Monday, March 8, 2021
The McCullen Center at Villanova Law will be hosting a webinar this Wednesday, March 10 from 4:30pm-5:30pm on education policy in the wake of COVID with experts on educational pluralism, charter schools, and school choice programs. Details below. The event is open to the public and registration is available here.
One of the unmistakable challenges of the COVID-19 pandemic has been its effect on K-12 education. As policymakers, school boards and administrators continue to develop new strategies for delivering education amid a pandemic, it is a key moment to consider long-term, sustainable improvements to the traditional public education system in the United States. This webinar will discuss approaches to education policy, drawing upon the expertise of the panelists on educational pluralism, charter schools and school choice programs.
Join us for this discussion on educational freedom, featuring panelists:
- Ashley Rogers Berner, Director of the Johns Hopkins Institute for Education Policy and Associate Professor at the Johns Hopkins School of Education
- Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law at Notre Dame Law School
- Charles Mitchell, President & CEO of the Commonwealth Foundation
- Moderated by Michael Moreland, University Professor of Law and Religion & Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University
This lecture is approved by the Pennsylvania Continuing Legal Education Board for 1 Substantive Distance CLE credit. Please note registration is required. Attendees will receive an email from Eventbrite with the Zoom link on the day of the event.
Thursday, February 4, 2021
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
- John Witte, Jr. (Emory) – Foreword
- The Editors – Introduction
- James R. Gordley (Tulane) - Christian Origins of Private Law
- Brent A. Strawn (Duke) - Biblical Understandings of Private Law
- David W. Opderbeck (Seton Hall) - Christian Thought and Property Law
- William S. Brewbaker III (Alabama) - Augustinian Property
- Richard H. Helmholz (Chicago) - Religion and English Property Law: 1500-1700
- Adam J. MacLeod (Faulkner) – Property and Practical Reason
- Paula A. Franzese and Angela C. Carmella (Seton Hall) – Housing and hope: private property and Catholic social teaching
- Wim Decock (KU Leuven, Belgium) - Contract Law in Early Modern Scholasticism
- David S. Caudill (Villanova) - Private Law in Christian Perspective: The Example of Dooyeweerd on Contracts
- Scott Pryor (Campbell) - Destabilizing Contract: A Christian Argument For Revitalizing Unconscionability
- Val D. Ricks (South Texas) – Christianity, Freedom, and the Doctrine of Consideration
- Michael A. Helfand (Pepperdine) - Privatization and Pluralism in Dispute Resolution: Promoting Religious Values through Contract
- Michael P. Moreland (Villanova) and Jeffrey A. Pojanowski (Notre Dame) – The Moral of Torts
- David F. Partlett (Emory) – Christianity and Tort Duties
- Nathan B. Oman (William & Mary) – Christianity’s Quarrel with Civil Recourse Theory
- Robert F. Cochran, Jr. (Pepperdine) - Tort Law and Intermediate Communities: Catholic and Calvinist Theories
Tuesday, December 29, 2020
St. Thomas Becket was martyred at Canterbury Cathedral 850 years ago today. Here are some suggestions to mark the feast:
The McCullen Center at Villanova was pleased to co-sponsor a recent lecture for the occasion by Rowan Williams on the legacy of the conflict between Henry II and Becket for the law of church and state, and it is available here.
For those interested in the historical background to the legal conflict that led to Becket's assassination, I highly recommend Anne Duggan's 2004 biography (in addition to Guy's accessible biography). More detailed coverage of the canonical and jurisdictional issues is available in papers by her late husband Charles Duggan, especially "The Significance of the Becket Dispute in the History of the English Church," Ampleforth Journal 75 (1970): 365-75 and "The Becket Dispute and the Criminous Clerks," Bulletin of the Institute of Historical Research 35 (1962): 1-28, both of which are reprinted in Canon Law in Medieval England: The Becket Dispute and Decretal Collections (London: Variorum Reprints, 1982). Finally, Beryl Smalley's The Becket Conflict and the Schools: A Study of Intellectuals in Politics in the Twelfth Century (Oxford: Basil Blackwell, 1973) is a splendid work of intellectual history and discussion of the figures advising Becket such as Herbert of Bosham and John of Salisbury.
