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.

Thursday, April 30, 2009

Catholic legal education; Judge Noonan

As Amy mentioned here, CUA's Columbus School of Law recently sponsored a conference on "Realizing the Promise of Religious Mission in Legal Education."  Especially in light of Judge Noonan's place in the reflections I offered at the conference, here they are (below).  I should add that Dean Verly Miles and Professor William Wagner deserve great kudos for convening such a conference.  How many nominally Catholic law schools are prepared to talk openly on this topic?



    There is always the risk that discussions of this kind remain, as they say, at the level of abstraction, so let me say right up front that I plan to discuss why I think Erie v. Tompkins was wrongly decided -- what could be less abstract or more concrete?  But before getting to that, I should say that the title of my brief remarks is “Catholic Law Schools as Promise and Project,” part of which I borrow from Fr. Michael Buckley’s book, The Catholic University as Promise and Project, which sets out -- very artfully, to my mind – the ecclesial context in which we lawyers in Catholic universities should think about the religious dimensions of the institutions we are willy-nilly building up, tearing down, or neglecting, as the case may be.  “Promise and Project:” the promise must be specified before the project can have a chance of succeeding.  To approach the promise, I would begin by stepping back.

            So, as I was saying, Erie v. Tompkins was wrongly decided.  I am not kidding.  Judge Friendly wrote a famous article titled “In Praise of Erie,” but I come here not to praise Erie but, if not then to mourn Erie either, at least to ask, and to ask you to ponder with me, whether Justice Brandeis didn’t get that one wrong.  To be sure, Brandeis in Erie quotes the gold standard of twentieth century American jurisprudence, Mr. Justice Holmes:  “[L]aw in the sense in which courts speak of it today does not exist without some definite authority behind it. . . .  The authority and only authority is the State.”  Heavens.  Lurking in the midst of garden variety Civil Procedure and Chapter VII of Hart & Wechsler is a theory of the City of Man, in other words, of man, the state, and who is God.  My sampling, moreover, confirms that many who teach Erie today do so more or less in the spirit of Judge Friendly, who waxes rhapsodic:  “[Erie’s] complementary concepts . . .  seem so beautifully simple, and so beautifully simple, that we must wonder why a century and a half was needed to discover them, and must wonder even more why anyone should want to shy away once the discovery was made.”    Thus Friendly; but can a Catholic say amen to that, at least not without hesitating long and then doing a lot of distinguishing?

            In answer to Friendly’s (rhetorical) question about why shy away, I can think of a number of reasons, and one of them is named Gratian, or -- not at all facetiously now -- one of them is “[t]he Bolognese method of collecting authorities, critically comparing them, and challenging their conclusions.”  This, what Judge Noonan credits as “the preferred approach of that nascent and vigorous Catholic culture” that was born in Bologna in the mid-twelfth century, is, as Judge Noonan goes on to observe, “a common Anglo-American patrimony.”  And it was this that Louis Dembitz Brandeis and those for whom he spoke wished to discredit and demolish.

            Let me be clear.  I do not suggest that there exists “a Catholic position” on Erie.  Mercifully, no straight line runs rail-like from Nazareth to the exact source of the liability in tort, if any, of the Erie Railroad Co.  The Catholic tradition of reflection on the City of Man, however, raises questions that -- if brought to bear on the jurisprudence according to which law is, as Brandeis intends, (more or less) all and only what the civil authority declares -- might lead to different results.  Specifically, the method from Bologna proposes that there exists – or, to assert the point denied by the jurisprudence of Erie, there should exist – a ius commune. 

Yet how many experts in Federal Courts have even heard of the ius commune? Some, but not enough.  How many contemporary law professors are in control of the “method,” as Judge Noonan described it, “of collecting authorities, critically comparing them, and challenging their conclusions?”  Some, but most people today live in flight from authority and authorities.  In order not to be insufficiently provocative, I would add that “textualism,” too, is in derogation from the best of the legal tradition I have in mind. Textualism’s principal announced aim is to keep things simple, and things were acknowledged as far from simple at Bologna.  But these are just examples, which could be multiplied, and none of them is dispositive of the more basic point: Catholics sometimes ask different questions and, therefore, reach different answers.

With this in mind, we can return now to the question we have come here to consider.  What is the mission of a Catholic law school and how do we achieve it?  Judge Noonan asserts that “the law studies are the same whatever the denominational label of the school,” but I suggest that he himself to an extent contradicts the assertion.  The course that challenges Erie on Bolognese grounds, if you will, is different from the one that rhapsodizes with Judge Friendly, and, as Friendly himself observed, Erie had to be decided, which means that  -- fantasizing somewhat grandiosely -- it could be overruled by students-become-judges who have a broader and deeper sense of what doing law is.  And short of that there is the possibility that students will be given the opportunity to discover the dialectical method that was rediscovered at Bologna and that dominated until the rush to codification that is the modern nation state’s favorite tool.

