Brian Tamanaha's "Failing Law Schools" is now available for purchase. Orin Kerr offers a nice synopsis, as does Bill Henderson. This is an important book.
Tuesday, June 19, 2012
Failing Law Schools
Monday, June 18, 2012
Farr on "The Church and the Global Crisis of Religious Liberty"
In addition to John Garvey's excellent remarks, check out this address, "The Church and the Global Crisis of Religious Liberty," which Thomas Farr delivered at the Bishops' meeting in Atlanta. Here's the gist:
In fact, I have been privileged to spend the last thirteen years of my life reflecting, writing, and acting on the subject of religious liberty, both here and abroad. Those years have convinced me of three propositions that will frame my remarks today: First, both history and modern scholarship demonstrate that a robust system of religious liberty in both law and culture is indispensible to individual human dignity, and to the social, economic, intellectual, political, and religious flourishing of civil societies and of nations. Second, religious liberty is in global crisis, with enormous consequences for the Church, the United States, the success of democracy, the defeat of religion-based terrorism, and the cause of international justice and peace. Third, propositions one and two are highly contested. . . .
Conference on State-Sponsored Religious Displays in Rome
Gang, I'll be in Rome this week helping to put on this conference with the Libera Università Maria SS. Assunta and contributing to a panel on Lautsi v. Italy and the idea of the margin of appreciation in American and European law. MOJ co-blogger Tom Berg will be on a panel that will discuss the cultural and religious meanings of symbols in public places. Rome is a long way off, so I hope to blog about and share some of the substance of the conference after Friday. A presto, amici.
More from John Garvey on religious freedom
From John Garvey's (excellent) speech to the Bishops in Atlanta last week:
Our society won’t care about religious freedom if it doesn’t care about God. That’s where reform is needed. We won’t have — and we probably won’t need — religious exemptions for nurses, doctors, teachers, social workers if no one is practicing their religion. The best way to protect religious freedom might be to remind people that they should love God. . . .
. . . The mechanisms to preserve religious liberty only work when people care about their religion. Religious liberty will expand or contract accordingly. Saving religious liberty means reminding people that they should love God. . . .
President Obama's Predator Drones
Since assuming office (and receiving his Nobel Peace Prize) in 2009, President Obama has massively increased the use of unmanned predator drones in what used to be known as the war against terror. According to Chris Kirk, writing in Slate, Obama has authorized five times the number of drone attacks authorized by President Bush. Liberals, who would be screaming bloody murder if it were Bush, have gone strangely (well, not so strangely) quiet about this, while conservatives are cheering on a president whose other policies they abhor.
The use of drones is not, in my opinion, inherently immoral in otherwise justifiable military operations; but the risks of death and other grave harms to noncombatants are substantial and certainly complicate the picture for any policy maker who is serious about the moral requirements for the justified use of military force. Having a valid military target is in itself not a sufficient justification for the use of weapons such as predator drones. Sometimes considerations of justice to noncombatants forbid their use, even if that means that grave risks must be endured by our own forces in the prosecution of a war.
The wholesale and indiscriminate use of drones cannot be justified, and should be criticized. This is something that Catholic intellectuals across the spectrum ought, it seems to me, to agree about. If we don't speak, who will?
On the lethal side effects of the Obama drone strategy, see this article by Clive Smith:
Sunday, June 17, 2012
Catholic Health Association Calls for Broader Contraception-Mandate Exemption
In its 6-15 comments to HHS (see link on this page), CHA has now rejected the "two-tier" accommodation that the Obama administration proposed. CHA calls for an approach in which religious social services/healthcare providers etc. are fully exempted along with houses of worship--which avoids the bad precedent of putting the extremely narrow HHS "religious employer" language into federal law--and if the government wants to provide contraceptive access to these organizations' employees, it does so through a means entirely unconnected to the organizations or the employees' insurance policies.
The reactions have already started claiming (of course) that the CHA has "caved" to the bishops, whereas before (of course) it "caved" to the administration. As I've followed the whole debate over the Affordable Care Act and the contraception mandate, in my judgment Sr. Carol Keehan and the CHA deserve much respect for trying to pursue a course of supporting healthcare access, supporting effective conscience accommodations, and engaging constructively with the administration. It gives CHA extra credibility when it tells the administration that on this issue their position is still wrong. (UPDATE: See also Michael Sean Winters' powerful post on CHA's stand and its moral authority.)
