As a past critic of the Bush administration's approach to "enhanced interrogation techniques," I was hopeful that we would see a more robust commitment to human rights in the Obama administration's battle against terrorism. Well, one way to escape messy debates about what constitutes torture is to avoid the need for interrogations. Just kill suspected terrorists wherever you find them. Now the UN is raising the serious human rights implications of unchecked drone strikes.
Thursday, June 7, 2012
UN speaks out about drone strikes
The Solemnity of Corpus Christi and the Moral Life
I really enjoyed Beth Haile's reflection, at Catholic Moral Theology, on the Solemnity of Corpus Christi. We lawyers and "legal theorists" think and talk a lot about morals legislation and its justification, limits, possibilities; about law's limits and perfectionism; about the pedagogical and expressive functions of law; about the role of law in shaping what Robby George and others call our "moral ecology"; etc. Prof. Haile's nice post reminds me that, as Catholic legal theorists, we shouldn't forget the crucial place of, well, The Eucharist in these conversations.
Wednesday, June 6, 2012
A response to the NYT on abortifacients
This story in the NYT contends that, FDA labels notwithstanding, "morning-after pills" might not, in fact, cause abortions, and notes the relevance of this contention to the arguments and lawsuits regarding the HHS preventive-services mandate. Here is a response by Donna Harrison, an obstetrician-gynecologist in southwestern Michigan and director of research and public policy for the American Association of Pro-Life Obstetricians and Gynecologists.
Fish (and Waldron) on "The Harm in Free Speech"
Stanley Fish's recent NYT column about Jeremy Waldron's new book, The Harm in Hate Speech, is worth a read. It is a theme of my own Freedom of Speech course that, too often, our free-speech doctrines and rhetoric depend too much on two premises (sometimes stated, sometimes not) which are, at least, contestible: First, that "sticks and stones may break my bones but words will never hurt me"; and, second, that (see New York Times v. Sullivan) it's just "part of the deal" -- one that comes necessarily with living in a free society -- that we have to protect hateful, mean, harmful speech. In fact, speech can cause harm (it's just that we think the harms it causes either "don't count" or are "worth it" for the benefits of a libertarian free-speech regime) and the "costs" of free speech are not spread equally among those who allegedly benefit from it. Now, having said this, I still basically endorse a libertarian approach to free speech, especially in contexts like campaigns and elections (where regulations that are dressed up as efforts to fight corruption or prevent negative campaigning or equalize the playing field etc. are, in the end, pretty transparent efforts to advantage one's own "side" of the debate). Still, I think Waldron's book, and reminder, are important.
Tuesday, June 5, 2012
"The truth has a power of its own"
Contemporary political conceptions among American Catholics and others, even (or perhaps especially?) among those who are more or less loyal to either Commonweal or First Things (just to pick two examples), are so narrow and relatively uniform, in my view, that the offer of a genuine alternative will strike many as effrontery simpliciter, regardless of its possible merits.
"Virtually all Americans accept the principle of keeping religious and civil authority separate," as Archbishop Charles Chaput observed in his fine book Render Unto Caesar (2008). Chaput's description is spot on. The author I wish to introduce here, John Rao (D. Phil., Oxon.), wouldn't disagree with the description, but he'd certainly lament what it accurately reports. Rao's new book, Black Legends and the Light of the World: The War of Words with the Incarnate Word (2012), offers a normative alternative with counter-narrative punch that deserves the critical attention of the serious.
I intend to blog more in future about specific theses of Rao's learned, inspired,and challenging book. For now I'll just add the blurb I am honored to have on the book: "We live on the edge of chaos, and meanwhile conservatives long for a world that no longer exists and liberals bounce from one thing to the next. Something categorically different is needed if we are are to avoid the chaos conjured by the world of willfulness. That something different is a determination to use all of the tools that Faith and Reason offer to make the necessary transitions one at a time with the care that only supernatural hope makes possible. John Rao excels as a guide to believers in the Word incarnate who believe that the power of the supernatural to transform all of creation is by no means finished."
