Mirror of Justice

Catholics, Racism, and Obama

This disturbing post, at dotCommonweal, is definitely worth checking out (here).

Recommended Reading for All Lawyers

[You'll see, if you take a look at the opening footnote of the paper, that MOJ's own Amy Uelman played an important role.]

Love of Neighbor as a Lawyerly Practice: Insights from Christian, Jewish, and Buddhist Traditions

Deborah Cantrell
University of Colorado Law School
August 28, 2008
U of Colorado Law Legal Studies Research Paper No. 08-21     

To date, the discourse on faith and lawyering has often focused on the question of whether or not a lawyer should use faith-based values to inform her lawyerly practice. The discourse is dichotomous and polarized, with one view seeing destructive consequences and the other seeing productive consequences. For those opposed to faith in lawyering, the expressed concern is that lawyers of faith cannot help but either dominate their clients or disengage from their clients. Those who lawyer from faith respond that, to the contrary, their faith encourages them to behave in ways that are beneficial to their clients and to more general ideas of social justice. That dichotomous call and response, when kept at the level of "whether or not" to lawyer from faith, is irreconcilable. This article seeks to move beyond the dichotomy by considering a particular faith-based mandate, "love of neighbor." It postulates what specific lawyerly actions based on "love of neighbor" might look like, and then assesses whether those actions are consistent with lawyerly obligations. Distinctively for legal scholarship, it does so from an interfaith perspective, looking to Christianity, Judaism, and Buddhism. The article concludes that "love of neighbor" provides an example of a particular faith-based concept that encourages lawyerly practice deeply consistent with accepted professional responsibilities.

Keywords: legal ethics, legal profession, law and religion, Buddhism, Christianity, Judaism

To download/print the paper, click here.

Geoffrey Stone at Villanova

Many thanks to Pat Brennan for the update on the happenings at Villanova. Looks like the place to go, as indeed it has been in the past. And the immediately upcoming conference focused on the  "Liberty of Conscience" book could not be more urgent: See the op-ed by Hillary Clinton and Planned Parenthood's Cecile Richards in the NYTIMES for today (9/19).

Nevertheless, I have to wonder whether someone as militantly closed minded as invitee Geoffrey Stone will contribute a great deal to this topic. See his denigration of an opposing worldview as I describe it here.

Abortion is more than numbers

Bravo for Fr. Araujo’s  response to Cass Sunstein. However, I think he radically understates what is at stake by simply calling attention to the number of lives lost because of Roe v. Wade. The right to abortion is emblematic of a wider shift to lethal betrayals of radically dependent persons, betrayals that are rationalized precisely by the victims’ lack of autonomy-based dignity. We have just seen this in the subtle as well as crude attacks on Trig Palin. I develop this point in the context of Catholic thought here.

Come to Villanova early and often!

In addition to the upcoming conference on "Catholic Social Thought and Citizenship" on Saturday, October 11, 2008 (details here), don't forget to calendar the annual John F. Scarpa Conference on Law, Politics, and Culture.  The next Scarpa Conference will be held at Villanova on February 19, 2008, and for those who like to plan way out, the fourth annual Scarpa will be held Thursday, October 22, 2009.

As previously announced, the third annual Scarpa Conference will feature Professor Martha Nussbaum as its keynote speaker.  Professor Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics in the University of Chicago Law School; at Chicago, she is also appointed in Philosophy, Classics, Divinity, and Political Science.  The conference will focus on issues raised in her new book Liberty of Conscience (Basic Books 2008).  Also speaking at the conference will be R. Kent Greenawalt, University Professor, Columbia University; Roderick M. Hills Jr., William T. Comfort III Professor, New York University School of Law; Jesse Choper, Dean emeritus and Earl Warren Professor of Public Law, Berkeley Law (Boalt Hall), UC Berkeley; Richard Garnett, Professor, Notre Dame Law School; Very Reverend Richard Schenk, OP, Dominican School of Philosophy and Theology, Graduate Theological Union, Berkeley, CA; Geoffrey Stone, Dean emeritus and Harry Kalven Jr. Distinguished Service Professor, University of Chicago Law School; and John T. McGreevy, Dean of Arts and Letters and Professor of History, University of Notre Dame.  Details about the conference schedule will be available well before February, so please stay tuned.

