Mirror of Justice

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.

"How 'Religious' Is a 'Religious Employer'? Church History and the Future of American Religious Liberty Litigation"

My student, Dennis Wieboldt -- a JD/PhD candidate in History at Notre Dame -- has a new paper up at SSRN (with the title in the title of this post!).  Here is the abstract:

Since the Supreme Court’s 1990 decision in Employment Division v. Smith to immunize “neutral” and “generally applicable” laws that burden religion from strict scrutiny, judges and scholars have become increasingly attuned to the challenges posed by First Amendment judicial balancing.  To some, Smith’s enduring virtue is that it provides judges with a clear way to avoid the seemingly inappropriate weighing of interests that was once required under the strict-scrutiny regimes of Wisconsin v. Yoder and Sherbert v. Verner.  To others, however, the jealous protection that strict scrutiny provides to religious claimants is normatively desirable and merely requires judges to embrace a tiers-of-scrutiny framework that is not all too unusual in constitutional adjudication writ large.  In light of Fulton v. City of Philadelphia, the scholarship on both sides of this debate has increased in volume and complexity.

 

This article challenges those writing both in favor of and in opposition to the use of strict scrutiny in religious liberty litigation to (re)consider how the discipline of church history can aid judges in the disposition of particular cases and controversies arising under the First Amendment.  To do so, this article takes as its principal subject a near-decade-long dispute that remains ongoing in New York about whether the Empire State’s Superintendent of Financial Services can require Catholic dioceses and social service agencies to include abortion coverage in their healthcare plans.  Setting aside the fact that this case—Roman Catholic Diocese of Albany v. Vullo—may prompt the Supreme Court to again reconsider Smith, the contours of this litigation reveal how the concerns about judicial balancing that have motivated many critiques of First Amendment strict scrutiny are overstated.  What, one might ask, is the cause of this overstated concern?: A failure among many to recognize that the insights of church history can often enable judges to fairly assess the substantiality of regulatory burdens imposed on religious claimants, and therefore evaluate whether the government has a constitutionally sufficient justification for pursuing its preferred regulatory course.

 

Though there is bound to be continued disagreement about the degree to which asserted government interests subjected to strict scrutiny are, in fact, “compelling,” and whether the means used to advance those interests are, in fact, “least restrictive,” scholars with disparate interpretive priors should uniformly acknowledge that church history can (if not also should) serve as a primary resource for those adjudicating First Amendment disputes.  As Jack Balkin has argued in his recent study of the “uses of history in constitutional interpretation,” historians are taught to “relish and respect” “ambiguity” and the “complexity and multivocality of the past.”  Thus, church historians—who are trained to take seriously the ambiguities and complexities of religious past—are well-equipped to aid judges faced with particular cases and controversies arising under the First Amendment.  Amidst broader debates within the legal profession about the appropriate uses of history and tradition in constitutional adjudication, perhaps this modest proposal for greater dialogue between church historians and legal practitioners and scholars can move our jurisprudential conversation one step forward.

Like the man says, "download it while it's hot!"

The Religiously Affiliated Law School Conference: "Forming Lawyer-Stewards"

 

This year's (well, it's biennial) Religiously Affiliated Law Schools conference will be held on September 12-13, 2024, at Fordham.  The theme is "Forming Lawyer-Stewards:  The Special Role of Religiously Affiliated Law Schools."  Fordham's new president, Tania Tetlow, will be the keynote.

More information, including registration (there's CLE available!) is here:

Join us at the 2024 Religiously Affiliated Law School (RALS) biennial Conference, delving into the vital concept of stewardship — a principle deeply rooted in many of the world’s major religions. Our aim is to explore the critical role of lawyers as stewards of both our communities and the world. Employing a dialogue-based approach, the conference shall bring attendees together in small but diverse working groups where they will discuss how stewardship intersects with key areas such as the environment, criminal justice, and immigration. We look forward to welcoming students, legal scholars, law school administrators, and legal practitioners' voices as we explore the concept of lawyer-stewards.

