Mirror of Justice

Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom

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

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].

Congratulations to Dean Vince Rougeau

MOJ-veteran Vince Rougeau -- the longtime dean of Boston College Law School, and also my former colleague at Notre Dame -- has been named the new president of the College of Holy Cross.  Congrats to both Vince and the College!  More here.  

My message to students in my course on Civil Liberties at Princeton

Dear Enrollees in Politics 316: Civil Liberties --

Welcome to our course. The precepting team and I look forward to exploring with you the broad range of principles, issues, and arguments that are its substance.

Precepts [discussion sections] are a bit longer than is typical in Princeton courses: 1 hour and 20 minutes. This will enable us to dig deeply into the complex and difficult issues we will be addressing. Precept participation is important. Please be an active participant in the discussions. The virtual format presents challenges, to be sure, but don't let it deter you from contributing to the conversations.

Please don't be reluctant to speak your mind! Even if you hold an unpopular view, please be willing to share and defend it. Also, please be willing to be "devil's advocate" on behalf of views that you do not hold, or aren't sure whether you should hold. By robustly defending a controversial position to see whether, in the end, it can be successfully defended, or how far it can be defended, you will be doing all of us in the course a service.

On freedom of speech in our discussions, please see the statement on the syllabus referencing Princeton University's free speech policies set forth in Rights, Rules, Responsibilities. Princeton students and faculty enjoy the broadest possible free speech protections in all courses and other university activities, but surely free speech should be especially sacrosanct in a course on civil liberties! At the same time, we value civility--but that does not mean or require that anyone hold or decline to hold any particular view, or that one submit to anyone else's ideas about the language in which issues are to be framed, or the terms in which they are to be discussed, or the assumptions on which the dicussion will proceed. What it does mean and require is that we all do business in the proper currency of intellectual discourse--a currency consisting of evidence, reasons, and arguments.

Some of the issues we will be discussing are not only controversial, but also sensitive and, to some people, personal. We nevertheless need to discuss them frankly. As Dean Jill Dolan says, we need to be "resilient and brave" in discussing matters that engage our emotions. One thing I can guarantee is this:  Whatever your political, moral, religious, and other opinions happen to be, you will encounter in our readings and discussions challenges to them. You may even be offended or scandalized by what some authors or some participants in the course believe and say. Please bear in mind that, as Cornel West has stated, "the very point of a liberal arts education is to disturb and unsettle us." I have deliberately chosen readings representing radically opposed positions on the issues we explore. There is not an official position in the course about who is right and who is wrong about anything. All positions and points of view, no matter how radical or even unjust or immoral they may seem to people who oppose them, are on the table for discussion, scrutiny, and assessment on equal terms. There is no orthodoxy in the course; there are no dogmas. There is no censorship or policing of thought. I hope there will be no self-censorship.

My philosophy of teaching is straightforward and rather simple: My job is not to tell students what to think, or induce or encourage them to think as I do; it is, rather, to help students to think more deeply, more critically, and for themselves. What I ask of students is open-mindedness, tolerance of those whose opinions differ from yours, a willingness not only to challenge others but to be challenged in turn, and a genuine and deep desire to learn--and to learn by seriously engaging authors and fellow students whose ideas differ, even radically differ, from your own.

There is never a bad time to study and think hard about civil liberties; but this is an especially good time--indeed, an exciting time. We are in the midst of massive national disagreements about issues having to do with freedom of speech, the free exercise of religion, due process of law, the equal protection of the laws, and more. In my opinion, though it need not be yours, some of these disagreements do not admit of obvious or straightforward answers, no matter how certain partisans on the competing sides are of the righteousness of their causes. In any case, I hope that our deliberations together will enable us all to be better, more constructive participants in the debates, no matter where we come down in them.

Best wishes,

Professor George

VIRTUAL EVENT: "Jews, Christians, and Muslims: Allies in Pursuit of Truth, Virtue, and the Common Good?" Featuring John Finnis, David Novak, and Hamza Yusuf

To what extent do Christianity, Judaism, and Islam have a shared way of determining truth, and a shared vision of virtue and the common good? Does that shared vision have the potential to help heal society's deep divisions and restore faith in the American social and political order?

