Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, April 27, 2005

Thoughts About "Greatness"

Picking up on the “Great” Catholic university and law school thread – I agree with our readers’ comments that the vision definitely needs to move beyond providing an “avenue of social mobility for the children of the immigrant Church,” and that the universal call to holiness is a good place to start in appreciating how faith can penetrate into every area of the curriculum and every area of the practice.  I also agree wholeheartedly that “greatness” can also be linked to an open interdisciplinary exchange.  In the essay at the side bar have I have reflected on some of these themes and outlined the argument for moving toward “an explicit connection between faith and justice” which moves beyond a generic social justice / public interest agenda.  (Being the technological wizard that I am, I have not yet figured out how to do the fancy links here!). 

But I also want to throw two concerns into the mix:

The first is about variety:  to what extent does focusing on a generic “great” fuzz over the most important (and perhaps most difficult) questions about the particularities of institutional identity?  I would argue it’s important to move beyond a one-size-fits-all hope for “greatness” in order to ask questions about “greatness” in the context of a given institution’s specific spirituality, history and location.  For example, what it means to be a great Jesuit law school in the city of New York will differ in substantial ways from what it means to be a great Jesuit law school in Los Angeles, or a great Augustinian law school near Philadelphia, a great Holy Cross law school in South Bend, or a great diocesan law school in Minneapolis, etc.  I think part of the trap in some of the discourse about “greatness” is the sense that one model is better than another – which fails to fully appreciate that there really could—and should—be a variety of “great” approaches.  

The second is about openness: I think it’s important to note that the conversation goes both ways – not only an awareness of the impact that Catholic teaching and traditions can have on our field, but also as Gaudium et Spes invites, to develop a dialogue in which the Church also learns from “the world.”  I agree whole-heartedly that Catholic law schools should be a place for critical assessment of prevailing legal culture, but I also think that we need to be careful that this doesn’t slip into a sense that the primary purpose is to shore up troops for the culture wars.  So perhaps in thinking about the “ingredients” – it would be important not only to have faculty grounded in the Tradition and convinced that their Catholic faith is relevant to the way they think about law – but also to highlight their capacity (or openness to developing a capacity) to enter into dialogue with their colleagues of other faith traditions and backgrounds – so as to present something of a model of the Church in dialogue with others, and with the discipline itself.  This, I think, is one of the most important gifts we can give our students as they head into practice.

What is the path to that kind of openness?  Here, perhaps, an appreciation for a “theology of littleness” as “a basic category of Christianity” (Ratzinger, Salt of the Earth p.20), might be the best way to cultivate the openness and leads to true greatness. 


April 27, 2005 in Uelmen, Amy | Permalink | TrackBack (0)

Catholicism, Death, and Modern Medicine

Lisa Sowle Cahill, as many of you know, is a distinguished professor of theology at Boston College.  In the April 25th issue of America, she has an essay titled Catholicism, Death, and Modern Medicine.  One has to be a subscriber to access the piece.  An excerpt follows:

The Ethical and Religious Directives for Catholic Health Care Services, published by the U.S. Bishops (fourth edition, 2001), maintain the same: “Disproportionate means are those that in the patient’s judgment do not offer a reasonable hope of benefit or entail an excessive burden, or impose excessive expense on the family or the community.” The directives go on to stipulate: “There should be a presumption in favor of providing nutrition and hydration to all patients, including patients who require medically assisted nutrition and hydration, as long as this is of sufficient benefit to outweigh the burdens involved to the patient.”

Over the past several years, different theologians, bishops and bishops’ conferences have offered differing views about whether and when artificial nutrition should be considered an extraordinary or disproportionate means. The issue is particularly difficult in the case of persons who are comatose or in a “persistent vegetative state,” and hence unable to perceive their own condition, suffer consciously or consciously appreciate the prospect of extended life. Ultimately, the question is whether extended life in a state of permanent unconsciousness is a benefit or a burden to human dignity. A related question is whether the interests of others—either family members or others who lack access to medical resources—should be relevant in determining whether a means is “disproportionate” for a given patient, especially since traditional sources relate the welfare of the individual patient to family and communal relationships.

