A few days ago, Dahlia Lithwick had a piece in which she remarked on what she took to be a strange fact, namely, that "American support for the death penalty is diminishing—except on the Supreme Court." Now, as otherbloggers have contended (convincing, I think) Lithwick's argument is not very strong: That some justices continue to enforce and apply duly enacted laws that permit the death penalty, and regulate post-conviction-review processes is an apple to the orange of changing public views on the wisdom of capital punishment.
Another thought, though: Lithwick observes that "in a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to harden in the one institution that was, until recently, showing real doubt: the Supreme Court. . . . In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to harden in the one institution that was, until recently, showing real doubt: the Supreme Court."
It strikes me that this indictment has more force if directed against, say, the Court majority in the Stenberg case (invalidating a state's partial-birth-abortion ban). It is quite clear that the public does not support -- if it ever did -- the abortion regime constitutionalized in Roe v. Wade. (To the extent the public supports Roe, it is, I think, because they believe that regime is less absolutist than it is.) States and Congress are passing law after law, attempting to regulate reasonably abortion. And yet, in a "curious application of Newtonian physics," there were (until recently) five Justices on the Court who . . . etc. etc. etc.
A few days ago, Prof. Geoff Stone put up a long, very personal post on the University of Chicago Law Faculty Blog, "Darfur and the Kalven Report: A Personal Journey." In that post, he discussed and reflected on the University of Chicago's recent decision -- based on the Kalven Report -- not to divest from Darfur. Prof. Stone describes the evolution of his own views regarding the University of Chicago's decision not to "take a stand" against the Vietnam war, and of his reasons for thinking, now, that the University got it right, then and now.
The post includes (as did the Kalven Report) claims about the nature, function, and role of the university, that struck me as worth reflecting upon. Here's a (fairly long) excerpt, and then some thoughts about it:
. . . Universities – most especially this university – exist for a very special reason. They exist to create a forum in which students, professors, and researchers may explore every issue from every side without fear of official condemnation or judgment. They exist to enable talented and committed individuals to seek the truth. They exist to serve as a safe haven in which even the most controversial and despised views may be aired, confronted, and considered. They do not exist so students, faculty, researchers, and administrators can vote to determine the truth. They do not exist to proclaim the truth. For a university, it takes much more courage to stand silent, then to yield to the pressure and temptation to take sides. But once a university takes sides, it is no longer a university.
Now, this strikes me as a debatable claim, that "once a university takes sides, it is no longer a university." Couldn't a university "take sides" on a question, even a contestible moral or policy question, without compromising the ability of faculty to continue exploring that and other questions, and to offer positions at odds with the "side" taken by the University? Back to Prof. Stone:
. . . Well-meaning and admirable students demand that the University divest itself of any investments it may have in corporations that do business in Darfur. Certainly, their concern with the tragic events in Darfur is warranted – indeed, compelling. But the University is right not to take a political, social, or moral position. It is for the students, faculty, trustees, alumni, staff, and friends of the University to take their own positions. It is not for the University to do so for them.
Perhaps not "for them", but what about for itself? Is it really the case that a University is the kind of enterprise / project / community that must, by definition, not "take . . . positions" on "political, social, or moral" questions? Back to Stone:
The Kalven Report recognizes that there may be exceptional circumstances in which it is appropriate for the University to take positions on public issues. It may do so in order to protect thefundamental interests of the University itself. For example, the University may legitimately oppose government efforts to curtail freedom of inquiry within the University or to dictate who may or may not be a student or professor here. The University may also legitimately act on the basis of political, moral, or social judgments if its own conduct would otherwise directly and materially cause serious injustice. For example, the University may appropriately refuse to allow employers to use its placement facilities if they would use those facilities to discriminate against students on the basis of race, religion, gender, ethnicity, or sexual orientation.
What the Kalven Report forbids, however, are decisions of the University designed expressly or symbolically to proclaim “right” moral, political, or social positions. That is the issue presented by those who insist that the University should divest from Darfur. The University’s investments in corporations that may do business in Darfur cannot in any meaningful sense be said directly and materially to have caused the tragedy in Darfur. Those who demand divestment want the University to make a statement about what is morally, politically, and socially “right.” And that is precisely what the University should not do.
