Mirror of Justice

D.C. Circuit Decision in Duquesne v. NLRB

As noted by Jon Hannah, the D.C. Circuit has issued its decision in Duquesne v. NLRB regarding jurisdiction over adjunct faculty unionization efforts at religiously-affiliated universities. As I argued some years ago in testimony (here) before a House subcommittee, the D.C. Circuit precedents on this issue are  straightforward, and the NLRB's 2014 decision in the Pacific Lutheran case (discussed here) was at odds with those precedents. A bit from Judge Griffith's decision:

This case begins and ends with our decisions  in Great Falls and Carroll  College. In Great  Falls,  we established a “bright-line” test for determining whether the NLRA authorizes the Board to exercise jurisdiction in cases involving religious schools and their teachers or faculty. 278 F.3d at 1347. Under this test, the Board lacks jurisdiction if the school (1) holds itself out to the public as a religious institution (i.e., as providing a “religious educational environment”); (2) is non-profit; and (3) is religiously affiliated. Id. at  1343-44. Seven years after Great Falls, we reiterated in Carroll College that this test governs the Board’s jurisdiction, 558 F.3d at 572, 574, and we do so again today. This case involves faculty members and Duquesne satisfies the  Great Falls test. The NLRA therefore does not empower the Board to exercise jurisdiction. 

....

Apparently unpersuaded by Great Falls and Carroll College, the Board used its new Pacific Lutheran test to assert jurisdiction over Duquesne. Pacific Lutheran runs afoul of our precedent by claiming jurisdiction in cases that we have placed beyond the Board’s reach. That is, Pacific Lutheran extends the Board’s jurisdiction to cases involving faculty at schools that satisfy the Great Falls test, specifically those schools that (according to the Board) do not hold out the faculty members as playing a specific role in the school’s religious educational environment. Pac. Lutheran, 361  N.L.R.B. at 1410. But our precedent is clear: Great Falls is a bright-line test.  If it is satisfied, the school  is  “altogether  exempt  from  the  NLRA,”  and  “the  Board  must  decline  to  exercise  jurisdiction.”  Great Falls, 278 F.3d at 1347; accord Carroll Coll., 558 F.3d at 572, 574-75. The Board may not “dig  deeper” by examining whether faculty members play religious or non-religious roles, for “[d]oing so would only risk infringing upon the guarantees of  the First Amendment’s Religion Clauses.” Carroll  Coll., 558  F.3d at  572. We have no power to revisit this precedent. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc); Am. Hosp. Ass’n v. Price, 867 F.3d 160, 165 (D.C. Cir. 2017).

Attempts, Complicity, Virtue, and the Limits of Law

Here is a short chapter I wrote -- a bit outside of my usual writing-area -- for a forthcoming volume called Christianity and the Criminal Law, on "Attempts, Complicity, Virtue, and the Limits of Law."  The abstract:

The law and doctrines of criminal attempts and complicity illustrate the longstanding and fundamental tenet of Anglo-American criminal law that the blame and condemnation of the political community, which gives criminal punishment its distinctive character, attaches primarily to actors’ states of mind rather than to the harms they cause or results they bring about. This focus on blameworthy states of mind both reflects and has been shaped by the similar emphasis in Christian scripture, tradition, and moral teaching. And so, an examination of criminal attempts and complicity is an opportunity to explore Christianity’s influence on the theory, content, and operation of the criminal law. It also reminds us of a central Christian concern that is and has been located, for the most, outside the scope of the criminal law: Christian moral teaching not only enjoins the avoidance of wrongful acts, but also the cultivation and practice of virtue. A Christian life of discipleship, it has been said, “is not simply about performing certain types of actions. It is a vocation, a transformation of one’s very self.” However, this aretaic dimension of Christian morality and moral theology, unlike the nexus between culpability and choice, is difficult to find in the criminal law, which is inclined more toward proscribing acts than prescribing character, more toward forbidding bad conduct than facilitating good character, more toward deterring decisions than transforming selves. It is worth asking why.

Appeals Court Blocks Adjunct Union at Duquesne

A federal appeals court ruled Tuesday that Duquesne University’s status as a Roman Catholic institution exempts it from National Labor Relations Board's rules on forming an adjunct union. If upheld, the ruling would effectively kill a union drive at the Pittsburgh university.

Full story at Inside Higher Ed.

