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.

Monday, August 17, 2015

Tocqueville on Equality and Social Discontent

I've been reading Tocqueville's L'Ancien Régime et la Révolution, a work that discusses the several causes of the French Revolution and one of whose basic themes is that the legal and political reforms following the Revolution were actually already in place in the late stages of the ancien régime. After the distempers of the Revolution subsided, those same governmental reforms and ways of conducting state business returned.

In fact it was the reforms that hastened on the Revolution. The anger and dissatisfaction of the people became unbearable not because equality was in decline or at its lowest ebb before the Revolution, but because it was rising. The point is about the political psychology of equality, and, allowing for changed circumstances, it isn't applicable only to pre-revolutionary states but can be seen to operate in many contexts. The more people believe themselves to be equal to one another in every respect, the less inequalities of any respect become tolerable. From Chapter XVI ("That the Reign of Louis XVI Was the Most Prosperous Era Of the Old Monarchy, and How That Prosperity Hastened the Revolution"): 

Revolutions are not always brought about by a decline from bad to worse. Nations that have endured patiently and almost unconsciously the most overwhelming oppression, often burst into rebellion against the yoke the moment it begins to grow lighter. The regime which is destroyed by a revolution is almost always an improvement over its predecessor, and experience teaches that the most critical moment for bad governments is the one which witnesses their first steps toward reform. A sovereign who seeks to relieve his subjects after long periods of oppression is lost, unless he be a man of great genius. Evils which are patiently endured when they seem inevitable become intolerable when once the idea of escape from them is suggested. The very redress of grievances throws new light on those which are left untouched, and throws fresh poignancy to their smart: if the pain be less, the patient’s sensibility is greater. Never had the feudal system seemed so hateful to the French as at the moment of its proximate destruction….

No one in 1780 had any idea that France was on the decline; on the contrary, there seemed to be no bounds to its progress. It was then that the theory of the continual and indefinite perfectibility of man took its rise. Twenty years before, nothing was hoped from the future; in 1780, nothing was feared. Imagination anticipated a coming era of unheard of felicity, diverted attention from present blessings, and concentrated it upon novelties.

August 17, 2015 in DeGirolami, Marc | Permalink

Liberal Humility?

I was truly surprised to read an editorial in our local paper this Sunday offering a counterpoint to  Tom's recent post about the burgeoning 'liberal arrogance."  To put my surprise into context, the Star Tribune is - how shall I put this -- not known for its favorable coverage of the pro-life perspective.  Its coverage about the Planned Parenthood videos has been largely limited to publishing letters to the editor from people complaining about the videos, and stories about how local Planned Parenthood affiliates are "weathering the storm."  One day I heard on the Relevant Radio that 100s of people had shown up to protest in front of a local Planned Parenthood.  I checked the Star Tribune the next day, and found no mention of it.  However, there was an extensive story (with a picture) of the protesters in front of the dental office of the guy who shot Cecil the lion. 

(This reminded me of a game I sometimes play.  Open up the website for CNN, and the website for Fox News.  Are they even covering the same planet?)

So, imagine my shock to read this brave and honest piece by D.J. Tice, exploring this idea:

It would be surprising if our generation produced the first morally infallible era in history. Chances seem good that, like the people of every age before us, most of us today are doing and thinking certain things — or at least going along with certain things — that will leave our descendants more or less aghast, wondering how we could have been so blind.

And the nature of moral blind spots is that we can’t be sure what our era’s worst mistakes are.

I pondered all this uncomfortably when I broke down recently and watched the most, well, appalling of the hidden-camera videos documenting Planned Parenthood’s fetal-tissue donation program. It’s the one in which Planned Parenthood personnel and undercover activists posing as tissue buyers use tweezers to idly pick through a lab tray holding little arms and legs and livers and whatnot.


August 17, 2015 in Schiltz, Elizabeth | Permalink

Sunday, August 16, 2015

An Orthodox Believer's Response to Catholics and Evangelicals Together on Law

Back in the Fall of 2013 -- after 8 years of conversation and work -- a group of Catholic and Evangelical law professors (including many MOJ-ers) published a statement called "The Lord of Heaven and Earth."  (More here, including a link to the statement.)

In the Winter 2014 issue of the Journal of Christian Legal Thought (which I just received), there is a response to the statement, written by Michael Avramovich, called "An Orthodox Believer's Response to Evangelicals and Catholics Together on Law."  I know I speak for the other authors of the statement in thanking Mr. Avramovich for his time and comment.  You can get a copy of the issue, including the response, here: Download JCLT Winter 14 web copy.

August 16, 2015 in Garnett, Rick | Permalink

Wednesday, August 12, 2015

Supreme Court of Ohio Board of Professional Conduct issues advisory opinion imposing duty on judges to perform same-sex marriages

The Board of Professional Conduct for Ohio lawyers and judges has issued an advisory opinion interpreting the relevant authorities within the Board's authority to prohibit judges from refusing to perform marriages for same-sex couples.