Tuesday, October 27, 2020
I share the joy of so many of my colleagues across MOJ-world upon the confirmation of Justice Amy Coney Barrett. As those of us who know her could attest and now the country has seen, Justice Barrett is a remarkable combination of intelligence, generosity of spirit, and judicial temperament. The nation is fortunate indeed to have such a person in high office.
I participated recently in a podcast (available here) about Justice Barrett's confirmation hearing hosted by the National Constitution Center with Kate Shaw from Cardozo and moderated by Jeff Rosen, the President of the NCC. I was also on a webinar (available here) about the Supreme Court hosted by the Union League of Philadelphia with Michael Gerhardt from UNC-Chapel Hill, who served as a special counsel to Senator Dianne Feinstein (D-CA) for the confirmation hearing.
One last note about the confirmation process over the past few weeks and civil discourse. Notwithstanding the efforts of some to attack Justice Barrett personally and reprise the confirmation hearing for her nomination to the Seventh Circuit, Senate Democrats focused their opposition to Justice Barrett on the forthcoming case about the Affordable Care Act—figuring (probably correctly) that a big culture war fight over Justice Barrett's faith might be catnip for the progressive left but politically detrimental for Democrats. And while opposition to Justice Barrett’s confirmation on the basis of the ACA case is legally fatuous, it at least had the marginal benefit of highlighting differences in judicial philosophy and the separation of powers between Congress and the courts.
Friday, September 25, 2020
My Villanova University colleague Massimo Faggioli has an online contribution at Politico about Judge Amy Coney Barrett arguing that as “a Catholic scholar” he thinks it is fine “to ask questions about Barrett’s religious beliefs.” Along the way, he sets up and knocks down a series of strawman arguments, engages in pernicious dual-loyalty arguments that are a longstanding staple of anti-Catholic (and anti-Semitic) bigotry in American public life, and asserts gratuitously that “Amy Coney Barrett is not Catholic like John F. Kennedy was Catholic.”
Thursday, September 17, 2020
Here is a reprise of a post of mine from a few years ago about St. Robert Bellarmine on his memorial day, including a mention of the striking fact that Thomas Hobbes encountered Bellarmine from afar in Rome in 1614:
A few things for today's Memorial of Saint Robert Bellarmine (1542-1621), the Counter-Reformation Jesuit cardinal and one of the great political theorists in the Catholic tradition:
Pope Benedict XVI's reflection on Bellarmine's legacy as a doctor of the Church is available here.
My friend Matthew Rose published a brilliant paper on Hobbes and Bellarmine in the Journal of Moral Theology over the summer (available here at page 43). A bit from that:
In the pope’s private chapel on All Saints Eve in 1614, an elderly Robert Bellarmine joined a group of fellow cardinals and Pope Paul V for Vespers. At the time an advisor to the Sacred Congregation of the Universal Inquisition, Bellarmine could not have known he was being closely watched by a visitor, then in his late twenties, who would go on to compose the most important political treatise in the English language. The tutor to William Cavendish seems to have made a special point of bringing his pupil to see the Cardinal, whom his travel journals describe as a “little, lean old man” distinguished for his “rank” and “learning.”
Some thirty-five years later Thomas Hobbes would complete his observations of Bellarmine, granting him the distinction of being the only modern author identified by name in Leviathan.
Hobbes’s attack on Bellarmine is arguably the most mature expression of a debate between temporal and spiritual authority that had grown steadily in sophistication since the eleventh century. In the pages of Leviathan, it can for the first time be fairly described as a debate between the church and the fully modern state. Its most interesting feature is that, unlike previous iterations, it is not fundamentally about rival jurisdictions. Hobbes instead challenges Bellarmine with a rival account of Christianity itself, one that aims to show how classical forms of Christian theology need to be reformed by enlightened modes of thought. Hobbes argues that the pope’s “indirect power”—his alleged spiritual authority over temporal matters that involve man’s supernatural end—reflects a defective understanding of both revelation and reason.
