line of Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey was already likely to be swept away in Dobbs v. Jackson Women's Health Organization. By filing United States v. Texas, the Biden Administration has raised the stakes even higher than they already were in Dobbs. My hopeful assessment is that the federal government's lawsuit today makes a broad decision Dobbs at least a little more likely than it had been. A decision that leaves the substantive constitutional law of abortion unclear as it applies to laws other than the 15-week ban at issue in Dobbs has always been undesirable for the Court. Assuming that a majority of the Justices already recognizes the unsoundness of Roe and Casey, one contributing factor leading to that conclusion is the perception that umpiring abortion laws has undermined the Court as an institution. With a presidential administration and one of the two major political parties already primed to attack the Court for the reversal of Roe and Casey, the Court may as well do its best to leave the field decisively. The way to do that is to acknowledge that state abortion restrictions are justified as extending the protection of the laws to unborn persons within their respective jurisdictions, and the federal judiciary has no judicially manageable standard by which it can displace the states' treatment of unborn persons as Fourteenth Amendment persons. Nor can the federal government by fiat simply render unborn persons as nonpersons by hiding behind Roe's erroneous determination that Fourteenth Amendment personhood definitively does not begin until birth.

As for United States v. Texas, I need to do more research and analysis, but I'm inclined to think now that (1) this suit by the federal government directly against the state will make it to a merits determination on at least one count (with Count I being the most likely), and (2) the federal government will lose on all counts whether or not the merits are reached on any of them.

I hope to have more to say in coming weeks as I and others dig deeper into the alluring complexities of United States v. Texas, but that's all I have for now.

* (S.B. 8 is what the complaint calls the Texas Heartbeat Act even though it's now an enacted law and not just a Senate Bill. This kind of rhetorical move is common in litigation like this. One way to form a quick assessment of the likely outlook of someone writing about this Texas law is to see what term they use to describe it.)

Notre Dame Law School’s Sixth Annual National Appellate Advocacy Tournament for Religious Freedom is now live

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 fall 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!

https://shop.nd.edu/C21688_ustores/web/product_detail.jsp?PRODUCTID=8367&SINGLESTORE=true

The tournament takes place: Friday, October 8, 2021 through Sunday, October 10, 2021. 

The case problem, official rule book, and scoresheet will be distributed on Friday, September 10, 2021. Teams will have until Saturday October 2, 2021 to submit their briefs.

Questions regarding the tournament should be directed to Zahraa Nasser at [email protected]

A Response to the Next Lawyer Joke Thrown Your Way

Dating back to 1548, most Jesuit educational institutions, and many Catholic colleges and universities, mark the beginning of the academic year with the Mass of the Holy Spirit.  This year, at the Catholic University of America, our Chancellor and Cardinal, Archbishop Gregory, delivered a particularly special homily regarding the Catholic lawyer.  He began by saying: 

The Catholic University of America has produced a number of great lawyers over time.  Many of you at Mass today perhaps are now enrolled in our law school.  Others of you may have lawyers in your own families.  A good lawyer can be a wonderful helper in a difficult situation, because a lawyer is a person who is dedicated to discovering the truth at all costs.  Lawyers also take a lot of criticism in our society.  Some of that criticism may be justified.  At other times, such criticism may be directed toward lawyers because of envy, anger, or misunderstanding of the kind of things that a bright attorney can do to improve life for lots of people.

You have probably never thought of the Spirit of God as an attorney, but that is close to the meaning of the word: PARACLETE! 

I have always bristled at the lawyer jokes, myself.  The attorneys I know work tirelessly on behalf of many marginalized people and offer a voice to those who have none.  Many of the students I have had the honor of teaching chose to attend law school, not for promises of financial success, but simply to improve the world around them and respond to injustices they have encountered.  Cardinal Gregory's homily offers an excellent rebuttal to those who have a lesser view of attorneys - and a reminder to us all of our vocation to teach and advocate for the greater good.  His full homily can be found here.  

Scholarly Impact and Catholic Legal Education (Part Three)

A few days ago, after reporting the 2021 update to the Scholarly Impact Ranking of law faculties (here), I began a short series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education, which I conclude today.

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 Dean 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 — and a grave responsibility.

