I recently received my copy of Michael Schutt's new book, "Redeeming Law: Christian Calling and the Legal Profession" (IVP 2007). The book's back cover has this from Rob Vischer: "With this book, Michael Schutt has helped fill a void by providing a resource that is theologically deep and practically relevant. Whether you're a beginning law student or a senior partner at a firm, this book is a must-read if you're serious about reflecting on what it means to be a Christian lawyer."
Tuesday, September 18, 2007
Redeeming Law: Christian Calling and the Legal Profession
Another Disturbing Story
Catholic News Agency reports that 16 of the 25 Catholic Senators voted to fund abortion overseas. "One of the 16 was Sen. Bob Casey, Jr. (D-PA), who defeated Sen. Rick Santorum as a pro-life candidate. 'It's doubtful whether Casey, son of the legendary pro-life Pennsylvania governor Bob Casey, will ever be able to convince voters of his pro-life label again,' writes Deal Hudson in his Sept. 17 edition of The Window." The full story is here.
Monday, September 17, 2007
Children's Beliefs and Family Law
Notre Dame law prof Margaret Brinig has posted her new paper, Children's Beliefs and Family Law. Here's the abstract:
In a recent series of opinions authored by Justice Stevens, the Court has recognized that children may have independent religious rights, and that these may be in conflict with their parents'. The questions for this piece are whether considering children's rights independently is a good thing whether it is warranted by children's actual religious preferences and whether children's religious activities actually do anything measurable for the children.
I do not advocate that the Supreme Court become more involved with family law than it has been since the substantive due process days of Meyer and Pierce. I am also not one to “abandon children to their rights” or otherwise suggest that children should fend for themselves without their parents' help. For me, a childhood without the nurturing environment of loving parents (or at least one parent) is dismal. However, I am encouraged that the Court seems to recognize that in families with children, the children's interests do need to be considered, and will not always mirror their parents'. Children's religious attendance does seem to make measurable differences to their well-being.
"ideology" in faculty hiring
The Chemerinsky debacle has generated some throughtful blogging on the proper role of (I'll call them) firmly held commitments in faculty hiring ("ideology" is too pejorative). On Ilya Somin's principles (as posted by Volokh, see below), it would be acceptable for a self-describing Catholic law school *openly* to favor Catholics for faculty positions, but wrong for the same law school to discriminate against, say, Democrats for faculty positions.
If, say, the Catholic religion taught (as it does NOT) that non-Catholics are necessarily going to hell, there might be reason to worry whether Catholic faculty members could treat non-Catholic students fairly. But, whatever the religion's teaching, the cognizable issue is indeed whether the potential faculty member is likely to discriminate against students who do not profess that religion. The presumption should be in favor of religious adherents' opportunity to be non-discriminatory in the exercise of the professional duties.
Somin at Volokh:
When Is it Permissible for Universities to Refuse to Hire Professors Based on their Political Views?
The Chemerinsky saga raises a broader question: Is it ever permissible for a university to refuse to hire an academic because of his political views? For reasons that Eugene Volokh elaborates here, schools should be much more hesitant to reject professors on political grounds than high-ranking administrators such as law school deans. I am tempted to say that taking ideology into account in faculty hiring is never defensible. However, there are three situations where it probably is:
I. Institutional Commitments to a Religion or Ideology.
Some schools are explicitly committed to promoting a particular religion or (less often) political ideology. In such cases, it is permissible for the school to give preference to professors who share that commitment. For example, Brigham Young could legitimately prefer Mormon professors over non-Mormons. However, a school that follows this approach should openly announce its commitments and what they entail in terms of faculty hiring. It would be wrong to mislead prospective students and faculty members by secretly pursuing an ideological or religious agenda behind a veneer of supposed neutrality. To my knowledge, most religious universities that give preference to co-religionists in faculty hiring are in fact open about their agenda. By contrast, some secular schools that engage in ideological discrimination are not.
II. Ideological Commitments that Conflict with Professional Competence in One's Field.
Some ideological commitments are at odds with basic professional competence in an academic's own field. For example, a school would be justified in refusing to hire a World War II historian who is a Holocaust denier. Even if his professional credentials were otherwise adequate, the Holocaust denial in and of itself calls his competence into question because the evidence against that position is so overwhelming.
