Should Torts class look different at a Catholic law school than at Big State U Law School? In the ideal world, there may not be much of a difference, assuming that Big State U is willing to spend time getting students to explore deeper issues about the relationship between tort liability and human dignity, the common good, etc. I'm not sure that requires much time spent with explicitly "Catholic" sources, but it probably does require spending more time with moral and political theory than most Torts profs (including me) do. For example, Georgia law prof Jason Solomon has posted a new paper, Equal Accountability Through Tort Law. The paper has nothing to say about Catholic legal theory explicitly, but at the same time, it is a perfect example of the type of questions that Catholic legal theory should be asking. Here's a bit from the text:
To act against another who has carelessly harmed you is to object to the violation of the terms of social interaction, to complain about someone who has taken too much of his share of liberty in violation of your security. And by responding, one reinforces the obligation that others have to moderate the pursuit of their ends in recognition of your right to pursue your own. A lack of response, one might say, could be a signal that the terms of social interaction are not important, or at least not worth upholding when applied to you. That's why people often encourage us to act against one who was wronged us. "You should call him out on that," a friend or colleague might advise us. By acting against the wrongdoer, one demands respect.
This is what [Stephen] Darwall refers to as “recognition respect” -- respect not for one's good character or a job well done, but simply respect for another as an equal in a moral community. Indeed, in interviews after Carol Ernst's trial, jurors voiced anger at the lack of "respect" Merck showed for its customers by not disclosing all of Vioxx‟s risks. Richard Epstein, who wrote a scornful op-ed in the Wall Street Journal after the Ernst verdict called "Ambush in Angleton," referenced these comments by jurors as if it was self-evident that such a lack of respect -- whatever it meant -- could not possibly have anything to do with tort law. But he might be wrong.
UPDATE: Eric Brauer comments:
In my first year torts class, we used Epstein's book for the text. As you can imagine, it had a heavily libertarian and law and economics tilt. Our professor said his reasoning for this was because using such a perspective, as you can imagine, really helped students "make a choice."
Law and economics, as well as legal realism, have both had a large influence on our legal system. To some extent, I think both philosophies are incomplete from a Catholic perspective. So with regard to a torts class, perhaps a good project would be to deal with whether economics, or utility, is really all there is in formulating the law.
For
more than 15 years now, I’ve felt starved by the Roman Catholic
authorities. But lately I wonder if they haven’t done me a favor.
Since the age of 14, I have felt called to the priesthood. The only
real opportunity I’ve been given to discern this call was through my
studies for my master of divinity degree (at a Protestant divinity
school, of course).
Perhaps it was the insurmountable heights of the ivory tower’s walls
or the unshakable hope of feminist theology that clouded my judgment,
but it wasn’t until graduation that I realized that an openly lesbian,
unapologetically liberal Catholic woman with a M.Div. had somewhat
limited career possibilities.
It would take years to find a Catholic community that would hire me
as their pastoral associate. When the chance finally arrived, I was
welcomed to the staff of a Jesuit parish in New York City noted for its
ministry to the poor and the gay and lesbian communities.
The congregation had an interesting phenomenon that they referred to
as “upstairs church” and “downstairs church.” Upstairs church was the
sanctuary itself, where Mass, confessions, weddings and baptisms took
place. Directly below the church was an auditorium where, each Sunday
afternoon, more than 800 men and women received a hot meal, clothing,
toiletries and a variety of other services.
In upstairs church, my body always seemed to get in the way. Though
I had received an education equal or superior to most current Catholic
seminarians, I could not preach the sermon or consecrate the Eucharist
because of my female body.
Though I held the ordination degree and all of the appropriate
ministerial experience, I could not baptize the baby or marry the
couple because of my God-given gender. Though I did my very best to
serve the community, I was never held in the same esteem as my priest
colleagues because of my unordained and unordainable body.
In downstairs church, my gender and sexual orientation never seemed
to create barriers. The poor reached out to me, whether on instinct or
impulse, and asked me to pray for them, with them and over them. Their
longings were basic and bodily: to be touched and listened to and
looked at with love.