Now, this seems a bit jury-rigged, in order to leave room for supporting the position taken by many leading law schools in the recent Rumsfeld case. Couldn't it be said that, by not -- say -- divesting from Darfur, a university is causing injustice no less "directly and materially" than would be a law school that permitted the military to interview on campus? Sure, the University's investments did not cause the tragedy in Darfur. But, letting the JAG interview at Yale Law School is not causing anti-gay discrimination, either. And, doesn't the identification of those "serious injustices" that trigger this exception involve making, and acting on, moral and other claims and arguments that are no less debatable than those that would, presumably, be offered in support of the pro-divestment arguments? Wasn't the law schools' position in the Rumsfeld case precisely that they had a First Amendment right to "make a statement" opposing the military's position?
Lawyers know all about slippery slopes. If the University divests from Darfur, then others will surely insist that the University must then divest from corporations that manufacture cigarettes, perform abortions, sell arms to Israel, and pollute the environment. Of course, there are degrees of right and wrong and degrees of evil. But it is not the role of the University to take positions on such questions. Indeed, the University should no more divest on the basis of these sorts of issues than it should prohibit students and faculty from speaking freely on campus in support of tobacco subsidies, the moral legitimacy of murdering abortionists, the right of Palestinians to destroy Israel, or even the morality of genocide. The role of the University is not to "decide" such questions, but to create and nurture an environment in which we may freely and openly debate them, without fearing that the University has already resolved them on our behalf.
As I've suggested above, it strikes me that the force of the "University should not resolve difficult questions on our behalf" is undercut by the "but it is fine for the University to exclude military employers because of the military's immoral policy" caveat. But putting that aside, I guess I want to resist the first principle that a university, as such, cannot -- without ceasing to be a university -- "take positions" on things. (Whether it should do so, or should do so promiscuously, is another matter, of course.)
What do others think?
UPDATE: At Prawfsblawg, Professor Paul Horwitz has an excellent post, responding to this one. Check it out. (Paul's post is particularly interesting, I think, because he is visiting at Notre Dame Law School.)
Its feast or famine with me, folks.To respond to Rick’s post from eons ago about methods for teaching a CST & the law seminar, I’m finding that I just can’t get away from the texts of the encyclicals.This semester I am teaching a one-credit (7 week) seminar on CST & Economic Justice.My technique has been to showcase one of the documents, flanked by a particular application.(eg, Populorum Progressio with a discussion of liberation theology; Laborem Exercens with a discussion of Billable Hours and law firm schedules, etc.).For next week’s discussion of Centesimus, Mark Sargent is going to be our honored guest, to discuss his “Competing Visions” of the corporation piece, as well as his CST critique of Law & Economics, Utility, The Good and Civic Happiness.Rick, I have found that the various issues to consider emerge on their own from the encyclicals, and that after a few weeks they have the tools to dig in with a pretty sophisticated read.If anything, based on this experience with a focus on just the Economic Justice documents, I’m inclined to work toward a series of mini-seminars on specific topics (eg, CST & Abortion Law & Policy; CST & War; CST & Environmental Law & Policy) – so not to try to digest a myriad of topics, but give them equipment for the principles in one area, together with more space to explore a number of applications.
Last evening Susan Stabile was the featured speaker in Part II of our Catholic Lawyer’s Program which this year explores the theme Faithful Citizenship: the legal, ethical and cultural implications of bringing Catholic values and social teaching into public life. In light of her scholarship (see, eg, State Attempts to Define Religion: The Ramifications of applying Mandatory Prescription Contraception Statutes to Religious Employers, 28 Harv. J. L. & Pub. Policy 741 (2004-2005), she was the perfect guide for the question of how Catholic institutions grapple with the questions that arise “when conscience clashes with state law and policy.” She gave a masterful overview, followed by a thought-provoking response from practicing attorney Piero Tozzi, who filed an amicus brief in support of Catholic Charities of Albany in the NY State Serio case.
It was an amazing tribute to Susan’s work that forty people—mostly practicing lawyers—slogged through the ankle deep sludge of the previous day’s snow, on one of the iciest and coldest days we have seen in a long time! (or perhaps this is NY’s protest that she will soon be leaving this area for slightly colder parts? Sigh.)
Both Susan’s and Piero’s remarks will be published in a forthcoming issue of the Journal of Catholic Legal Studies (a co-sponsor of the event). In the hopes of continuing the conversation, I’ll put out the questions that her presentation raised for me.