The Republicans and the Pro-Life Cause in the Age of Trump

I published the following reflection a couple of months ago as part of a First Things magazine symposium on politics after the Dobbs decision. Regrettably, what I said has been fully confirmed by the events unfolding as part of the Republican National Convention, especially the re-drafting of the Republican Party's platform.

Donald Trump, in announcing his support for the IVF industry and his rejection of any federal legislation to protect babies from the lethal violence of abortion, has made it clear that he is not pro-life. Nor is he exactly pro-choice. He is, quite simply, pro-Trump. As anyone who has followed Trump’s career knows, the most fundamental thing about him is that he is transactional. The art of living is the “art of the deal.”

Trump’s message to his pro-life supporters boiled down to (and here I’ll translate for you), “Hey look, gals and guys, I upheld my end of the deal I made with you in 2016. Roe v. Wade is gone.” But now, with the demise of Roe activating the Democratic Party’s extremely pro-abortion base, a politician’s being genuinely pro-life—working for actual legal protection for unborn babies—appears to be a heavy political liability. So, Trump’s message is this: “I’ve got to get elected to save the country, so I’m not going to do anything to protect unborn babies. Whatever the states want to do about abortion—permit it, forbid it, permit it up to fifteen weeks, permit it up to birth—is fine with me.”

Trump has, effectively, endorsed Stephen A. Douglas’s concept of “popular sovereignty.”

So, it is incumbent on pro-life Americans to acknowledge the tragic fact that we do not have a pro-life presidential candidate representing a major political party in 2024. Trump has made it clear that he won’t help the pro-life cause, even incrementally, and Biden is utterly beholden to the abortion lobby.

Where does that leave the pro-life movement?

Whether Trump wins or loses, the future of the pro-life cause depends on whether there is a prominent Republican leader who is prepared to do today what Abraham Lincoln did in the face of the barbarism so fiercely defended by the Democrats of his day: defend the dignity of all members of the human family. With the pro-abortion base of the Democratic party so energized, and with a compliant media doing their bidding at every turn, it would take genuine courage—and high statesmanship—for a politician to provide the leadership that our cause needs if it is to weather hard times and build a broader base of support.

Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

The Tiresome Claim that Pro-Life Legal Measures Violate the Establishment Clause

Recently Caroline Corbin published an article "Religion Clause Challenges to Early Abortion Bans."  Larry Solum posted a link to the piece on his blog  and on Twitter.  In response, Rick Garnett graciously linked to my article "Abortion, Religion, and the Accusation of Establishment" (here).  Below is my response on Twitter to Corbin's piece, specifically to her claim that laws recognizing conception as the beginning of the life of a human being violate the Establishment Clause.  In the post-Dobbs era one can expect to see abortion proponents more and more frequently claim both a free exercise right to abortion and an establsihment clause limit on abortion restrictions.

The Establishment Clause claim is tiresome. The claim that legislation outlawing abortion is inherently religious and so violates EC is a mere assertion – an oft-repeated assertion, but one that has not gained intellectual substance with repetition.

Corbin’s paper is full of assertion, but not argument. She merely asserts that the Harris v. McRae line of reasoning (i.e. laws which coincide with religious tenets are not unconstitutional) is “not persuasive” (p. 47). She asserts that, unlike laws against theft and murder, there is no “genuine and legitimate secular reason” to outlaw abortion based on the premise that the life of a human being begins at conception.  Hedging her bets, she asserts that “ostensible secular reasons usually collapse back into the religious assumption.”  Of course, if these reasons “usually collapse” into religion but not always, then laws outlawing abortion can be supported by secular reasons. But she leaves this unexplored.

Plainly, her assertions are merely that, not conclusions demonstrated by argument.  Nowhere does she consider the scientific foundation for the premise that the life of a human being begins at conception – a premise located in the basic texts of embryology.  That people may also find support for this in the Bible, well, that’s Harris.