Postdoctoral Research Associates in Religion and Politics

Postdoctoral Research Associates in Religion and Politics 

The John C. Danforth Center on Religion and Politics seeks applications from junior scholars and recent Ph.D. graduates for up to four postdoctoral fellowships in residence at  Washington University in St. Louis. The appointment is for one year, renewable for a second year. Eligible applicants must complete the Ph.D. by July 1, 2022, and are  expected to have completed it no earlier than January 1, 2017. In exceptional cases a  qualified applicant who completed the Ph.D. prior to 2017 or who hold a J.D. without a Ph.D. may be considered. Research associates will spend most of their time pursuing  research and writing for their own projects. They will also serve the intellectual life of the  Danforth Center on Religion and Politics through participation in its biweekly  interdisciplinary seminar and events hosted by the Center. Their teaching responsibilities  will include: 1) developing one course per year to complement and contribute to the  Center’s curricular offerings, and 2) possibly assisting in one additional course each year  (depending on the particular teaching needs of the Center). Washington University in St.  Louis is an equal opportunity and affirmative action employer and especially encourages  members of underrepresented groups to apply. 

Required Qualifications: Applicants should hold a doctorate in religious studies, politics,  anthropology, law, philosophy, theology, American studies, history, Jewish studies,  sociology, or another relevant field. Scholars should be engaged in projects centrally  concerned with religion and politics in the United States, historically or in the present day. 

Application Instructions: Applicants must send all of the following information as a  single pdf file to the Center at [email protected]: 

1) Cover letter including an overview of the postdoctoral research project  2) Current curriculum vitae 

3) Relevant writing sample (25-35 pages) 

4) Two undergraduate course proposals (a summary paragraph for each will suffice) 

Applicants should also arrange to have three letters of recommendation submitted on their  behalf to [email protected].  

Applications are due in full by January 6, 2022. Applicants will be notified of  fellowship decisions by March 2, 2022. For more information, contact the Center at (314)  935-9345 or via e-mail at [email protected]. 

Salary Range: Competitive salary commensurate with experience.

Boston College Law School Dean Search

The Dean Search Committee for the Boston College Law School has been announced.  Former MOJ-er Vince Rougeau (now President of the College of the Holy Cross) has left big shoes to fill!  Good luck to BC!

O. Carter Snead on the Texas abortion law and Roe v. Wade

My friend and colleague, Carter Snead -- whose work is almost certainly familiar to MOJ readers -- has an excellent op-ed in The Washington Post, called "Critics of Texas's Convoluted Abortion Law Have a Point:  The Solution is To Overrule Roe v. Wade."  A bit:

[W]hy are we now reduced to having a fevered meta-argument about procedural technicalities regarding the jurisdiction of federal courts? In short, it is because Texas was fed up with the interminable cycle of crafting laws to protect the unborn, followed inexorably by injunctions and years of litigation before judges seeking to apply indeterminate standards stemming from a constitutionally unwarranted power grab by the Supreme Court.

There is a road back to normalcy. The Supreme Court can put us on it by dismantling its ill-founded abortion law apparatus and freeing the American people to reason together, just like our friends in numerous other countries including England, France, and Germany have been free to do, and enact laws that protect and care properly for women, children (born and unborn) and families in need.

Scholarly Impact and Catholic Legal Education (Part Two)

Last week, I reported the 2021 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.  This is the second in the series of three.

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.

"Establishment's Political Priority to Free Exercise"

I have a new paper on the political relationship of establishment and free exercise as exemption. It responds to several scholarly and other claims and trends in First Amendment work. But some of the paper's arguments and implications are directed toward advocates of religious liberty as much as opponents. Here is the abstract:

American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.

Professor Rick Garnett Filed Amicus Brief Regarding Ministerial Exception

Professor Rick Garnett, along with other constitutional law scholars, filed a brief of amici curiae (Belya et al v. Kapral) regarding church autonomy and the ministerial exception. 

The brief can be read Download 2021-09-02 ECF 93 Amici Curiae Brief [Belya v Kapral] (1).

Scholarly Impact and Catholic Legal Education (Part One)

Two days ago, I reported the 2021 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: 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.

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 usually reflects 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:

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!” Especially during these challenging times, whether because of additional duties during the pandemic or shrinking faculty size with budgetary challenges, 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 an 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 or 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 I actually engage with the same issues and materials in doing my 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 never done the heavy lifting of laboring in that field themselves.

More to come.

Professor Rick Garnett to Speak at Constitution Day Lecture at The Citadel

The Citadel will hold Constitution Day events, including one on Sept. 23, with constitutional expert, Prof. Richard Garnett, JD. He is the Paul J. Schierl/Fort Howard Corporation Professor of Law and Concurrent Professor of Political Science at the University of Notre Dame, where he is also the founding director of the Program on Church, State & Society. 

