Thursday, February 28, 2019
My colleague -- and friend, teacher, mentor, inspiration -- Prof. Thomas Shaffer died on Tuesday. A former dean of the Notre Dame Law School, he was a creative, provocative, and incredibly prolific scholar. His writings on legal ethics, narrative, literature, poverty, religion, clinical teaching, and other things are a wonderful legacy.
I first discovered his work during my second year of law school, when I was in a (great) seminar taught by David Luban on "The Legal Profession." He assigned an article of Tom's called The Legal Ethics of Radical Individualism. The piece's claims, tones, and premises were very different from most of what I was reading as a law student, and his unapologetic transparency about the relevance to lawyering of one's religious faith and commitments was welcome and inspiring. It opened with this:
Most of what American lawyers and law teachers call legal ethics is not ethics. . . . Its appeal is not to conscience, but to sanction. It seems mandate rather than insight. [It] rests on two doctrines: first, that fact and value are separate; and second, that the moral agent acts alone; as W.H. Auden put it, each of us is alone on a moral planet tamed by terror. . . .
Ethics properly defined is thinking about morals. It is an intellectual activity and an appropriate academic discipline, but it is valid only to the extent that it truthfully describes what is going on. . . . [O]rganic communities of persons are prior to life and in culture to individuals-- in other words, . . . the moral agent is not alone.
This article led me to Tom's books, American Lawyers and Their Communities, On Being a Christian and a Lawyer, Faith and the Professions, and then to his radically (think Hauerwas, etc.) Christian brand of communitarianism more generally. I wrote a paper for Luban's seminar on the legal ethics issues raised by representing so-called "death row volunteers" that became, eventually, this early article of mine. I mailed my paper to Tom -- whom I'd never met and who was, after all, being paid to teach other students, not me! -- and he wrote me back a three-page, single-spaced letter with helpful feedback, comments, and encouragement. I was so happy to be able thank him, five years later, when I came to Notre Dame to be his colleague.
Tom was a deeply good person with a genuine heart for those on the margins. He was a chaired professor, but insisted on working and teaching in the Legal Aid Clinic. I believe that I very well might not be a legal academic today, but for him, and I'm very grateful to him for that (and many other things). RIP.
Prof. Robert Cochran (Pepperdine) gave me permission to re-post this remembrance of my late colleague, Tom Shaffer (RIP), who passed away yesterday:
Tom was my teacher, mentor, co-author (Lawyers, Clients, and Moral Responsibility), and friend for 43 years. He mentored me in law school and into and through law teaching. Most of what I know about law and religion I learned through his guidance.
Tom was a visiting professor at the University of Virginia during my third year of law school, 1975-76 (shortly after he left the Notre Dame deanship). He taught a course on law and religion in his and Nancy’s rented home. (The afterword of On Being a Christian and a Lawyer identifies that class as the genesis of the book and identifies each student by name.) Three aspects of the class stand out. First, when Tom discovered that all in the class were Christians—though of almost every stripe--he had us open with prayer. That, no doubt, would have been troubling to the University’s founder, Thomas Jefferson. We envisioned him looking down on us, and he was not pleased. Second, we closed with beer. That would have been troubling to my Baptist forbears, but to this Baptist boy it seemed to balance out the prayer.
The third thing I recall was that the class changed my life with a message that runs through Tom’s books. Prior to the class, I lived a schizophrenic existence. I saw little connection between what I learned in law school during the week and what I did in church on Sundays. The following extended metaphor from Tom's American Lawyers and Their Communities captures Shaffer’s central call to Christian lawyers. Shaffer envisions a town square. On one side is the church; on the other is the courthouse. “We American lawyers learn to look at the community of the faithful, rather than from it. We stand in the courthouse looking at the church. We see the [church], even when we claim to belong to it, from the point of view of the government.” (210-11)
“[The legal] part of the academy, more than any other, has systematically discouraged and disapproved of invoking the religious tradition as important or even interesting. It ignores the community of the faithful so resolutely that even its students who have come to law school from the community of the faithful learn to look at the [church] from the courthouse, rather than at the courthouse from [the church].” (214)
Tom encourages lawyers to "walk across the street and look at the courthouse from the church. . ." (210) “Faithfulness to the tradition of Israel and of the Cross means that the lawyer stands in the community of the faithful and looks from there at the law. Faithfulness means that a lawyer imagines that she is first of all a believer and is then a lawyer.” (198)
From the vantage point of the church, Tom called on lawyers to do many things.