However, it is essential to recognize that this applies only to views on issues that directly relate to the scholar's academic work. Many people have outlandish or poorly supported views on political issues unrelated to their areas of expertise. Views on these unrelated issues should not be held against them in the academic hiring process. For example, Noam Chomsky, in my opinion, has crackpot views on various political issues, such as denying the existence of Pol Pot's mass murders in Cambodia (whose reality is almost as well established as that of the Holocaust). However, his poor judgment on these issues is irrelevant to his academic work as a linguist, in which field he is a leading authority.
Even within job candidates' own fields, there is a danger that hiring committees will tend to define as professionally incompetent any view that diverges too much from their own. That risk is difficult to eliminate entirely, as most people understandably have greater tolerance for views similar to their own than for those that are very different. There is no way to completely cure this bias. All we can do is to try to be vigilant about it, and also to ensure that a wide range of ideologies are represented on faculties. Ideological diversity reduces the danger of political bias in hiring, because it is hard to claim that a job candidate's views are beyond the pale of serious scholarship if some of your current colleagues share them.
III. Ideologies that Prevent Adherents from Treating Students Fairly.
In very rare cases, a job applicant's political ideology might cast serious doubt on his or her ability to treat students fairly. For example, a university could understandably refuse to hire a virulently racist professor for a position where he would be responsible for teaching large numbers of African-American students. After the fact sanctions for discriminatory behavior by the professor may not be sufficient to prevent discrimination, especially given the reluctance of most administrators to sanction academics for all but the most egregious in-class misconduct. Moreover, professors have a great deal of discretionary authority over students, and thus many opportunities to discriminate in ways that are hard for administrators to detect after the fact.
Like the previous one, this exception to the principle of tolerance can easily be abused. For example, political opponents could interpret any opposition to an ethnic or religious group's political agenda as hostility to the group itself. The classic example is the attempt to define all opposition to affirmative action as racist. But there are parallels to this on the right. Thus, it is important to remember that this justification only applies in cases where the job applicant has a prejudice against a group so strong that he is likely to discriminate against students who are members of the group. It is not enough that he opposes some element of the group's political agenda. In the case of religious groups, it is not enough that he opposes the group's theology (e.g. - if he is an evangelical Christian who believes that those who do not accept Christ will go to Hell).
In assessing both the second and third exceptions, faculties should err on the side of tolerance when in doubt. Otherwise, free academic inquiry could be seriously undermined. At the same time, we have to concede that there are extreme cases when schools can legitimately refuse to hire academics based on ideology.
A Disturbing Story
New York Times
September 17, 2007
Argentine Church Faces ‘Dirty War’ Past
By ALEXEI BARRIONUEVO
“The attitude of the church was scandalously close to the dictatorship” that killed more than 15,000 Argentines and tortured tens of thousands more, the priest told a panel of three judges here, “to such an extent that I would say it was of a sinful degree.” The panel is deciding the fate of the Rev. Christian von Wernich, a priest accused of conspiring with the military who has become for many a powerful symbol of the church’s role.
The church “was like a mother that did not look for her children,” Father Capitanio added. “It did not kill anybody, but it did not save anybody, either.”
Father Capitanio’s mea culpa came nearly a quarter century after the junta was toppled in 1983 and democracy was restored. But in some ways, it occurred at just the right time. Through the trial of Father von Wernich, Argentina is finally confronting the church’s dark past during the dirty war, when it sometimes gave its support to the military as it went after leftist opponents.
[Read the rest, here.]
Wednesday, September 12, 2007
MOJ Joint Statement on the Situation at Ave Maria School of Law
We, the members of Mirror of Justice, are a group of Catholic and Christian law professors and former law professors. We wish to express our profound concern with the course of events at Ave María School of Law (“AMSL”). While we differ among ourselves in our religious and political convictions, we share a commitment to Catholic legal education and respect Ave Maria's serious desire to express its religious identity. We write as legal academics and as persons who believe and expect a Catholic law school to be “a living institutional witness to Christ and his message.” (Ex Corde Ecclesiae, ¶ 49).
Caveat
It should be mentioned at the outset that the signatories have varying degrees of knowledge about the facts, but collectively we have strong reason to believe the veracity of the factual allegations set forth in this statement. If, however, we have mischaracterized or misstated a fact, we stand ready to correct our statement.