Rao's project is by no means a piece of archaism. It exudes life and hope. His judgment of the failures of the Papacy in centuries past is arresting. But he doesn't stop there. Rao recovers the Tradition, traces its varied and sometimes unfortunate applications, and indicates a way forward.
John Rao's important book can be ordered here
Shameful deeds, shameless lies, and sex-selective abortions
Shameful deeds are almost always accompanied by shameless lies. Some members of Congress who shamefully voted against the prohibition of sex-selective abortions are shamelessly claiming (or permitting their spokesmen or surrogates to claim) that the proposed legislation was unnecessary because sex-selective abortions don't occur in the United States or are so rare as to make legislation unnecessary. The National Right to Life Committee has helpfully provided a link to the most up-to-date (2011) research paper on the question:
http://www.nrlc.org/Sex-SelectionAbortion/UofCTPrenatalDiagnosisStudy.pdf
This research was available prior to last week's vote on the Penatal Non-discrimination Act (PRENDA). Everybody on Capitol Hill knew about it. It is true that sex-selective abortions are nowhere near as common in the U.S. as they are in places like China, India, and Korea. But they occur, and they are not so rare as to be insignificant. Those who claim otherwise are simply lying to cover their atrocious vote to permit the killing of children in utero because (let's face the truth about what is actually going on in most sex-selective abortions) they happen to be female.
In my view, voting to protect a practice as vile as sex-selective abortions is disqualifying. Pro-life Democrats can say what they think should happen to the 161 Democrats who did that. In my view, the seven Republicans who joined them (one of whom was presidential aspirant Ron Paul) should be challenged in Republican primaries and driven from office. (Bravo, by the way, to the 20 Democrats who voted with 226 Republicans in support of the proposed legislation.)
Sadly and embarrassingly, many of those who voted to protect sex-selective abortions are self-identified Catholics.
Commonweal Symposium, U.S. v. Lee, and Rocky Mountain Religious Freedom Tour
As Rick kindly pointed out, I contributed an essay to Commonweal's symposium on the US bishops' document on religious freedom alongside Peter Steinfels, Bill Galston, Cathy Kaveny, Doug Laycock, and Mark Silk. Many of the themes in my contribution will be familiar to MOJ readers, most especially trying to raise issues beyond the current controversy over the HHS mandate to the larger matters of civil society and pluralism that I think are at stake. I'm grateful to Paul Baumann for the invitation to participate and to my fellow contributors.
I do want to signal an ongoing but friendly disagreement with Cathy Kaveny, who I think vastly overstates the importance of U.S. v. Lee as the case "most on point" or "decisive" (quoting from her essay) with regard to the HHS mandate. The most obvious distinction is that Lee involved a general tax to finance a government program (there Social Security, but the same logic would apply to national defense or other examples), while the HHS mandate is a requirement that employers include a cost-free benefit in their health plans (or be fined if they don't provide coverage at all). Surely that is a distinction with respect to the burden on religious free exercise and the ease with which the government can accommodate religious objectors. The analogous difference, I think, is between (a) requiring that everyone (including religious pacifists) pay taxes that fund national defense (a very weak free exercise claim), and (b) forcing religious pacifists to serve in the military (a much stronger free exercise claim).
Furthermore, the creation of a range of exceptions (for mini-med plans, for example) already in the Affordable Care Act's mandates, including an exemption for some religious employers with regard to preventative services (about which I wrote here), puts the HHS mandate in a much worse position on the narrow tailoring prong of strict scrutiny. If the collection of Social Security taxes were subject to a set of exceptions (which the Court in Lee went to great lengths to note was not the case, though there was a later legislative accommodation), then Lee would indeed be a good case for those defending the legality of the the government's position in the HHS mandate litigation. Once the government starts granting some exemptions but denying others, the government will have an extraordinarily difficult time satisfying narrow tailoring. Cathy writes about Lee:
Moreover, the Court noted that “it would be difficult to accommodate the comprehensive Social Security system with myriad exceptions flowing from a wide variety of religious beliefs.” The administrative difficulty would be even greater with comprehensive health reform, since objections would run not merely to payment, but to various and sundry covered services.