- Consistency - A lawyer should be (as was said of Atticus Finch in To Kill a Mockingbird) the same person in town that he or she is at home. Lawyers should bring the values that they are taught at home and church—truthfulness, justice, and mercy—to the legal profession, rather than playing a role.
- Concern for All - Lawyers should be concerned about the interests of all who might be affected by legal representation. Lawyers should resist the “radical individualism” encouraged by exclusive focus on client’s worst instincts.
- Concern for Clients – Lawyers should be concerned with the whole, client, not their most selfish instincts. “[T]he goal and purpose of a virtuous life in a profession is to help others become good persons...” (94)
- Moral counsel – The apparent tensions between concern for other people and for clients is overcome if lawyers raise moral issues in client counseling as they would with a close friend, not imposing their values, but raising them for serious discussion.
- Speaking Truth to Power –Christian lawyers should speak prophetically to those in power (both government and wealthy clients).
- A Preferential Option for the Poor – As the holder of a prestigious chair at Notre Dame, he chose to serve poor people in the law school legal clinic (one of the less prestigious positions at most law schools).
I am sorry to see Tom pass, but I look forward to spending eternity with him and Nancy in the New Heavens and the New Earth. I am grateful Tom's and Nancy's influence in this world on me and so many others.
Sunday, February 24, 2019
These were the words of Sister Veronica Openibo, the leader of the Society of the Holy Child Jesus who spoke on February 23 at the Vatican summit on sexual abuse of minors. After reading about her profound speech I had simply planned to post a link to it without any commentary, as by all accounts her blunt speech captured so much of the Church crisis. Unfortunately, her speech has not yet been posted by the Holy See but should appear here when available. The video is available here.
Sr. Openibo, a Nigerian sister, earned her graduate degree from Boston College and is the first African sister to be elected leader of her order, which was originally founded in England. She was one of three women to speak at the meeting. For those without time to watch the video, here are some of what the media has reported she shared with the overwhelmingly male audience:
CNN covered her speech noting:
“In clear, direct and unsparing language, Openibo challenged the church's culture of silence on sexual issues and said priests are too often put on pedestals. Openibo also criticized the practice of letting elderly clergy who had abused children retire quietly with their pension and good names in place.
‘Let us not hide such events anymore because of the fear of making mistakes,’ Openibo said after reading a searing summary of abuse cases she has heard about during her work on sexual education in Nigeria.
‘Too often we want to keep silent until the storm has passed! This storm will not pass by. Our credibility is at stake.’"
She specifically rejected the claims by some bishops that this is not a problem in Africa and Asia by referring to the many cases she has worked on first hand.
Crux included the following from her speech:
“’We must acknowledge that our mediocrity, hypocrisy and complacency have brought us to this disgraceful and scandalous place we find ourselves as a Church,’ she said.
She urged a strong “zero tolerance” policy: ‘By taking the necessary steps and maintaining zero tolerance with regard to sexual abuse we will release the oppressed.…’”
Notably, Crux also reported that she praised the Pope for his apparent change of heart on the abuse crisis.
“’I read with great interest many articles about the pope’s reactions in the case of the Chilean bishops - from a denial of accusations, to anger because of deception and cover-up, to the acceptance of resignations of bishops,’ she said.
‘I admire you, Brother Francis, for taking time as a true Jesuit, to discern and be humble enough to change your mind, to apologize and take action. This is an example for all of us….’”