They didn’t know my previous education, my background, my theology
or politics, and none of this seemed to matter anyway. They only saw
presence -- my presence. And if I wasn’t especially present on a given
Sunday, they saw that, too, and they let me know it!
These moments had a raw authenticity that always seemed elusive in
upstairs church. I’ve been present at countless consecrations of the
Eucharist, but most of those rituals pale in comparison to the presence
of Christ I seen in the despairing eyes of a homeless man when I put
him in a car headed for a long-overdue detox, or in the grateful gasp
of a poor couple when I give them $15 to obtain a copy of their
marriage record that will allow them to stay in a shelter together.
I was feeding people, and I, too, was being fed. This really is all
that Jesus asks of us: that with our bodies we become bread for one
another. Our minds do such harm to the Eucharist. We convolute it,
politicize it, gender it. And with each act, I’ve come to see, we
starve one another and ourselves.
Working in a Catholic setting, I often felt at best underutilized
and limited, and at worst oppressed and useless. And yet, I cannot help
but see what a gift it has been to be forced to live on the margins of
the institutional church. It’s a paradox, I know, but I’ve met God in
more paradoxes than I have houses of worship.
Being excluded from the church’s center has given me, as John’s
prologue says, “grace in place of grace.” It compelled me to discover
the face of God in places I might never have ventured into. If I had
not been rejected by the church, I may have never have had the chance
to experience God’s real presence on the edge of our society.
Living on the outside pushed me to be creative in seeking the
sacred, and kept me wary of the power trips, elitism and
self-aggrandizement that I’ve encountered in so many ordained people.
Though being excluded will always break my heart, the experience
allowed God to break through to me in shattered, lonely spaces.
I moved on from that Catholic parish, and now serve as director of
Social Justice Ministries at Jan Hus Presbyterian Church in Manhattan.
My primary role lies in directing our homeless outreach program which,
each day, assists more than 50 homeless individuals with supportive
counseling, food pantry items, clothing, toiletries, and the use of
phones and computers.
I’m still incorrigibly Catholic in my passionate insistence about
the sacramental nature of every encounter we have with our poor and
homeless guests. But it is a relief to do the work without having to
feel afraid or less-than-valid because of the body God has given me.
I do get a rush of sorrow now and then when I remember that I cannot
practice ministry in the church that raised me, within the theological
tradition that formed me and amid the social justice doctrines that
ground my convictions. But brokenness is the heart of the Gospel story.
And living on the margins helps me continue to identify with the
margins I serve.
There is no perfect church, no perfect ministry and no perfect
community. Instead, it is in the midst of radical imperfection that
true Eucharist seems most likely to emerge -- in those downstairs
churches where people are genuinely being fed. The church may continue
to give much to some, and starve many. But in that hunger there are
endless possibilities for us to be bread for one another.
(Jamie Manson received her master of divinity degree from Yale
Divinity School where she studied Catholic theology, personal
commitments and sexual ethics with Redemptorist Sr. Margaret Farley.
She is the former editor in chief of the Yale magazine Reflections, and
currently serves as director of Social Justice Ministries at Jan Hus
Presbyterian Church, working primarily with New York City’s homeless
and poor populations. She is a member of the national board of the
Women’s Ordination Conference.)
Last week at St. Thomas, the Murphy Institute for Catholic Thought, Law, and Public Policy convened a small conference of Catholic law professors to discuss the state of Catholic legal education, focusing in particular on whether there is a need to develop new curricular materials to foster conversations that are more likely to bring a Catholic understanding of law to the surface. I was unable to participate in every session, but the conversations that I was a part of were fascinating, though challenging. A few points on which there appeared to be widespread agreement:
The group came up with a list of topics that students at every Catholic law school should learn about before graduation, grouped under the subject areas of human nature, human action, common life, and state and governance. Existing materials in general do not do a good job teaching these concepts to students.
