Mirror of Justice

Ave Maria Law Review symposium on Rights of Conscience

The Ave Maria Law Review (Vol. 9; Issue 1)(2010) has just published a symposium on "The Future of Rights of Conscience in Health Care." The symposium grew out of a conference that Lynn Wardle (BYU) and I organized. The conference was generously supported by University Faculty for Life and was also sponsored by the J. Reuben Clark Law School at BYU and Ave Maria School of Law. The conference was held at the J. Reuben Clark Law School at BYU last February. The symposium issue of the Ave Maria Law Review contains papers by (I'll list them in order of appearance) Lynn Wardle, Kent Greenawalt, Rob Vischer, Armand Antommaria, Robin Fretwell Wilson, Richard Myers, Jill Morrison and Micole Allekotte, and T.A. Cavanaugh.

Richard M.

New Law Prof blog rankings

Paul Caron has them.  MOJ continues to grow in traffic.  So . . . thanks!  And, tell your friends . . .   I really want to catch the good folks at the "Wills, Trusts, and Estates" blog.

Regretting President Obama's lack of support for choice and opportunity in DC

The White House -- despite the occasional encouraging sign of openness to education reform -- continues to oppose even D.C.'s small experiment in school-choice for low-income kids in D.C.  Sad.

UPDATE:  The Washington Post gets it right.

We understand the argument against using public funds for private, and especially parochial, schools. But it is parents, not government, choosing where to spend the vouchers. Given that this program takes no money away from public or public charter schools; that the administration does not object to parents directing Pell grants to Notre Dame or Georgetown; and that members of the administration would never accept having to send their own children to failing schools, we don’t think the argument is very persuasive. Maybe that’s why an administration that promised never to let ideology trump evidence is making an exception in this case.

Connick v. Thompson

Villanova Law grad Gordon Cooney and his Morgan Lewis partner Michael Banks have long represented a Louisiana man, John Thompson, who spent 18 years in prison but was acquitted on retrial after a crime lab report that the prosecution had failed to disclose was discovered a month before his scheduled execution (Philadelphia Lawyer story here). The Morgan Lewis lawyers (including my friend and former White House colleague Allyson Ho) subsequently represented Thompson in a §1983 case against the Orleans Parish DA's office for the Brady violation, arguing that the Brady violation was caused by the DA's office’s "deliberate indifference" (the §1983 standard under Canton v. Harris, 489 U. S. 378 (1989)) to the requirement to train its prosecutors properly. The jury awarded Thompson $14 million, but today the Supreme Court ruled that the DA’s office cannot be held liable under §1983 for the Brady violation.

On the merits of the decision, I defer to those such as my colleague Teri Ravenell who know more about §1983 litigation. As a mere torts teacher, I thought one interesting aspect of the case was the view advanced by the Alliance Defense Fund and the Cato Institute in an amicus brief for the plaintiff (Thompson) that government entities’ liability under §1983 should follow common law respondeat superior principles and arguing that Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), should be overturned, though there were a host of state and local government interests lined up as amici on the other side (understandably) resisiting such an expansion of § 1983 liability. A sentence in footnote 12 of Justice Thomas's majority opinion settles that particular question: "We stand by the longstanding rule—reaffirmed by a unanimous Court earlier this Term—that to prove a violation of §1983, a plaintiff must prove that 'the municipality’s own wrongful conduct' caused his injury, not that the municipality is ultimately responsible for the torts of its employees."

Regardless of the outcome in the §1983 case, congratulations to Gordon, Allyson, Michael Banks, Ted Cruz, and the lawyers at Morgan Lewis for their persistent and courageous representation of Mr. Thompson over many years.

Thanking President Obama for Saving Lives in Libya

There is much to criticize about President Obama’s foreign and military policy toward Libya, and one cannot help being struck by the wide breadth of criticism from both Left and Right, from both the traditional news media and modern cable-news networks ― and even here on Mirror of Justice. We also may question the coherence of a presidential policy that promises to protect the Libyan people from massacre, while shying away from taking direct action to bring about the ouster of the Libyan leader from whom that risk of a bloodbath came and may come again. I worry especially about whether the United States under President Obama has the staying power to remain engaged and ready to stand against mass violence in Libya, once the notoriously short attention span of the world and media has shifted away.