First, Susan argues that there’s a broad cultural shift at work – from respect for negative rights (to be free from coercion), to increasing demand for positive rights (society must affirmatively support and perhaps pay for one’s demands). I’m wondering how broad that is – as I’m teaching the seminar on CST & Economic Justice, I have the sense that we still struggle mightily with the grounds to articulate “positive rights” when it comes to constructive vehicles for insuring that basic needs are met (food, shelter, etc.). If there is a cultural shift, might it be limited to, or might there be something different in how it is applied to the “reproductive rights” sphere? Most sharply, could it be that “positive rights” currently seem to have the most pull when they will eliminate (eg, through birth control or abortion) a potential person who might have another claim on society’s resources?
Second, she drew a distinction between type of burdens on religious institutions. Eg, it’s one thing for a Catholic hospital (or it’s agent) to be forced to perform the act of abortion; and it’s another to have to pay increased premiums for contraception. But even with this distinction, she made a strong argument that it poses a significant burden on Catholic institutions to require them to pay for contraception (see her Harvard article).
Here’s a question that might help to sharpen the argument: the image that came to my mind was vouchers. In the school voucher cases, many argue that the government is not actually paying for specifically religious schooling, but rather for education generally, and it’s the parents’ free choice to select the option of a religious institution which supplies to society the service of education. How is this case different? (eg, the Catholic employer is paying for “healthcare,” mediated by individual choices for which individual people take responsibility).
If the insurance policy of a religious employer covers abortion of any kind, shouldn’t that be raising similar flags as the contraception cases? Or could a similar analysis apply? What does it mean to pay for insurance which leads open a number of options, some moral and some not? Or more broadly, how do we think about institutional conscience when the ground level decisions are mediated by individual choices?
(I have no idea how to answer any of these questions. This is really just a prod to Susan, to put out more of her thoughts – the program’s question and answer period was terrific).
I just read an interesting new paper by UCLA law prof Lynn Stout titled "Taking Conscience Seriously," in which she laments the failure of economics, law, and business professors to recognize the ubiquity of altruistic behavior in our society. She begins with this everyday example:
Imagine that you see a dozen pedestrians walk by a sleeping homeless man who is lying next to a sign that reads, "Please Help" and a cup that contains a few dollar bills. Many people might conclude they are observing selfish behavior when no one puts any money in the cup. Few would recognize that they are witnessing multiple acts of unselfishness as person after person walks by without stealing from the helpless homeless man.
The "rational maximizer" known as Homo Economicus "does not worry about morality, ethics, or other people. Instead, Economic Man worries only about himself, coldly and calculatingly pursuing whatever course brings him the greatest material advantage." This is an unrealistic view of the human person, but it is a view that takes root in part because we "tend not to notice common forms of unselfish behavior." One problem she flags is the absence of altruistic behavior in law school pedagogy:
Formal law is usually brought into play when cooperation breaks down and individuals become embroiled in conflicts requiring outside resolution. This makes it easy for law students who spend hours studying case law -- the documentary debris of crimes, horrible accidents, difficult divorces, and bitter contract disputes -- to conclude that selfish behavior is the rule.
I rarely grapple with this question, but I should: what are the unspoken lessons about the human person imparted by the cases I teach?
UPDATE: Patrick O'Donnell recommends some additional resources for those interested in these questions:
Amartya Sen long ago addressed her principal concerns in 'Rational Fools: A Critique of the Behavioral Foundations of Economic Theory,' Philosophy and Public Afffairs, 6 (1977), reprinted in his book, Choice, Welfare and Measurement (1982). See too Sen's Ethics and Economics (Oxford, UK: Blackwell, 1987). Indeed, a better picture of the state-of-the-art (and science) on this question is Sen's recent Rationality and Freedom (Cambridge, MA: Belknap Press of Harvard University Press, 2002). What is more, her characterization of economics strikes me as rather tendentious: see, for instance a work well-versed in neo-classical economics: Partha Dasgupta's An Inquiry into Well-Being and Destitituion (Oxford, UK: Clarendon Press, 1993). Two excellent titles treating these questions in a fundamental manner are missing from her bibliography: Daniel M. Hausman and Michael S. McPherson, eds., Economic Analysis, Moral Philosophy, and Public Policy (Cambridge, UK: Cambridge University Press, 2006 ed.) and Elizabeth Anderson's Value in Ethics and Economics (Cambridge, MA: Harvard University Press, 1993). Not unrelated to these topics are questions broached in Donald (now Deirdre) McCloskey's The Rhetoric of Economics (1985) and Knowledge and Persuasion in Economics (1994).
