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.

Tuesday, January 19, 2021

Journal of Law and Religion Volume 35, Issue 3


January 19, 2021 | Permalink

Monday, January 18, 2021

Are we willing to walk with Dr. King past 1964?

Today are we willing to celebrate the Martin Luther King Jr. of 1966, or are we unwilling to walk with him past 1964?
Dr. King offers powerful lessons for today, but those lessons may recede from view as we gradually construct a tamer, less offensive vision of him. Since his assassination, he has become almost universally admired in American society as a model of courage and dignity. Not coincidentally, he is now seen as much less threatening and disruptive to the status quo than he was in reality. We tend to focus on the Dr. King of 1964 rather than the Dr. King of 1966. By way of illustration, I’ll share a personal story.
I went to college in the south, and my roommate was from a small town in Louisiana. With the self-righteousness of an 18-year-old who had grown up in the “enlightened” north, I once started to lecture him about racial injustice in his state. He listened for a while, then he asked how many black students were in my graduating class at a large public high school in Chicago’s suburbs. I was able to count them on one hand. I knew that black people lived on the south side of Chicago, not in my suburb. So? That’s just the way it is. Now let’s get back to talking about racism in the south.
My own obliviousness to the full legacy of American racism reflects the reality that also limited the long-term impact of Dr. King’s work. As with many areas of moral judgment, we’re much quicker to point fingers than we are to engage in deep soul-searching and corrective action. Indeed, when the critical gaze turns to us, we push back powerfully.
Witness the changing public reaction to King himself. From August 1964 to August 1966, Gallup surveys showed that the percentage of Americans who viewed King unfavorably jumped from 38% to 63%.
In the years leading up to 1964, King had led the Montgomery bus boycott, spoke at the funerals of the girls killed in the Birmingham church bombing, wrote his Letter from a Birmingham Jail, brought worldwide attention to Bull Connor’s regime attacking peaceful protestors with police dogs and firehoses, and gave his “I Have a Dream” speech in which he envisioned a day when his children would one day be judged not by the color of their skin, but by the content of their character, and called out in particular the states of Georgia, Alabama, and Mississippi.
So what happened between 1964 and 1966? King publicly opposed the Vietnam War for the first time, which could explain part of the shift in public opinion against him. I think the bigger change, though, was that King shifted his gaze to northern cities. He moved to Chicago and launched his first civil rights campaign outside the deep south. I grew up hearing quite a bit about the civil rights struggle in Selma, Birmingham, Montgomery, and other southern cities.
I was an adult before I learned about the marches King led in Chicago, where he encountered what he described as the most hostile crowds of his life. Rather than target a southern society that advertised its segregation policies for all to see, he now protested deeply embedded real estate practices, such as steering and redlining, that kept blacks locked in northern ghettos. In 1965, he predicted, “If we can break the system in Chicago, it can be broken any place in the country.” He didn’t break the system, and we still haven’t broken the system.
It’s easier to like King when he helps me feel morally righteous and confident in my place on the right side of history. I would never refuse service to someone based on the color of their skin. I would never turn the dogs loose on peaceful protesters.
We’re less comfortable with King – I’m less comfortable with King – when he starts asking what I’m doing about the inequality in my own community.
I encourage us to reflect on Dr. King’s most powerfully persistent question: How will we use our gifts to help bind our nation’s wounds and build the beloved community?

January 18, 2021 in Vischer, Rob | Permalink

Sunday, January 17, 2021

In reckoning with race, history, hard questions, and our own stories matter

As we reflect on the life and ministry of Martin Luther King Jr., my friend Yohuru Williams and I have published an op-ed in today's St. Paul Pioneer-Press about how insights from our experience teaching "Race, Law & U.S. History" may help guide difficult conversations in the days ahead. An excerpt:

When we portray progress on racial justice as a simplistic good-versus-evil battle, we are setting ourselves up for disappointment. Progress requires us to recognize the scourge of racism, but it also requires our best thinking to discern what will prove most effective in addressing it in a complicated world. Cartoonish renderings of complex issues only serve to further divide rather than create the opportunity for constructive engagement around important issues that deserve not only our full attention but the best of our energies.