In addition, there are important questions to ask about use of American military force within constitutional constraints. For all the infamy piled on President Bush by those who supported President Obama in the last election, President Bush sought and obtained congressional approval of military action in Iraq. President Obama has acted unilaterally and failed even to seriously consult with congressional leaders, spending much of the period leading up to military intervention on a trip out of the country.

But, while acknowledging these criticisms and challenging questions and agreeing that they deserve continuing attention in the coming days, I want to focus on the fundamental “rightness” of what President Obama has done and on much of what he said last night:

The United States and the world faced a choice. Kadafi declared that he would show “no mercy” to his own people. He compared them to rats, and threatened to go door to door to inflict punishment. In the past, we had seen him hang civilians in the streets, and kill over 1,000 people in a single day. Now, we saw regime forces on the outskirts of the city. We knew that if we waited one more day, Benghazi ― a city nearly the size of Charlotte ― could suffer a massacre that would have reverberated across the region and stained the conscience of the world. It was not in our national interest to let that happen. I refused to let that happen.

Richard Cohen put it in much the same terms in his column today:

[Saving lives] is what this operation is all about ― the prospect that Moammar Gaddafi was going to settle the score in the most horrific way imaginable. Based upon his record and clear indication that he is crazy, a bloodbath was in prospect. What should the world have done? Nothing? Squeeze Gaddafi with sanctions, seize his Swiss accounts, and padlock his son’s London townhouse? None of these measures would have had immediate impact. Sanctions are a slow-working poison. A bullet was needed.

So, thank you, President Obama. And thank God that the United States and its allies were willing to be an instrument to staunch the shedding of innocent blood in Libya.

In the coming days and years, we should reconsider how Catholic “Just War” doctrine applies to the use of force, not to deter international aggression or for a particular nation’s self-defense, but to deliver the innocent from the hands of evil. Self-defense may be a justification for the use of force, but it ultimately is a self-centered one (not that basic personal safety is at all illegitimate as an interest). But, as President Obama rightly said last night: “There will be times, though, when our safety is not directly threatened, but our interests and values are.”

Catholic teaching should be and is compatible with such an approach. Father Raymond De Souza writes:

The world does not need the Church to be a cheerleader for war, which always represents a failure of politics to secure liberty and justice. But what of those occasions when armed force is necessary to secure liberty and justice against a malevolent regime― as is the case in Gadhafi’s Libya? While war itself brings its own horrors, if it is a moral duty, ought not the attempt to discharge that duty bring encouragement from Christian pastors?

Near the end of his life, Pope John Paul II began to establish the case for military intervention for humanitarian reasons:

[A]n offense against human rights is an offense against the conscience of humanity as such, an offense against humanity itself. The duty of protecting these rights therefore extends beyond the geographical and political borders within which they are violated. Crimes against humanity cannot be considered an internal affair of a nation. . . .

Clearly, when a civilian population risks being overcome by the attacks of an unjust aggressor and political efforts and non-violent defence prove to be of no avail, it is legitimate and even obligatory to take concrete measures to disarm the aggressor. These measures however must be limited in time and precise in their aims. They must be carried out in full respect for international law, guaranteed by an authority that is internationally recognized and, in any event, never left to the outcome of armed intervention alone.

Let us pray for peace ― not the false peace of international indifference and passivity, but real peace in a new post-Kadafi/Gaddafi Libya.

Greg Sisk

Action and Omission, Constitutional and Criminal Law

Inspired by Orin Kerr's interesting post, I've been thinking a little about the contexts in which action and inaction (or omission) matter across legal disciplines, and specifically for constitutional and criminal law.  Our good readers will know that, greatly to summarize, those who argue against the individual mandate in the PPACA Commerce Clause fight rely on the action/inaction distinction: they argue that it is permissible for Congress to regulate commercial activity, but not inactivity (and that the Necessary & Proper Clause doesn't change that conclusion).  The characterization of the mandate as regulating inaction, or economic omission, keys the constitutional challenge.