This underappreciates the legal importance of the "myriad exceptions" that are already in the ACA for various employers. I should also think accommodating religious objectors in tax collection poses the much greater administrative difficulty, rather than enforcing a regulatory mandate (riddled with exemptions) for health coverage. And on that score, HHS let the horse out of the barn a while ago.
I'll be speaking on the HHS mandate, Hosanna-Tabor v. EEOC, and other developments in the law of religious freedom on Wednesday in Denver and on Thursday in Colorado Springs.
The Importance and Mission Value of the Associate Dean
Associate Deans are the unsung heroes of successful and forward-moving law schools. When the legal media, alumni magazines, or blogs report the latest accomplishments of this law school or the upward trajectory of that law school by one measure or ranking or another, the Dean usually becomes the focus of the attention. And such recognition is well-deserved, as the Dean is best able to promote major new initiatives, to raise the funds necessary for law school progress, and to represent the school to broad and diverse constituencies and the general public. But the success of the law school faculty ― which remains the educational and scholarly core of any law school ― depends in substantial part on the qualities of the Number Two, that is, the Associate Dean.
By Associate Dean, I mean here to refer to that tenured faculty member who agrees (usually with great hesitation) to withdraw on a temporary basis from full-time faculty responsibilities to serve for a couple of years in an administrative role. Some schools have multiple Associate Deans (and indeed some of those with such titles may not be tenured or even be faculty). Still, one of the Associate Deans is at the top of the hierarchy and and ranks just below the Dean, sometimes designated as “Associate Dean for Academic Affairs” or “Vice Dean”.
By job description, the Associate Dean generally is delegated those pedestrian duties that adhere to the Dean's office but which appear to consist of the less enjoyable aspects of the deanly role ― allocating professional development funds to faculty, presiding over summer research stipends, setting up the course calendar for each semester, dealing with disciplinary problems, etc. But in reality, while those painstaking tasks are essential and demand the most time, the Associate Dean has a powerful presence in each of the key educational and scholarly dimensions of the law school.
The Associate Dean wears two hats ― administrator and faculty leader. Yes, the Dean almost invariably is a tenured member of the faculty. But the Dean will always be regarded as something “other” by the law faculty itself, due to the Dean’s outside responsibilities, generally limited teaching and scholarly writing, and, not incidentally, evaluative role in rating faculty each year. To be sure, the Dean being a tenured faculty member provides an important connection by the lead administrator to the law school’s central educational and scholarly mission and those who are carrying it out. And that tenured faculty status for the Dean provides a symbolic basis by which to maintain a stronger collegial tie with the members of the faculty. But, still, the Dean is, well, “the Dean.” By contrast, the Associate Dean not only came from the faculty, but is expected to return shortly to the faculty. And the typical Associate Dean maintains a greater teaching and scholarly presence, even while in that role.
Let me provide one empirical measure of the importance of Associate Deans to a law school’s mission and success. One of my ongoing tasks this summer is to update the Scholarly Impact Ranking of law faculties, last ranked in 2010. The Scholarly Impact Scores, developed by Professor Brian Leiter of the University of Chicago, measure the influence of the tenured law faculty of each law school by citations in the legal literature over the preceding five years. In 2010, Brian Leiter ranked the top 25 and then we extended that ranking to the top 70. This year, with valuable and much appreciated counsel from Professor Leiter, I and my colleagues in the library here at the University of St. Thomas are undertaking the full ranking for 2012.