January 17, 2021 in Vischer, Rob | Permalink

Saturday, January 16, 2021

Teaching in Person at a Catholic Law School During the Pandemic (Part Two: Educational Quality)

This is the second in a series of three posts about my experiences teaching at a Catholic law school in person during the pandemic. The first post was about safety for teaching in person. This second post is about educational quality. And the third and final post next week will be about fostering community in challenging times.

Premise of Superior Quality of In-Person Teaching:

I begin this post by forthrightly stating my premise that teaching in a classroom to students who are physically present to each other and to the professor is superior. I genuinely believe that this is the ideal setting for legal education. Of course, a pandemic can make a mockery of the ideal.

Even in normal times, I acknowledge exceptions to this premise, such as a special unit of one or two credits for subject that by its nature requires less of a synchronous dialogue. And there is value in an online course designed for students who are unavoidably remote, such as during a summer session for students working elsewhere. For a fully online course, assuring educational quality requires precise organization, development of asynchronous online elements to engage students, use of technology with video and interchange elements, etc. As the experts and those who teach online regularly know, a fully online class demands intense prior planning and rigorous attention to best practices.

But for the typical doctrinal law school course, in-person instruction is better. And for the course that primarily involves a back-and-forth dialogue between the professor and students, in-person instruction is essential to keep the entire class engaged.

And we have good evidence for these conclusions from this past spring. A survey conducted by Thomson Reuters, “Law Schools and the Global Pandemic,” found that a large majority of law students found it difficult to stay engaged with fully online courses, with 39 percent finding it very difficult and 23 percent agreeing it was difficult. Unfortunately, the same survey showed that only about as third as many professors, 14 percent, recognized this as a serious problem. From the professor’s perspective, he or she may have had a satisfying discussion online with the students who were called on for that day and then subjectively judge the day’s class to be a success. But the professor didn’t realize that a larger group of students were tuning out.

As one student told me, online classes during the pandemic have been “prime territory for distraction.” We have to remember that our students who are accessing a class at home, rather than being situated in a classroom designed for instruction, have multiple distractions that are calling constantly to them.

But our ideals cannot always be realized. We now are struggling with the Covid pandemic, which demands creative accommodations and empathy for the difficulties so many face. The hard reality is that not everyone can be in person, whether a professor or a student, even if that state, city, or university permits in-person instruction. We must remember that many of us simply do not have such a choice, either by reason of their own health risks or those of loved ones. And if anyone has to be online, there are reasonable arguments that being fully online avoids some of the complications of dividing between those students who are in-person and those who are remote. We all long for the return of normalcy, where these questions are not before us.

I focus here on those of us who are fortunate to have a choice and who thus are able to teach in person to students who can attend in person. I contend here that the complications can be overcome and that high quality education can still be achieved. In other words, I believe if you can do it safely, then it is worth the candle.

For those of us able and dedicated to continuing in person instruction, we had to make two key accommodations: (1) a hybrid setting in which some students were in person and others online, and (2) social distancing and mask-wearing for those in person. Let me speak to each.

Challenges of the Hybrid Combination of In-Person and Online:

I know of at least one law school that told incoming first-year students they must be in person for the fall or accept a deferral to the following year. But of the law schools that offered any in-person instruction, most allowed students to choose whether to attend in person or simultaneously attend remotely. What then of the quality of instruction for those who are in person, while the professor is juggling responses to online students as well? And what of the quality of instruction for the remote students who are listening in on the in-person class? For the first question, the impact on those in-person by the hybrid format proved to be minimal. For the students online, the situation was definitely more complicated, but in the end I think the question whether educational quality was maintained received a qualified “yes.”

For my each of my two Civil Procedure sections (that is, with the main section broken into two during the pandemic), we began the semester with approximately 38 students in person and 6 online. For those 38 attending in person, the simultaneous participation of a small number online did not appear to have any impact. So for in-person students, the quality question goes to the impact of social distancing and mask wearing (discussed below), rather than how they received instruction. Since instruction was directly from the professor, with participation by others students who were also physically present, things were much the same as usual. As I noted in the first post, students repeatedly commented how much they appreciated the opportunity to attend law school in person, despite the accommodations that had to be made to make it possible during the pandemic.