Corbin cites Sherry Colb for the idea that a proposition is “a religious not a scientific belief” if it is supported by religious people and not by “virtually every secular person” (p. 44).  She does not pause to consider the significance of the qualification “virtually.” Moreover, the identity of a person – or the label placed upon them -- does not demonstrate the nature of the idea itself (i.e. religious people hold scientific beliefs, and scientists hold religious beliefs).  This would require an argument based on epistemology that Corbin does not provide.

The 1964 Civil Rights Act would not have passed without the well-organized support of religious leaders including many Black Christian ministers.  Indeed, their very vocal support was explicitly Christian.  But that did not render the law or the idea of non-discrimination “religious” and so constitutionally out-of-bounds.

Corbin  refers to Lemon v. Kurtzman (p. 43) for the idea that to be constitutional a law must have a secular purpose, but then fails to distinguish between a legislator’s motive and the legislation’s purpose.  A legislator may be religiously motivated to vote in favor of a lower speed limit or more immigration or increased spending for public schools, but that does not make the purpose of these legislative acts “religious” in nature. Indeed, a lawmaker may be religiously motivated to vote in favor of laws that support the non-establishment of religion, but that does make the purpose of the legislation “religious.”  Laws against abortion may or may not be supported by a particular legislator’s religious motivation, but laws extending the prohibition against homicide to human beings in the womb are firmly supported by a sound, secular rationale.

 

Fifteen years of the Annual Law and Religion Roundtable

Tempus fugit, and all that. I recently returned from Sabanville -- I mean, Tuscaloosa -- and the Annual Law and Religion Roundtable, which I've been organizing and hosting with Nelson Tebbe (Cornell) and our own Paul Horwitz for fifteen (!) years now.

We got the idea, if I recall correctly, from a workshop-style conference for younger property-law scholars that Ben Barros (now at Stetson) and Nestor Davidson (now at Fordham) put together out in Colorado. Each year -- well, we had to Zoom two of them, and miss one year altogether, because of COVID - we've held our version at a different school -- a "movable feast", as Paul likes to say! -- and exploited the on-site generosity of different colleagues.  Over the years, several hundred scholars -- from a variety of disciplines, at a range of career stages, with a variety of interests and perspectives -- have participated, and we've met from Stanford to Virginia to Toronto to Notre Dame (and a bunch of other places in between).

This tradition (!) has been -- for me, anyway! -- a highlight of the academic year. Notwithstanding disagreements about non-trivial questions, methodological differences, and a diversity of commitments and priors, the conversations have been productive and collegial, and the socializing and fellowship uplifting and encouraging. I've been particularly struck by (among other things) how strongly I've come to prefer the roudtable/workshop-type academic gathering to the panels-and-audience type (which is not to say I don't welcome your invitations to the latter!).

Kilpatrick on Institutional Neutrality and Institutional Fidelity at the University; Bray on the Common Law and the Catholic Intellectual Tradition

Kevin and I have two episodes on our Sub Deo et Lege podcast that might be of interest to readers here.

First, we interviewed Peter Kilpatrick, President of The Catholic University of America, concerning various questions about free speech, free inquiry, and university life and purpose. President Kilpatrick discussed two different models for the university (any university, secular or religious): institutional neutrality and institutional fidelity.

Second, we discussed with Professor Samuel Bray of Notre Dame Law School his recent piece on the role of the Catholic Intellectual Tradition on the common law (which came into full strength in a Protestant era). Among Sam's contributions in his piece, which he mentions in our chat, is that the influence is all the greater to the extent that the Catholic Intellectual Tradition is deemed something like the Christian Intellectual Tradition.

