I'm very pleased to announce the 2014 Conference on Christian Legal Thought, sponsored by the Lumen Christi Institute at the University of Chicago and the Law Professors Christian Fellowship. The conference occurs in conjunction with the annual AALS meeting, which is being held in Manhattan this year. This year's conference celebrates the life and thought of Professor Jean Bethke Elshtain and explores the theme of public engagement with law and religion.
The schedule is below, and you can register here. I hope to see many MOJ readers there.
Friday, January 3, 2014, 12:00 pm to 6:00 pm
The University Club
One West 54th Street, New York, NY 10019
Conference Topic: Public Engagement With Law and Religion: A Conference in Honor of Jean Bethke Elshtain
Noon: Registration, Luncheon, and Opening Remarks
1:15 pm – 2:45 pm: Session One. Public Engagement With Law and Religion: The Thought of Jean Bethke Elshtain
Chair: Zachary R. Calo (Valparaiso University School of Law)
* Thomas C. Berg (University of St. Thomas School of Law)
* Eric Gregory (Princeton University, Department of Religion)
* Charles Mathewes (University of Virginia, Department of Religious Studies)
2:45 pm – 3:00 pm: Coffee Break
3:00 pm – 4:30 pm. Session Two. Public Engagement With Law and Religion: Journalistic Perspectives
Chair: Marc O. DeGirolami (St. John's University School of Law)
* Matthew Boudway (Associate Editor, Commonweal)
* Susannah Meadows (Columnist, New York Times)
* Rusty R. Reno (Editor, First Things)
4:45 PM – 5:15 pm: Vespers
5:15 pm: Reception
Last week, experts on Human Trafficking from around the world gathered at the Vatican to discuss the growing problem of labor and sex trafficking of human beings. The program was at the direction of Pope Francis who has spoken openly about this problem of modern day slavery. I had waited on blogging about the important conference, which had multi-disciplinary experts from throughout the world, some affiliated with the work of the Church but most independent of it. I waited because I wanted to share with MOJ readers some of the press coverage. Sadly, there was limited coverage of the continued work of the Church in this area (however, it was covered by some Catholic outlets including here and here).
The conference entitled "Trafficking in Human Beings: Modern Slavery" was jointly hosted by Pontifical Academy of Sciences and the World Federation of the Catholic Medical Associations. It featured presentations from 18 experts as diverse as an inspector from Scotland Yard, an Assistant Attorney General from Texas, the U.N. Special Rapporteur on the Trafficking of Persons, Especially Women and Children, and the European Commission's Anti-Trafficking Coordinator.
As the program noted, The Second Vatican Council observes that "'slavery, prostitution, the selling of women and children, and disgraceful working conditions where people are treated as instruments of gain rather than free and responsible persons' are 'infamies' which 'poison human society, debase their perpetrators' and constitute 'a supreme dishonour to the creator'." If the level of speakers in any indication, it does appear that the Holy See is continuing its leadership on this issue and Pope Francis is looking to build on this conference. Although the press coverage was limited, the event did produce a Joint Statement by all participants calling on all relevant actors to take specific measures. It included calling on the Holy See to ratify both the Palermo Protocol as well as the Council of Europe's Convention of Human Trafficking. In addition to calling upon international actors to engage in specific measures, the Statement also listed measures that can be taken by the faithful and individual parishes.
Pope Francis has been outspoken on human trafficking, calling it "despicable" and "a disgrace for our societies which describe themselves as civilized." These are strong words and ones that are being followed up by action. One headline of the coverage read "Pope Wants to Step Up Fight Against Modern Slavery." From the looks of this conference and the actions recommended, this is an accurate description. A major obstacle to fighting human trafficking has been the division between nations and the limited reach of each nation state. Unlike many nation states, the Holy See stands uniquely positioned to mobilize people throughout the globe and this work is a positive step in combatting the deplorable conditions of millions of victims throughout the world.
Saturday, November 9, 2013
The latest response from nine religious-liberty scholars supporting "marriage conscience protection" in same-sex marriage bills has been
updated to remove some quotes from articles by two members of the opposing group of scholars, and to explain in a bit more detail why we think the opposing group has too narrow a view of religious liberty when they oppose including anything other than the narrowest conscience protections in a same-sex marriage bill and say that instead religious objectors should rely on, or try to amend, existing nondiscrimination laws.