There is probably not a large market for materials that would bring these concepts more centrally into the law school classroom. Many of the professors who are interested in this sort of integration pull together materials on their own, though some are interested but don't know exactly how to go about finding helpful readings. This might affect the form in which materials are ultimately provided -- e.g., hard copy or web-based.
No one suggests that the existing casebooks should be tossed in favor of a new comprehensive set of "Catholic Torts" or "Catholic Contracts" casebooks. In most of the courses, the bulk of the material should remain the same in Catholic and non-Catholic law schools. Our students still need to pass the bar exam; it is more of a question of how to raise the bigger questions -- and start tracing some potential answers -- that often go unaddressed in a course.
On some points, though, there was no consensus:
Some participants envisioned a set of supplemental readings for a course like Torts that might, for example, address subjects like family-relationship immunities from the perspective of subsidiarity, or critique whether monetary damages as the sole remedy for harm is consistent with human dignity. Other participants worried that the advocates of this approach were extrinsicists, leading students to think that the Catholic perspective is an add-on to specific topics, rather than inherent in the natural unfolding of reason seen over the course of our legal tradition. (A personal note: I had never been called an extrinsicit before, at least not to my face, but my temper was kept in check by my confusion over what the word meant. In the heat of the moment, I opted for the tried and true, "It takes one to know one" retort. My own, post-dictionary-consulting reaction: if we can content ourselves with studying the legal tradition as an autonomous field, what is the purpose of a Catholic law school in the first place? Is our Catholic identity only relevant in the classroom in a course like Jurisprudence, where the Catholic perspective arguably can be pervasive throughout the subject matter?)
A related point: when we talk about curricular materials in Catholic legal education, should we be talking about Catholic or catholic? That is, there are some good casebooks in Torts and Professional Responsibility, for example, that take seriously the moral and philosophical dimensions of law and legal practice. Is that enough? Does there need to be an encyclical thrown in to warrant the label "Catholic?"
There really was never a dull moment. In the end, we agreed to begin work developing resources that provide students with "big picture," thematic overviews of different core subject areas from a Catholic perspective. I have no doubt that the conversation will continue. Other MoJers who attended (Patrick, Russ, Tom B., Lisa, Susan, Greg, Michael S.) can chime in to correct or supplement my observations.
In an indirect way I am responding to Rick’s last post. Mind you, I am not disagreeing with him because I believe he is quite correct in his assertions. What I am disagreeing with is that compromise is the only way out of many of the bioethical dilemmas that we now face and have been facing for some years. Concrete evidence of moral scientific development is. And there is some new promising evidence that will reinforce the argument that embryonic stem cell research ought to be abandoned in favor of concentrating resources on the use of adult stem cells.
This morning The New York Times and other media announced a remarkable new discovery solidifying the known track record that adult stem cells, i.e., stem cells from existing tissue, not stem cells removed from embryos (which causes the embryo to die), have been successful in treating yet another illness. While the final verdict must yet be made, the initial results of the adult stem cell therapy are most promising.
This news is important not only to legal regimes dealing with the codification and enforcement of laws dealing with biotechnological advances and the treatment of illnesses but of laws concerning the right to life of all, not just some, humans. This news, I pray, will grant the incoming administration the great opportunity to take stock of its objective to “change” the current administration’s view regarding public funding of embryonic stem cell research. As the current administration has held, public funding should go into adult stem cell research but not embryonic stem cell research.
For those of us interested in stem cell therapy but who object to the use of embryonic stem cells being harvested from another human thereby destroying him or her, today’s announcement is good news indeed!
As Jack Balkin notes, given the election of Sen. Obama, it is quite unlikely that Roe / Casey will be overturned anytime soon, and it is certain that the pro-abortion-rights position will be strongly and ably represented, and advanced, in the Obama Administration. And so, as the Washington Post reports, "a growing number of antiabortion pastors, conservative academics and activists are setting aside efforts to outlaw abortion and instead are focusing on building social programs and developing other assistance for pregnant women to reduce the number of abortions."