A Catholic Debate over Liberalism

This article by Park MacDougald in City Journal explores the Ahmari v. French debate within current conservative circles, and how Catholic intellectuals have viewed liberalism over the years. 

Charitable Giving and Taxes

I’ve spent a lot of time lately thinking about our tax code in the United States and how it influences charitable giving. The main reason I’ve been paying more attention to this area of policy is because I was given the incredible opportunity to teach an experiential learning course here at Notre Dame this past fall. The students are given the responsibility of awarding actual grant dollars to local nonprofits. Suffice it to say, their dedication and hard work is beyond inspiring. These students are future leaders. I know they will be model citizens by working and volunteering at nonprofit organizations, and by giving financially throughout their lives.

Yet, I fear that our tax code in its current state is not encouraging charitable giving and that it promotes certain types of giving over others. I especially fear that it dissuades young people from giving, which means giving is not part of their personal finance plans and is not truly considered until much later in life.

The signature aspect of the Tax Cuts and Jobs Act of 2017 was that it nearly doubled the standard deduction. The consequence has been a drastic decline in the number of tax filers that itemize from about 30% to 13%. On its face, I think that is a positive outcome. The less burdensome tax filing is for more Americans, the better. However, the charitable gift deduction was and still is a below the line tax deduction. That’s problematic because tax filers taking the standard deduction and not itemizing receive zero tax benefit by making charitable gifts to 501(c)3 organizations. My tax law professor in law school once said that the tax code, at the end of the day, is social engineering. I think he’s right. The code incents me to withhold pretax dollars and contribute to a 401(k) or 403(b). It’s a signal from the government that retirement savings is important. Rightfully, retirement saving is an above the line deduction. The problem with doubling the standard deduction and keeping the charitable gift deduction below the line is that it signals to taxpayers that charitable giving is important, but only important for taxpayers who itemize.  And which taxpayers generally itemize? Often times, wealthier Americans and/or filers with mortgage interest payments large enough to make itemizing the best decision. That’s an awful way to encourage and promote charitable giving.

Senator Mike Lee (R-UT) released a report in November that suggested we change our charitable gift deduction and make it more universal. The easiest solution is probably to move the charitable gift deduction above the line. The other consequence of this current policy is that it tends to favor charitable giving to secular causes over religious ones. Households with incomes below $200,000 are more likely to direct their charitable dollars to organizations that are religious in nature, or to organizations that directly help those in need. More affluent households are more likely to direct charitable dollars to organizations such as museums and universities. That’s not to say that the charitable giving done by the former group is more commendable. And it’s not to say that the differences in giving among the two groups is as clear cut as the studies might suggest. However, a tax code that offers a tax benefit to some taxpayers, oftentimes wealthier ones, and offers no such benefit to almost 9 in 10 Americans is structurally flawed. I hope that Lee’s report receives more attention and that this policy can change.

The Church would not exist without women

I would like to draw attention to a Letter to the Editor published in today's student newspaper at Notre Dame, The Observer. The letter is authored by David Spicer, a summer fellow in 2019 here at the Notre Dame Law School Program on Church, State & Society.

It's well worth reading, and it is partly a response to an Observer article published last week by another Notre Dame law student. I feel that both students make great points, and I am thankful that we can have these important conversations here at Notre Dame freely and in good spirits.

Fixing Law Schools

University of Tennessee professor of law Benjamin H. Barton has published a new book, Fixing Law Schools: From Collapse to the Trump Bump and Beyond, that is gaining a lot of attention.

Barton's findings were also recently featured in The Chronicle Review. Of interest is the decline in law school applications after the Great Recession and the consequences for law schools themselves, specifically cuts in faculty lines and less funding available for experiential learning courses. The other piece of the puzzle is an increase in tuition prices but more financial aid awards to top applicants at top schools.

Barton was asked in an Inside Higher Ed interview last month just what exactly law schools need to do to change.  His answer:

Q: How should law schools change?

A: I have three basic suggestions. The first is the simplest to state, but the hardest to accomplish: law schools must become cheaper, or at least stop continuously outrunning inflation. The current cost and debt levels make law school a much worse investment than it was a generation ago, when placement was stronger and tuition was radically less. In 1985, it cost an average of $2,006 for in-state tuition and $7,526 in tuition for a private law school. In 2018 dollars that tuition is only $4,713 in-state and $17,681 for a private school. The actual 2018 averages are $27,591 for in state and $49,095 for private law schools! Law schools must recognize the changing market and adjust. If they do not, state and federal laws, especially those that subsidize law schools through state support or fully subsidized federal loans, are likely to change, and not to the benefit of law schools.

