Mirror of Justice

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?

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    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. 

                            

             

Judge John Noonan to deliver Notre Dame Laetare address at ND graduation

The announcement is here.  (REVISED:  Among Judge Noonan's stellar law clerks:  At Notre Dame Law, Cathy Kaveny, and at Villanova Law, Kathleen Brady and MOJ's own Patrick Brennan.)

"Obama the Conservative"

An interesting post, at dotCommonweal.  Here is just a part:

First off, mirabile dictu, is L’Osservatore Romano, the Vatican daily that titled its analysis “The 100 days that did not shake the world.” As John Thavis reports for CNS, the Vatican paper says Obama has “not confirmed the Catholic Church’s worst fears about radical policy changes in ethical areas” and says the “the new president has operated with more caution than predicted in most areas, including economics and international relations.”

“On ethical questions, too–which from the time of the electoral campaign have been the subject of strong worries by the Catholic bishops–Obama does not seem to have confirmed the radical innovations that he had discussed,” the paper said.

Same-Sex Marriage, Con't

NYT, April 30, 2009

N.H. Senate Passes Gay Marriage Bill

By ABBY GOODNOUGH

CONCORD, N.H. — The New Hampshire Senate voted narrowly on Wednesday to legalize same-sex marriage, paving the way for the state to potentially become the fifth in the nation — and the third this month — to allow gay couples to wed.

The Democratic-controlled Senate voted 13 to 11 in favor of the bill, which was passed by the State House of Representatives last month, but only after a last-minute amendment strengthened language granting legal protections for religious groups and organizations that do not want to perform or otherwise help carry out same-sex marriages.

It is unclear whether Gov. John Lynch, a Democrat, will veto the law or whether the new language will persuade him to endorse it. Mr. Lynch has consistently opposed same-sex marriage, but has never said whether he would veto the bill or let it be enacted without his signature, as state law would allow. He has said that the state’s civil-union law provides sufficient rights and protections for gay couples.

Mr. Lynch’s office did not immediately return a call seeking comment Wednesday.

Kevin Smith, director of Cornerstone Policy Research, an in-state group that led a campaign against the bill, said the group would intensively lobby Mr. Lynch to veto it.

Religious Mission Conversations at CUA

Last Friday, together with fellow MOJers Rick and Patrick, as well as MOJ friend Fr. Reggie Whitt, I participated in a panel discussion at The Catholic University of America Columbus School of Law on “Realizing Religious Mission in Legal Education.”  (Forgive the length of this, but I promised Rick that I would post this, and it might tie into our ongoing discussions about “distinctiveness” and mission). 

 

The discussion as a whole took as a springboard Judge John Noonan’s 1992 essay, “What is a Catholic Law School?" (67 Notre Dame L. Rev. 1037).  I picked up on two of the principles that he identified as part of the distinctive character of a Catholic law school: 1) Recognition of the “unchallenged importance” of philosophy, and in particular recognition of how the metaphysical dimensions of the person should inform legal categories and frameworks; and 2) Ample room for the expressly theological: even for scholarship that invokes scripture, the example of Jesus, prayer, in short, the “fusion of the responsibilities of the lawyer and the love of Christ.”

 

Giving a couple of examples of how in our work at Fordham, particularly in our “Love of Neighbor and the Law” project, I emphasized how we have benefited greatly from the work of our non-Catholic faculty, not only in terms of collaboration, but also in leadership, and while Noonan would find any of this problematic, I argued that it did nonetheless suggest a slight shift in the framework for discussions about “realizing religious mission.” 

 

For example, Noonan asked who are the participants in fulfilling the distinctive mission of a Catholic law school.  “Must the students and the faculty be Catholics, too?” His answer is: “not all, but enough to give substance to the claim of the school to be a Catholic law school . . . I see no point in pretending that it does not make a difference what religion the faculty professes.”  This seems to suggest two things: one, that it is in some way a question of numbers; and two, that there is a correlation between the religion that one professes and one’s capacity to draw out the connections between one’s Catholic identity and one’s law teaching and law scholarship. 

 

My experience at Fordham indicates that it is definitely more complex.  As a member of “generation X,” I ask myself, what difference does “professed religion” make when most Catholics of my generation—including Catholic law faculty—lack the formation in the driving ideas of their religious traditions that might make a difference for their legal scholarship and teaching?  And it is not just a generational problem, because the generations ahead of me often carry a largely private (or at time ethnic) conception of religion which tends to focus, for the most part, on liturgy and individual expressions of spirituality, in ways that may not connect directly with the law school curriculum and community.  So it’s not just post-Vatican II ignorance, but also pre-Vatican II tendencies to privatize the impact and implications of faith perspectives.