As I said (many) more times than MOJ readers wanted to hear, I do not believe "the issue" in the abortion-rights debate is (from the anti-abortion perspective) simply the number of abortions. Yes, a smaller number of abortions would be, for people like me, a good thing. However, it is also (for people like me) regrettable that our Constitution has been interpreted to prevent political communities from providing (if they choose to provide) greater legal protections to unborn children. Like most abortion opponents, I understand entirely that the law should not prohibit every wrong; with respect to abortion, though, many of us believe that the current regime represents not merely an entirely reasonable concession to different moral standards regarding private, self-regarding conduct, but instead constitutes (in addition to a mistaken interpretation of the Constitution) an unjust exclusion of some persons from the protections the law provides generally.
Putting aside this point, though -- a few quick thoughts on Jack's post about a "compromise" . . .
Jack says that a "durable compromise" over abortion "would probably look something like this new approach: Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life. Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children. . . . The result is a coalition of social justice pro-life advocates with traditional pro-choice liberals."
In my view, the durability of such a compromise could be undercut if (as I expect will happen) current limitations on the use of public funds for abortion (here and abroad) are lifted or watered down. Also, I suspect that a truly stable "compromise" would need to include, among other things, acceptance by the pro-choice side of rules that allow health-care workers, hospitals, religiously affiliated institutions, and churches to opt out of cooperating directly with the provision of elective abortions. An Administration or Congress interested in a stable compromise would not insist that, say, Catholic hospitals provide elective abortions, or that religious social-service agencies include abortion in their health insurance programs, etc. And, it seems to me that even those on the pro-life side who are interested in compromise on this issue would not like to see limitations on the (peaceful) speech of anti-abortion protesters.
Along with Thomas Farr, of Georgetown, and the ACLU's Jeremy Gunn, I'll be speaking about the International Religious Freedom Act, on the occasion of its 10th anniversary, at this year's Federalist Society National Lawyers Convention. (More here.) If you're there (and you are not busy anticipatorily preparing your meritless pardon requests to our incoming Attorney General) (I kid! I kid!), please say hello.
The Indelible Mark: The Writer and a Catholic Childhood
Tuesday, December 9, 2008 | 6-8 pm
Fordham University, Lincoln Center Campus, Pope Auditorium, 113 West 60th Street
Q. What do you do with a Catholic childhood? A. You write about it.
The
temptations, excitements, satisfactions and angst of going from
childhood memories to written text—join us for an evening of readings
and discussion with four distinguished writers (who had Catholic
childhoods).
Moderator:
Patricia Hampl, poet and memoirist, author of A Romantic Education, Virgin Time and most recently The Florist’s Daughter.
She is Regents Professor and McKnight Distinguished Professor at the
University of Minnesota, where she teaches in the English department’s
MFA program.
Panel:
Stuart Dybek, author of three collections of short stories, I Sailed with Magellan, The Coast of Chicago and Childhood and Other Neighborhoods, and two collections of poetry, Streets in Their Own Ink and Brass Knuckles. His work has appeared in The New Yorker, Harper’s, The Atlantic and in Best American Fiction and Best American Poetry. He is distinguished writer in residence at Northwestern University, and was a 2007 MacArthur fellow.
Lawrence Joseph, poet and essayist. His books of poetry include Into It, Codes, Precepts, Biases, and Taboos, Before Our Eyes and Shouting at No One,
which received the Agnes Lynch Starrett Prize. Among his awards are a
Guggenheim Fellowship and two National Endowment for the Arts poetry
fellowships. He teaches law at St. John's University School of Law and
wrote Lawyerland, a book of prose.
Valerie Sayers, author of five novels, Who Do You Love and Brain Fever--both named "Notable Books of the Year" by the New York Times Book Review--Due East, How I Got Him Back and The Distance Between Us.
She has received a Pushcart Prize for fiction and a National Endowment
for the Arts fellowship. She is on the creative writing faculty at the
University of Notre Dame.
In response to the news of the labor dispute between a teacher’s union and the Scranton diocese, one of the students in my Catholic Perspectives on American Law seminar asked this:
Is the Church's position on Labor inconsistent? Does the Church expect companies/American industry to do what it will not (i.e. recognize and negotiate with organized labor)? Is it possible that, in the Church's eyes, what is good for American workers may not, in some cases, be consistent with Church doctrine?
