Friday, December 23, 2011
Don't miss Larry's jolly old elfish gift-giving and "identity" series including one by Kantian philosopher David Velleman, "The Gift of Life," in which Professor Velleman argues that "human life is not a gift but a predicament, and that a biological parent's obligation to help offspring cope with that predicament cannot be contracted out to others at will."
Following up on Rick's last post, here is a new letter from evangelical leaders calling for a broader exception from the HHS contraception mandate. It's organized by Stanley Carlson-Thies and his fine Institutional Religious Freedom Alliance. It doesn't trash Notre Dame's Fr. Jenkins or the Catholic Health Association for their proposals, as the Cardinal Newman Society has done, but it does argue that the exemption language should be clear that's it not limited to organizations with a relation to a denomination or church.
Thursday, December 22, 2011
The happy warriors for religious liberty at the Becket Fund have filed a second lawsuit -- this time on behalf of an Evangelical Christian institution, Colorado Christian University, challenging the interim final rule that requires employers to provide coverage for, among other things, contraception and abortion-causing drugs. The Maureen Dowds of the world want to frame the debate about exemptions from the mandate as a narrowly Catholic concern (and, really, not even a concern for most Catholics), recognizing that framing it this way goes a long way, in many people's minds, toward winning it. But, the issues is bigger than Catholics-and-contraception.
My friend and teacher, Prof. Robert Burt (Yale Law School), has published a new book called "In the Whirlwind: God and Humanity in Conflict." (For such an irenic guy, Bo's book's have lots of "conflict" in their titles. See his "The Constitution in Conflict".) Here is the blurb:
God deserves obedience simply because he’s God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God’s authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.
In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God’s relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.
Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.
Congratulations to my student, Michael Fragoso, who was honored by Massachusetts Citizens for Life with that organization's annual "National Pro-Life Legal Writing Award." The award-winning paper is Michael's note, published in the Notre Dame Law Review, called "Taking Conscience Seriously or Seriously Taking Conscience? Obstetricians, Specialty Boards, and the Takings Clause."
I am in NYC. It is hard to ignore the pedestrians’ texting and surfing the internet while traversing the crowded streets, not to mention the visual blizzard of advertising including those thrown at us on a mini-screen in the back of a cab. Meanwhile I read the cheery news that new apps permit viewers to get behind the scenes information about the live television they are watching (one screen at a time is not enough). I go to a play (Seminar – it was terrific) and learn from the law student next to me that it is common practice for students to text the person being called on with helpful information (though he said at another school sometimes the students text insults). I knew there were reasons I banned electronic devices in my classrooms. I thought the ban would encourage dialogue (instead of staring at a screen, a student might look at a fellow student), discourage multitasking (the evidence seems clear that students cannot do it); cut down on those who think that taking notes is a thoughtless exercise in stenography; and I do not mind the reduction of clatter. But I had no clue that this texting is going on in classes (fortunately not in mine, at least not “legally”). How naïve of me!
My youngest son Jacob is here with Neesa and me. He does not own a television. His electronic sin is to stream Netflix on his computer and he is thinking of cancelling his subscription. He thinks that owning a television gets in the way of communicating with people, reading books, and the like. I heard a talk by thriller writer (and Cornell Law grad), Barry Eisler (if you like Japan, the martial arts, want to learn about the art of surveillance with plot twists here and there – you will like his first book) in which he argued that he does not own a television, mainly, as I understood him, so that he could get more writing and reading done.
I admire these perspectives, but I am an addict. I own a television, computers, and an i-pod touch. (I have drawn the line at smart phones and i-pads). I value the entertainment that television provides and the music and podcasts on my i-pod. But I probably watch television too much and definitely use a computer for more frivolity than any sensible life would include.
In 1985, Neil Postman wrote a great book called Amusing Ourselves to Death. It was based on a talk he gave in Germany on a panel devoted to Orwell’s 1984. Influenced by the Brave New World by Aldous Huxley, Postman argued that the greatest threat to modern society was the addiction to amusement, not oppression by the state.
Postman’s book changed the life of Jacob. I wonder if Eisler read it as well. If you have not, I recommend it. And while you are it, you might check out the second edition of The Death of Discourse by Ron Collins and David Skover. It is a maddening book in some ways, particularly in its purported failure to take a position. But the book assembles powerful evidence that Huxley and Postman were well ahead of their time.