Saturday, June 16, 2012
Kleinfeld on Method in Criminal Law Theory
Another post about scholarly methodology -- this time in criminal law theory. One of the earliest posts I wrote here at MOJ was about the criminal law scholar Joshua Kleinfeld. What I like most about Josh's scholarship is his methodology -- one which takes an existing phenomenon in criminal law doctrine which has been missed, ignored, or marginalized by theorists, and applies philosophical tools to explore and understand it. Last time I posted about Josh's work, I talked admiringly about his very interesting German/US comparative piece on evil in criminal law. In my view, there are very few superb pieces of legal scholarship about the phenomenon of evil. Josh's is one of them.
His latest project is about what he describes as the role of "victimization" in criminal law -- "the idea that the moral status of a wrongful act turns in part on the degree to which the wrong's victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence." Josh reproaches the conventional retributivism of the last 30 or so years for its failure to acknowledge the relevance of victimization, though he also carefully describes important limits on the relevance of victimization for purposes of both culpability and punishment.
There is too much to Josh's paper to summarize in a blog post -- it is rich with complex insights and I recommend it very much to readers interested in criminal law theory. But I do want to reproduce just a little bit from his conclusion. Josh's writing represents, I think, an interesting case in what are coming to be alternative or different or (a little bit) contrarian methodologies in fields that sometimes appear to be doing roughly the same sort of thing methodologically:
The central methodological idea behind this Article is that our existing social practices and institutions imply or reflect certain normative commitments—that values are immanent in social life—and that one important philosophical project in the law is to bring those immanent normative commitments to light. The idea is also that, by bringing those immanent commitments to light, we expose them to a distinctive form of critique. We effectively look in the mirror and ask, “Do I like what I see? Are these commitments ones I can reflectively endorse? And if so, am I living up to them? Am I realizing them in the right way?” This is social analysis and critique from the inside, and the intellectual tradition associated with it, though it has been called by various names, is the tradition of normative social theory. It is an Hegelian tradition; to say that a moral concept like victimization is implicit in criminal law already, to make it one’s object to render that commitment explicit, has a distinctly Hegelian flavor. This Article is an entry in the Hegelian, social-theoretic project.
The Hegelian approach to philosophy in law is, I submit, more faithful to and respectful of law than many others. Rather than philosophy dropping in on law like an imperious and alien visitor, delivering pronouncements and then flying off again, the Hegelian, social-theoretic approach takes law not just as an instrument with which to implement the conclusions of an extralegal philosophical inquiry, nor merely the site from which to launch such an inquiry, but as an object of study with a certain moral content already in place, which philosophy can bring to light and expose to question.
Others with philosophical training will know much more than I do about the extent to which this project is Hegelian. But I thought the gist of the methodological approach -- which is also very much reflected in Josh's piece on evil -- is an extremely interesting, unusual, and worthwhile contribution to scholarship in criminal law theory.
Friday, June 15, 2012
A Dose of John Garvey
A collection of centers and institutes at the University of St. Thomas is putting on a series of talks entitled: "Daring to be Different: Creating a vision of Catholic Higher Education in Challenging Times." The goal of the series is to prompt conversation on the same sorts of Catholic identity questions posed by Rob and Greg in recent posts. (The title of the series comes from St. Thomas' history. The following quote is often attributed to our founder, Archbishop John Ireland -- though we can't seem to track down the exact cite: “St. Thomas is not Harvard, or Stanford or the University of Minnesota — all institutions of highest quality. St. Thomas is different. Dear friends, we must dare to be different.” The question we are posing for this series is: "In the context of the challenges facing Catholic higher education today, what should “daring to be different” look like for our community?"