“We can all learn from Prof. Garnett’s expertise on First Amendment issues, especially on the freedoms of speech, association and religion. Additionally, he is a leading authority on questions of religion in politics and society,” said Scott Segrest, Ph.D., assistant professor of Political Science at The Citadel. “Professor Garnett earned his J.D. from Yale Law School and clerked for the late Chief Justice of the United States, William H. Rehnquist, and also for the late Chief Judge of the S.S. Court of Appeals for the Eighth Circuit, Richard S. Arnold.”

Information on these events can be found here: https://today.citadel.edu/two-ways-to-advance-your-knowledge-about-about-the-u-s-constitution/

Ranking the Scholarly Impact of Law Faculties in 2021

Every three years, I lead a team at the University of St. Thomas to study the scholarly citations of thousands of tenured law professors (involving nearly 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.  Notably, five Catholic law schools appear in or near the Top 25: Georgetown, Fordham, the University of St. Thomas (Minnesota), the University of San Diego, and Notre Dame.

I am delighted that my own school, the University of St. Thomas, has remained inside the Top 25 again (at #23), far above its U.S. News ranking.

Fordham has been a remarkable success story on scholarly impact over the past decade, having debuted in our 2021 ranking at #43 and moving subsequently through #35 and #29 to arrive in the Top 25 at #23 for 2021.  While not suggesting it is anything miraculous, they do seem to be changing the water into scholarly wine at Fordham Law.

The University of San Diego continues to rank considerably higher for its faculty’s scholarly impact than the questionable U.S. News ranking. For 2021, The University of San Diego places #30 in the Scholarly Impact ranking, but is remarkably under appreciated when U.S. News drops it to #86.

Over the next few days, as I do every three years, I will follow-up with a three-part series on the importance of scholarly activity and scholarly impact for Catholic legal education.

Table 1:  Summary of Scholarly Impact Ranking of Law Faculties, 2021

Rank	Law School	Weighted Score
1	Yale	1345
2	Chicago	1110
3	Harvard	940
4	NYU	921
5	Columbia	814
6	Stanford	752
6	Cal-Berkeley	749
8	Pennsylvania	663
9	Virginia	646
9	Vanderbilt	644
11	UCLA	605
12	Duke	597
13	Michigan	545
14	Cal-Irvine	537
15	Northwestern	528
15	Cornell	527
17	Georgetown	514
18	George Washington	472
18	Texas	471
18	Minnesota	468
21	Washington U	440
22	Cal-Davis	435
23	George Mason	420
23	Fordham	414
23	Boston U	411
23	U. St. Thomas (MN)	410
27	Arizona	387
27	William & Mary	384
29	USC	382
30	U. San Diego	367
31	Notre Dame	346
31	Illinois	344
33	Cardozo	340
33	Brooklyn	338
33	Colorado	336
36	Case Western	325
36	Utah	326
36	North Carolina	323
36	Emory	317
40	Kansas	311
40	Hastings	305
40	Chicago-Kent	304
43	Ohio State	300
43	Alabama	293
43	Georgia	289
46	American	287
46	Florida State	278
46	Maryland	278
49	Temple	275
49	BYU	268
49	Wake Forest	265

Note:  Original post updated to include discussion of the University of San Diego.

RGCS Debate with Chiara Cordelli and Richard Garnett

Professor Richard Garnett participated in a debate, Must Churches be Democratic?, with Chiara Cordelli. This debate was sponsored by The Research Group on Constitutional Studies at McGill University.

https://churchstate.nd.edu/news-events/news/rgcs-debate-with-chiara-cordelli-and-richard-garnett/

"The Church and China: Can Catholics Serve Two Masters?"

Ed Condon has this piece, at The Pillar, which includes some (sadly) typically obtuse comments by Cardinal Parolin.  To be sure, it is not only the PRC, among political authorities, that purports to demand of Catholics that they be "good citizens" first.  Some might say that the PRC and its apologists simply "say the quiet part out loud." And, it is far from obvious what the all-things-considered best way is for the Church to deal with the PRC, and best care for Catholics in China and bear witness to the faith there. I feel confident, though, that Parolin's inclinations and ruminations are not a reliable guide to finding it. 

Call for Papers: Governments’ Legal Responses and Judicial Reactions during a Global Pandemic: Litigating Religious Freedom in the Time of COVID-1

More info, from the Journal on Church and State, is available here.