 

Now Noonan is certainly open to pluralism.  As he himself states, he is neither a proponent of trials for heresy, nor of excluding or discounting the contributions of faculty from other religious traditions who are attracted to the distinctive dimensions of Catholic legal education.  But I would push further.  I think it is a mistake to frame the interaction as a matter of allowing people of other faith traditions to enter and participate in a Catholic environment.  Instead, we need to emphasize that mission also means appreciating how we can all learn and grow from mutually enriching relationships.  Dialogue needs to be fostered not as a concession, not as an afterthought, but as the very fabric of our life together, and as an essential dynamic in the life of the Church itself. 

 

As you all know, I am not saying that we should not pay attention to the task of finding faculty who have or who might develop both the capacity and the interest in drawing out what the Catholic intellectual tradition offers to legal scholarship and law school teaching.  But even as I think about these projects, I find myself asking what kind of resources might help us to both appreciate all that the tradition has to offer, and at the same time embrace the rich contributions that faculty and students from other religious traditions might bring to the endeavor.

 

Some ideas, grounded in Jesus’s own capacity to “empty” himself; and in a model based on the life of the Trinity, in which, as Chiara Lubich put it, “I am myself not when I close myself off from the other, but when I give myself, when out of love I am lost in the other”—are outlined more fully in a piece recently published in the ACCU’s Journal, Current Issues in Catholic Higher Education, “Sparks and Bridges: Catalysts of a Catholic Higher Education That Works” on the sidebar under my name.      

 

However the project is framed, I think the key to realizing religious mission is to place our trust in the content of love, a love that fosters the deepest sense of personal integration and identity, and at the same time, a celebration of the gifts that others, with all of their differences, might bring.  As Pope Benedict put it in his encyclical Deus caritas: love is “a journey, an ongoing exodus out of the closed inward-looking self towards its liberation through self-giving, and thus towards authentic self-discovery and indeed the discovery of God.”  This presence of God, can then become a guide to discover the manifold ways in which God is already at work in our students, our colleagues, and our institutions as a whole.

Philpott on reconciliation

Great stuff, at America, from my friend, political scientist Dan Philpott. Check it out.

Cardinal Rigali Also Endorses Pregnant Women Support Act

Cardinal Rigali, as chair of the U.S. bishops' committee on pro-life activities, has written a letter to all members of the House urging that they vote for the Pregnant Women Support Act, the bill largely developed by Democrats for Life that was recently reintroduced in both houses.

The letter, sent Friday, noted that "in a society where disagreements on abortions and the rights of the unborn child seem persistent and intractable, there are some statements that almost everyone can endorse."

The cardinal continued: "First, the fact that over a million abortions take place every year in this country is a tragedy, and we should at least take steps to reduce abortions.

"Second, no woman should ever have to undergo an abortion because she feels she has no other choice, or because alternatives were unavailable or not made known to her. . . ."

The letter explained some points of "life-affirming support" provided for pregnant women through this act, including: the elimination of "pregnancy as a 'preexisting condition' that can be used to deny health coverage for women; grants to support centers providing alternatives to abortion; assistance encouraging colleges and universities to provide support for pregnant and parenting students."

The act also includes increased support for adoption programs and services for pregnant women at risk from domestic violence.

Cardinal Rigali responds to Kmiec re: embryo-destructive research

I expressed some doubts, a few days ago, about Doug Kmiec's defense of the Administration's new guidelines on funding embryo-destructive research.  Cardinal Rigali has a more elaborated expression of similar doubts, here.  A bit:

With all due respect to Kmiec, then, on this and other issues relating to the destruction of unborn human life, the federal government is not moving “in a noticeably more Catholic-friendly direction.” Nor is it moving in a human-friendly direction.

The values and ideals of our nation on the equality of all human beings are at stake when we discuss such issues, for people of all religions or no religion.

Respect for human life at every stage must govern our treatment of all human beings in law and medical research. To the extent that it does not, we are no longer talking about authentic human progress.

"Torture: What it is, and Why it is wrong"

Philosopher Chris Tollefsen explains, here, at Public Discourse.  (ed.:  But wait, there must be some mistake.  Public Discourse is a front for right-wing Catholic torture apologists, isn't it?  We all know that Robby George and that crew care only about fetuses, and not about detainees, right?  RG:  ed, stop reading Andrew Sullivan.)  A taste:

It is important to be clear, as a moral matter, on what boundaries should be accepted in interrogation of human beings. These sorts of boundaries, regardless of whether they are called torture, or “cruel, inhuman and degrading” treatment, are the ones that matter for our most basic assessment of how agents of the United States Government should comport themselves when questioning terror suspects. The discussion should not, that is to say, begin with questions about how the nature of the terrorists’ crimes, or their status as illegal enemy combatants, affects what may be done. For, if there are forms of treatment forbidden as such for all human beings, then such forms of treatment will be ruled out for terror suspects just as for prisoners of war, and common criminals.

For another, different, but worth-reading take on the issue, by the always worth-reading Stuart Taylor, go here.

Mary Ann Glendon Declines Notre Dame's Laetare Medal

You can read her explanation here.