For the smaller number of students who were online (because they could not safely attend in person), a hybrid setting was more of a challenge. The university sought to address this by setting up a second monitor for the professor in the classroom on which would appear the online students. For me with my approach, that proved unworkable and so I quickly abandoned it (although I understand other colleagues found it helpful). I had all students — both those in the classroom and those who were remote — sign in to Zoom so that we could all participate in polling questions. As a consequence, the second monitor showed everyone, not just the online students. Moreover, the second monitor was set in front of me so that I could see it, which meant that its placement physically blocked my view of several students in the classroom. In addition, having two monitors awkwardly affected how the cursor moved, jerking between the two monitors. So I turned it the second monitor off and moved it away.

Another technological problem was that online students had difficulty hearing what the in-person students were saying. For the most part, online students had no difficulty hearing me, as long as I stayed behind the podium (which during the pandemic was expected anyway). But early on, it was nearly impossible for online students to hear the students in the classroom. The university adjusted the microphones in the classroom, which helped but remained imperfect. I tried to remember to restate the questions or frame my answer for the benefit of the online students, which online students indicated got better as the semester wore on.

Two technology features also enhanced educational quality for online students especially, but also for in-person students:

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January 16, 2021 in Sisk, Greg | Permalink

Stare Decisis, Justice, and the Rule of Law

I enjoyed speaking about the relationship of substantive and procedural ideas of justice to the rule of law and stare decisis on this panel, part of The International Forum on the Future of Constitutionalism's "Global Summit" organized by Professor Richard Albert. In my remarks, I argued against a thin, purely proceduralist view of the rule of law and stare decisis, and also against a morally thick, substantive view of the rule of law and stare decisis. I urged an intermediate possibility. As the rule of law seems to be in the air, so to speak, I thought I would reproduce my remarks. They are below.

I want to reflect on the relationship of substantive political morality to the rule of law and stare decisis. On some accounts, the virtues of both the rule of law and stare decisis are purely procedural. On other accounts, the rule of law incorporates thick, substantive conceptions of political morality. For example, a set of substantive human rights as defined by an international body or other community. Or some thick, substantive ideal of equality or justice. Interestingly, people do not take this second view about stare decisis, the obligation of courts as a general matter to stand by a prior precedent even when they disagree with it. So far as I know, nobody thinks stare decisis contains an ideal of human rights, for example.

So, which account is right? There are a few possibilities. One possibility is that the rule of law *and* stare decisis both embody purely procedural ideals, and that those arguing for a substantive political morality within the rule of law are wrong. A second possibility is that the rule of law embodies substantive political morality while stare decisis does not. That is, the rule of law and stare decisis are relevantly different on this score. And a third possibility is that both the rule of law and stare decisis incorporate procedural and moral values. Now, even though as I indicated, nobody takes this view as to stare decisis (though some do as to the rule of law), I actually think this is the correct position.

But the type of substantive political morality incorporated within the rule of law and stare decisis is not the sort of thick view of the second possibility—equality or human rights or liberty or antidiscrimination, for example. It is instead a kind of political morality related to the procedural virtues of both.

Let me briefly describe the first two views. I’ll then take on the third view, sketching Lon Fuller’s position and extending it in ways that thicken it somewhat, but not all the way, so to speak. Not to oatmeal or gruel thickness, but more like to lobster bisque or vichyssoise thickness.


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January 16, 2021 in DeGirolami, Marc | Permalink

Friday, January 15, 2021

A question for our polarized age: which riots should upset us more?

