Mirror of Justice

We Are Hiring!

The Catholic University of America, Columbus School of Law, is hiring. Scholars with all different sorts of interests are welcome, though we have particular curricular needs in corporate law, commercial law, professional responsibility, and evidence. We are also seeking candidates who may be interested in participating in our University’s Institute for Latin American and Iberian Studies.

I can attest that it is a very exciting and energizing time to be at our school, as we strive to build a distinctively Catholic institution. Come see what we are about.

Interested applicants should submit their materials to the attention of Dean Stephen Payne, [email protected].

Christian Scholar's Review Interviews on "the Legal Vocation"

Professor Todd Ream of Indiana Wesleyan has conducted a series of interviews with legal scholars on the legal vocation as part of his "Saturdays at Seven" feature on the Christian Scholar's Review. There are interviews there with Professors John Inazu, John Witte, Michael McConnell, Cathleen Kaveny, and me, with one more to follow next week with David Skeel. They offer some nice insight about some of the background and experiences of these folks before they became professors. Here's the one with me.

Kilpatrick on Institutional Neutrality and Institutional Fidelity at the University; Bray on the Common Law and the Catholic Intellectual Tradition

Kevin and I have two episodes on our Sub Deo et Lege podcast that might be of interest to readers here.

First, we interviewed Peter Kilpatrick, President of The Catholic University of America, concerning various questions about free speech, free inquiry, and university life and purpose. President Kilpatrick discussed two different models for the university (any university, secular or religious): institutional neutrality and institutional fidelity.

Second, we discussed with Professor Samuel Bray of Notre Dame Law School his recent piece on the role of the Catholic Intellectual Tradition on the common law (which came into full strength in a Protestant era). Among Sam's contributions in his piece, which he mentions in our chat, is that the influence is all the greater to the extent that the Catholic Intellectual Tradition is deemed something like the Christian Intellectual Tradition.

A critique of "free speech" in the university

I offer some thoughts over here. One matter that provoked this post concerns the question of constitutional law creep. The frameworks of law, especially constitutional law, seem to be spilling over as guides in areas of human life where they do not belong. Perhaps because they are the only ones that are taken to be authoritative any longer. That is certainly the case for free speech in the university context. It would also be true if we instead used a First Amendment associational model. Universities really are not, per my friend Paul Horwitz, "First Amendment institutions" (to take nothing away from Paul's superb book). They are institutions precedent to--and different in kind, purpose, and function than--the American Constitution.

"Freedom and Truth": Tomorrow at The Catholic University of America, Columbus School of Law

Please join us, if you are able, for the Center for Law and the Human Person's second annual spring symposium tomorrow. The conference is Freedom & Truth, with lectures by Professors Gerard Bradley ("Freedom of the Church"), Catherine Pakaluk ("Freedom of the Family"), and Carl Trueman ("Freedom of the Human Person"). The schedule is below and attendance is free. And please say hello if you come.

On Traditionalism, in the NYT

I have a piece from last Friday's New York Times reflecting on what I've called traditionalism in constitutional law, including various thoughts about some of its challenges and strengths.

One additional thought here, and that perhaps is not as clear as it might be: this piece, like some of my other work, concerns traditionalism as something distinctive. But it does make claims about traditionalism as a monistic or total theory of constitutional law, either as a descriptive matter or as a prescriptive one. On that question, I tend toward a pluralistic view. As a matter of description, that seems to me the most accurate way of understanding things. On the prescriptive side of things, while I believe traditionalism has many attractions, I do not argue that any court should be traditionalist and only or exclusively so.

The piece is behind a paywall, but here is a bit:

This court is conventionally thought of as originalist. But it is often more usefully and accurately understood as what I call “traditionalist”: In areas of jurisprudence as various as abortion, gun rights, free speech, religious freedom and the right to confront witnesses at trial, the court — led in this respect by Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh — has indicated time and again that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.

The fact that the Supreme Court seems to be finding its way toward an open embrace of traditionalism should be broadly celebrated. To be sure, the court’s traditionalism has played a role in many decisions that have been popular with political conservatives, such as the Dobbs ruling in 2022 that overturned Roe v. Wade. But it is not a crudely partisan method. Justice Sonia Sotomayor, an Obama nominee, has used it in a decision for the court — and Justice Amy Coney Barrett, a Trump nominee, has expressed some skepticism about it.