The weakness of the opinion's reasoning is evident near the outset, starting with the paragraph purporting to bring the issues addressed within the Board's jurisdiction:

In Ohio, municipal, county, and probate judges are specifically authorized by statute to perform civil marriage ceremonies. R.C. 1907.18(C), 1901.14(A)(1), 2101.27, and 3101.08. Whether judges are mandated or authorized by the Ohio Revised Code to perform civil marriages is a legal question and beyond the scope of the advisory opinion authority granted to the Board by the Supreme Court of Ohio. Gov. Bar R. V, Section 2(D), BPC Reg. 15(B)(1). 1 However, the General Assembly has granted judges the authority to perform marriages because of the unique public office that they hold. When a judge performs a civil marriage ceremony, the Board concludes that the judge is performing a judicial duty and thus is required to follow the Code of Judicial Conduct in the performance of that duty.

Notice how this trades on different meanings of "judicial duty" at different times. It starts by saying that judges are "authorized" by Ohio statute law to perform marriages. It then disclaims authority to decide whether Ohio statute law actually mandates judges to perform marriages, or instead simply authorizes them to do so (the position staked out in the first sentence). The opinion then says that Ohio statute law grants judges authority to perform civil marriages "because of the unique public office that they hold." And then the opinion brings the decision whether to perform a civil marriage within the scope of the Code of Judicial Conduct by asserting that the judge is performing a judicial duty when a judge performs a civil marriage ceremony. Notice, though, that these are two different moments in time. The decision whether to perform a civil marriage ceremony precedes the performance of a civil marriage ceremony. Although the opinion disclaims authority to decide whether judges are mandated or merely authorized to perform any marriages, the opinion ends up determining the judges are, indeed, mandated to perform certain marriages. 

And this is just the beginning of the opinion. It gets worse when it goes far beyond the holding of Obergefell in concluding, for example, that "[a] judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages."

The opinion also reflects ignorance of the actual role of public opinion in the creation of new constitutional law these days when it brings in the requirement that judges "apply the law without regard to whether the law is 'popular or unpopular with the public, the media, government officials, or the judge’s friends or family.'" Can anyone say with a straight face that Justice Kennedy, the author of Obergefell v. Hodges, himself applied the law without regard to all these factors? Aside from judges' personal, moral, or religious beliefs about marriage, one good legal reason to avoid extending Obergefell beyond its holding is precisely to limit the damage done to the law when judges shape it to better conform with changed public opinion, as Justice Kennedy and his colleagues in the majority did in Obergefell.

August 12, 2015 in Walsh, Kevin | Permalink

Tuesday, August 11, 2015

2015 Scholarly Impact Ranking for American Law Schools

This morning, Professor Brian Leiter posted on the Law School Reports the 2015 ranking of American law schools by Scholarly Impact.

The complete ranking and narrative are available here.

In 2012 and again in 2015, I have shepherded the Scholarly Impact study, along with my librarian colleagues here at the University of St. Thomas, Valerie Aggerbeck, Nick Farris, and Megan McNevin, assisted by a team of students led by Maria Pitner. The preparation of the Scholarly Impact Ranking involves months of painstaking work identifying tenured faculty at law schools, performing citation counts (including sampling where necessary), double-checking and reconciling results, and calculating scores, scaling, and ranking.

Three years ago, through a series of posts here on Mirror of Justice, I offered several arguments as to why scholarly work and scholarly impact are especially important to Catholic legal education. Those points remain just as salient today.

The first argument, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often attaching to religiously-affiliated institutions, including law schools.

My third point, made here, was that, as Catholic Christians, we have are called to share the Gospel, both directly and indirectly.  The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than St. Pope John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae:   “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”

In sum, while we are called to teaching and service as well, we cannot fully participate as academics in the search for the truth without also contributing to the scholarly literature, which reaches audiences beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed. It is a tremendous privilege – and a grave responsibility.

With respect to the 2015 updating of the Scholarly Impact Ranking, I may be forgiven here for highlighting certain results for schools at which members of the Mirror of Justice family teach:

The University of Notre Dame ranks in the top 25.  Emory is ranked #27. The University of St. Thomas ranks in the top 40 (at #39) for Scholarly Impact -- almost 100 ranking levels above its relegation in the U.S. News ranking.

Below the fold, I've set out the top 40 ranking in a table:

Continue reading

August 11, 2015 in Sisk, Greg | Permalink

"Liberal Arrogance"

Tony Jones is an interesting blogger. He's a former leader in the "Emergent" movement among young evangelicals, a movement that one needs to understand in order to see where evangelicals are likely to head in the future. (That in turn should be a matter of interest to those asking the same questions concerning Catholicism.) Now Tony tends liberal more frequently, but he still has evangelical elements. (He has a new book out called Did God Kill Jesus?, grappling with the tough theological questions about the meaning of Jesus's Atonement.)