The most frequent objection I’ve seen to expressions of concern about last week’s attack on the U.S. Capitol is some version of, “Why weren’t you so outraged about all the riots last summer?” The insinuation is that those who were upset by last week’s events don’t want to talk about the riots because they are associated with a cause they support (racial justice), while the U.S. Capitol attack is associated with a cause they dislike (Donald Trump). It’s a fair question – here’s my answer.
To begin, I would not endorse a blanket assertion that the U.S. Capitol attack was “worse” or “more harmful” than last summer’s riots. If you are an immigrant who had worked for years to build a small business on Lake Street in Minneapolis, only to see it destroyed in one night by arsonists, and you then come to learn that insurance won’t come anywhere close to covering the cost of rebuilding, the U.S. Capitol attack sure doesn’t feel worse. In the Twin Cities, more than 1,000 buildings were damaged or destroyed after George Floyd’s death. The bulk of these losses occurred in neighborhoods inhabited by working-class people of color and recent immigrants. Many residents who do not own cars were left without easy access to grocery stores and pharmacies. Rioting and property destruction are wrong and should be condemned, period.
That said, the attack on the U.S. Capitol was dramatically worse in one important respect: it was the culmination of a weeks-long challenge to the rule of law by the President of the United States. I reach this conclusion for four reasons:
First, no one is above the law. The rule of law prohibits arbitrary power, which means that the lawgiver also must be subject to the law. That’s why the peaceful transfer of power is so important: by willingly stepping down from power and cooperating in the transition to his successor, the President honors the duly enacted procedure for deciding elections, thereby showing that he is also subject to the law. Yes, it’s fine to challenge the election in court, but President Trump did more than that, working to discredit our institutions in the eyes of the public in order to benefit himself. Months before the election, President Trump was already signaling that he was not going to give up power without a fight. To the surprise of no one, he is not going to concede the election or attend the inauguration. That’s not just bad manners – it’s in significant tension with the rule of law.
Second, we cannot change laws retroactively in order to maintain power. The rule of law requires that laws are prospective and consistent, which allows laws to guide conduct. (E.g., the legislature can’t punish you by passing a law criminalizing something you did two weeks after you did it.) Many of the President’s “stolen election” claims challenged practices that had been explicitly authorized by state legislatures and election commissions in order to facilitate voting during the pandemic, long before November 3. As courts pointed out, the Trump campaign had plenty of time to challenge those procedures before the election but chose to wait until after he lost. Trying to change the election rules after the results are known is not just being a poor sport, it’s violating a fundamental premise of the rule of law.
Third, words matter. The rule of law’s viability is never guaranteed; it requires the support of each generation of Americans. As such, symbolism and rhetoric matter a great deal. President Trump and his team have been claiming that our election system is corrupt, that everyone who disagrees with his fraud claims is either a coward or dishonest, and that true patriots will “fight” to keep him in office. Rallying his supporters as Congress was (literally) engaged in the peaceful transfer of power, and telling the crowd to march to the Capitol to continue the fight, that “we will never concede,” and that if they give up, the “country will be destroyed,” is dangerously irresponsible rhetoric for a leader tasked with stewarding the rule of law.
Finally, the rule of law will not last long in a country where willful ignorance is a successful political strategy. Since November 3, President Trump has let loose with a steady stream of falsehoods about the election. The “stump speech” he developed about election fraud was filled with claims that had already been disproven repeatedly. Even at the January 6 rally, he criticized Vice President Pence for not rejecting the electoral votes from several swing states. The Vice President does not have that power, and no reasonable person who understands the Constitution believes he does. Even Pence recognized that he did not have that authority (which then led people at the Capitol to chant, “Hang Mike Pence!”). If we care about the rule of law, we have to care enough to spend time learning about our system of government. The ease with which our President misled his followers is deeply concerning.
And the riots in Minneapolis this summer? Yes, they did horrendous damage to our city and the livelihoods of many residents. They did not threaten the rule of law. Our elected leaders repeatedly condemned the rioters. Hundreds of people were arrested. Law enforcement officials have spent thousands of hours scouring surveillance video, and serious charges for arson and destruction of property are still being filed. The criticism of our leaders in Minnesota is that they waited too long before intervening with significant force (criticism that I find reasonable), not that they encouraged – much less invited – the rioting.
Last summer’s riots were heartbreaking, especially to the extent that they distracted Americans’ attention from the hundreds of totally peaceful protests that urged us to take racial injustice seriously.
Last week’s attack on the U.S. Capitol was heartbreaking, especially to the extent that it is a harbinger of dark days to come for a country that may not recognize the rule of law's fragility.
In our broken world, both are unmistakably true.

January 15, 2021 in Vischer, Rob | Permalink

Thursday, January 14, 2021

Whither Dialogue After the Capitol Riot?