The Allegations
In April of 2007, the Association of Ave María Faculty, which represented a vast majority of Ave María’s faculty, publicly stated that the AMSL Dean had employed “threats and retaliation to try to silence members of the faculty from voicing concerns about his leadership and that of [the Chair of AMSL’s Board].” They further alleged financial punishment, the monitoring of faculty email and voice mail, and “manipulation of the promotion and tenure system.” They also reported that “[o]ne tenured faculty member has been repeatedly threatened with termination based upon bizarre allegations” and that “junior faculty members have been threatened that their careers would be harmed if they associate with disfavored tenured faculty.”
Since April, the Dean and the Board’s Executive Committee have begun the process of revoking the tenure of a founding member of the law school’s faculty. The Dean and Executive Committee took the additional extraordinary step of suspending this tenured faculty member, a father of seven, without pay pending the conclusion of the proceedings. This suspension and supporting allegations falsely impugn the suspended professor’s integrity and bring into question many administrative decisions governing AMSL. The Dean and the Board have also denied tenure to two other faculty members who were widely viewed as critics of the AMSL administration. In their cases, the Dean and Board took the additional and extraordinary step of putting them on involuntary paid leave, in effect suspending them, taking away their offices, and barring them from participating in the daily life of the law school during their terminal year.
The Situation as Judged by the Standards of the Academy
As legal academics, these actions of AMSL’s administration and governing board cause us grave concern both substantively and procedurally. While there are many areas of concern, the attempt to revoke the tenure of a founding member of the AMSL faculty serves as an exemplar. The ABA’s sample “Statement on Academic Freedom and Tenure,” the “1958 Procedural Standards in Faculty Dismissal Proceedings” (a joint statement of American Association of University Professors (“AAUP”) and the Association of American Colleges and Universities (“AACU”), and the “1940 Statement of Principles of Academic Freedom and Tenure” (a joint statement of AAUP and the AACU), contribute to our judgment.
All three documents contemplate faculty involvement in the tenure revocation process. The 1958 Statement contemplates an investigation of the accused professor by a faculty committee elected by the faculty, a decision by the same faculty committee on whether to recommend commencement of formal proceedings against the accused, and a faculty committee to conduct the hearing and makes its recommendation to the governing body. After initial consultation with the accused, the dean’s and/or president’s involvement appears limited to issuing the formal charges and helping the faculty committee develop its case. The governing board should either accept the faculty committee’s recommendation or remand with specific objections. “Only after study of the committee’s reconsideration should the governing body make a final decision overruling the committee.”
It appears that the investigation and decision to seek tenure revocation were made by the Dean (possibly in conjunction with the Executive Committee of the Board) without the requisite faculty participation. The Dean received a “no confidence vote” from the faculty in April of 2006. A year later, a majority of the faculty accused him of engaging in intimidation and retaliation. Sacrificing the appearance of impartiality, he chose to ignore the 1958 Statement’s guidance, which provides that “[a] necessary precondition of a strong faculty is that it have first-hand concern with its own membership. This is properly reflected both in appointments to and in separations from the faculty body.”
The ABA’s sample statement, the 1940 Statement, and the 1958 Statement provide similar clarity with respect to suspension and pay during suspension. The 1958 Statement provides: “Suspension of the faculty member during proceedings is justified only if immediate harm to the faculty member or others is threatened by the faculty member’s continuance. Unless legal considerations forbid, any such suspension should be with pay.” And, the ABA sample statement contemplates the institution continuing to pay the professor (except in extraordinary circumstances) for at least a year after “notification of dismissal.”
AMSL has suspended the faculty member subject to tenure revocation without an impartial finding that his presence would cause the kind of harm contemplated by the standards governing academic freedom. AMSL has taken the additional extraordinary measure of suspending this faculty member without pay prior to a hearing on the merits. It also appears that AMSL has suspended – placed on involuntary paid leave - the two professors who were denied tenure during their terminal year. But, for what cause were they suspended? And, pursuant to what procedures?
The AMSL administration has violated several procedural norms of the secular academy. In this case, we see no tension between those norms and the norms of faith and reason that should guide a Catholic law school. Indeed, what has happened at AMSL appears to us to violate core Catholic norms.