Cathy Kaveny on "Dignitats Infinita"

Over at Commonweal, there is a group of recent pieces about the new document, Dignitas Infinita.  The contribution by Boston College's Cathy Kaveny, "Understanding the Audience", might be of particular interest.  Here is a bit:

Vatican interventions in secular human-rights discourse have generally had two purposes. The first is to rebut those who critique the UN Declaration and the human-rights regime it generated as alien impositions of a Western colonial framework on non-Western cultures. This is a charge sometimes raised by Arab and Asian countries that have very different understandings of the role and rights of women or the nature of acceptable punishment. It is also mounted by African countries that have different understandings of the basic structure of the family, including polygamy.

The Vatican’s second purpose is to resist the interpretation or expansion of universal rights in a purely individualistic or constructivist way—which would, in its view, be an unjustified imposition of certain elements of a Western world-view. In the Vatican’s view, rights are not determined by individual desires, no matter how strong they are. Nor are they designed to protect an individual’s right to construct his or her own identity without reference to objective goods, like the norms of biology, the well-being of other people, or a well-functioning community.

Some responses to Anthony Annett on Social Democracy and Catholic Social Thought

A little while ago, Anthony Annett had an essay in Commonweal called "The Theology of Social Democracy," the thesis of which was that "Catholic social teaching guides us beyond neoliberalism."  Put aside doubts one might have about whether "neoliberalism" has agreed upon content or is, instead, a protean epithet used to dismiss all views that have some consonance with human nature and experience; it is certainly the case that Catholic social teaching (correctly understood) guides us beyond "-isms" generally.

By "social democracy" Annett means "an economic system predicated on the belief that an economy must be underpinned not only by property rights but also by economic rights. More concretely, in a social democracy, the government supplies public goods, uses the welfare state to protect people from adverse economic circumstances, and promotes unions to make sure that workers can bargain for their fair share of economic progress."  Fair enough.  It is not controversial, even in the most "neoliberal" crannies of the Catholic intellectual and scholarly space, to note that the Church's proposals regarding the policy implications of the truth about the human person resonate with at least some aspects of "social democracy" and challenge some aspects of its alternatives.  It is true, as Annett writes, that the "Catholic social teaching forged a middle path between free-market libertarianism and socialist collectivism" (and, to be clear, statism).  There is much in Annett's essay about the "common good", "subsidiarity" (which is often misunderstood), and "integral human development" that is both timely and sound.

But, Annett's piece is undermined by a lot of straw-manning and factual mistakes.  He writes, for example, "[Social democracy] can be contrasted with the approach of free-market economics or economic libertarianism. Under those two systems, the only rights recognized are property rights. A free-market system might allow for a minimal social safety net to prevent outright destitution, but nothing more than that." But, there are no "systems" in the world where "the only rights recognized are property rights."  And, there are no market economies that provide "nothing more than" the minimal social safety net he describes.  There are no economic systems -- certainly, despite Annett's suggestions to the contrary, the United States is not such a system -- where the "free market" is not pervasively regulated.  Indeed, the economic system in the United States is acknowledged by those who examine the matter to be, in many ways, more regulated than the systems in some countries that Annett would characterize, I suspect, as "social democracies."

Annett claims that, in the Catholic tradition, "economic rights [are] the central rights, even before civil and political rights", but this is not supportable (and the sources he cites do not support the claim). His statement that, since the rise of "neoliberalism", "productivity and economic growth have been slower" is false (so long as one does not blame "neoliberalism" for the fact that the second war, and the rebuilding that followed, eventually ended).  He contends that one of the "pillars" of operationalizing Catholic social teaching and social teaching is "complete decarbonization" but has nothing (realistic or fact-tethered) to say about how this might happen, globally, so long as the PRC is uninterested in the project and so long as billions of people living in developing nations are not likely to welcome outsiders' edicts that they accept non-growth.  He calls for more labor-union power (again, this is a call that resonates with much in 20th century Catholic social thought) but says nothing about the fact that, in the United States anyway, the unions largely represent high-earning public-sector workers whose demands and expectations are costly to lower-income people not employed by governments.  (He also neglects the fact that, in the United States today, public-employee unions stymie reforms that Catholic social teaching calls for clearly, such as school choice.)  And, he overlooks the fact that the economic "system" he praises, in mid-century America, depended crucially on a labor force that was limited by the relative absence of competition from women, from immigrants, and from workers in developing countries.  There can be no welfare state of the kind Annett calls for without meaningful enforcement of boundaries, both geographical and communal.  The challenge of such enforcement is not mentioned in Annett's essay.