While our work is not yet complete and the Scholarly Impact ranking won’t be released until mid-July, one thing that I have noted is a strong correlation between a law school’s scholarly presence collectively and the scholarly prominence of the school’s Associate Dean. Of what likely will prove to be among the top 30 to 40 or so of ranked law schools on Scholarly Impact, nearly two-thirds have an Associate Dean who is among the most cited scholars on that faculty. And nearly all of the remaining one-third have an associate dean who is above the median for that well-ranking school.
Some might respond that it is hardly surprising that high-impact law schools with a plethora of prominent or well-cited legal scholars end up with Associate Deans who are also well-cited scholars. But even many prominent scholarly law faculties have members who are not the most productive and successful scholars. From what I hear (and observe) at law schools generally, Deans are often tempted to turn to less productive faculty members and ask them to serve as Associate Dean so as to draw a greater contribution from them to the institution. At the same time, sparing productive scholars from taking going into the Associate Dean’s office would have the advantage of freeing them to continue scholarly production. There is a meaningful sacrifice both to the law school and to the individual faculty member when a law school selects an Associate Dean from among its more prominent scholars, as he or she almost certainly will have much less time available to research and write. But, I suggest and the empirical data appears to support this, law schools would be well advised to resist the temptation to look elsewhere and to draw on faculty members who are not productive scholars to serve in that role.
Law schools that have achieved greater impact through citations to the scholarly work of their faculties overwhelmingly are those who chose top scholars to be Associate Dean. The Associate Dean is in a unique position to affect the atmosphere of the law school. The person who is selected sends a powerful message about the law school’s priorities and standards of excellence. If the Associate Dean is recognized as a strong teacher, he or she will be in a stronger and more credible position when proposing efforts to strengthen teaching, critiquing those who stumble badly in the classroom, and commenting on means to evaluate teaching quality. If the Associate Dean is recognized as a leading scholar, he or she will be in a stronger and more credible position when making decisions and allocating resources that facilitate faculty scholarship. On matters of teaching and scholarship, the Associate Dean often sets the tone, nearly as strongly as the Dean.
Faculty members do notice when the person who decides whether to grant a summer research stipend, to allow more travel to conference, or approve more student research assistance is someone who is a genuine and accomplished scholar him or herself. Faculty members do notice when the person who assists the Dean in annual evaluations is someone who is a genuine and accomplished scholar him or herself. I suspect the opposite is also true, to the detriment of any law school trying to uphold or advance high standards for faculty achievement.
Is there a special message here for those of us with a particular interest in Catholic legal education? Beyond strengthening the educational and scholarly mission of the law school by selecting as the Associate Dean someone who is a faculty leader in teaching and scholarship, I suggest that this vital appointment makes a big difference as well for the faith-based mission of a Catholic law school. Does the Associate Dean need to be a Catholic? No. Does the Associate Dean need to be someone who “gets” the Catholic identity of the law school and, importantly, honors and supports it? Yes.
Now discuss.
[Note: I am not now and never have served as an Associate Dean; I've managed to avoid that burden to date.]
Greg Sisk
My New Comments Policy
It may be found here. The fine posters here at Mirror of Justice and elsewhere where I blog have different views about comments, but I've decided that this approach is right for me.
Bradley on the HHS mandate
My friend and colleague Gerry Bradley has a worth-a-read essay up at Public Discourse on l'affaire HHS mandate. As he points out, even if this particular fracas dissolves, because the Supreme Court throws out the Affordable Care Act, or Gov. Romney wins the election, or Pres. Obama relents, the debate reflects a deeper, first-principles-level tension between religious freedom and some understanding of political liberalism. He writes:
. . . The ideological commitments that have emboldened the Obama administration about contraception are deeply held. They are held to be very important. They are resilient. They are not limited to the reproductive rights supposedly protected by access to contraception, even when contraception is broadly defined to include abortifacient drugs. These deep convictions about liberty and equality and religion entail trouble for religious liberty, no matter which exit route the present mandate takes. . . .
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