Those who demanded that Terri Schiavo be maintained indefinitely by artificial hydration and nutrition disputed the consensus of reliable medical experts that her condition was permanent; claimed that continued life would be a benefit no matter what its condition; asserted that her parents’ interest in keeping her alive should be determinative; presented the withdrawal of artificial nutrition as “starvation” and “murder”; presented Ms. Schiavo as an innocent victim who deserved better protection from society, the courts and the law; and placed her case at the top of a “slippery slope” toward the murder of other disabled or disadvantaged members of society.

The debate about whether the use of medically assisted nutrition and hydration is mandatory in such cases was not clearly resolved by a speech on the subject by John Paul II in March 2004. (Although the identity of the author has been debated, it was almost certainly not the pope himself.) In this talk, “Life-Sustaining Treatments and Vegetative State,” he said that affected persons have “the right to basic health care.” He asserted “the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act.” Its use “should be considered, in principle, ordinary and proportionate, and as such morally obligatory,” as long as it is “providing nourishment to the patient and alleviation of his suffering.” He referred to withdrawal as “starvation” and “euthanasia by omission.”

While some applauded this speech as an important step in the direction of protecting innocent patients from harm, others saw it as marked by non sequiturs and inconsistencies, and as not ultimately settling the question in favor of always using artificial nutrition. For one thing, it is hard to see how tube feeding can flatly be judged “not a medical act.” For another, official teaching specifically permits the removal of ventilors (respirators), knowing that death will ensue, without referring to the outcome as “smothering” the patient. In both cases, it would seem, the rejection of the means of life-prolongation is not tantamount to directly desiring that the patient be dead, but rather to acceptance of death as now timely and a part of the human condition. Moreover, the reference to “alleviation of suffering” suggests that the papal remarks apply only to conscious patients. Most important, the speech is not consistent with prior well-established teaching and health care practices in Catholic institutions, as defined by the Declaration on Euthanasia and the Ethical and Religious Directives. In fact, artificial nutrition is not generally a part of hospice care, even though it was provided to Terri Schiavo. According to good medical evidence (e.g., The New England Journal of Medicine, July 2003), the dying process is neither painful nor uncomfortable without it.

Richard Doerflinger, of the U. S. Bishops’ Secretariat for Pro-Life Activities, said that “the Holy Father has not declared an absolute moral obligation to provide assisted feeding in all cases” (Ethics and Medics, June 2004). The Catholic Health Association referred health care providers to the Ethical and Religious Directives as the context for the interpretation of the papal speech. Neither those directives nor the 1980 declaration have been revoked by the Vatican, nor have Vatican officials taken steps to insist that all patients who cannot ingest food or fluids be intubated for artificial feeding.

The key question in this case should have been, “What is in the best interests of Terri Schiavo?” Leaving the tubes in place cannot be simplistically equated with acting in her interests, since it could reasonably be argued that 15 or more years of existence in a “vegetative” state neither serves human dignity nor presents a fate that most reasonable people would obviously prefer to death. Those who saw continued tube feeding as a protection of the pro-life position and as a strike in favor of defenseless patients are mistaken if they think that expanding the definition of “ordinary” care will prevent unjust termination of life in health care settings. It is just as likely to worry those who want prudent judgments about their own best interests to be made by family members when their time comes. It may even contribute to the present movement for physician-assisted suicide, which is partly a backlash against the overuse of hi-tech care at the end of life.

On the other side, those who favor an approach more favorable to foregoing artificial feeding suffer under the misconception that the pro-life concerns are simply reactionary and misguided. Many disability-rights activists and organizations, as well as Jesse Jackson, joined hands with the Schindlers. This points up legitimate fears that medical decision-making often reflects utilitarian cost-saving standards, control by “elite” values and interests, and the continued marginalization from medical services of those who lack financial resources and a political voice. The sad story of Terri Schiavo calls for more pastorally sensitive and holistic care for those in similar situations, and better and more readily available hospice care for all. It cries out for the use of advance directives along with designated proxies to evaluate “best interests” as circumstances develop.

The Schiavo case is a warning for all concerned about the common good to become better advocates for broad national health care reform. Sane, just and morally acceptable health care would take the emphasis off expensive, specialized and excessive “treatment” for a few (who may well not have chosen it) and put it where the moral debate should be: integrated, humane health services for everyone who needs them.