Annett concludes by saying that, to accomplish the changes he envisions, "[t]he political Left would need to return to its working-class roots, moving away from the politics of culture and identity—the politics favored by educated elites. The political Right, meanwhile, would need to rediscover the successes of Christian democracy, and turn away from neoliberalism and climate-change denialism."  There's something to this, I think (again, "neoliberalism" isn't really a thing and doubts about the feasibility anytime soon of global decarbonization does not make one a climate-change denier).  The key thing, it seems to me, is to appreciate that Catholic social teaching (correctly understood) is not "separate" from "social issues", "life issues", etc.  The Church's proposals are, at bottom, about the nature and destiny of the person - they are not just about economic arrangements and systems, and the proposals that do bear on such arrangements and systems are inseparable from those that bear on (e.g.) religious freedom, educational pluralism, and constitutional arrangements that constrain governments. 

Anyway . . . check it out.

Call for Papers: Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the fifteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2024.  The prize will be awarded at the 2025 AALS Annual Meeting in San Francisco.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2024.

Should there be Jewish classical schools?

The classical school movement, especially the Christian classical school movement, is proving to be a great success. This has given rise to a debate in the Jewish community as to whether it should be emulated. Should there be Jewish classical schools? A Jewish friend did me the honor of asking for my opinion. I'll share it here.

The best in and of Western civilization is the achievement and gift of the Jews. The principles that animated the building of Western civilization and inform its constitutive understandings are Jewish. It is, of course, true that Christianity embraced these principles and built the institutions of Western civilization. But Christianity did not invent them, nor did it revise them. (Indeed, they are central to Christianity itself. In that sense—a very profound sense—Christianity is a Jewish religion. I sometimes refer to it as “the other Jewish religion.”) Writers such as Eric Cohen, Rabbi Mitchell Rocklin, and my former student Rabbi Meir Soloveichik are right to give credit to Judaism for these principles and all the insights and achievements made possible by those--Jews and Christians alike--acting on a sound understanding of them and a faithful commitment and adherence to them.

I yield to no one in my appreciation and esteem for the great pagan philosophers and jurists of antiquity, above all Aristotle, Plato, and Cicero. But the foundational truths—the great insights—that made our civilization (its institutions, its moral and spiritual breakthroughs) possible did not come from them. They came from the Jews. Obviously, there is ethical monotheism itself—the greatest of all the gifts of the Jews. And then it was the Jews—no one else—who came to understand (we believers would say, “to whom it was revealed”) that the human person, though fashioned from mere dust of the earth, is nevertheless made in the very image and likeness of God.

As much as I honor Plato and Aristotle, it is not their teaching, but rather the teaching of the Jewish religion that instructs us on the source, foundation, meaning, and full implications of human rationality and freedom—and thus of the profound, inherent, and equal dignity of every member of the human family. Much the same is true of the understanding of marriage and the family. Truly it’s impressive that Plato and Aristotle, without the benefit of the Jewish revelation, were able to attain critical perspectives on the immoral practices of their culture, and even articulate some important truths about marriage and the family. But they could only approximate the profound and beautiful teaching of Genesis 2.

In their essay “The Spirit of Jewish Classical Education,” Cohen and Rocklin did not, as some critics insist, make the Jews “the main actors in some other mighty civilization’s story.” They claimed credit where credit was in fact due, and they reminded their fellow Jews of their mission and calling to repair and rebuild what Jewish wisdom had made possible. Whatever else Western civilization is, it is a Jewish civilization, and the Gentiles who are part of it are among the Nations to which Israel has been a light. In proposing the building of Jewish classical schools, Cohen and Rocklin want to share with Jewish children not only the basic Jewish insights but all the learning that has been achieved by Christians as well as Jews that is ultimately rooted in those insights. This is scarcely, as one critic maintains, a “ploughing of someone else’s furrow,” or a “reaping of someone else’s harvest.”