The second is for law schools to be much more aggressive and forward looking in teaching how to use technology to practice law. This does not mean that law schools should teach every student coding (although having an elective coding class is a good idea). But the lawyers who make it in the future will be the ones who leverage technology to their benefit, allowing them to practice “at the top of their license,” to use Richard Granat’s famous phrase. Technology can replace more rote tasks and allow lawyers to do more highly sophisticated work for more clients for less money. Rather than fearing technology as a competitor, law schools much embrace technology as a key assistant. We need to start teaching students these skills.

Last, the ABA has moved to regulation that focuses more on law school outputs (bar passage, job placement, attrition, etc.) rather than input measures (the size of the faculty, the number of books in the law library, etc.). This is a good trend, and law schools should take advantage of it by trying different models. That said, there has been too much predatory behavior by some law schools in the last decade, so I’d also encourage the ABA to be ever vigilant. So, law schools should let a thousand flowers bloom, but make sure not to be evil!

 

"Saving Democracy from the Managerial Elite"

This Wall Street Journal piece -- which is, I gather, a condensed version of a forthcoming book -- "Saving Democracy from the Managerial Elite", by Michael Lind, is worth a read and might well be of interest to MOJ readers and people interested in Catholic approaches to "the social question."  A lot of it echoes things that (many) others have been saying lately -- Chris Arnade, Rusty Reno, Tim Carney, J.D. Vance, Robert Putnam, etc., etc.  Two things that struck me (in a good way) were (1) Lind's recognition that, even in the context of this debate, it makes sense to distinguish between public-employee unions and private labor unions, given that the former tend increasingly to reflect and advance the interests of those Lind calls "the managerial elite" at the expense of less mobile and credentialed people and (2) his implicit (I wish it were explicit!) acknowledgement that getting past some of our current polarization and pathologies will require policies that make it possible for traditional religious believers to have meaningful access to alternatives to "public school monopolies" for the education of their children.  

Review of Greg Weiner's "The Political Constitution"

I have a review of Professor Greg Weiner book, The Political Constitution: The Case Against Judicial Supremacy, over at the Liberty Fund blog. I've reposted a bit below. I enjoyed the book very much, especially because it got me to think critically about a general orientation to judicial review that I happen to favor. And I should add that I could and should have raised racial fragmentation as another reason for skepticism about a return to the localist republicanism of earlier days (thanks to Professor Ekow Yankah for some useful correspondence on this point).

The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.

These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.

One view favors the claims of the political community as against the individual, asking judges to acquiesce in them; the other, the claims of the individual as against the political community, asking judges to vindicate them. Yet while the cost in abandoning the former may only be the loss of some implausible claims of individual freedom, the cost in forsaking the latter, Weiner says, is nothing less than the American republican soul…. 

The problem that the book sets out to solve is therefore dwarfed by the problem that it actually uncovers. If that problem—the problem of the endurance of “We the People” in America—is to be engaged (I say nothing of solved) from the judicial end of the table in a satisfactory way, it will not be through judicial disengagement and leaving the people to their own devices, as ill-considered and noxious as they may be. It will instead be at least in part by asking courts—carefully and always honoring the limits assigned to them by the Constitution—to engage with American constitutional law in ways that differ substantively from the partisans of “judicial engagement” whom Weiner criticizes.

"Learning from Integralism"

My friend and colleague Gerard Bradley has a Public Discourse essay up, which is worth a read, called "Learning from Integralism."  A bit:

[T]he First Amendment stipulates that the truth or falsity of putatively revealed propositions is beyond the scope of authoritative resolution by those with care of our political society. The First Amendment does not say, or suppose, or even suggest that all such propositions are in reality somehow equally true (or false), or that they have at most the “truth” of poetry, or that all such alleged revelations are fantastical or mere human projections. Not at all: the First Amendment was ratified by a population that took the tenets of natural and revealed religion most seriously. It has been supported by countless Americans—notably including America’s Catholics—since. By recognizing and affirming the truths of natural religion—including the truth that a divine entity created what there is and sustains it in being out of providential care for humanity—America’s political leaders implicitly endorsed the entailment that such a divine entity would communicate somehow with humankind. They endorsed, in other words, the proposition that genuine revelation is not only possible, but likely.