Matthew Rose, "Hobbes contra Bellarmine," 4 Journal of Moral Theology 43 (2015), at 43, 45 (citations omitted).
And then this appreciation (qualified a bit later) from John Courtney Murray, SJ writing in Theological Studies:
An appreciation of Bellarmine's political theology must needs be generous; here it may also be brief. His defense of the permanent and absolute principles on which that theology rests was brilliant and effective. The essence of the "common cause" that he defended was, of course, the distinction of the two powers. Bellarmine gave it a newly luminous statement by his emphasis on the purely spiritual power of the Church, and by his elaboration of Thomistic political philosophy. In this respect he effected a doctrinal advance within the Church herself, by finally disposing of the confusions and exaggerations of the hierocrats. Moreover, out of this doctrinal synthesis, by analysis of its terms, he drew a newly effective statement of the second great principle that is part of the Catholic "common cause"; I mean the primacy of the spiritual power and the subordination of the temporal power. Here he did a service not only to the Church but to the spiritual freedom of mankind, in that he set a stern barrier to the tyrannical pretensions of royal absolutism. His doctrine shattered all three elements of the theory of "divine right": the exclusive rightness of the monarchical form of government, the belief in an individual monarch's inalienable right to govern, possessed independently of human agency, and the assertion of the irresponsibility of the king—his absoluteness. Here was a political as well as a theological achievement of a high order.
"St. Robert Bellarmine on the Indirect Power," 9 Theological Studies 491 (1948), at 532.
Tuesday, July 14, 2020
It's freedom of the church month (or year!) here at Mirror of Justice. I have a piece today on the First Things web site, "Defending the Freedom of the Church," discussing the church autonomy principle in Our Lady of Guadalupe v. Morrissey-Berru, the institutional religious freedom argument in Little Sisters of the Poor v. Pennsylvania, and some thoughts about the implications of the cases all by way of St. Thomas Becket, Harold Berman, John Courtney Murray, Doug Laycock, and our own Rick Garnett.
Wednesday, July 1, 2020
Longtime (now retired) Catholic University of America theologian Fr. Joseph Komonchak has worked extensively but quietly on the thought of American Jesuit Fr. John Courtney Murray, SJ over several years. Some of us with interests in Murray have known about Komonchak's work and his valuable efforts to locate Murray's thought amid other theological developments in the mid-twentieth century, and previously unknown writings by Murray were unearthed by Komonchak in various archives. See "The Crisis in Church-State Relationships in the U.S.A.," Review of Politics 61 (1999): 675-714; and "A Common Enemy, A Common Cause," First Things (October 1992) (criticizing the Supreme Court's Establishment Clause decisions in Everson v. Bd. of Education and McCollum v. Bd. of Education).
Fr. Komonchak has now posted to a blog site the fruits of his many years of research on Murray. I won't try to summarize the many interesting dimensions of Murray's thought Komonchak offers there, but one highlight for me is the manuscript of a series of lectures Murray delivered at Loyola College (Baltimore) in 1940 on "The Construction of a Christian Culture." At one point, Murray said:
For three centuries men have chipped away at Christian truth, doubting, denying, destroying, rebelling. But the hoped-for result has not come about: the liberation of man, his achievement of full humanity. Every thoughtful writer today is agreed that the age of "humanism" has dehumanized man, the age of individualism has depersonalized him, the age of liberalism has enslaved him. Hence my first premise is that we have definitely reached a time to stop denying and affirm, to stop destroying and construct, to stop murdering ourselves and others, and begin to live.