After attending Lisa's symposium here in Minneapolis, hop in the car to start the cross-country drive to Boston, where BC is hosting its inaugural law and religion symposium on March 20. The theme is "Matters of Life and Death: Religion and Law at the Crossroads." Panelists include friends-of-MoJ Michael Moreland (Villanova) and Carter Snead (Notre Dame), and the keynote will be delivered by Leon Kass. For more information or to RSVP, please contact Paige Renaghan at [email protected].
It is drawing near -- only a month away, Friday, March 16, at the University of St. Thomas School of Law in Minneapolis -- the eagerly-anticipated Symposium exploring work/family balance issues from perspectives of all sorts -- explicitly religious, explicitly secular, feminist legal theory and the rhetoric of law, considering issues such as the impact of immigration law, the history of family wage, employment laws and the impact of poverty. Featuring not only keynote addresses by Professor Joan Williams ("Opt Out or Pushed Out: The Real Story of Women and Work") and Sr. Prudence Allen ("Analogy, Law and the Workplace: Complementarity, Conscience, and the Common Good"), but also presentations by MOJ-ers Susan Stabile and Michael Scaperlanda!
Through dialogue across philosophical and faith traditions, the symposium will examine the dynamics of family preservation and social justice in the workplace. Topics will include family wage structures, proposed immigration reforms, employment laws, and caring for caregivers.
Other presenters:
·Professor Gregory Acs, The Urban Institute
·Professor Katharine Baker, Chicago-Kent College of Law
·Dr. Allan C. Carlson, The Howard Center for Family, Religion & Society
·Professor Kirsten Davis, Arizona State University College of Law
·Professor Marie Failinger, Hamline University School of Law
·Professor Eva Kittay, City University of New York
·Professor Michael A. Scaperlanda, University of Oklahoma College of Law
·Professor Michael Selmi, George Washington University Law School
·Professor Susan Stabile, St. John's University School of Law
Registration deadline is March 5, 2007 6 CLE credits applied for (elimination of bias)
UNICEF's Innocenti Research Center just released a study on the well-being of children in 20 developed countries in which the U.S. came in second-to-last -- after Britain. I haven't read the study, but according to an L.A. Times report on it:
UNICEF's Innocenti Research Center in Italy ranked the countries in six categories: material well-being, health, education, relationships, behaviors and risks, and young people's own sense of happiness.
The finding that children in the richest countries are not necessarily the best-off surprised many, said the director of the study, Marta Santos Pais. The Czech Republic, for example, ranked above countries with a higher per capita income, such as Austria, France, the United States and Britain, in part because of a more equitable distribution of wealth and higher relative investment in education and public health.
Some of the wealthier countries' lower rankings were a result of less spending on social programs and "dog-eat-dog" competition in jobs that led to adults spending less time with their children and heightened alienation among peers, one of the report's authors, Jonathan Bradshaw, said at a televised news conference in London.
"The findings that we got today are a consequence of long-term underinvestment in children," said Bradshaw, who is also professor of social policy at York University in England.
The study acknowledges that its methodology has flaws, and it's just a first cut at looking at this issues:
The study, for example, measured relative affluence by asking whether a family owned a vehicle, a computer, whether children had their own bedroom, and how often the family traveled on holidays. Some answers might depend on the quality of public transit and real estate prices, making the average child in New York's affluent areas seem equal to one in a less-developed country because of the constraints of city living.
The authors wrote that as the first attempt at a multidimensional overview of children's well-being in developed countries, the survey was "a work in progress in need of improved definitions and better data."
But they said it was nonetheless a first step in providing benchmarks for comparing countries and highlighting poor performance in otherwise rich nations.
But isn't there something very Catholic about this attempt to measure well-being not just according to the more-easily quantified financial measures of wealth, but also by the measures such as the equities of wealth distribution, social investment in children, and -- most interesting -- actual time spent relating to children?
