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, August 31, 2005

Katrina and Spokane

Hugh Hewitt suggests that we "adopt a parish" that has been affected by Katrina. I appreciate the sentiment. As a Catholic, however, I am only going to contribute to national religious charities. Why? Because of the decision recently reached by the judge supervising the Diocese of Spokane's bankruptcy case (Spokane declared bankruptcy because the diocese can't pay all the legal claims arising out of the priest abuse scandal.) Here's a news summary of the holding:

U.S. Bankruptcy Judge Patricia Williams of Spokane ruled Aug. 26 that civil property laws prevail in a bankruptcy proceeding despite any internal church laws that might bar a bishop from full control over parish assets. Diocesan lawyers had argued that in church law parish assets belong to the parish itself, not to its pastor or to the bishop. They said that, while the diocesan bishop was nominally the owner in civil law, even in civil law he only held those properties in trust for the parishes themselves. ...

Last December the Spokane Diocese filed for bankruptcy protection under Chapter 11 of the federal Bankruptcy Act, citing $11.1 million in assets and $83.1 million in liabilities, mostly from people seeking recompense for childhood sexual abuse by priests. It did not include parishes, parish schools or cemeteries in its list of assets.

Victims' lawyers claimed that the bishop had more than $80 million in assets under his control if he included the diocese's 82 parishes, 16 diocesan and parochial schools, and various cemeteries and other properties that he claimed he held only in trust. {Ed: What exactly do the lawyers want to with the [expletive deleted] cemeteries? Dig up the bodies and sell the land?}

And here's the real kicker:

Stockton attorney Larry Drivon, who represents hundreds of Californians suing the Catholic Church over childhood sexual abuse, said the Spokane ruling sends a warning to other Catholic dioceses considering bankruptcy to avoid payment of multimillion-dollar jury verdicts in sex-abuse cases. "They are not going to get anywhere in bankruptcy," he said. "This is exactly what we've been saying since Day One, that all of the Catholic assets within the diocese are available to pay these plaintiffs," Drivon said.

Drivon said the ruling also meant that money held in restricted funds within dioceses for special projects, such as construction of a cathedral, can be used to pay judgments in sex-abuse cases, contradicting what some church officials have told donors. "They have told their parishioners, 'Don't worry about the funds that you gave us for the cathedral, because these funds are separate and cannot be used for lawsuits.' Well, they can," Drivon said.

In other words, giving money to a specific parish these days for a specific purpose like Katrina relief is no longer safe from the claims of sex abuse litigants. I firmly believe that the Church needs to compensate the victims of priestly sex abuse, but I also don't want money I give to hurricane relief being diverted to other purposes.

August 31, 2005 | Permalink | TrackBack (0)

Increase in Poverty Rate

The Census Bureau released figures yesterday showing that the number of Americans living in poverty last year increased by 1.1 million to 37 million.  Of the 37 million, almost one third are children.  (The figures also show that the number of Americans without health insurance increased to 45.8 million.)

In Sollicitudo rei socialis, Pope John Paul II called the option for the poor "a special form of primacy in the exercise of Christian charity, to which the whole tradition of the Church bears witness....[T]his love of preference for the poor, and the decisions which it inspires in us, cannot but embrace the immense multitudes of the hungry, the needy, the homeless, those without medical care and, above all, those without hope of a better future.  It is impossible not to take into account the existence of these realities.  To ignore them would mean becoming like the 'rich man' who pretended not to know the beggar Lazarus lying at his gates."  He goes one to say that both our daily life and "our decisions in the political and economic fields must be marked by these realities." (par. 42)

Seems like we have a little work to do here.

August 31, 2005 in Stabile, Susan | Permalink | TrackBack (0)

Tuesday, August 30, 2005

New Orleans

I suppose this is a bit off topic, but I hope all MOJ readers will pray for, and financially support, those who are suffering because of the Katrina disaster.  If, as it increasingly appears, New Orleans as we have known it is gone, it is a tragedy for residents and their friends and loved ones, but also for the country, and for the Church.  New Orleans was -- though I persist in hoping it will remain -- a different place, in a culture, geography, and economy that (it seems to me) has been becoming more and more the same (not bad, just the same).  New Orleans is a reminder -- particularly if one scraped beneath the Bourbon Street stuff -- that not everything is Underground Atlanta, Universal Studios, the new Times Square, Tison's Corner, or Pier 49.  Grime, moss, mold . . . God bless it.


August 30, 2005 | Permalink | TrackBack (3)

Katrina Relief


The comments section of what started out as a light-hearted self-congratulatory post over at my personal blog has morphed into a serious discussion of the moral obligations of Catholic judges, with direct reference to SCOTUS nominee John Roberts. With Roberts' confirmation hearings looming, consider this an invitation for any MOJ bloggers (or readers) to come over and weigh in with comments.