As we wait for the sharing of the full text of her and other presentations, Crux has written an analysis of the outsized impact of the three women who spoke at the meeting. While in some way they all were part of the inner workings of the Church, they also seem to have made the most of this rare opportunity and provided an essential voice in the discussion of the crisis.
This impact mirrors the words of Pope Francis who closed the meeting with a mass in which he is reported to have stated “Indeed, in people’s justified anger, the Church sees the reflection of the wrath of God, betrayed and insulted by these deceitful consecrated persons….It is our duty to pay close heed to this silent, choked cry.”
While the summit was filled with at times frank and blistering acknowledgement of failings, some continue to criticize the meeting as lacking concrete steps. However, healthy skepticism remains with many faithful that these words will result in action – the kind of action that will bring justice and transparency.
The next weeks and months are the critical time. They will demonstrate whether this summit was a success and the only measurement will be concrete measures to effectuate responsibility, accountability, and transparency.
As the meeting comes to a close, I think of the words of the well respected survivor of abuse, Marie Collins, who served on the Pope’s 2013 commission on child sexual abuse that was supposed to address this issue. Ms. Collins faithfully tried to serve on this commission, but ultimately resigned after a number of years due to the failure of the curia to execute the recommendation of the commission. When asked what she would have told the Pope about her resignation she stated that “she would have asked him for three things: that the commission be given the power to implement their recommendations; that it be given more funds to do its work; and to lift the ban on recruiting professional staff from outside the church to work on the issue.”
The hierarchy would be wise to heed that advice now and actually execute a zero tolerance policy with independent outside lay experts leading the effort, and the institutional support to execute the vision of accountability, justice, and transparency in a real way.
Friday, February 22, 2019
February 21st marked the first day of The Protection of Minors in the Church Meeting at the Vatican. There is an extensive website with the text of many of the presentations here. Furthermore, Crux has coverage here.
There were some positive signs and other rather disturbing ones. On the positive side, Pope Francis opened the meeting noting, “The Holy People of God are watching us and wait for more than simple condemnations, they expect concrete and effective measures.” Now is not the time for vague spiritual statements. Now is the time for specific actions. The structure of the meeting seems to suggest an understanding of that with each day having a theme. The first was Responsibility, Friday is Accountability, and next will be Transparency. These themes certainly reflect pillars necessary for the hierarchy to move forward.
Also positive was the opening of the meeting with video testimonials from survivors of clerical abuse. They were candid and searing (one woman describing repeated rapes by a priest, forced abortions, and severe beatings), but if the text released by the Vatican is any indication – relatively brief. Voices of survivors are essential to this process. One of the causes of this crisis is a fundamental failure of the Church hierarchy to understand the realities of child sexual abuse – its violence, its destruction, its pain, the lifelong scars inflicted not only on the victims, but their present and future families. As one victim described it in the Pennsylvania Grand Jury Report, it is “murder of the soul.” These video statements, although brief, appear to begin with answering the question “what hurt you most?” This is an important question – the answers to which must be heard by these clerics.
While the voices of some survivors were indeed present, the theme of responsibility to provide justice to survivors was aptly captured by this survivor’s op ed which all should read. It captures some of the lifelong pain endured by survivors and the bishops could benefit from reading it.
That being said, one must ask how one can become a bishop in the Church hierarchy and still need to be educated on the realities of sexual abuse. Some bishops were quoted as saying the problem in their diocese was very minimal, or still resisting bishops’ accountability for a failure to act. Yet, as The Atlantic reported recently, major news organizations began covering stories of abuse by the early nineties. But it extends much further than that. The reality is that this has been an issue in our world and in the Church hierarchy for over 100 years. In 1870 a bishop wrongly excommunicated Mother Mary MacKillop for her disclosing a priest’s sexual abuse of a child (the bishop rescinded this action on his deathbed). The fact of the matter is that one should not need to be educated on a problem – both the abuse and the efforts to create a climate of silence – that has been well documented, for over a century. Understanding of this issue should be a prerequisite for any person serving the faithful, but certainly to becoming a leader in the hierarchy. If child sexual abuse were understood – truly understood in all its horror - the resistance to reform and accountability of bishops, would likely disappear.