The Situation as Judged from the Teaching of the Catholic Church
The actions of AMSL’s administration and governing board cause particular concern for us as legal academics involved in the development of Catholic Legal Theory. We applaud the effort to build a law school that consciously draws upon and engages the rich intellectual, liturgical, moral, ecclesial, and social justice traditions of the Catholic Church, integrating them into the daily life of the law school community. AMSL had this vision in mind when it opened its doors in 2000, but it is now clear that the Catholic nature vital to its founding and sustenance has been derailed as evidenced by the administration’s treatment of the faculty member subject to tenure revocation and the suspensions of those denied tenure.
Pope John Paul II’s Apostolic Constitution on Catholic Universities, Ex Corde Ecclesiae, together with general principles of Catholic Social Teaching, which can be found in abridged form in the Pontifical Council for Justice and Peace’s Compendium of the Social Doctrine of the Church, guide our judgment.
The human person, imbued with transcendent dignity, rests at the center of the Catholic Church’s social teaching. The Church teaches that the person is a social and creative being. The first and most vital cell of human community is the family; therefore, the Church’s social teachings require the larger society to respect, protect, and nourish the family. See generally Compendium ¶¶ 252-254. Because of the human person’s creativity and in light of the need to earn a living to provide for oneself and one’s family, procedural and substantive protections for employees has long been of critical concern in the Catholic social tradition. See generally Compendium ¶¶ 301-303. The Church’s social tradition recognizes a “special relationship” between the family and work, understanding that the well-being of the employee has a direct relationship to the well-being of the family. See generally Compendium ¶¶ 248-250.
Ex Corde states that a Catholic institution of higher learning “pursues its objectives through its formation of an authentic human community animated by the spirit of Christ. The source of its unity springs from a common dedication to the truth, a common vision of the dignity of the human person and, ultimately, the person and message of Christ which gives the Institution its distinctive character. As a result of this inspiration, the community is animated by a spirit of freedom and charity; it is characterized by mutual respect, sincere dialogue, and protection of the rights of individuals.” (¶ 21). The Catholic institution of higher learning is called upon to address “serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, …” (¶32). In short, “the promotion of social justice is of particular importance” to Catholic institutions of higher learning. (¶34).
Procedural fairness, truthfulness, and concern for the person and the family are central to Catholic notions of justice. As the examples stated above suggest, AMSL has failed to live up to its commitment to be “a living institutional witness to Christ and his message.” (Ex Corde, ¶ 49). In suspending the one tenured and two untenured faculty members, AMSL has deprived them of the dignity of their work – their vocation – without adequate process. And, in suspending the tenured faculty member without pay, AMSL has failed to take into account the well-being of that faculty member’s family.
By the failure to live their Christian commitment, the AMSL Dean and Board cause scandal in the legal, academic, and religious communities. This scandal is exacerbated by the fact that their actions are taken on behalf of a law school named for the Blessed Mother of Christ. We echo this sentiment expressed earlier by an MOJ contributor: “The hour is not too late for [AMSL’s Dean and Board] to model for the legal and academic communities the essence of a Catholic Christian law school. In fact, [we] would suggest [that they] have a better, clearer opportunity to mirror Christ now than when [they] first began because the only path left open is through the cross. It may not be what [they] had planned, but God works in mysterious ways.”