A young nun defends The Vagina Monologues By Sr. Mary Eve
[Sr. Mary Eve,
36, writes under a pseudonym. She is a member of a community of
Catholic sisters who are known for their more traditional living of
religious life. She has served in various forms of ministry in several
cities in the United States and has carried out
extensive research in the area of the history of women religious, the
history of the concept of women in western thought, and other issues regarding women’s contribution in the Catholic Church and in society in general.]
It was Christmas 2004 and I was opening a gift from a friend of
mine. We had met in an undergraduate psychology class a few years
earlier—she, the professor, I, the student. Our lives are as different
as night from day. She is an un-churched, thirty-something, feminist
college professor. I am a “professional” Catholic who “wears my
religion on my sleeve”—that is, for almost twenty years I have been a
happily professed member of a traditional community of women religious
whose members still wear habits, live in community and carry out the
same mission. My friend’s gift? The Vagina Monologues.
Through the years, we had discussed lots of things—sexual issues among them. I had never dreamed of owning a copy of the Monologues but
I accepted the gift as her way of sharing with me something that she
was obviously able to identify with. I have to admit that Eve Ensler’s
provocative play was not on the top of my reading list but with the
controversy that continues to accompany performances of it on Catholic
campuses I decided to finally read it for myself.
What I discovered was how much I too was able to relate to it as a woman. Unfortunately, rather than valuing the Monologues
as a presentation of women’s understanding of their bodies, some
members of the Church have taken a morally defensive stance. I am
afraid that this narrow understanding is also the way many members of
my own community would approach the play. Any public discourse on the
matter would be highly unapproved of. That anyone in our order would
own a copy of it, relate to it or even welcome the experiences and
insight of the women contained in The Vagina Monologues would
be deemed improper for someone who has taken a vow of chastity.
Therefore because of my community affiliation I need to remain
anonymous.
The First V-Day
In a sense, the vagina made its pop culture debut through The Vagina Monologues on
February 14, 1998—the first V-Day—with a performance in New York City.
The show—it’s actually a collection of vignettes contributed by various
women and organized by Ensler—includes comic topics such as “What your
vagina would wear if it could get dressed,” “What your vagina would say
if it could talk”; biological topics such as menstruation, childbirth
and orgasm; horrific topics such as rape; and topics that the
institutional Church has a problem with such as masturbation, and
lesbian sex.
[To read the rest of this very interesting and thoughtful essay, click here.]
A young nun defends The Vagina Monologues By Sr. Mary Eve
It was Christmas 2004 and I was opening a gift from a friend of
mine. We had met in an undergraduate psychology class a few years
earlier—she, the professor, I, the student. Our lives are as different
as night from day. She is an un-churched, thirty-something, feminist
college professor. I am a “professional” Catholic who “wears my
religion on my sleeve”—that is, for almost twenty years I have been a
happily professed member of a traditional community of women religious
whose members still wear habits, live in community and carry out the
same mission. My friend’s gift? The Vagina Monologues.
Through the years, we had discussed lots of things—sexual issues among them. I had never dreamed of owning a copy of the Monologues but
I accepted the gift as her way of sharing with me something that she
was obviously able to identify with. I have to admit that Eve Ensler’s
provocative play was not on the top of my reading list but with the
controversy that continues to accompany performances of it on Catholic
campuses I decided to finally read it for myself.
What I discovered was how much I too was able to relate to it as a woman. Unfortunately, rather than valuing the Monologues
as a presentation of women’s understanding of their bodies, some
members of the Church have taken a morally defensive stance. I am
afraid that this narrow understanding is also the way many members of
my own community would approach the play. Any public discourse on the
matter would be highly unapproved of. That anyone in our order would
own a copy of it, relate to it or even welcome the experiences and
insight of the women contained in The Vagina Monologues would
be deemed improper for someone who has taken a vow of chastity.
Therefore because of my community affiliation I need to remain
anonymous.
The First V-Day
In a sense, the vagina made its pop culture debut through The Vagina Monologues on
February 14, 1998—the first V-Day—with a performance in New York City.
The show—it’s actually a collection of vignettes contributed by various
women and organized by Ensler—includes comic topics such as “What your
vagina would wear if it could get dressed,” “What your vagina would say
if it could talk”; biological topics such as menstruation, childbirth
and orgasm; horrific topics such as rape; and topics that the
institutional Church has a problem with such as masturbation, and
lesbian sex.
[To read the rest of this very interesting and thoughtful essay, click here.]