At any rate, Tony has a new post up on "Liberal Arrogance." It isn't, and isn't intended to be, an analytical review of this phenomenon. But it came into my inbox just as a bunch of other complaints and news stories about the same phenomenon arrived, some of them (like Tony's) complaints by people who themselves are mostly liberal. (See. e.g., Jonathan Haidt on Morning Joe today talking about political correctness on college campuses, in response to a recent Atlantic story about standup comics who run into this when they play college venues.)

"Liberal arrogance" is in danger of becoming like the weather (apologies to Mark Twain). Everyone talks about it, but no one does anything about it.

August 11, 2015 in Berg, Thomas | Permalink

Monday, August 10, 2015

More on Non-Profits (Especially Religious Ones) Providing Civic Services

Thanks, Marc, for the interesting post. I too see a difference in trends between (1) excluding religious or private groups altogether from state-promoted social efforts and (2) subjecting them unyieldingly to conditions (e.g., nondiscrimination conditions) that may effectively exclude them. I think the former impulse--to exclude religious (or more generally private) groups as such has weakened over the last 30 years, with no reversal of that recently. Obama has mostly continued the Bush administration's effort to enlist faith-based groups in social services (and channeled additional funds to FBOs in the 2009-10 stimulus package); the contribution of those groups has been commended in the 2012 Democratic platform (see p. 15) and in speeches by both Barack and Michelle Obama.

But the second impulse above, to subject groups rigidly to accompanying conditions,  has significantly strengthened  in recent years. I think it's an open question how much of this is attributable to the gay-rights revolution, and how much to the broader establishmentarian idea that the state can and should make use of religions that are willing to conform fully to the state's norms. (As Marc suggests, the latter approach is one that separationists have warned against for a long time.)

August 10, 2015 in Berg, Thomas | Permalink

Sunday, August 9, 2015

The conditions in which private groups may perform civic functions

Here's an insightful post by Paul Horwitz on the Garnett, Inazu, McConnell essay. Paul introduces the post with a discussion about contemporary attitudes toward government's "insist[ence] that private organizations comply with its own sense of the good," and he claims that though many people continue to believe that such insistence is illegitimate, "the momentum" within the elite classes (or call them how you will) "is on the other side." I am always pleased when Paul shares at least some of my sensibilities.

One more thought connected to Paul's comment on these interesting matters. Tax exemption for private nonprofit organizations made a certain amount of sense when two conditions obtained: (1) the size of government, and the scope of its role in American social life, were a good deal smaller than they are today, thereby both necessitating and making space for the involvement of private nonprofit institutions for the support of civil society; and (2) the view that these private institutions could and should play an independent role in shaping civil society in accordance with their own senses of the political and moral good, senses that might diverge in important respects from the state's.

The conditions are mutually reinforcing and mutually dependent. As government becomes larger, both the need and the space for private institutions shrinks as does the perception that private institutions might actually have something of value to say in the way civic formation that is very different from what the state says. The "need" question is complex, because the breakdown of condition #1 would not necessarily mean that we would see fewer private institutions performing the sort of work that they had performed in the past. Indeed, the increase in the size and scope of the government's role might itself necessitate greater numbers of private institutions to help it fulfill its enlarged offices. But we should expect to see a sharp decline in private institutions engaged in civic formation whose values differed sharply from the government's. Whatever public/private arrangements endured after the fall of condition #1 could not continue to operate under the premises of condition #2. One might say that this is to be expected--indeed, it might be said to validate a hoary separationist rallying cry: if private institutions want to be in the business of performing civic functions, they ought to expect pressure to conform to the government's preferred views of the civic, political, and moral good. (A footnote: I’m always struck by how decidedly Protestant the theology supporting these kinds of separationist arguments seems.) All true, though one could offer in return that such increased pressure is not inevitable but the product of a historical contingency: the breakdown of the two conditions above.

August 9, 2015 in DeGirolami, Marc | Permalink

Friday, August 7, 2015

On the Vulnerability of the Mother-Child Dyad

Just noticed that Steubenville put up a presentation I gave there this past spring on human embodiedness and its consequences for women especially. I discuss gender theory, the reproductive asymmetry between men and women (and the feminist and Catholic responses), sexual economics, and finally, relying on MacIntrye and Eva Feder Kittay, why human vulnerability and dependency point to distinctive contributions of mothers and fathers.  I prepared the paper thinking I'd be speaking to students with a background in philosophy, but most of the attendees were nurses and nursing students. I enjoyed trying to simplify the concepts on the fly...but it did make for a lengthier talk!

August 7, 2015 in Bachiochi, Erika | Permalink

Who should be protected by 1st Amendment Defense Acts

Ryan Anderson and I weigh in on the discussion launched by Rick Garnett, John Inazu, and Michael McConnell:



August 7, 2015 | Permalink