My advice is to go for it: launch the Jewish classical education movement.

Henry Garnet, S.J., R.I.P.

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

Henry Garnet, S.J., R.I.P.

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

A critique of "free speech" in the university

I offer some thoughts over here. One matter that provoked this post concerns the question of constitutional law creep. The frameworks of law, especially constitutional law, seem to be spilling over as guides in areas of human life where they do not belong. Perhaps because they are the only ones that are taken to be authoritative any longer. That is certainly the case for free speech in the university context. It would also be true if we instead used a First Amendment associational model. Universities really are not, per my friend Paul Horwitz, "First Amendment institutions" (to take nothing away from Paul's superb book). They are institutions precedent to--and different in kind, purpose, and function than--the American Constitution.

Cavadini on "Research and the Catholic Intellectual Tradition"

It's by John Cavadini (Notre Dame) so "self-recommending," etc., but I also highly recommend this piece at Church Life Journal.  In particular, it should be a must-read for all administrators and leaders and benefactors and faculty of Catholic universities that might be tempted to imagine that the path to flourishing, or "relevance", is to relegate "Catholic" stuff to residential life and campus ministry, or to water down Catholic universities' mission, character, and charism to vague and unobjectionable nice-words like "sustainability", "inclusion", and "justice".  As many of us have said, many times, on this blog over the last 20 (!) years, a Catholic university is only interesting if, and to the extent that, it is Catholic.  And, as every reasonable and informed observer knows, but as many still need to be reminded, there is no dissonance between the well-functioning (correctly understood) of a university and the (meaningfully) Catholic intellectual tradition.

Cyril O'Regan on the Legacy of Benedict XVI

My colleague at the University of Notre Dame, Cyril O'Regan, has a great essay up at Church Life Journal on "The Legacy of Benedict XVI".  Here's a bit:

A fundamental element in speaking the truth is to expose the systemic inhospitality of the modern secular state towards Christianity that can at inopportune moments verge into open hostility. This is not to say that the secular world is always wrong in its criticisms of the behavior of the Church that has at times been both reprehensible and scandalous (e.g. the sex abuse crisis) and that the secular world has not been justified in pointing to the way in which the Church—similar to most worldly institutions—is too often guided by the instinct of self-preservation and self-reproduction. For Benedict, as for John Paul II, the world can provide moments for Christian self-inspection and ample opportunities for repentance. Still, overall, for Benedict, the “neutrality” of the modern secular world is as a matter of fundamental principle “armed”: it constructs the Catholic Church as irredeemably authoritarian both in its basic structure and in its public performance towards the world; as substituting an irrational faith for reason, which if objectionable in itself becomes more objectionable as it serves to sponsor violence. Further, it constructs the Church as recommending ways of thinking that straightjacket free inquiry (thereby making it incomprehensible how the university came into being under the tutelage of Catholicism) and engender unfree forms of living contrary to genuine human flourishing.

For Benedict, to respond critically to secular modernity is first to avoid being provoked by it; it is to exercise discernment and discriminate between what is hale and harmful in it; what can be sanctioned by reason understood against the backdrop of its full philosophical amplitude and what in it agrees with the Wisdom (reason as both substantive and holistic) that Christianity attempts both to honor and perpetuate. Demonization of secular modernity is reaction-formation, thus hostage to what it would deny as well as betraying a lack of confidence in the ultimate persuasiveness of truth it would proclaim. Benedict understands that the dominant narrative of secular modernity, to the effect that everything valuable concerning the ratification and protection of human rights depends upon reason’s critique of and separation from Christianity, is entirely self-serving, and deliberately ignores the insights bequeathed to it by the Christian tradition.