My love letter to my country in the form of a brief essay: "Whither Dialogue After the Capitol Riot?" has just been posted on Emory University's Center for the Study of Law & Religion Canopy Forum.  It includes a few practical ideas for building a conversational bridge in the midst of the currently intense political polarization.  Suggestions include focusing our efforts on "listening to understanding", and cultivating a relationship of trust with a "buddy" who can help us to hear how we might sound in the ears of someone on the "other side."   


January 14, 2021 | Permalink

Fifth Annual NDLS Religious Freedom Moot Court Tournament

Notre Dame Law School Moot Court Board is pleased to announce its Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom, taking place Friday, April 9, 2021 through Sunday, April 11, 2021.

Every year, teams from law schools across the country participate in our Tournament, arguing before a mock Supreme Court of the United States. We hope you will join us this spring to celebrate student scholarship, appellate advocacy training, and address challenging questions involving the First Amendment. Be sure to mark your calendars, and we hope to see you (virtually) for this exciting event!

Tournament takes place: Friday, April 9, 2021 through Sunday, April 11, 2021 Formal registration opens: January 21, 2021

Tournament Fee: $300 per team Prompt released: February 1, 2021 Briefs due: March 27, 2021

If you have any questions or would like to reserve space for your team(s) before formal registration opens, please contact Natalie Piazza, Tournament Director, at [email protected].

January 14, 2021 | Permalink

Wednesday, January 13, 2021

We need to talk about QAnon

It may be lost in the tumult over a second impeachment, but don’t miss this news item: a new poll shows that 30% of Republicans have a favorable view of QAnon. This is a serious problem. In fact, last week’s insurrection would almost certainly not have happened absent the rise of QAnon. It's an easy punch line, but it’s no joke – we have to talk about QAnon.
QAnon is an internet-driven movement that traffics in wild conspiracy theories, centered on a belief that Donald Trump is working to bring down a global pedophile ring run by Hollywood stars, Democratic politicians, and government officials. The pedophile ring has been trying to undermine Trump with the help of media and “the deep state,” and QAnon followers view Trump as a messianic figure who might be the “Q” figure responsible for the anonymous information drops that drive the group. A wave of arrests to bring the pedophile ring down and reveal a massive trove of secrets – i.e., “the storm” – is always predicted to be just around the corner, but it never arrives. None of Q’s predictions have come true. (If you’re aware of one that has, please let me know.)
Given how widespread it has become, QAnon has a shockingly short history. In a 2016 precursor, a man was arrested with a gun inside a Washington D.C. pizza place that was the center of an online conspiracy theory known as Pizzagate – the restaurant was supposed to be the site of a child-abuse ring run by Hillary Clinton. (Turns out it wasn’t.) QAnon itself originated the following year on the anonymous message board platform 4chan.
After a few years on the political margins, QAnon burst into the mainstream this year. During the pandemic, the popularity of its websites and social media accounts exploded. The conspiracy theories expanded beyond the global pedophile ring to encompass conspiracies about COVID, vaccines, election fraud, and anti-Semitic accusations regarding government control.
Several GOP candidates openly embraced QAnon during their campaigns, and two were elected to Congress. Q signs were popular at Trump rallies this fall, and among those who attacked the U.S. Capitol last week. The two women who died during the attack were QAnon followers. The man who led rioters into the Senate wore a shirt with a giant red, white and blue Q. As the Washington Post reports today, “the fervent online organizing seen ahead of last week's assault has begun building again,” and a “QAnon group on Gab has grown by more than 40,000 members since the failed insurrection.“
If you’re a Republican, the rise of QAnon is a serious problem. There is nothing remotely conservative about the conspiracy theories espoused by the group, and they discredit the party, much to the chagrin of rational Republicans. Many GOP stalwarts have tried to discredit the movement. After President Trump refused to criticize QAnon, Senator Ben Sasse said, “QAnon is nuts.” Jeb Bush suggested that “nut jobs” should have “no place in either party.” George W. Bush’s press secretary and Fox News contributor Ari Fleischer called QAnon supporters “a bunch of wackadoodles.”
If you’re a Democrat, the rise of QAnon is a serious problem. Even though only 5% of Democrats have a favorable view of QAnon, now is not the time for those on the left to feel self-righteous. In all likelihood, Republicans are more prone to the lure of QAnon because they feel marginalized from an increasingly left-leaning American elite (including corporations, entertainment, media, and academia), and conspiracy theories help us feel significant and in control. There is nothing to prevent similar dynamics from developing on the left in the future. This is a human problem, not a partisan one.
If you’re a Christian, the rise of QAnon is a serious problem. Though many Christian organizations such as the Gospel Coalition have denounced QAnon, calling it “a satanic movement infiltrating our churches,” the infiltration continues. A few days ago, a friend sent me a video of the pastor at an evangelical church in Minnesota talking publicly about the fact that President Trump will declare martial law this week, and that the pastor will be ready to join the coming war against Antifa, rifle at the ready. This is pure Q Anon conspiracy craziness. What struck me was the pastor's comfort spouting this nonsense in a publicly accessible video -- no effort to hide, to be anonymous; just a pastor purporting to guide his flock about what the Christian life entails. Though statistics are hard to come by, anecdotal evidence abounds that many Christians are being sucked into QAnon, which represents a betrayal of our faith’s commitment to minister to the world as it is, not as it exists in conspiracy fantasies.
If you’re an American, the rise of QAnon is a serious problem. The fact that a significant number of us have embraced conspiracy fantasies that are a stark disconnect from reality poses challenges on (at least) two fronts.
First, the most pressing issues we face in this world not only require collaboration across political boundaries, they also require a deep understanding of, and willingness to confront, reality. If many Americans are willing to believe that Tom Hanks is helping lead a global pedophile ring, we’re going to be hard-pressed to convince them that climate change or global pandemics are real.
Second, QAnon accelerates our growing tendency to view political disagreement in apocalyptic terms. Through the QAnon lens, our opponents do not simply disagree with us on tax rates or immigration policy – they are sexually abusing and selling children, then murdering witnesses to hide their crimes! What lengths would you go to in order to protect young children from being raped? As QAnon ratchets up the stakes of our good-versus-evil political battles, we will do anything to stop our enemies. That was painfully obvious last week at the Capitol.
QAnon is built on lies. It has and will continue to ruin lives. For it to have taken root in America does not speak well of our capacity for critical thinking. For Christians to be playing a central role in its rise is shameful. This is a challenge that will continue long past the Trump presidency, and we have to meet the challenge with clear vision and an unshakeable commitment to reality.