Explore these questions with three world renowned scholars, Professor John Finnis, Rabbi David Novak, and Shaykh Hamza Yusuf. RFI Senior Fellow, Kent Hill, and Director of RFI's Islam and Religious Freedom Action Team, Ismail Royer, will host the event.

https://www.religiousfreedominstitute.org/rfievents/jews-christians-and-muslims-allies-in-pursuit-of-truth-virtue-and-the-common-good

Christian Political Thought at Notre Dame

MOJ readers might be interested in viewing Daniel Philpott's annotated bibliography for his grad course in Christian political thought:

https://drive.google.com/file/d/1VsbyiRRY8mev44gjZSjjHX8Y2TI9JKVN/view

Professor Philpott welcomes suggestions, as it is still a work in progress. 

Judicial freedom, binding precedents, and en banc review — a comparison and question

"Binding" precedent may be thought to conflict with judicial freedom. But does it?

Suppose a judge on a a three-judge panel must decide an appeal in a federal circuit court of appeals in which one panel cannot overrule another. On such a court, only the court sitting en banc can overrule a prior panel decision.

Now suppose that the appeal to be decided is an "easy case" because the correct resolution follows straightforwardly from a prior panel decision. A judge in this later case thinks that the binding precedent was wrongly decided. But she recognizes the precedent is controlling. Because she wishes to rule lawfully, she applies the wrong but binding precedent to resolve the case before her. The full court then takes the case en banc.

Is this judge now sitting en banc more or less free than she was while sitting on the three-judge panel? It depends on what judicial freedom amounts to.

If judicial freedom is the ability to choose between contrary outcomes, then the lawful judge is more free en banc than on the panel. There was only one lawful outcome on the panel. En banc she has a choice. She can overrule the previously binding precedent or she can leave it standing. On this understanding, judicial freedom and binding law stand in opposition. 

But what if judicial freedom is the ability to render judgment according to law? On this understanding, the lawful judge is less free sitting en banc than on the panel. The judge may fail to render judgment according to law when sitting en banc. She might make a mistake about what the law requires. No such mistake was possible while the "binding" precedent controlled her choice on the panel. On this understanding, judicial freedom and law are mutually reinforcing. It is easier to render judgment according to law the more and more clearly the law binds.

Given the dominance of the conception of freedom as the ability to choose between contrary outcomes, one might be suspicious that there's something funny going on with the second conception of judicial freedom. But isn't the ability to render judgment according to law the kind of judicial freedom we have in mind when we think about "judicial independence"? When we say that judges should rule without fear or favor? When we laud judicial impartiality?

What is Christian nationalism, and what is it not?

(This is an op-ed published by Religion News Service.)

One unfortunate aspect of the American culture war is the tendency to weaponize words in ways that stretch them beyond any semblance of their original meanings. Terms such as “woke,” “PC” and “cancel culture” are now deployed to signal that something is bad without shedding meaningful light on the reasons why it’s bad. 

The latest term to meet this fate may be “Christian nationalism.” Since the attack on the U.S. Capitol, it’s showing signs of becoming an all-purpose condemnation of any effort to integrate Christian beliefs with civic engagement, even perfectly peaceful ones.

So what is Christian nationalism, and what is it not?

Paul Miller, a Georgetown University professor and author of a forthcoming book on Christian nationalism, explains that Christian nationalism is a political ideology that holds that “the American nation is defined by Christianity and that the government should take steps to keep it that way to sustain and maintain our Christian heritage.”

If America was founded for a unique purpose by God, then the Constitution was divinely inspired, and displaying the American flag in church sanctuaries is not a blurring of American and Christian identity but a natural marker of faith. In the rhetoric of Christian nationalism,  power is emphasized over principle.

Why is Christian nationalism so dangerous?

Put simply, when we merge our religious identity with our political identity, we will do anything to ensure that our political tribe prevails. We are no longer debating ideas about which reasonable people can disagree; we are defending Christianity against its enemies.

It’s why Eric Metaxas said, in reference to his claims of a stolen election, that it’s “God’s will” for America to keep spreading liberty around the world, and so, “Who cares what I can prove in the court?” Regardless of what the courts say about election fraud, “we need to fight to the death, to the last drop of blood because it’s worth it.”

When a particular political outcome becomes a tenet of my Christian faith, there’s nothing left to argue about. And when there’s nothing left to argue about, that’s a very dangerous place for democracy to find itself.

So there you have the broad outlines of what Christian nationalism is. What is it not?

Christian nationalism is not Christian patriotism. Love of country is a healthy aspect of being human, a reflection that the particularity of place matters to our identity and values. Patriotism becomes unhealthy when we reimagine our national identity as an expression of divine will, elevating our nation above others on some sort of God-ordained hierarchy.