August 30, 2005 | Permalink | TrackBack (1)

Strang on Originalism and Precedent

This article, by Ave Maria's Prof. Lee Strang, should be of interest to those who have been following our discussion about Catholic judges, stare decisis, and cooperation with evil.  Here is the abstract for "An Originalist Theory of Precedent."

There is substantial scholarly disagreement on whether and in what manner prior decisions of the United States Supreme Court interpreting the Constitution bind it later in time. This is despite the consensus of American legal practice that prior constitutional decisions do bind later courts. At the heart of the debate surrounding precedent is the tension between our written Constitution, which is the supreme law of the land, and the role of the unelected Supreme Court in exercising constitutional judicial review. Further, the existence of numerous and important nonoriginalist precedents is used by critics of originalism as an (in their view, often decisive) argument against originalism.

In this Article I will offer a theory of constitutional precedent within an originalist framework. I will argue that a limited respect is due some nonoriginalist constitutional precedent because of the larger societal goal of effectively pursuing the common good.

I will initially describe the problem that precedent has posed for scholars and courts in the area of constitutional adjudication. First, I will explain what I mean by a theory of precedent. Second, I will briefly discuss the debate over the proper interpretative methodology of the Constitution. Third, I will show how, for any plausible theory of constitutional interpretation, there will be precedents that, under the methodology, are mistakes. Lastly, I will review attempts by originalist scholars to elucidate a theory of precedent in constitutional adjudication.

I will then lay out my theory of originalist precedent. First, I will describe the originalist interpretative methodology I am assuming for purposes of this Article. Central to the originalist methodology that I describe are the concepts of the common good and authority, and the process of making natural law effective in society. Then, I will argue that courts should not overrule nonoriginalist constitutional precedent only when overruling the precedent would gravely harm society's pursuit of the common good.

Originalism requires judges to adhere to the meaning of the text of the Constitution as it was understood when ratified. In constitutional adjudication, therefore, judges may only apply the positive law of the Constitution and may not, generally, directly apply natural law norms. By contrast, when determining whether to overrule or limit nonoriginalist precedent judges will be relatively unconstrained and will have to make those determinations by looking to what the common good of society requires. As a result, I will briefly discuss a theory of judicial virtue to account for how judges should exercise this discretion.


August 30, 2005 | Permalink | TrackBack (3)

Do Catholic Still Care About Labor?

With Labor Day one week away, the current issue of America includes an article entitled, "Do Catholics Still Care About Labor?  The article concludes they do, giving examples of some grass roots efforts to support workers.  I'm not sure that is enough to give a full answer to the question and it is a question worth asking. 

Catholic Social Teaching on labor is quite clear and strong, yet the teaching gets remarkably little emphasis.  In 1891 Pope Leo XII wrote in Rerum Novarum that "some opportune remedy... [must] be found quickly for the misery and wretchedness pressing so justly on the majority of the working class."  In 2005, companies in the U.S. still engage in violation of child labor laws and actively oppose unionization efforts, most new jobs being created are paying poverty level wages, and day laborers and undocumented workers are abused in a myriad of ways (just to provide a few examples in the U.S. - not even reaching the issue of workers in foreign countries).  Shouldn't we be hearing a louder Catholic outcry and demand that "some opportune remedy...be found quickly"?

August 30, 2005 in Stabile, Susan | Permalink | TrackBack (0)

Public Schools, Private Schools, and Moral Capital

I've just finished reading Amy Gutmann's Democratic Education, and while I find myself resisting several of the book's assertions, I've had trouble articulating a response to one of the passages.  Here it is:

Many public schools in the mind-nineteenth century were, to say the least, disrespectful of Catholicism.  Catholic children who attended these schools were often humiliated, sometimes whipped for refusing to read the King James version of the Bible.  Imagine that instead of becoming more respectful, public schools had been abolished, and states had subsidized parents to send their children to the private school of their choice.  Protestant parents would have sent their children to Protestant schools, Catholic parents to Catholic schools.  The Protestant majority would have continued to educate their children to be disrespectful if not intolerant of Catholics.  The religious prejudices of Protestant parents would have been visited on their children, and the social, economic, and political effects of those prejudices would have persisted, probably with considerably less public protest, to this very day.  There may be little reason today for Catholic parents to worry that privatizing schools will reinstitutionalize bigotry against Catholics, at least in the short run.  But one reason that Catholics need not worry is that [a school system built on parental choice] today would be built on the moral capital created over almost a century by a public school system.

My questions for Rick, Tom, Patrick, Michael S., and others who have written or thought about the importance of Catholic schooling and/or school choice: Do you agree that, as public schools became more tolerant of minority views, they played an essential role in reducing tension and increasing understanding between Catholics and Protestants?  If so, would you still advocate for school choice if you were writing in the nineteenth century, or is your support for school choice premised, at least in part, on the availability of the "moral capital" created by public schooling?