Traditionalism may not be partisan, but it is political: It reflects a belief — one with no obvious party valence — that our government should strive to understand and foster the common life of most Americans. The Supreme Court has relied on traditionalism to good effect for many decades, though the justices have seldom explicitly acknowledged this. Traditionalism should be favored by all who believe that our legal system ought to be democratically responsive, concretely minded (rather than abstractly minded) and respectful of the shared values of Americans over time and throughout the country...

Tradition, in the law and elsewhere, illuminates a basic fact of human life: We admire and want to unite ourselves with ways of being and of doing that have endured for centuries before we were born and that we hope will endure long after we are gone. At its core, this is what constitutional traditionalism is about: a desire for excellence, understood as human achievement over many generations and in many areas of life, that serves the common good of our society.

Not all traditions are worthy of preservation. Some are rightly jettisoned as the illegitimate vestiges of days gone by. But many, and perhaps most, deserve our solicitude and need a concerted defense.

Traditions can be fragile things. To the extent that a revitalized practice of constitutional interpretation is possible, it will depend on determining the content of the Constitution with an eye to their sustenance and restoration.

 

Sub Deo Ep. 2: In Which We Discuss the Alabama Supreme Court IVF Ruling With a Colleague

That colleague is Prof. Elizabeth Kirk, a family law expert. Kevin, Elizabeth, and I tackle statutory interpretation, tort law, family law, and law and religion (this was recorded before the Alabama state legislature took action in proposing new legislation, but don't miss Kevin's smart prognostication on this front). Have a listen!

"The Death and New Life of Law and Religion"

I've posted a new paper, The Death and New Life of Law and Religion. The draft reflects on the history of the field in the United States and its present condition in what, it argues, is a moment of transition for it. Here is the abstract.

The year 2023 was an end and a beginning. It saw the passing or retirement of many giants in the field of law and religion—scholars who brought their formidable erudition and insight to bear on questions that transcended legal doctrine, venturing upward into the heady realms of political theory, philosophy, history, sociology, and theology.

These and other recent departures from the active world of law and religion are an occasion to reflect on the state of the field. This paper begins with a brief history of the field, highlighting the questions that motivated it to emerge in the 1970s and 1980s and the intellectual currents and legal developments against which it was reacting. It then argues that some of the central concerns and inquiries that occupied law and religion as a discrete field of academic study in what it calls the first wave heyday are now at an end. These include the nature of religion and the secular in the law, the division between these concepts, and the implications for law and religion as an independent academic discipline; the concept of state neutrality as to religion and the connected public-private divide as respects what is religious and what is non-religiously political; and the regime of religious exemption for everyone with a sincere objection to a law as the central feature of religious free exercise, in constitutional and statutory law.

This paper argues that these are now, or will soon become, dead issues. Of course, they may well continue to be important for lawyers making and opposing claims in litigation, and for judges deciding among them, since the operative textual and doctrinal categories relevant to such claims will continue to depend on clever argumentation concerning some or all of them. And scholars will, no doubt, continue to wrangle over them. But to the extent that they continue define the field or remain its signature issues, their growing irrelevance signals its death. Intellectual enterprises that survive over generations learn to adapt, and law and religion will need to do so as well. And, in fact, different issues, based on different premises and cultural circumstances, are beginning to emerge that may come to dominate the field and give it new life: the nature of political establishments and how they change; the use of ‘religion’ as a term for a category of political or ideological identity either to re-entrench or subvert political establishment; and the limits of what so-called religious dissenters (who are now, and in large measure thanks to the first wave, indistinguishable from political or ideological dissenters) from the political establishment may reasonably expect in the way of accommodation from it. If the field is to survive, it will need to reorient itself toward new problems that afflict a very different world from the one in which it came into being.

"Sub Deo et Lege": A New Podcast About Law and Learning Under God

Kevin Walsh and I are delighted to announce our new podcast, Sub Deo et Lege.

For an explanation of what the podcast will be about...well, you should listen to the first episode, "In Which We Explain Why We Are Here." More to come soon!

"Freedom, Moral Purpose, and Self-Limitation: The Enduring Wisdom of Aleksandr Solzhenitsyn"

The Center for Law and the Human Person is delighted to host Professor Daniel Mahoney this coming Wednesday, February 7, from 5:15-6:15 in the Slowinski Courtroom of the Columbus School of Law. Professor Mahoney is the author most recently of "The Statesman as Thinker" and "The Idol of Our Age," as well as other insightful work in the history of political ideas. He is one of the world's foremost experts on the thought of Aleksandr Solzhenitsyn and what it has to tell us today. 

Please join us for his lecture, Freedom, Moral Purpose, and Self-Limitation: The Enduring Wisdom of Aleksandr Solzhenitsyn.