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, November 30, 2011

"The Authority to Kill"

Joseph Bottum has an (I think) intriguing essay up at Public Discourse, called "The Authority to Kill," in which he presents an argument that I remember hearing at a conference, at Notre Dame, about 12 years ago, but not since.  In a nutshell, Bottum's point is that there are some powers that some, but not all, governments (legitimately) have and exercise?  Obviously, not all governments are vested by their constitutions with the same powers, but these variations among different jurisdictions' positive laws is not Bottum's subject.  Instead, and focusing on the death penalty and war-making, Bottum asks whether there are some "forms of government" that may legitimately execute murderers, or go to war, while some others may not.  Are there some forms of governments that lack what it takes to apply the death penalty "because its killers deserve to die?"

Check it out.  

November 30, 2011 in Garnett, Rick | Permalink | Comments (8) | TrackBack (0)

Hurlbut on Romney on abortion

I am less skeptical of Mitt Romney's "change of heart" on abortion than others are, but critics should check out the report of Stanford's William Hurlbut, who counseled Gov. Romney about embryonic development in the course of the Massachusetts debate over embryonic stem cell research:

"Several things about our conversation still stand out strongly in my mind,” Hurlbut told me. “First, he clearly recognized the significance of the issue, not just as a current controversy but as a matter that would define the character of our culture way into the future.

“Second, it was obvious that he had put in a real effort to understand both the scientific prospects and the broader social implications. Finally, I was impressed by both his clarity of mind and sincerity of heart. . . . He recognized that this was not a matter of purely abstract theory or merely pragmatic governance, but a crucial moment in how we are to regard nascent human life and the broader meaning of medicine in the service of life."

November 30, 2011 in Vischer, Rob | Permalink | Comments (0) | TrackBack (0)

"The Costs of Taking Conscience"

Check out (my student) Michael Fragoso's piece, over at Public Discourse, called "The Costs of Taking Conscience."  In it, he notes (among other things) that the move to limit the rights of physicians and nurses to refuse to participate in abortions will reduce the supply of physicians and nurses in important fields -- a result that those who purport to care about health-care access and reform should want to avoid.

November 30, 2011 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 29, 2011

"Marriage and Divorce in a Multicultural Context"

I cannot remember if others have mentioned it here at MOJ, but I recently received a copy of Joel Nichols' (St. Thomas) really engaging edited volume called Marriage and Divorce in a Multicultural Context:  Multi-Tiered Marriage and the Boundaries of Civil Law and Religion.  Check it out.  The various chapters will be of interest, I'm sure, to Catholic Legal Theory types, dealing as they do will all kinds of family-, subsidiarity-, pluralism-, and legal-moralism-related questions.

Here is my back-cover blurb:

"The institution of marriage is ancient and everywhere; it is also increasingly vulnerable and contested. It involves relationships that are intimate and private; at the same time, it makes contributions and has consequences that are social and public. It is both a sacrament and a state-action; it is both prior to, and pervasively structured by, the law. Responding to these facts and tensions, this engaging collection of interdisciplinary essays by a diverse array of legal scholars explores carefully the provocative possibility that marriage can and should be dealt with in different ways, in different communities, by plural authorities. They ask whether it is possible, justifiable, and desirable to separate marriage's private and religious dimensions from the coverage and concern of the state's power, and call our attention to both the attractions, and the dangers, of such a move."

- Richard W. Garnett
Professor of Law and Associate Dean, Notre Dame Law School

November 29, 2011 in Garnett, Rick | Permalink | Comments (4) | TrackBack (0)

The Optimism of Employment Division v. Smith

The exchange below between Rick and Eric Bugyis, as well as Rob's comment to Rick's post, has motivated me to raise something I have been thinking about with respect to our current free exercise regime when it comes to religious exemptions.  My question is really one about political circumstance rather than doctrine or history or constitutional structure.

Accept the following two conditions as given for purposes of this question.  (1) Religious liberty generally -- and the question of religious exemptions in particular -- seem to be becoming a cardinal issue for religious organizations, including the Catholic Church; and (2) The tenor of both governmental and popular attitudes toward such exemptions is deeply skeptical -- indeed, skeptical even from those within the religious tradition themselves -- verging sometimes even on the hostile.

The question is this: Under these two conditions, why would one prefer an interpretation of constitutional law in which religious exemptions are never required, no matter how grave the burden to the religious individual or organization, and no matter how minimal the state's interest in enforcing the law against the organization?

For purposes of answering the question, put to the side non-prudential answers.  For example, I understand that one could say that the best historical reading of the FEC is that it only protects what Philip Hamburger has called "freedom from penalty on religion."  Or one could believe that Justice Scalia's view in Smith was the best reading of precedent, or that it is the most legitimate from a structural point of view.  I'm not interested in those kinds of answers.  What I want to know is, from a prudential standpoint and in light of 1 and 2, why would we desire a system in which for all intents and purposes no religious exemptions are ever constitutionally required?