Michael P.

April 27, 2005 in Perry, Michael | Permalink | TrackBack (1)

Embryonic Stem Cell Research

[I thought that this would be of interest to MOJ readers.   I've reprinted the whole piece--from today's online Chronicle of Higher Education--because one has to be a subscriber to access the item.]

National Academies Report Recommends New Oversight Boards and Tighter Rules for Stem-Cell Research


Universities and research institutions should set up a new kind of in-house oversight committee to approve and manage studies using human embryonic stem cells, a National Academies panel recommended on Tuesday. In a report, the panel also suggested guidelines for the ethical conduct of the research that are stricter than existing government rules.

The report, "Guidelines for Human Embryonic Stem Cell Research," says the new oversight committees would provide an additional level of review beyond the monitoring done by other university committees, like institutional review boards. The panel said that the new committees would ensure that the controversial studies were conducted in a uniform and transparent way, and thus would help build public confidence in them.

For example, the panel assumed that university researchers would continue to create new colonies, or lines, of human embryonic stem cells. The practice remains controversial because scientists must destroy early-stage embryos to obtain the cells, and some people consider the embryos to be human lives. The panel said that out of respect for those ethical concerns, the new oversight committees should not allow researchers to destroy embryos that are older than 14 days. The proposed guidelines would require that researchers obtain informed consent from all donors of eggs and sperm used to make embryos used in studies -- including from anonymous sperm donors, which is not now required.

"While we were hesitant to recommend another bureaucratic oversight entity, the burden in this case is justified, given the novel and controversial nature of embryonic-stem-cell research," Jonathan D. Moreno, a professor of biomedical ethics at the University of Virginia and co-chairman of the academies' panel, said in a written statement.

The panel prescribed the changes in response to a "perception" that the research "is unregulated," the report says. Scientists now face a patchwork of federal and state regulations covering stem-cell studies, and many of the rules "were not designed with this research specifically in mind, and there are gaps in how well they cover" the research.

What's more, President Bush decided in 2001 that scientists could receive federal research funds for such studies only if they used stem-cell lines that existed at the time. As a result, a growing number of universities are moving toward using private or state funds to study newer lines of stem cells that, researchers say, appear to be more scientifically promising. Some observers have worried that the trend will reinforce the variation across states.

Supporters of stem-cell research hope that the panel's report will play a role in helping to relax Mr. Bush's limits, although the panel itself did not recommend such a step. Even with private and state money flowing into the field, advocates say, the research will move forward more rapidly with federal funds.

"Leading institutions engaged in stem-cell research have many of the protections recommended ... already in place," said Daniel P. Perry, president of the Coalition for the Advancement of Medical Research, a consortium of universities and other groups that supports the studies. "They need only a more supportive and positive federal environment to make the research flourish. The strong ethical standards in this timely report should give Congressional champions of research even more support to expand the current federal stem-cell policy, and should give those who are still waiting on the sidelines a reason to get in the game."

While the report urges universities to adopt the guidelines voluntarily, it also suggests that agencies providing research funds and academic publishers push universities to observe them as a condition of receiving the funds and getting papers published.

The new review boards would consider a variety of issues. They would oversee steps to protect the privacy of parents who donated embryos, sperm, or eggs used in the research. Most stem-cell lines have been created from excess embryos left over from fertility clinics.

In addition, the proposed guidelines would prohibit researchers from paying donors of sperm and eggs used to create embryos. Women who donate eggs for reproductive purposes usually are paid, to reflect the heightened risks associated with the medical procedure to harvest the eggs. But some people view payments as an inappropriate inducement, the panel said.

"The sensitivities surrounding this research are significant, and we thought it was better to err on the side of caution," Richard O. Hynes, a professor of biology and co-chairman of the academies' panel, said at a news conference on Tuesday.

The stem-cell committees would also review all work to create new lines of stem cells and would require scientists to explain why doing so would advance the research.

The committees would also approve any proposal to transplant human embryonic stem cells into animals. Scientists use the technique to study how the human cells grow and function in living systems, and they hope to learn how to use the cells to develop new medical treatments for diseased and ailing organs in human beings. Stem cells are undifferentiated building blocks capable of developing into any specialized cell in the adult body.