January 13, 2021 in Vischer, Rob | Permalink

Tuesday, January 12, 2021

Teaching in Person at a Catholic Law School During the Pandemic (Part One: Safety)

Over the next week, I plan to post three observations from my personal experiences teaching — and teaching in person — at a Catholic law school during the pandemic. In today’s post, I’ll address the question of health and safety for faculty and students in an in-person classroom environment, while a virulent disease rampages through our society. In the next post, I’ll discuss effectiveness of education given the constraints of a hybrid in-person/online format and social distancing with masks. In the third post, I’ll discuss the unprecedented challenges during the pandemic of fostering a sense of community, which is a central part of our mission as a Catholic law school.

CovidThe bottom-line to this first post on the health and safety concerns is that we appear to have succeeded without exception in keeping the virus at bay in the classroom.

Like other universities and law schools, we deferred to each professor’s (and student’s) judgment as to whether appearing in the classroom was safe. For the law school, we ended up (for first-year students) with more than 80 percent of our course sessions being offered in person, through the voluntary choices of teaching faculty, including myself. Our mostly in-person availability for first-year classes proved to be very popular with incoming students, several of whom told me that it influenced their final choice among schools, especially as the other two law schools in the Twin Cities had moved almost entirely online.

The University of St. Thomas, and the law school, devoted the months since the pandemic lock-down in March to plan for returning to in-person teaching in the fall. The dedication of the administration, information technology experts, and support staff cannot be praised enough. They made sure that we had the necessary technology to simultaneously provide in-person instruction and include students who had to remain online. They prepared each classroom for the necessary social distancing and essential sanitation.

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January 12, 2021 in Sisk, Greg | Permalink