            But how will students be able to make these discoveries?  Here I shall be blunt:  Personnel is policy, as my friend who used to work in the White House likes to say.  Judge Noonan writes,

I see no point in pretending that it does not make a difference what religion the faculty professes. . .   The real issue is recruitment. . . .  Experience suggests that it is necessary to answer this question affirmatively, but not rigidly.  The main attraction of a Catholic law school should be the historical, jurisprudential, and ethical dimensions. . . .  There are Protestants and Jews and agnostics who would be attracted to such a school.  It would be a mistake to exclude them.  It would be equally a mistake to ignore the likelihood that only a body the core of which is Catholic will have the concerns and commitments that perpetuate the connection with theology, philosophy, and history that constitute the school’s Catholic character. 

I could hardly agree more, though I would propose this friendly amendment, in two parts, with both of which I suspect Judge Noonan would agree.  First, it’s not just that some non-Catholics will be attracted to what is uniquely on offer in a Catholic law school.  I would say (in the words of Fr. Buckley) that “[s]uch a community must also include within itself all that passes for knowledge, all human traditions and cultures as well as the academic freedom which makes open discussion possible.  Without the active presence of all these various traditions, it would be neither a university nor of service to the church in promoting the relationship of the gospel ‘to all human culture.’”   

            Second, as to the Catholics themselves, it will not be sufficient, at least not in the aggregate, for them to be baptized, confirmed, professing, and Mass-going.  People of Christian faith steeped in the questions, methods, and answers of the tradition – without these, the tradition is at an end, Holmes and his son Posner are regnant, and no one looks askance at Supreme Court opinions that would make of lone texts sufficient indicia of lawfulness.  As Judge Noonan says, philosophy must occupy an “unchallenged” place in a Catholic law school.  Some people -- both of the right and of the left -- think we can do law without doing philosophy, but the Catholic tradition proposes that it is philosophy, along with theology, that teaches the necessary conditions for framing law.  Philosophy and theology are, in Kant’s phrase, “architectonic disciplines,” knowledge that brings order to the vast assemblage of other knowings.  And, to make a slightly different but related point, there are good reasons why Aquinas’s famed “Treatise on Law” is no such thing, but is instead an integral part of the Summa theologiae.

            Even if one agrees with all that I have said to this point, there remains a hard question.  How to accomplish the promise sketched?  What to do?  Here I shall be even more blunt.  Some problems require top-down solutions, others bottom-up remedies, and when it comes to Catholic law schools who aren’t yet shouldering parts of the project necessary to reach their promise, there’s no one-size-fits all approach.  But it is always the case that someone or some group must say, on behalf of the People of God: This “Catholic university” through its schools has unique work to do.  Judging by what seems to be going on or not going on in most of the nominally Catholic law schools in the U.S. today, this isn’t being said much, either by the laity or by the clergy.  When the entrenched faculty do not call for fulfillment of the promise of a Catholic law school, then only the administration, which is replaceable by the president and board, in conjunction with the faculty, is in position to break the logjam. 

            But here we must identify and face the risk that all our good works will by misadventure be undone by ourselves.  The supreme law in the Church is charity.  Our efforts to identify our mission and to find and recruit people who will care about it must always be marked by respect for all concerned, even as we marshal our forces to live by our Christian convictions as builders of authentically Catholic law schools.  Community prayer, both Catholic and ecumenical, must punctuate and animate the life of the community.  Without it, the builders labor in vain.

            And we must not build in vain.  Although it is fair to say that the actual reasons and motives for adding law schools to the Catholic universities in the U.S., such as Fordham, St. Thomas, Notre Dame, Villanova, and CUA itself, were a mixed bag (some of which led to institutions that it would be wrongheaded to try to recover today), we must not fail to recall that in the twelfth century, “university culture [was],” as Russell Hittinger explains, “spearheaded by the lawyers.”  As James Brundage demonstrates in his recent and magisterial book The Medieval Origins of the Legal Profession, the mediaeval law school and its methods were not add-ons to the university but, rather, the very prototype of the university, right along side and in healthy competition with the school of theology and its methods.  And this is not merely the occasion for nostalgia, because, I submit, nothing essential to the necessary and sufficient conditions of saying what is law for us humans has changed in the intervening millennium.  The scriptural confirmations of the natural law’s promulgation in our hearts requires that our man-made legal artifacts be measured against a higher law, the method for doing which is so many variations on the Bolognese legacy that it is our task to re-appropriate.  In conclusion, I would quote the words of Brundage’s conclusion:

The legal professions, together with the universities, the papacy, the corporation, and constitutional government, are institutions that must rank among the most influential and most enduring creations of the thousand years that constituted the European Middle Ages.  They remain with us still.  Without them, the world would be a poorer, less interesting place.

And, I would add, a less Christian place – and, if you disagree with me, at least in a Catholic law school living up to its promise, the question can be asked in a serious way and a serious answer expected. 




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