Yesterday's installment in the series was a wonderful talk by John Garvey entitled "The Challenges of Mission-focused Leadership at a Catholic University." In his typically brilliant and elegant way, John shared the vision animating many of the initiatives he is implementing as President of the Catholic University of America. He focused on the interplay of the complementary relationship inherent in a Catholic University's dual responsibility to nurture the intellect and the faith of its students. One of his main points was that the Catholic lay men and women who have taken over the majority of the administrative and faculty positions at Catholic universities from the religious men and women who used to run our schools have to take seriously their responsibility for moral, as well as intellectual, formation of the students entrusted to us. This has to be done not only through the institutional messages a university sends with decisions like choices in honorary degree recipients, but also in structural initiatives that witness positively to the sorts of values we would like to inculcate. Examples of some of the initiatives John is implementing at Catholic University include reinstituting single-sex dorms, encouraging religious men and women associated with the university to live in the dorms, and university-wide promotion of positive values -- such as a month dedicated to awarding medals to members of the community displaying fortitude, and a focus on temperance during March, the month of St. Patrick's Day and Spring Break. In addition to these sorts of institutional messages from administrators, John also argued that the individual lay faculty members have to assume greater responsiblity for modelling lives of faith and sanctity. In an interesting interpretation of the 'Catholic majority' mandate of Ex corde and the US Bishop's norms for implementation of Ex corde, John suggested that this mandate reflects the Pope and Bishops' acknowledgement of the laity's greater competence in running universities, which carries with it the greater responsibility for making personal and institutional decisions that preserve the Catholic identity of the institution.
Since this was a talk by the brilliant John Garvey, my blog post can only capture one of the many important threads running through the talk. I can only hope he publishes it somewhere soon. In the meantime, I offer this link to his recent (June 13) address at the USCCB General Assembly on "Religious Freedom and the Love of God", as well as his lovely recent reflection on the martyrdom of the scribe Eleazar from the 2nd Book of Maccabees in the Chronicle of Higher Education, "A Matter of Faith and Freedom." (And, for just for a smile, a great picture of most of John's 15 grandkids.)
Thursday, June 14, 2012
Movsesian on State-Sponsored Religious Displays in the US and Europe
My colleague and friend, Mark Movsesian, has a new piece up at the Oxford Journal of Law and Religion, Crosses and Culture: State-Sponsored Religious Displays in the US and Europe. (Incidentally, do check out the journal, as it's got a wealth of pieces that may be accessed, for a time, for free.) Comparativists and students of religious liberty will enjoy and learn a lot from the piece. The abstract follows.
This article compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious ‘neutrality’, but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favour a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, in contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give ‘preponderant visibility’ to the symbols of traditionally dominant churches. The different conceptions of neutrality reflect institutional and cultural realities. In particular, the differences reflect what sociologists of religion describe as the ‘American’ and ‘European’ religious models.
Because issues of methodology are of special interest to me, here are some of Mark's reflections on that question -- and in particular about the function of comparative scholarship -- in the conclusion to the piece (I've omitted the footnotes here, but you will see them in the piece):
My purpose in this article has been comparative and critical: I have attempted to explain different legal regimes in terms of fundamental institutional and cultural commitments. Comparative work, particularly interdisciplinary comparative work, is still a bit new in law and religion scholarship. As Grace Davie recently has written, law and sociology ask different questions and rely on different methods; ‘conversations’ between lawyers and sociologists can therefore be ‘difficult’. Nonetheless, such conversations are essential. For law both reflects and influences underlying social conditions. In Mary Ann Glendon’s phrase, ‘law, in addition to all the other things it does, tells stories about the culture that helped to shape it and which it in turn helps to shape: stories about who we are, where we came from, and where we are going’. The law on state-sponsored religious displays reveals very different understandings about the place of religion in American and European society. This article is an effort to illuminate those understandings and contribute to an emerging path in law and religion scholarship.
The Nature of Limited Government
Leslie Green has posted a new paper that may be of interest to MoJ readers, The Nature of Limited Government. The abstract:
This paper explores moral limits on state action: their sources, character, and stringency. It explains what is special about the liberal tradition: there must be a protected sphere of action, and governments must respect legality. It argues, against Patrick Devlin, that the possible absence of absolute moral reasons against intrusion in a sphere is consistent with justified absolute positive limits on government intrusion. It argues, against John Finnis, that the fact that some associations (e.g. churches or marriages or universities) intrinsically valuable ‘common goods’ does not entitle them to immunity from government regulation. It concludes by suggesting why certain ‘natural law’ moralities have been considered unreasonably intrusive, for they neglect the significance of moral fallibility for limited government.
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