It was bad before; it has gotten worse.
cross-posted at religiousleftlaw.com
Wednesday, December 21, 2011
MOJ (well, some of it) is moving to Rome this summer. Villanova University School of Law and the University of St. Thomas (Minnesota) School of Law have jointly sponsored a summer program in Rome for the past several years, and this summer's program will run from June 25 to August 2, 2012. Tom Berg will teach "International Intellectual Property," I will teach "State, Society, and Economics," and Tom's colleagues Wulf Kaal and Robert Kahn will teach "International Finance" and "Islam and Civil Liberties in Europe" respectively. Students can earn six credits, and those from law schools other than Villanova and St. Thomas are most welcome to apply. Details about the program, including application information, tuition, and course descriptions, are available at this site.
In the current issue of Touchstone (well worth a subscription, IMHO), Barry Hankins has an interesting piece called "Liberty, Conscience & Autonomy," which is adapted from a chapter in his book Jesus and Gin: Evangelicalism, the Roaring Twenties, and Today's Culture Wars (2010). Check it out.
Distinguished legal philosopher (and legal positivist) Matthew Kramer is publishing a fascinating-looking book early next year, The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences (OUP 2012), in which he offers a critique of current justifications and objections as well as, most intriguingly, a qualified defense of the death penalty for what I believe are particularly atrocious killings. I have not yet seen the book, so if others with knowledge of it can chime in, I would be grateful. He calls his partial defense the "purgative" justification. In this blog post from a few years ago, he describes the defense as Biblically grounded (though he emphasizes that he is "robustly atheistic"). The post is a few years old and it is therefore highly likely that the arguments in the book are changed. But for interest's sake, here's a bit from that post which may give a rough sense of his "purgative" justification.
Notwithstanding my doubts about the foregoing justifications for capital punishment, I firmly support such punishment in cases of particularly heinous murders. My support is grounded on an alternative rationale, a rationale found prominently in the Bible. (Though I am robustly atheistic, I have long taken the view that one can profit from a good knowledge of the Bible.) We are repeatedly told in the Torah that murderers - and certain other miscreants - should be put to death so that the community can be purged of their contaminating presence. Stripped of its religious trappings, and narrowed to encompass only murders that are especially vile, this purgative rationale for the death penalty is the basis for my stance in favour of capital punishment. A community sullies itself by keeping alive certain people who have acted in such a repugnantly depraved and murderous fashion as to degrade the human species through their membership in it. By sustaining rather than ending the existence of those people, a community retains its association with them - even if they are securely locked away. The only way in which the community and the human species can be purged of the debasing evil of those people is to be purged of those people themselves. That purging never requires torture or displays of heads on pikes; instead, it requires nothing more and nothing less than executions.
This to me all sounds strongly reminiscent of some of the claims made by James Fitzjames Stephen about the social and cultural virtues of expressive punishment; it is one more marker of Stephen's surprisingly contemporary applications. Kramer acknowledges that his justification sounds in the "denunciatory rationale" (I do not think this adequately captures Stephen's view, but that's another story), though he claims it is different in important ways. I am looking forward to reading the book to see how he can place the limits on the purging rationale that are reflected in the final part of the indented paragraph above.
Although I haven't looked at Fr. Jenkins' letter on the contraception mandate, Rick's description and defense of Fr. Jenkins's overall interventions on the matter seem convincing. The "not just for Catholics" religious-freedom principles he espouses are reflected in good language in a letter to HHS (see this story) from a group of left-leaning Catholics who have supported most aspects of healthcare reform but protest the narrowness of HHS's religious exemption. The letter's proposed language would cover a “nonprofit religious, educational or charitable organization” with objections to contraception/Plan-B if it has “bona fide religious purposes or reasons” and “holds itself out to the public as a religious organization.” This would clearly cover religious organizations without ties to a denomination or organized church, thus protecting evangelical and traditionalist Jewish organizations. (Disclosure: I worked on the draft letter, although I was not among the signatories since the group was of Catholics.)
While we're at it, here's Commonweal's new editorial call for a broader exemption.