Christian nationalism is not Christian political engagement. We are not a “Christian nation” in the sense that Christian nationalists mean. We are a nation in which our political discourse has long been shaped by Christian values, on both the left and the right. The civil rights movement was infused with Christian images and principles. The progressive push for immigration reform prominently features Christ’s admonition about welcoming the stranger.

Christian ideas should only be an entry point to a broader conversation with Americans of any (or no) faith tradition, not as a sledgehammer to stop their contribution to the debate. On the issue that’s been the most contentious over the past half-century, abortion, the most effective pro-life voices have been steeped in Christian principles. But the core of their arguments has been grounded in observations about fetal development and articulations of life’s value in terms that are accessible beyond Christianity.

On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to rational disagreement.

The dangers of Christian nationalism are real, but let’s not let tribal posturing confuse those dangers in ways that marginalize the values-based arguments that have been — and hopefully will continue to be — central to American democracy. 

Book Announcement: Christianity and Private Law

I am pleased to announce that a book I have co-edited with Bob Cochran, Christianity and Private Law, has been published by Routledge in its Law and Religion series and commissioned by the Center for the Study of Law and Religion at Emory. The book leads off with a Foreword from John Witte, an Introduction from Bob Cochran and me, and survey chapters by James Gordley and Brent Strawn. The rest of the book engages property, contracts, and torts from a range of theologically-informed views. In the torts section, Jeff Pojanowski and I have a chapter on "The Moral of Torts" on what a natural law perspective might bring to some debates in contemporary tort theory. Below are an excerpt from John Witte's Foreword and the Table of Contents.

“Private law” is a common phrase for Europeans who readily divide the legal world into public, private, penal, and procedural law categories, building in part on ancient Roman law, medieval canon law, and modern civil law.  “Private law” is a less common term for Anglo-American common lawyers. They are more familiar with several discrete legal subjects that Europeans gather under the canopy of private law – contracts, property, and torts at the center of the canopy, associational law, family law, testamentary law, civil procedure, remedies, and other topics nearer the periphery.  In both civil law and common law lands, private law focuses on the voluntary and involuntary legal relationships between private parties, whether individuals or private groups. The laws of the state – sometimes the laws of other non-state associations, too – facilitate and support those private relationships, articulate and vindicate interests and expectations that emerge from them, and offer remedies for harms that result from misfeasance, non-feasance, or breach of duty by another.  The editors and several chapter authors do a fine job defining and defending “private law” as a category, and drawing interesting relationships between contracts, torts, and property which are the main subjects treated in these pages.

“Christianity” comprises all manner of Christian ideas and institutions, norms and habits that are shaped by the familiar quadrilateral of Scripture, tradition, reason, and experience.  Distinct Catholic, Calvinist, Lutheran, Anglican, Anabaptist, and Evangelical voices, both historical and contemporary, come through in these pages, as does the powerful new Jewish voice of Michael Helfand.  The authors variously trace, describe, interpret, and critique the discrete contracts, property, and torts topics assigned to them.  Opening chapters in each of the four sections are devoted to biblical and traditional Christian teachings.  They underscore the depth, nuance, and complexity of Christian engagement with these fundamental private legal relationships.  Constructive and critical chapters later in each section highlight and illustrate the enduring value of these traditional Christian teachings for addressing discrete modern private law questions.  At the heart of many of these Christian reflections on torts, property, and contracts is the fundamental biblical question about how to love all of our neighbors – even our enemies and others who hurt us. Do we “turn the other check” to the tortfeasor?  Do we give aid and comfort to the stranger in imitation of the Good Samaritan?  Do we give our “second coat” to the thief who has stolen our first?  How do we responsibly acquire and use, have and hold, share and steward our property?  How do we balance freedom and fairness in contract?  It is just price or just market price that sets the bargain? Do we sue, arbitrate, or mediate our private conflicts, given the biblical injunction to “Go tell it to the church”?  And how do we judge and reason through the private law conflicts in a way that balances justice and mercy, rule and equity, principle and prudence?  These and many other questions have inspired centuries of deep thought by Christian jurists and judges who have variously drawn on biblical, theological, jurisprudential, historical, and natural law arguments to work out their legal systems. That rich world of Christian perspectives on private law is nicely illustrated in these authoritative but accessible chapters that will edify novices and experts alike.