Similarly, some survivor groups are disappointed with the Pope’s “21 points of reflection” which appear to be intended as a framework for conversation. Prior to the meeting survivors and advocacy groups demanded that this meeting “deliver clear outcomes if it is to begin to restore the church’s damaged credibility on the issue and avoid being seen as a talking shop.” While these points call for some specific action, in the eyes of many survivors they fall short of the “concrete” zero tolerance policy so often promised, but not achieved.
This is a meeting of leaders. Leadership requires knowledge and courage. Hopefully the bishops are receiving some of that knowledge over these days – knowledge they should already have possessed. But the challenge in the past has been to both listening and then to execution. Whether they have the courage to act on this overdue knowledge correctly will be determined in the coming days.
Thursday, February 21, 2019
For readers in the Philadelphia area: the McCullen Center at Villanova Law will host Judge Amy Coney Barrett of the US Court of Appeals for the Seventh Circuit for a lecture on "Constitutional Originalism and Continuity" next Monday, February 25 at 3:00pm. Details and registration available at this link.
I have delayed and delayed a post on MOJ’s anniversary…so much so it is past the anniversary week. My delay has not been due to lacking the right words to capture the importance of this blog. It is axiomatic that this blog brings to the legal dialog deep reflection on Catholic legal thought. This is a necessary component of legal education and contemporrary legal thinking.
Rather, this delay has been due to the near despair I have for our Church and its future. The wave of revelations regarding child sexual abuse, sexual assault and human trafficking of nuns, and sexual abuse of adults that have emerged in the last 6 months have been devastating to the faithful. The pain that these actions inflicted on the victims and survivors is immeasurable and matched possibly only by the institutional cover up by church leaders. These innocents, these children or other people, faithfully turned to the Church for help or to devote their lives, only to be met with victimization of sexual assaults. they then were victimized again by the very institution to which they turned when it engaged in a massive cover up. It is difficult to have hope when in 2002 the Church hierarchy apologized and asked for the trust of the faithful to address this horrible sin, only to learn that not only did they not seriously address it, but engaged in an even further cover up.
Early on in my blogging with MOJ I reported on the trial of Msgr. William Lynn in Philadelphia. At that time, it was extremely unusual for MOJ to write about this muddy water of such a sensational trial. Regardless of how one felt about the merits of the prosecution, two themes emerged from those posts. First, the allegations of cover up and indifference were shocking and almost unbelievable. Second, I predicted it would be a watershed event that a clergy member could be held responsible not for abusing children but for playing a role in the reassignment of abusive priests. I thought at that time that it would be the rare occurrence that my criminal law research agenda would overlap with the subject matter of MOJ.
Now we know all of that was incorrect. As revealed by the Pennsylvania Grand Jury Report; 60 minutes, or admissions from the Holy See itself, the active cover up exceeds our worst imaginings. The cover up is not a thing of the past, but as demonstrated most recently here in Washington, it continues. By that I refer to Archbishop Wuerl’s 2018 statements that he knew nothing about his predecessor defrocked Theodore McCarrick’s sexual abuse. As was revealed in January, in fact he had reported McCarrick’s action in 2004. So even after the grand jury report and a new round of claims of transparency, the faithful received less than truthful information, incomplete lists of offending priests, and a website to defend the Cardinal. Fifteen years ago, we could not have imagined the abuse committed by the clergy and the lengths they have gone to circle wagons around the hierarchy rather than a circle of love around victims and survivors.