In Orin's post, he talks about Cruzan v. Missouri Dept. of Health, which involved whether there is a due process right to refuse medical treatment that would extend one's life.  Traditionally, the state has had the power to regulate suicide (see e.g., the New York Penal Law's provisions criminalizing assisting a person to commit suicide).  But Cruzan argued, in part, that because suicide is an action, it is distinguishable from refusing to take life-extending medical treatment, which is inaction.  Again, the argument depends on the action/omission distinction.  And Orin cites to a long and (per usual) incisive concurrence by Justice Scalia discussing and rejecting the action/omission distinction at least in the substantive due process context (what he will do in the Commerce Clause context is, of course, anyone's guess).

Shifting gears, people who have studied and taught criminal law know that the requirement of an action -- an actus reus -- on the part of the defendant is one of the essential building blocks of criminal law.  There can be no prosecution without an action.  More than this, the criminal law demands a "voluntary" action; involuntary actions (reflex movements, spasms, epileptic seizures, sleepwalking, etc.) cannot ground criminal liability.  The requirement of an act, however, may be subject to some degree of manipulation by "expanding the time frame."  That is, one generally can find a voluntary act if one is prepared to look beyond the context of the involuntary act causing the harm.  The epileptic seizure causing the car accident can be traced to the defendant's prior failure to take the necessary medication.  So long as the defendant's conduct "includes" a voluntary act, he can be said to have acted even though the last act (the act most proximately causing the harm) was involuntary.  It is controversial whether, given what, e.g., the language of a reckless driving statute provides, it is appropriate to expand the time frame in this manner.

But sometimes there is no need for an act at all in criminal law.  There are times when criminal law can reach omissions to act; as George Fletcher once put it, "commission by omission."  Those situations include where the defendant had a legal duty to act (e.g., a doctor); where the defendant stands in some sort of status relationship to the victim (e.g., a parent); where the defendant assumed the responsibility to rescue the victim; and where the defendant has wrongfully (though not necessarily illegally) created a risk of harm to the victim.  In the book I use to teach criminal law, there is also an old California case, Barber v. Superior Court, where the court defined the act of ceasing to provide nutrition and hydration as an omission -- the omission to continue to provide medical care.  The court in Barber then found that in the circumstances, "[a] physician has no duty to continue treatment, once it has proven to be ineffective."  That is, because the court believed that the possibility that the victim's doctors might be convicted of murder would have undesirable social consequences, it used the action/inaction distinction to neutralize that possibility.  

Here are my questions to the very good readership here.  What is the relationship of the act/omission distinction across the disciplines of constitutional and criminal law?  Given the basic doctrine above, are there modes of argument from criminal law that can be deployed in the constitutional (health care)context, or vice versa?  Could one use the time-framing strategy, or the omission strategy, somehow to get at the constitutional question?  Are there other spheres of law in which the action/omission distinction plays an important role?  And most controversially, is there anything of substance to the action/inaction (omission) distinction?  Or is it, finally, an empty shell that gives formal cover to what really lies beneath -- the hot, fraught battles of public policy and morality (I'm putting it in strong terms not to signal any strong views on my part, but only to toss a little pepper on the question)?

Child Trafficking Conference

Mary Leary at Catholic University's Law School has organized what promises to be an excellent National Press Club program on April 7 (5 -- 6:30) on "Child Trafficking:  America's Role in the Problem and Solution."  Among the speakers are Luis CdeBaca, the U.S. Ambassador to Monitor and Combat Trafficking in Persons, and Peggy Healy, from Covenant House International.  