August 30, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Informal Groups and the Law

Even if you don't normally keep up on technology-and-law scholarship (and I don't), anyone interested in mediating structures, subsidiarity, civil society, etc. will want to check out Pittsburgh law prof Michael Madison's paper, "Social Software, Groups, and the Law."  Here is the abstract:

Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading "social software," increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. Such a framework may be organized along three dimensions by which groups arise and sustain themselves: regulating places, of things, and of stories.

And here's an even more intriguing passage from the paper itself:

Law channels social organizations into prescribed forms, fictionalizing the entity for regulatory purposes.  Absent the prescribed form, law looks to the individual.  Informal social structures are messy and dynamic; formal legal structures are relatively neat, and static.  Part of my argument here is that something is lost in the translation.  There may be good which comes from informal groups, which may be lost when group activity is channeled into typical legal forms.

(HT: Solum)


August 30, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Kmiec on Catholics, judges, and precedent

A long and very interesting interview with Pepperdine's Professor Doug Kmiec, "Catholic Judges, the U.S. Constitution, and Natural Law," is available at ZENIT (you might have to scroll down).  Note that Professor Kmiec kindly concludes his interview with a plug for Mirror of Justice!

Here is one exchange:

Q: Right now there are three, and there could be four, Catholics sitting on the Supreme Court. However, they often have diverging views on some important issues. Is there a Catholic way of interpreting the U.S. Constitution, or can there be legitimate disagreement about the meaning of the text?

Kmiec: The tools of constitutional interpretation are the text, history and structure of the American Constitution. Part of that history includes the Declaration of Independence and its reference to self-evident truths of creation, created equality and unalienable rights.

As Lincoln reflected, the Constitution was framed for the philosophy of the Declaration, not the other way around. It is to secure our unalienable rights that "governments are instituted." All those who would seek judicial office should sincerely appreciate the intrinsic value of the human person reflected in the Declaration.

Moreover, one would expect, and I do, that those who are truly sustained by the Catholic faith and a Catholic family, and perhaps educated in Catholic schools, would have a special appreciation by study of the natural law tradition and its direct contribution to the American order of these first principles.

As to divergence among believers, in law or anything else, that is part of the human condition. In truth, Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy ­- the three Catholics presently on the Supreme Court -- have a statistically high level of agreement in matters of legal interpretation, though each has had different legal training and experience, and that, rather than their common faith, likely explains the variations among them.

Professor Kmiec very nicely identifies what was good, and what might have been off-base, in Bishop Skylstad's call not long ago for a Court that would rule in accord with certain USCCB-preferred policies:

Q: Recently, Bishop William Skylstad, president of the U.S. Conference of Catholic Bishops, sent a letter to President Bush calling for a Supreme Court justice that would rule in a number of ways consistent with the bishops' public policy agenda. What would be the jurisprudential consequences for a Catholic justice who heeded Bishop Skylstad's call?

Kmiec: Bishop Skylstad's letter was a direct and entirely appropriate expression of Catholic faith. The letter might be perceived as somewhat misunderstanding the intended role of the Supreme Court, but one can hardly fault the bishop for this since some members of Congress, themselves, wrongly think of judges as policy-makers.

As a matter of original understanding, nothing in the Constitution is at odds with any of the policies the bishop urges. For example, while the Constitution provides for capital punishment, there is nothing precluding the American people in their respective states to end or limit its application if the people come to be persuaded by the witness and prayer and instruction of Catholics -- and others -- in the public square that, as John Paul II taught in "The Gospel of Life," its application should be rare.

And, of particular relevance to our discussion about Roberts, precedent, and Roe, there's this:

Q: Can a Catholic judge in good conscience strike down laws restricting abortion that he or she believes are unconstitutional? What about applying unjust laws? What should a judge do in the case of a moral conflict?

Kmiec: As a matter of formal logic, it must be readily admitted that no person in or out of office can set himself or herself above the divine law. Yet, repeatedly and circumspectly, the Church's teaching is directed at "elected officials" or those casting "a legislative vote."

. . . Nowhere, however, does the Church formally instruct judges to act outside the bounds of their judicial office to legislate from the bench. The Church exhibits great respect for the separation of powers, even as the justices themselves have been less than faithfully observant of this constitutional building-block.

Here, the Church is following in the instruction of St. Thomas Aquinas, who argued "that all should have some part in the government; for in this way peace is preserved among the people, and all are pleased with such a disposition of things and maintain it."

. . . So, while Church leaders are well within their rights as citizens to point out in public statement or amicus brief how they believe that a proper understanding of law does not support abortion on demand, a Catholic judge may be part of a judicial system that includes Roe.

In ruling on such matters, a judge does not become morally complicit in the underlying act or share in its intent. If the question is: Does John Roberts have a specific Catholic duty on the bench to restrain abortion? -- Justice Scalia has given the apt answer: "A judge ... bears no moral guilt for the laws society has failed to enact."


August 30, 2005 | Permalink | TrackBack (0)