In addition, the panel recommended that the university oversight committees bar research to implant human stem cells into early-stage embryos of monkeys. The report said this would avoid the unwanted, but unlikely, result that the human cells would endow the animals with human-like mental capacities. The boards should carefully monitor transplants of the cells into animals of other species, the panel said.

Michael P.

April 27, 2005 in Perry, Michael | Permalink | TrackBack (0)

The Conversation Continues: The Church, AIDS, Condoms, and ACC basketball

Mike C. has written a very thoughtful post arguing that the Church should exercise it prudential judgment and not condone (or even turn a blind eye to) condom use as a means to fight AIDS.

He has also challenged Rick and coach K to join the ACC basketballblog.

April 27, 2005 in Scaperlanda, Mike | Permalink | TrackBack (0)

Tuesday, April 26, 2005

Judges, Religion, and Filibusters

For more about Senator Frist, the filibustering of President Bush's judicial nominees, and religious faith (see here and here), there are a number of interesting posts by Bainbridge, Volokh, "Non-Volokh," Solum, and many others either available, or linked to, here and here.


April 26, 2005 | Permalink | TrackBack (0)

More on Law Schools and Catholic Universities

Another correspondent takes a break from studying for exams and writes, in response to my question "about the place of a law school in a university, particularly in a Catholic university that aspires to be 'great'":

The correspondent whom you have already posted makes good points and I agree with them. I would add to them at least two points:

1)  Catholics disproportionately tend to enter into "professional" programs after graduation, rather than, say, PhD programs (at least the statistics used to say so).  Thus, there ought to be top flight JD & MBA programs at Catholic universities because we know that this is where our students are headed and we ought to provide a Catholic context for those pursuits; this in particular because of . . .

2)  The Universal Call to Holiness.  "The followers of Christ, called by God not for what they had done but by his design and grace, and justified in the Lord Jesus, have been made sons and daughters of God by the Baptism of faith and partakers of the divine nature, and so are truly sanctified.  They must therefore hold on to and perfect in their lives that holiness which they have received from God." (LG 40)  "The forms and tasks of life are many but there is one holiness, which is cultivated bay all who are led by God's Spirit and, obeying the Father's voice and adoring God the Father in spirit and in truth, follow Christ, poor and humble in carrying his cross, that they may deserve to be sharers in his glory.  All however, according to their own gifts and duties must steadfastly advance along the way of a living faith, which arouses hope and works through love." (LG 41)  These words of Lumen Gentium suggest that the Christian life is meant to be lived, of course, not merely or even primarily within the walls of the chapel or church.  Rather, the sacred mysteries we celebrate their, while the summit of our communion in Christ, are also meant to be the source of our Christian living.  When we gather in prayer we arrive as Christians and leave as Christians.  And therefore Christians we must be in the say, 100 hours of work in a tough week at Cravath, Swaine, and Moore.  Indeed, if we find there to be an irreconcilable conflict between our work and our Christianity, we must be prepared to make the courageous choice to reform or abandon the former in order to cling to the latter.  Lawyers, however unfairly derided en masse as a professional class, do certainly face extraordinary pressures and temptations to choose the expedient over the virtuous. 

And this is so not simply in the well known ethical dilemmas that are the stuff of legal ethics curricula and debates.  Much more fundamentally, the role of lawyers and law in society should be pondered at Catholic schools, shaped by Catholic lawyers in their work, and ultimately therefore sanctified by the presence of the Church, and so many of her best and brightest, in this profession.


April 26, 2005 | Permalink | TrackBack (0)

A Devastating Blow to Scaperlanda's Critic

Mike S. posts a link to a post by a blogger who "doesn't understand [his] logic" regarding the Church, condoms, and AIDS.  Of course, a quick trip to that blogger's site will uncover a irrefutable reason why neither Mike nor anyone else need worry about that blogger's lack of understanding.  No one should lose sleep over the complaints of a blogger who links approvingly to a Maryland Terps fan-site, to a pathetic post called "The Anti-Duke Manifesto."


p.s.:  I'm just kidding.  (Well, not really.)

p.p.s.  Coach K is, remember, Catholic.  That's the only reason -- really -- I raise this issue here at Mirror of Justice.