Here's one possible type of answer.  Supporters of Smith are optimists about society's capacity, and its wisdom, to work out the answers to the religious exemption question for themselves.  People might go astray, they might make mistakes, but in the long run the best outcomes will reflect popular negotiations and the courts should basically stay out of this process.  Opponents of Smith are pessimists about what society will produce.  Or, perhaps more accurately, their pessimism about popular wisdom impels them to want some kind of substantial judicial check (of greater or lesser power) on what the populace produces. 

A Smith supporter might counter that Smith opponents are equally optimists about the capacity of judges to arrive at satisfactory answers to the exemption issue.  But I don't think that's quite right.  Smith opponents are pessimists about everybody when it comes to the exemption issue.  The reason that they envision a greater role for judges is that they expect that the populace sometimes, perhaps often, will get it wrong.  The opponent wants an additional chance to make a correction, and the courts supply that additional chance.  I recognize that the pre-Smith religious exemption regime was not exactly teeming with examples of the Court requiring a religious exemption; and depending on the pessimist's view of the substance of the case, that might make the pessimist feel either deluded or justified.  But in an environment where there is a sense of both the increasing importance of religious exemptions and increasing hostility to those exemptions, it strikes me that the pessimist's position is not entirely without warrant. 

November 29, 2011 in DeGirolami, Marc | Permalink | Comments (4) | TrackBack (0)

"Bad Samaritans"?

At the Commonweal web site, Eric Bugyis lodges what strikes me as a number of misplaced objections to the Catholic bishops' religious-freedom-grounded case for an exemption from the proposed contraception mandate.  (I set out my own views about the religious-freedom problems with the mandate in USA Today yesterday.)

Mr. Bugyis writes:  "First of all, the issue is not over how and to whom religiously affiliated institutions minister, but it is about who is doing the ministering."  In fact, though, the proposed religious-employer exemption in the interim-final-rule mandate does make it relevant "how and to whom religiously affiliated institutions minister."

He writes:  "If non-Catholics are being employed to teach or doctor in a religiously affiliated institution, why should they be denied coverage for services that have been deemed medically necessary by a board of medical experts for all citizens?"  Let's put aside, for present purposes, the doubts one might well have about whether "preventative services," as defined in the interim rule, are actually "medically necessary" (notwithstanding their having been declared so by a "board of medical experts"); the definition of "preventative services", and the content of the mandate, are (at least) as much the product of ideology and politics as of medical expertise.  Why should it be the case that a religious employer loses the right -- or just the ability -- to act in accord with religious teaching simply by virtue of hiring some non-co-religionsts (who, presumably, accept the position voluntarily and with knowledge of the employer's religious character)?

He then asks, "If the bishops are so scared of being defined out of their 'religion' by the state, maybe they should divest themselves of 'secular' ministry completely."  I'm not sure if this is meant to be a serious point, or just a snarky one.  Why shouldn't the bishops prefer resisting government efforts to impose religious-character-burdening conditions on their agencies "secular" ministries to abandoning those ministries?

Finally, he says, "It is the bishops who are asking for the right to walk by those in need, if they have deemed that their needs are not really needs at all. It is the bishops who are the 'bad' Samaritans in this parable by opting out of their obligations as members of a pluralistic society."  This is also unfair (and, I think, a distortion of the "Good Samaritan" story).  How is it that the bishops are asking to "walk by those in need"?  And what exactly is the "obligation" of "members of a pluralistic society" that the bishops are seeking to evade?

I understand, of course, that reasonable people disagree over the question whether or not complying with the mandate as it stands would actually violate Church teaching or involve culpable cooperation with wrong (and also, obviously, that many people do not think that we are talking about a "wrong" here at all).  Still, it strikes me that Mr. Bugyis's post is more in tension with "pluralistic society" than are the bishops' concerns.   

November 29, 2011 in Garnett, Rick | Permalink | Comments (20) | TrackBack (0)

Minneapolis Public Schools: Managed to Benefit Adults or Children?

Lynnell Mickelsen, the cofounder of "Put Kids First Minneapolis," has an editorial in today's Minneapolis Star-Tribune discussing the ongoing negotiations between the Minneapolis school district and the teachers' union, which she has been closely observing (with growing dismay).  Herewith a couple of excerpts (the full editorial is available here):

Research shows that the classroom teacher plays the biggest school-based role in a student's academic success.

Yet our schools are hamstrung by contract rules that blindly reward teacher seniority over quality, that limit our hiring pool, that force school leaders to accept hundreds of ineffective teachers they don't want and that make it very hard to remove the most dismal performers.

* * *

In short, it's crazy. We've given our schools a huge task. Then we've forced them to work under rules that no successful business or nonprofit could survive. And we keep doing it even as huge numbers of Minneapolis students are failing.