A strong stand for academic freedom by Yale legal scholars

Kudos to the following distinguished legal scholars, all present or emeritus Sterling Professors of Law at Yale, who have taken a firm stand against American Bar Association proposed rules that would undermine law schools' institutional autonomy and, even more importantly, core principles of academic freeom:

Bruce A. Ackerman, John H. Langbein, Akhil R. Amar, Jerry L. Mashaw, Mirjan R. Damaska Robert C. Post, Owen M. Fiss, Roberta Romano, Anthony T. Kronman, and Alan Schwartz

Among the proposals to which they strongly object is the idea of requiring "diversity, equity, and inclusion training." This "training" is--or quickly degenerates into--indoctrination, and indoctrination has no place in serious academic institutions of any type.

Read about another strong--and courageous--stand against such indoctrination here:

https://www.realclearinvestigations.com/articles/2021/08/19/guided_by_faith_divinity_student_fought_his_antiracist_princeton_seminary_-_and_won_790007.html

A Symposium on Bachiochi's "Rights of Women"

At the Law and Liberty blog, there is a symposium dedicated to our own Erika Bachiochi's new book, The Rights of Women:  Reclaiming a Lost Vision.  Check it out!

"What Is Religious Freedom?"

Here is a short piece I did for the USCCB's "First Freedom" blog.  It is meant for parishes, high schools, etc., so please feel free to share!  A bit:

Religious freedom plays a significant role in the American imagination.  When asked what it means to be an American, many Americans will refer to freedom and equality, which speaks to our intuitive sense of the equal dignity of all people.  But how we think of religious freedom can differ from one person to the next.  The ideal of religious freedom may be summarized as “separation of church and state” and “the right to follow my conscience.”  Many Americans will often think primarily in terms of human rights.  Religion – belief and practice, ritual and worship, and perhaps expression and profession – is considered an object of human rights laws, that is, as something that the laws protect. The leading human rights instruments confirm this entirely reasonable, if not quite complete, way of thinking. For example: “Everyone has the right to freedom of thought, conscience, and religion,” the Universal Declaration of Human Rights (1948) proclaims, and political communities should “strive ... to promote respect for [this right]” and “to secure [its] universal and effective recognition and observance.” Similarly, the European Convention on Human Rights (1950) declares that its signatories resolve to “secure [this right] to everyone within their jurisdiction.” The Constitution of the United States frames the issue in terms of constraints on government.  The government may not prevent the free exercise of religion, nor may it establish a religion.  In other words, religious liberty is often framed negatively, as “freedom from,” rather than as something more aspirational, as “freedom for.”

But what, exactly, is this religious liberty that needs safeguarding?  Despite general agreement that religious liberty is protected by the Constitution, the extent of those protections, and what constitutes true religious liberty at its core, is disputed. . . .  

Catholic University Law School is hiring

I am pleased to share that The Catholic University of America, Columbus School of Law, is seeking to hire at least four faculty members. 

We are seeking two tenure track and one tenure eligible faculty member  for positions to begin in Spring 2022 or Fall 2022. These positions are for candidates interested in participating in the school’s new Project on Constitutional Originalism and the Catholic Intellectual Tradition, more fully described at https://communications.catholic.edu/news/2021/04/law-originalism-gift.html.

We are also seeking an entry-level candidate to serve as a member of the law school’s faculty while also contributing to the University’s Institute for Latin American and Iberian Studies (the “Institute”), described at https://ilais.catholic.edu/en/ilais-mission.

We seek candidates who can teach, in addition to the natural areas of fit with the Project (such as Constitutional and Administrative Law) or the Institute, the following subjects:  Property, Family Law, and Trusts and Estates; Criminal Law, Criminal Procedure, and Evidence; Corporate and Securities Law; and Contracts and Commercial Law.

Candidates must be committed to teaching, producing outstanding scholarship, engaging as active members of the Law School and University communities, and making a significant contribution to the mission of the University and Catholic Law.  Candidates must possess a J.D. or equivalent, superior academic credentials, and relevant professional experience, such as teaching, legal practice, or judicial clerkships. 

 For details on how to apply, please review the full opportunity descriptions at https://provost.catholic.edu/_media/faculty-position-ads/law-tt-pco-and-cit,-2021,-rev.pdf;  at https://provost.catholic.edu/_media/faculty-position-ads/law-tenured-2021,rev.pdf; and  at https://provost.catholic.edu/_media/faculty-position-ads/law-tt-ilias-2021,-rev.pdf

As a Catholic institution, our mission commits us to respecting the dignity of each human person, and to welcoming scholars who will bring a diversity of “backgrounds, religious affiliations, viewpoints, and contributions” to the law school’s vibrant intellectual community. We recognize the importance of diversity in our faculty and encourage applications from those with diverse backgrounds.