I am delighted to announce that the fourth annual Scarpa Conference will be dedicated to celebrating and exploring the work of Joseph Vining, Hutchins Professor of Law in the University of Michigan Law School.  The conference, which will be held on Thursday, October 22, 2009, will coincide with Professor Vining's fortieth year on the Michigan faculty, during which time he has written, in addition to dozens of articles and book chapters,  Legal Identity (Yale 1978 ), The Authoritative and the Authoritarian (U of Chicago 1986), From Newton's Sleep  (Princeton 1995), and The Song Sparrow and the Child: Claims of Science and Humanity (Notre Dame 2004).  Also speaking at the conference will be Judge John T. Noonan Jr., United States Court of Appeals for the Ninth Circuit; Lee Bollinger, President of Columbia University; H. Jefferson Powell, Professor of Law and Divinity, Duke University School of Law; James Boyd White, Hart Wright Professor of Law, Professor of English, and Professor Classics, emeritus, University of Michigan; and Steven Smith, Warren Distinguished Professor, University of San Diego School of Law. 

Joseph Vining is always worth listening to, his work worthy of the careful study it invites and even demands.  Jeff Powell said this of From Newton's Sleep:  "From Newton's Sleep is one of the most important books ever written about law as a practice that involves whole persons and engages the emotions, imagination, and spirit as well as the mind.  It is -- what is ever rarer -- a wise book, with much to teach lawyers about their profession and all of us about how to live humanely in our world. . . .  A superb accomplishment."  I hope many will be able to join us at Villanova and make the most of this opportunity to engage in the kind of humane, humanistic inquiry that Joe Vining has modeled for us all over four decades.

Five words

A few days ago, Professor Cass Sunstein, now of Harvard Law School, published an opinion essay in The Boston Globe [HERE] on the fate of Roe v. Wade. The first five words of his piece tell a great deal: “The right to reproductive freedom…” In short, Professor Sunstein raises his concern in this published opinion that the fate of Roe and other unnamed but “countless principles in constitutional law” are hanging in the balance if the Republicans win. Nothing is inferred about what would happen should the Democratic party prevail in the upcoming presidential election. In fairness to Professor Sunstein, he is self-identified as an unofficial advisor to Senator Obama.

As the Mirror of Justice is a web log dedicated to the development of Catholic legal theory and is not a forum for political commentary by itself, let me confine my remarks to Sunstein’s juridical claim about “the right to reproductive freedom.” He explains that Roe is vulnerable to being returned to the individual states and then to being “overturned” judicially or legislatively. But this, in his estimation, is unwise because Roe has become a part of the legal and political culture of the United States for thirty-five years. In making this claim, he appears to suggest that Roe, in spite of its legal insufficiency that he acknowledges (Roe “was far from a model of legal reasoning”), cannot be altered even though it can be criticized. Well, does not criticism lead to a reexamination of laws that exist but ought not to?

Professor Sunstein competently puts forth the stare decisis argument for preserving Roe. But, in fact, judicial precedents that are stare decisis have come and gone in our nation’s legal history. I again raise a question that I have posed before: what makes Roe inviolable knowing that its legal reasoning is deficient? Surely it is not because it saves human life. His argument that “American constitutional law is stable only because of the principle of stare decisis” is also lacking because it is patent that for over two centuries precedents that were wrongly conceived should not stand but have whereas some that were well formed were overturned by the stroke of a fifth justice’s pen.

Sunstein gets to the heart of the matter quickly. It’s not about overturning precedent, its about disruption of a thirty-five year old culture of death to which powerful political groups are inextricably attached but that has not only minimized but dismissed the lives of forty million young Americans. As I have pointed out previously [HERE], the alternative to Roe v. Wade does not have to be “jail sentences and criminal fines” as Professor Sunstein contends but needs to be remedial legislation that saves mothers, fathers, and, yes, their yet-unborn children. His claim that a decision that has been allowed to persist for three and one half decades cannot be overturned because “an established domain of human liberty” will be put into turmoil is unpersuasive. Turmoil for whom? Surely not for those whose lives will be snuffed out; and sure not for the mothers who may be legally entitled to kill their children because they have not been made aware of alternatives that can and, in some cases, do exist right now.