Note that Ms. Mickelsen and her growing list of supporters for alternative contract priority for children "are progressives -- staunch supporters of public schools, teachers and collective bargaining."  As she puts it, "I'm a lifelong, active DFLer [Minnesota-speak for Democrat] who got my first union card at age 17. But if friends don't let friends drive drunk, friends of unions shouldn't let one drive off the cliffs of public opinion."

I much admire "Put Kids First Minneapolis" in their public-spirited efforts to change the culture in too many urban public school systems from one that serves primarily the interests of adults to one that gives preference to the needs of school-children.  As a telling indication of how bad things have gotten, this current reform effort has attracted the support of a growing number of people and organizations that traditionally fall on the left side of the spectrum -- notablly including prior editorial support (see here) from the Minneapolis Star-Tribune (one of the more liberal editorial boards in the country).

I fear, however, that this public school reform effort will prove Quixotic, as the reformers are attacking a deeply-seated structural flaw in the public school system in Minneapolis, one which is largely immune to public concerns.  As Ms. Mickelsen notes, although the negotiations by law are open to the public, the school district makes little effort to publicize the meetings and do not seek public feedback.  Moreover, by funding and endorsing school board members, the teachers' union effectively is on both sides of the negotiating table.  Indeed, four school board members issued a statement -- printed on teachers' union stationary -- promising to be more cooperative with the union.

We are unlikely to see genuine reform in Minneapolis (and other urban school districts) unless and until greater access to quality education is made available through public support to parents seeking alternatives to the public school monopoly, a monopoly captured by one interest group that does not have the best interests of children at heart.  Educational choice, including the economic freedom to choose Catholic schools, remains one of the most important but most unappreciated civil rights and social progress causes of the present age.



November 29, 2011 in Sisk, Greg | Permalink | Comments (2) | TrackBack (0)

Monday, November 28, 2011

The New York Times on the nature of legal education

The Times has published a series of articles criticizing American law schools; over the weekend, the paper editorialized on the topic, pronouncing that "American legal education is in crisis."  It appears that there are no Thomists on the NYT editorial board:   

The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth.

That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems.

I do think that law schools need to get better at training students in the practice of law, especially in the second and third years.  I'm pretty sure, though, that viewing law "as a source of truth" should not bear the brunt of blame for what ails legal education.

UPDATE: I note that Marc DeGirolami commented on the editorial over at his non-MoJ blogging perch.

November 28, 2011 in Vischer, Rob | Permalink | Comments (3) | TrackBack (0)

Mary Graw Leary on sexual abuse and moral indifference

The sexualization of children in our culture is the scandal from which most Americans seem to want to avert their eyes.  Perhaps that is because they feel helpless to do anything about it. The forces behind it seem so powerful and indeed dominant. They give us everything from Lady Gaga, to thong underwear for girls sold by Abercrombie & Fitch, to "sex ed" curricula containing images and information that would have shocked a sailor a generation or two back. To complain about any of this is to mark oneself as a "prude" or even a "rube."  So people remain mute as the innocence of children is massively compromised and the lives of many youngsters, especially in poorer and more vulnerable comunities, are devastated.

Yet, there are a few brave souls who are willing to speak up.  Mary Anne Layden, Director of the University of Pennsylvania Medical School's Center for Sexual Trauma and Psychopathology, is one.  Another is the distinguished Muslim public intellectual Hamza Yusuf. (See his speech on the social costs of pornography, here: http://seekersguidance.org/blog/2010/10/video-shaykh-hamza-yusuf-at-the-social-costs-of-pornography-event/). Now Mary Graw Leary of the Columbus School of Law at Catholic University has spoken out in a powerful piece published today at Public Discourse:  http://www.thepublicdiscourse.com/2011/11/4340.  Her point of departure is the moral indifference of some in the face of the revelations of child sexual abuse and exploitation at Penn State.

A couple of excerpts:

The second reason we should not be surprised by the callousness of Penn State's protesting students may be a new one: They have been raised in a culture that has normalized children's sexual objectification . . .  This generation has so regularly witnessed the sexualization of children that they have become numb to it.


Having created and perpetuated this cultural climate, are we now surprised that some of the young adults it produced do not understand the true nature and gravity of the sexual abuse of children? Are we now surprised that some of these young adults express indifference to the kind of abuse that increases victims' risk for short-term and long-term physical and psychological damage? How can we be? Not only have we groomed the victims for these offenders, we have groomed the generation for indifference.


November 28, 2011 | Permalink | TrackBack (0)

Sunday, November 27, 2011

Of hypocrisy and double standards

In an age of "political correctness" we can become so used to hypocrisy and double standards favoring causes that are fashionable among cultural elites that we sometimes fail even to notice them.  Bay Area journalist Debra Saunders notices:


November 27, 2011 | Permalink | TrackBack (0)