Table of Contents

1. Introduction
   1. John Witte, Jr. (Emory) – Foreword
   2. The Editors – Introduction
   3. James R. Gordley (Tulane) - Christian Origins of Private Law
   4. Brent A. Strawn (Duke) - Biblical Understandings of Private Law
2. Property
   1. David W. Opderbeck (Seton Hall) - Christian Thought and Property Law
   2. William S. Brewbaker III (Alabama) - Augustinian Property
   3. Richard H. Helmholz (Chicago) - Religion and English Property Law: 1500-1700
   4. Adam J. MacLeod (Faulkner) – Property and Practical Reason
   5. Paula A. Franzese and Angela C. Carmella (Seton Hall) – Housing and hope: private property and Catholic social teaching
3. Contracts
   1. Wim Decock (KU Leuven, Belgium) - Contract Law in Early Modern Scholasticism
   2. David S. Caudill (Villanova) - Private Law in Christian Perspective: The Example of Dooyeweerd on Contracts
   3. Scott Pryor (Campbell) - Destabilizing Contract: A Christian Argument For Revitalizing Unconscionability
   4. Val D. Ricks (South Texas) – Christianity, Freedom, and the Doctrine of Consideration
   5. Michael A. Helfand (Pepperdine) - Privatization and Pluralism in Dispute Resolution: Promoting Religious Values through Contract
4. Torts
   1. Michael P. Moreland (Villanova) and Jeffrey A. Pojanowski (Notre Dame) – The Moral of Torts
   2. David F. Partlett (Emory) – Christianity and Tort Duties
   3. Nathan B. Oman (William & Mary) – Christianity’s Quarrel with Civil Recourse Theory
   4. Robert F. Cochran, Jr. (Pepperdine) - Tort Law and Intermediate Communities: Catholic and Calvinist Theories

What does CST have to say about America's collapsing social trust?

What does Catholic social teaching have to say about America’s collapsing levels of social trust, which underlie the rise of conspiracy theories, the rejection of expertise, and the hollowing out of the political center? Put differently, if we read David Brooks’ recent essay on our nation’s moral convulsion through the lens of CST, what insights might we gain?  (Last year, [non-Catholic] Brooks called CST “the most coherent philosophy that opposes a philosophy of rampant individualism,” but I don’t think he’s addressed this topic at any length.)  We often invoke elements of CST in debates about particular policy issues, but what light might CST shed on a prudent path forward through this cultural moment?

Two questions might be helpful conversation-starters. First, while solidarity compels us to care about and for others, what does it tell us about the primacy of trusting -- and of being trustworthy -- as a necessary condition of such care? As we know, solidarity “is not a feeling of vague compassion or shallow distress” at others’ misfortunes, but rather “a firm and persevering determination to commit oneself to the common good; that is to say to the good of all and of each individual, because we are all really responsible for all.” (Sollicitudo rei socialis ¶ 38) What is needed is “a commitment to the good of one’s neighbor with the readiness, in the gospel sense, to ‘lose oneself’ for the sake of the other instead of exploiting him, and to ‘serve him’ instead of oppressing him for one’s advantage.” (Id.) The freedom made possible by solidarity is not “achieved in total self-sufficiency and an absence of relationships,” but only “where reciprocal bonds, governed by truth and justice, link people to one another.” (CDF, Instruction on Christian Freedom and Liberation ¶ 26)  The freedom made possible by solidarity “can be articulated only as a claim of truth.” (Id.)  Do we need to talk more about solidarity and social trust?

Second, does subsidiarity require us to pay attention to expertise as part of identifying the appropriate level of society at which problems should be addressed?  The importance of the free, meaningful, and efficacious operation of mediating institutions presents the “most weighty principle” of subsidiarity:

Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.  For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy or absorb them.

(Quadragesimo anno ¶ 79)  What does this mean, if anything, for a rising tide of anti-expert populism?

I'm just starting to think about the answers, and I welcome suggestions of helpful resources (rkvischer [at] stthomas.edu).  These and related questions will be a significant component of CST's relevance to American life for the foreseeable future.  As Brooks observes,

The cultural shifts we are witnessing offer more safety to the individual at the cost of clannishness within society. People are embedded more in communities and groups, but in an age of distrust, groups look at each other warily, angrily, viciously. The shift toward a more communal viewpoint is potentially a wonderful thing, but it leads to cold civil war unless there is a renaissance of trust. There’s no avoiding the core problem. Unless we can find a way to rebuild trust, the nation does not function.

I believe that Catholic social teaching will provide important insights as we navigate these painful cultural shifts.  We need to discern and articulate those insights, and convene conversations that give the insights broad visibility and optimal opportunities to gain traction in the debates to come.  This could and should be a years-long project.