Do we have enough facts to judge the situation in Scranton?In addition to questions about the facts on the ground in Scranton, I have several others of a more general nature.
Does the “right” of employees to organize depend, at least partly, on the nature of the employer’s activity?In other words, does it matter whether the employer is a huge for-profit corporation where no personal relationships between upper management and lowly workers are possible; a small for-profit company, a public school district, a police or fire department, a non-profit agency large or small, or a religious organization, including a religious school?Is there a difference between being employed by an entity that simply wants your labor for 40 hours a week vs. one that expects you to participate in its life?
Is the right to unionize an absolute right in the eyes of the Church?Or, is the employee’s right a right to participate in decisions, including decisions at work, that effect the worker’s well being. (Scranton does have an Employee Council).Can a union in any setting – but especially in a setting like a Church – become so belligerent in its attitude and demands and so antithetical to the work of the employer that the employer has a legitimate right to refuse further dealings with the union?
How large a role should SCOTUS play, or how small a role, in adjudicating moral controversies that implicate constitutional rights--as do the large controversies over capital punishment, abortion, and same-sex marriage? MOJ readers may be interested in this:
Constitutional Rights, Moral Controversy, and the Supreme Court
Abstract: In my new book--Constitutional Rights, Moral Controversy, and the
Supreme Court (Cambridge Univ. Press, 2009)--I examine three of the
most disputed constitutional issues of our time: capital punishment,
state laws banning abortion, and state policies denying the benefit of
law to same-sex unions. I explain that if a majority of the justices of
the Supreme Court believes that a law (or other policy) violates the
Constitution, it does not necessarily follow that the Court should rule
that the law is unconstitutional. In cases in which it is argued that a
law violates the Constitution, the Supreme Court must decide which of
two importantly different questions it should address: (1) Is the
challenged law unconstitutional? (2) Is the lawmakers' judgment that
the challenged law is *constitutional* a reasonable judgment? One can
answer both questions in the affirmative.
By
focusing on the death penalty, abortion, and same-sex unions, I aim to
provide new perspectives not only on moral controversies that implicate
one or more constitutionally entrenched human rights, but also on the
fundamental question of the Supreme Court's proper role in adjudicating
such controversies.
In this SSRN paper, I reproduce the table of contents and the introduction to the book
Whether religious organizations can retain freedom to define their missions while participating in government educational or social-service funding, or tax exemptions, or other benefits programs, is one of the most important -- and challenging -- issues they face these days. I've posted an article on it, forthcoming in the Georgetown Journal of Law and Public Policy, from an excellent conference held last March in cooperation with the Federalist Society (which also included our own Patrick Brennan). The article deals with the foundational challenge of how to speak of autonomy when cooperating with government, and then develops some lines of argument for use in important recurring situations. Here's part of the abstract:
This Article makes the case that religious organizations ought to be able to challenge, in a number of important situations, conditions that exclude them from generally available benefits because of their religious character or practices important to their religious identity. Such exclusions implicate two important Religion Clause values: they pressure the organization to forego its choices in religious matters, and they undercut the ideal, based in church-state separation, of a religious sector operating without government interference or favoritism. The best understanding of church-state separation, I argue, calls not for excluding religious schools or social services from generally available aid, but for allowing them to receive aid for the services they provide without pressuring them to change their religious character. Conditions on benefits can place presumptively impermissible burdens on organizations' religious choices, and they can intrude on core organizational decisions protected by a proper understanding of church-state separation. I apply these arguments to challenge three actual or proposed conditions on benefits: (1) rules that bar government-funded education or social-service programs from considering religion in hiring staff; (2) restrictions on a tax-exempt organization's intervention in political campaigns to the extent they bar a clergy member from expressing moral-political views in her capacity as religious leaders; and (3) proposals, advanced by some commentators, to deny tax exemptions or funding to organizations that restrict clergy positions based on sex or other disapproved grounds.