We pray that all involved with AMSL will have the courage to exercise the convictions of Christian discipleship to reconcile all parties involved in the matters we have discussed. Moreover, we make ourselves available to assist all in finding remedies dictated not only by the academy but also by Christ and the teachings of his Church. In Christ, we remain:
Robert John Araujo, S.J., Boston College Jesuit Community
Stephen M. Bainbridge, William D. Warren Professor of Law, UCLA School of Law
Thomas C. Berg, St. Ives Professor of Law, University of St. Thomas School of Law (Minnesota)
Patrick McKinley Brennan, John F. Scarpa Chair in Catholic Legal Studies, Villanova University School of Law
Richard W. Garnett, John Cardinal O’Hara, CSC Associate Professor of Law, Notre Dame Law School
Elizabeth R. Kirk, Associate Director, Notre Dame Center for Ethics & Culture (formerly a member of the Ave María Law School faculty)
Eduardo M. Peñalver, Associate Professor, Cornell University Law School
Michael J. Perry, Robert W. Woodruff Professor of Law, Emory University School of Law
Mark A. Sargent, Dean and Professor of Law, Villanova University School of Law
Michael A. Scaperlanda, Gene and Elaine Edwards Family Chair in Law, University of Oklahoma College of Law
Elizabeth R. Schiltz, Associate Professor of Law, University of St. Thomas School of Law (Minnesota)
Steven Shiffrin, Charles Frank Reavis, Sr. Professor of Law, Cornell University Law School
Gregory Sisk, Orestes A. Brownson Professor of Law, University of St. Thomas School of Law (Minnesota)
Susan J. Stabile, Robert and Marion Short Distinguished Chair in Law, University of St. Thomas School of Law (Minnesota)
Richard Stith, Professor of Law, Valparaiso University School of Law
Robert K. Vischer, Associate Professor of Law, University of St. Thomas School of Law (Minnesota)
(institutional affiliations given for identification purposes only)
Kevin Lee on Leiter's dogmatism
I have been reading your post and some of the others regarding the Smith/Leiter exchange. What surprises me is how dogmatic Leiter is. He sets the bar pretty high for contemporary academic work--rational discourse/evidence etc. What is amazing to me is that a contemporary legal scholar can make a claim like that, as though the Postmodern movement never occurred. He seems dogmatically committed to some sort of foundationalism. Better to realize that truth is always contextual, and faith in God is as reasonable a context as no God.
Gay by Choice? (Does it Matter?)
There's a fascinating article in the far-from-Christian-right magazine Mother Jones questioning the conventional wisdom about the fixed nature of sexual identity. (HT: Evangelical Outpost) Here's an excerpt:
All the major psychotherapy guilds have barred their members from researching or practicing reparative therapy on the grounds that it is inherently unethical to treat something that is not a disease, that it contributes to oppression by pathologizing homosexuality, and that it is dangerous to patients whose self-esteem can only suffer when they try to change something about themselves that they can't (and shouldn't have to) change. . . .
But as crucial as this consensus has been to the struggle for gay rights, it may not be as sound as some might wish. While scientists have found intriguing biological differences between gay and straight people, the evidence so far stops well short of proving that we are born with a sexual orientation that we will have for life. Even more important, some research shows that sexual orientation is more fluid than we have come to think, that people, especially women, can and do move across customary sexual orientation boundaries, that there are ex-straights as well as ex-gays. Much of this research has stayed below the radar of the culture warriors, but reparative therapists are hoping to use it to enter the scientific mainstream and advocate for what they call the right of self-determination in matters of sexual orientation. If they are successful, gay activists may soon find themselves scrambling to make sense of a new scientific and political landscape.
Tuesday, September 11, 2007
Watson on Leiter on dogmatism
Jonathan Watson makes a similar point to Michael's regarding Brian Leiter's reference to "dogmatic appeals to authority":
Prof. Leiter ends his comments with this:
Of course, we know what intellectual discourse looked like when dogmatic invocations of the deity were thought to constitute an argument. And there is a reason those cultures and eras were not ones notable for their great number of intellectual insights and advances.To what cultures and eras is he referring? The medieval canonists used direct insight from the Bible (1150 or so) to produce such intellectual insights as a trial based on evidence and witnesses (overturning the trial by ordeal), maxims such as innocent until proven guilty (Johannes Monachus, d. 1313), and ideas that a criminal defendant has rights that cannot be transgressed by positive law. See here. If there ever were an age using "dogmatic" invocation of the deity, that was it. Prof. Leiter has used the "we know", and a rather dubious referral to "when dogmatic invocations of the deity were thought to constitute an argument" to set up a straw man.
Leiter on Smith: Isn't it Ironic, don't you think?
In critiquing Steve Smith, Brian Leiter wrote: "Of course, we know what intellectual discourse looked like when dogmatic invocations of the deity were thought to constitute an argument. And there is a reason those cultures and eras were not ones notable for their great number of intellectual insights and advances." (emphasis added).
I have a question for Brian Leiter. Are we are just supposed to accept your version of history on the grounds of your dogmatic invocation of "of course, we know..." or must you support with reasons your argument that the middle ages, for example, was not a time of great intellectual insights or advances?
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