With the Protection of Minors in the Church meeting scheduled to begin tomorrow, the question remains, how does the institutional church arise from this crisis? Many have offered solutions. I myself have called for path with the minimal five hallmarks of independent review, accountability, transparency, survivor input, and execution of proposals. This includes a top to bottom outside analysis of causes, climates, and solution by an independent inspector general, followed by execution of solutions without delay. This necessarily requires a change in leadership and review of leadership on the diocesan level which may involve the reinstatement of some leaders, but not others. It also requires transparency and a transformative role of the laity, survivors, and those outside Church hierarchy to lay out the path forward. Others have called for many other proposals, addressing difficult topics such as the role of women, celibacy, and lay people.
During this pain, the Church hierarchy is at crossroads. Will it finally take the right actions, or will it fail as it did in Baltimore, Dallas, or previous attempts to address the issue ending in failure due to a lack of commitment? As is so often the case, there is a path forward. I would love to claim I created it, but I found it one weekday mass in the sermon of a new Jesuit priest. It was the day after the revelation that Archbishop Wuerl seemed to be less than candid about his knowledge of McCarrick – a revelation that again shook the Washington faithful. It also was a few days after the Epiphany. Here, in this small daily mass with about 20 parishioners, this parish priest offered the way forward.
“As I prayed this morning, the scripture that came to me…was where Jesus says: “I am the way, the truth, and the life.” The truth. And if I am afraid of the truth – if we are afraid of the truth – then we are afraid of the One we have come to meet at this table.”
The path forward is as simple as that. The truth. I think MOJ has brought some of that to the Catholic legal dialog over the years. And I hope the Cardinals and the hierarchy listen to this simple guidance from a young priest: show the world the absolute truth. It is the way.
Tuesday, February 19, 2019
Thursday, February 14, 2019
Nathan Chapman (Georgia) has posted a fascinating new paper at SSRN. It's called "Money for Missionaries: Rethinking Establishment Clause History." (He workshopped this paper a while back, at Notre Dame, and I learned a lot.) Here's the abstract:
In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.
What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.
This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.
This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.
Wednesday, February 13, 2019
Many MOJ readers will likely be interested in the various Summer Seminars run by the Lumen Christi Institute. Check them out -- great line-ups of topics and speakers/presenters, and some cool destinations, too: "Business and Catholic Social Thought", "Economics and Catholic Social Thought", "The Thought of John Henry Newman", "The Thought of Rene Girard", "Augustine on God, Self, and Society", "Catholic Social Thought: A Critical Investigation".
Sunday, February 10, 2019
In early 2004, I remember sitting in my office at St. John's and getting a call from Mark Sargent asking if I wanted to participate in a new blog that he and Rick Garnett were putting together. I was not entirely sure what a "blog" was, but as a junior law prof looking for any platform that would have me, I readily accepted his invitation. My primary objective in my early posts was to come across as knowledgeable enough about Catholic legal theory to belong on a blog dedicated to Catholic legal theory. As the years went by, I'm not sure my grasp of what we mean by "Catholic legal theory" became a whole lot clearer. My favorite post of the last fifteen years ("Catholic Legal Thought: Live at the Dubliner!"), though, reflects what is undoubtedly the central legacy of MoJ in my own life: relationships.
Since I composed that post ten years ago, law schools have gone through some tumultuous times, prompted by legitimate skepticism about the value proposition of legal education, causing us to focus on student outcomes to an extent not seen in many years, if ever. Does that mean that the broader Catholic legal theory project from which MoJ emerged has lost some energy? Perhaps, if measured by the number of conferences and colloquia dedicated to the field. But not if we take a broader view to ask how and why Catholic legal education matters - a question that can only be answered comprehensively and coherently with at least some resort to Catholic legal theory, as lived out in the context of academic and professional communities. What are we offering to prospective students and other stakeholders, and why should they care that we're Catholic? In that sense, MoJ has been a remarkable incubator of the type of conversations - and resulting relationships - that both aim at, and reflect, the heart of the project. Whether that continues in the form we've enjoyed for the past fifteen years or proceeds into new venues, the relationships must remain central to the work.