Again, as I have argued in the past, we as a nation—including its lawyers—can do a lot better for all whose lives are threatened by the political and legal issue of abortion. Sadly, Professor Sunstein and like minded individuals have been satisfied that only some lives are threatened should the Roe precedent be compromised, but this belief, in fact, is not true.

RJA sj

It's the Economy, Stupid

Surely we here at MOJ are aware of what the economic debacle all around us means for the lives of oridinary folks.  I lifted this from our friends at dotCommonweal.

Where have I hear this before?

September 17, 2008, 5:49 pm

Posted by Matthew Boudway

I don’t think the Wall Street Journal would allow me to reprint every Thomas Frank column on this blog (I sometimes wonder how they can bear to run the column themselves). But it’s been a few weeks since I last mentioned him, and in that time a lot has happened. The champions of deregulation, including McCain’s economic advisors and, yes, including McCain, must now answer for the spectacular failure of their policies, which protected and even encouraged reckless practices in the financial industry. Instead, they will bemoan the excesses of a few rogues, insist that this not count against their free-market mania, and try to convince us that no one saw this coming. Puts me in mind of the neocons who, after it became clear that we weren’t going to be finding any weapons of mass destruction in Iraq, shrugged and said, “Well, everyone was wrong.” The same dodge, the same party. Here’s Frank:

There is simply no way to blame this disaster, as Republicans used to do, on labor unions or over-regulation. No, this is the conservatives’ beloved financial system doing what comes naturally. Freed from the intrusive meddling of government, just as generations of supply-siders and entrepreneurial exuberants demanded it be, the American financial establishment has proceeded to cheat and deceive and beggar itself — and us — to the edge of Armageddon. It is as though Wall Street was run by a troupe of historical re-enactors determined to stage all the classic panics of the 19th century.

By the way, this is the same system the Republicans would still apparently like to put in charge of Social Security. The same system that is minting millionaire CEOs, that is holding the line on wages, and that we will be bailing out for years.

On Monday, John McCain blamed the disaster on “greed by some based in Wall Street.” It’s a personal failing of some evil few, in other words, and presumably capitalism will start working again once we squeeze the self-interest out of it. In the weeks to come, maybe Sen. McCain will also take a bold stand against covetousness and sloth.

Read the rest here.

Rob Kahn on "Are Muslims the New Catholics?"

My St. Thomas colleague Rob Kahn is a fine scholar on the subject of prejudice and the law.  Here you can read his new paper, "Are Muslims the New Catholics? Europe's Headscarf Laws in Historical Perspective."  The abstract:

European opponents of the headscarf often view themselves as engaged in a "struggle against totalitarianism." This paper explores an alternative framing: What if Muslims - rather than Nazis or Communists in training - are the more like nineteenth century Catholics, who were seen as a religious threat to European (and US) liberalism? To explore this idea, my paper looks at the headscarf debate through the lens of the German Kulturkampf (1871-1887) and nineteenth century US laws that banned public school teachers from wearing clerical garb. I reach two tentative conclusions. First, many of the claims made against European Muslims - especially about the "backward" nature of the religion - were also made against Catholics. Second, just as the Kulturkampf (and US clerical garb laws) failed to create a new "modern" Catholic, headscarf laws will not create Islamic moderates. However, the ultimate incorporation of Catholics in the years after 1945 suggest a more hopeful future - one that will come quicker if there is less legal repression.

Cultural anesthesia

I continue to enjoy the reflection papers and robust discussion in my jurisprudence seminar, which focuses on Catholic Perspectives on American Law.  One student, Jason McCart, wrote a paper reflecting on Avery Cardinal Dulles' chapter, Truth as the Ground of Freedom. In looking at the consequences of the "just do it" culture, Mr. McCart remarked on what I see as a growing trend.  He said:  "We’ve gone beyond 'do what feels good' to 'do whatever, and see if you can feel something.'

More on Obama's Illinois abortion votes

Following up on Rob's link to the excerpt -- dealing with Sen. Obama's opposition in Illinois to that state's born-alive-infant-protection law -- from Doug Kmiec's new pro-Obama book:  A useful supplement to Kmiec's account is this short report -- which confirms that Sen. Obama misrepresented his record -- from (the non-partisan) Factcheck.org.   Also worth reading is this detailed account and analysis of the controversy by the National Right to Life Committee.  This account is not consistent with the one set out in the full excerpt from Kmiec's book, which is available at Steve Waldman's BeliefNet site.