What emerges from Komonchak's labors is a more complete and complex account of Murray. Those who have flipped through Murray's We Hold These Truths (1960) might come away thinking "the Murray Project" was merely baptizing American constitutionalism in the waters of Catholic political thought. There is some of that in Murray, to be sure, but Murray was also a more trenchant (and pessimistic) cultural critic and sophisticated theologian than that caricature gives us. Those interested not just in Murray himself but more generally in the last century of Catholic social thought owe a debt of gratitude to Fr. Komonchak, who concludes with this introduction to the material on his site:
The first batch of essays tells of the early writings of John Courtney Murray soon after he returned from Europe after having completed his doctoral studies in Rome. He was already intensely interested in what he would come to call “the spiritual crisis in the temporal order.” This is evident in two sets of lectures he gave in the early 1940s in which he lay out the doctrinal and theological grounds for the Church’s mission and activity in society and culture. The crisis was rendered more acute by the outbreak of the Second World War, and Murray was among those who thought it possible, indeed necessary, for Catholics to engage in inter-religious cooperation for believers to meet the crisis and to be able to take part in the restoration of order once the War was over. This proposal was not welcomed by many Catholic churchmen and theologians, and Murray had to engage in lengthy conversations, in published articles and in private conversations, to defend his position against the charge that it would lead to religious indifferentism. Many Protestants also were reluctant to cooperate with Roman Catholics who were, as they believed, ready, should they become a majority, to deprive them of their religious freedom.
From both sides, then, Catholic and Protestant, the issue of religious freedom became critical, and this explains why, beginning in the mid-1940’s, Murray turned his attention to that subject and began the series of publications that would lead him again into controversy, make him subject to high Roman censure, and end with his vindication at the Second Vatican Council. Whereupon, as he put it right after the Council, Catholics could “get on to the deeper issue of the effective presence of the Church in the world today”–which was, of course, the passion that first inspired him.
Tuesday, June 30, 2020
I echo Rick's praise for the Supreme Court's decision this morning in Espinoza with congratulations to him and others who have toiled for many years on school choice and religious freedom issues. One thought that occurs to me is to note briefly the important legacy of the late Chief Justice Rehnquist in today's decision (in a majority opinion appropriately written by a former Rehnquist clerk).
One aspect of that legacy is that then-Justice Rehnquist's dissents early in his time on the Court in cases such as Nyquist (1973) and Meek v. Pittenger (1975) criticizing overbearing separationism in First Amendment school funding doctrine have been vindicated, though much of that vindication had already occurred when he was Chief Justice in Agostini v. Felton (1997) and Zelman v. Simmons-Harris (2002). But it was only because the disco-era Establishment Clause separationism of the 1970s and early 1980s has now (rightly) been discarded to permit funding for religious schools in certain types of programs that the issue in Espinoza about no-aid discrimination in state constitutions could be teed up. As Justice Rehnquist wrote in Meek:
The Court apparently believes that the Establishment Clause of the First Amendment not only mandates religious neutrality on the part of government but also requires that this Court go further and throw its weight on the side of those who believe that our society as a whole should be a purely secular one. Nothing in the First Amendment or in the cases interpreting it requires such an extreme approach to this difficult question, and '(a)ny interpretation of (the Establishment Clause) and the constitutional values it serves must also take account of the free exercise clause and the values it serves.'" 421 U.S. 349, 395 (1975) (citation omitted).
A second aspect of Chief Justice Rehnquist's legacy in Espinoza is his opinion in Locke v. Davey (2004). In assigning the opinion in Locke to himself, Chief Justice Rehnquist wrote a narrow, almost case-specific holding (a characteristic Rehnquistian move) limited to funding for clergy training or "devotional theology" studies. An opinion in Locke by Justice Stevens (the senior associate justice in the majority) would presumably have given a constitutional imprimatur to no-aid state constitutional provisions (but then perhaps jeopardizing the majority by losing the votes of Rehnquist, O'Connor, and Kennedy). Indeed, Justice Breyer's dissent in Espinoza gestures toward just such a broad reading of Locke v. Davey, though not (in my view) persuasively so...thanks to William Rehnquist.
Thursday, January 30, 2020
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).