April 26, 2005 | Permalink | TrackBack (1)

Blogger doesn't understand my logic on the Church, AIDS and Condoms

Mike C. says that he doesn't understand my logic in my post entitled The Church, Condoms, and AIDS.  I posted my response as a comment on his blog.

April 26, 2005 in Scaperlanda, Mike | Permalink | TrackBack (0)

Call for Papers: "Justice for All" conference at Duquesne Law School

Dear Mirror of Justice bloggers and readers,

I am a professor at Duquesne University School of Law.

Our Law School, together with the Wecht Institute for Law and Forensic Science, will be holding a conference entitled "Justice for All" in November 2005. Given the nature of the Wecht Institute and its emphasis on forensics, a large part of the conference will be devoted to forensic science and its use in relation to the "Justice for All" act.

However, the conference will also include a separate component on religious, moral and ethical reflections on the death penalty and the law.

Since Duquesne is a Catholic university, we are very interested in Catholic scholarship in this area, but we also welcome and encourage contributions from other faith traditions. If you are interested in learning more about the conference or making a presentation about the conference, please feel free to contact me at [email protected] or to telephone me at 412-396-4994.

Alison Sulentic

April 26, 2005 in Scaperlanda, Mike | Permalink | TrackBack (0)

The Role of Law Schools: A Reader Responds

I asked, a few days ago, "about the place of a law school in a university, particularly in a Catholic university that aspires to be 'great.'"  Here is a very interesting "take" -- to which I would welcome responses -- from an MOJ reader:

Apropos your question about the role of a law school in a great Catholic university, I'd have the following observations:

1. [Some other Catholic universities] decided that it was enough to have a law school that aped secular models and had nothing distinctively Catholic about it. . . .  They were content first to provide an avenue of social mobility for the children of the immigrant Church, and later to compete with purely secular law schools on purely secular terms for prestige.

2. This underestimated the importance of law in both public life and intellectual life in the US, where for many reasons it has played an unusually influential role. Law has almost always been the field (or crucible) in which conflicts over Catholic values and perspectives have been played out, from the 19th C battles over education and the status of the Church and Catholics in a hostile environment, to the current culture wars over abortion, sexuality, the family, the nature of the human person and bioethics. To the extent the Church (and the great Catholic university) wants to influence those debates -- or understand them for their own purposes -- there should be Catholic law schools. Also, to the extent the great Catholic university concieves of itself as a place where Catholics can talk to each other critically about the Church and its teachings, and as a countercultural force that can address society critically, it must be able to "talk law", because the focus of criticism will often be the law as an expression of values and a conception of the human person.

3. A great Catholic university thus must have a great Catholic law school: one with plenty of faculty grounded in the Tradition, convinced that their Catholic faith is relevant to the way they think about law, able to imagine connections across the spectrum of law and not just the law of Church and State and the obvious hot button issues such as abortion, and able to integrate their faith into their teaching and scholarship. . . .

4. A great Catholic university seeks to engage in the moral formation of its undergraduates, using the solid platform of Catholic faith and thought as a way of countering the moral skepticism, relativism and indifference that is the conventional ideology of higher ed today. That task is even more urgent in law (and other professional) schools where we are turning out people with great power and responsibilities and no moral touchstones other than a devotion to craft and their ambitions, restrained only by minimalist, rule-bound professional "ethics." Catholic law schools can have the moral framework and confidence to produce very different kinds of lawyers. The Catholic university that makes that happen is indeed doing something great.

5. The Catholic law school an make a Catholic university greater by providing a real (and not made up or forced) locus for genuinely interdisciplinary work. . . . Think of how . . . theological anthropology influences fundamental jurisprudence, moral theology influences the law of bioethics, and Catholic sociual thought influences understanding of everything from immigration law to corporate law. The Catholic law school can be where all olf these strains of Catholic thought can come together in imaginative ways.

Hope this is a helpful answer to your excellent question . . . .


UPDATE:  Here is a reaction from "Midwestern Mugwump."

April 26, 2005 | Permalink | TrackBack (1)