Here's a conference description:

Slavery in 2011 has mutated but not disappeared. Today, it lives on in many forms, including modern child trafficking. Thousands of people, including children, are trafficking throughout the world each year. The United States has been designated as a source, transit, and destination country for trafficked children. This symposium will bring together various stakeholders including the U.S. Ambassador to Monitor and Combat Trafficking in Persons, to focus on the role of the United States in both the problem of child trafficking as well as the response. The conversation is intended as a substantive and productive discussion about current and future goals. It seeks to move the dialog forward for children by examining the reality of children trafficked in the Americas and the ability of U.S. society to respond. The panel will also expected to address current legislation regarding the reauthorization of the Trafficking Victims Protection Act.

You can get more information and register here

UPDATE:  Mary sent me this profile of Ambassador CdeBaca, who calls himself "a Vatican II baby", and describes how his Catholic faith shaped his vocation:

Ambassador Luis CdeBaca, a New Mexico-born Catholic of Mexican descent, who runs the Office to Monitor and Combat Trafficking in Persons at the State Department, readily acknowledges that the council's call to Catholics to engage the world guided his decision to become a civil rights lawyer and eventually to prosecute some of the country's largest human trafficking cases.

That call is especially meaningful, he told Catholic News Service, now that he heads the country's top office that works to disrupt the criminal networks that promote modern-day slavery and human abuse.

CdeBaca, 42, called himself "a Vatican II baby."

"It was very interesting to me," he said, "especially coming out of law school as a young civil rights lawyer, to really start digging deeper and to realize that Vatican II, if you looked at 'Gaudium et Spes' (the council's Pastoral Constitution on the Church in the Modern World) and ... (understand) the real concrete church in the world type of things, wow."

Glenn on "Contrasting Models of State and School"

For those who are interested in (as we all should be) the nexus of education, religion, civil-society, and family, Charles Glenn's work is invaluable.  Here is his latest, "Contrasting Models of State and School":

Through a historical study of two very different pairs of European countries, Glenn illuminates the debate surrounding educational freedom and a State-controlled model. 'School Choice' is one of the most hotly debated topics in educational policy. International comparison makes it possible to gain perspective on the issue, and this book profiles - historically and in current policies - two countries which give most support to parental choice (The Netherlands and Belgium) and two others which maintain a strong State role in controlling education (Germany and Austria). Charles L. Glenn has read extensively in Dutch, French, and German sources, and brings to his analysis several decades of experience as a government official in education. By comparing the Dutch model of educational freedom with the similar though distinct Belgian model, and contrasting it with the German and Austrian models - showing how these differences took shape in the 19th century and persist today - Glenn illuminates the policies behind these models, and clearly lays out what we can learn from their strengths and weaknesses. This is essential reading for policy specialists concerned with models of school autonomy versus government control, and the debates over parental choice of schools. . . .

By the way, if you don't own his "Myth of the Common School", you are really missing out.  I love the original cover:

 

Aidan O'Neill on "squaring equality with religion"

Relevant, I think, to the conversation about the Court's decision to weigh in on the ministerial exception's foundations and content is this post, by Aidan O'Neill, at the U.K. Human Rights Blog.  Commenting on the (to me) striking refusal of many in the U.K. to distinguish invidious discrimination from religious exercise, O'Neill observes:

[T]he application of the norms of anti-discrimination law, even in the face of religious based conscientious objection, is interpreted by the new religious Dissenters as the State’s imposition of a required outward conformity to a new form of religious settlement: no longer Anglicanism, but a secularism which would banish religiously motivated action from the public square and confine religious belief wholly to the internal forum. . . .

"Lift High the Cross": More on Lautsi

Here's Prof. John Witte (Emory), writing about the recent Lautsi decision, at Huffington Post.  A bit:

The Lautsi case echoes many familiar arguments that the United States Supreme Court has used over the past three decades to maintain traditional displays of crèches, crosses and Decalogues on government property. While not entirely convergent in their religious symbolism cases, the American and European high courts now hold six teachings in common. . . .

And . . . what, did you think he wouldn't write about this? . . . here's Stanley Fish:

In these columns I have often remarked that religion-clause jurisprudence is characterized by contortions that would be the envy of Houdini. But nothing in American jurisprudence is as contorted in its reasoning as a recent decision . . . by the European Court of Human Rights. . . .