Friday, November 8, 2013
Today I participated in an audio podcast, organized by the
National Constitution Center, on this week's legislative-prayer
argument in the Supreme Court (
Town of Greece v. Galloway). The other participants were Marci Hamilton, Steven Smith, and moderator Jeff Rosen, law professor and the (relatively) new president/CEO of the Center. It was a very enjoyable discussion;
read about it and
listen to it. Focused as I am these days on threats to the free exercise of religion, I included an argument that special limits on government-sponsored prayer under the Establishment Clause should be matched by special protections for religiously motivated conduct under the Free Exercise Clause.
For someone like me, interested in the intersection of intellectual property and religious thought, this forthcoming book chapter "Patents, Politics, and Abortion" by Kara Swanson (Northeastern) is fascinating. From the abstract:
The politics of life within the patent system are remarkable because of their unremarkability. Usually, patent law is considered in complete isolation from the explosive mixture of medicine, religion, law and politics that have made the legal and social status of abortion controversial in the United States since the antebellum period. The actions of the patent office and the details of patent doctrine have been ignored in contemporary abortion politics, and the patent office has maintained a reputation as a non-political, technical agency. . . .
. . . In Part III, I consider the post-Chakrabarty history of the politics of life within the patent system by looking briefly at two late twentieth-century controversies involving inventions and the politics of life, the "abortion pill," RU-486, and human-animal chimeras. Based on this historic review of the politics of life within the patent system, I argue that (a) that the patent system is deeply implicated in the politics of life in the United States, and (b) the patent office has been remarkably successful in hiding that fact.
Scholars of abortion and bioethics should find this interesting too. A couple of reflections about the relation between intellectual property (IP) and religious/moral perspectives:
First, the presumptions that have dominated in the past 40 or so years are that the Patent Office is neutral and technocratic, and that granting a patent as a property right is the neutral baseline for any kind of new technology (as the Court put it in Chakrabarty, the original genetic-patenting case in 1980, if any category of technology is to be excluded from patentability because of moral concerns, Congress should do so explicitly). Patents on abortion-related inventions like RU-486 have escaped pro-life scrutiny in part because the conservative side of the political spectrum--with which the pro-life movement has been aligned--has been very positive on patents in general, seeing them as simple property rights. (I must add that liberals have generally been pro-patent too: Swanson is right that patents came to be seen as an apolitical good by everyone.) Pushing for limits on patentability in this context might well require conceding that patents are not simple "property" that should be near- absolute in its scope, but rather a limited (though important) property-type entitlement granted to achieve social purposes and subject to social limitations. As I've argued elsewhere, that more limited conception of patents (and IP in general) fits better with Catholic thought concerning the "social mortgage" that exists on property for the good of all, especially the poor and the developing nations.
Second, however, Swanson points out another reason the pro-life movement didn't challenge patents on abortion-related inventions. Although patents (like other IP) are meant to encourage innovation, they do so by giving the patent-holder a (20-year) monopoly. Thus for that term, the patent may well limit broad distribution of the invention. At the very least it can allow opponents to concentrate on just one entity and try to get it to refrain from marketing the invention in a certain area. As Swanson points out, RU-486 opponents were successful in pressuring the European patent-holder to "refus[e] to seek FDA approval or to license any other company to do so through the 1980s."
At any rate, a very interesting piece.
Zachary Calo has posted a very generous review of The Tragedy of Religious Freedom. Zak's penetrating criticisms of the book are well worth reading and thinking over. In particular, the interaction of theology and law is a theme that he himself has been developing over the years in superb writing. And I am coming to agree that it would have done the book some good to explore those issues more explicitly. But at any rate I am grateful to Zak for pressing these points in such a characteristically thoughtful and well-crafted way. Here is a bit from the review:
If the book does not fully diagnose the problem, it is also arguable that the logic animating the method of tragedy and history does not fully respond to the present situation. In particular, it might be that a full response needs illumination from theology. Such an impulse seems at time present in the book. There are echoes of transcendence in DeGirolami’s account of tragedy and history, but the book contains unexploited resources for drawing a theological imaginary more fully into the jurisprudential task.
His account of tragedy...rests on the insight that we inhabit a moral universe in which it is not possible to fully instantiate moral goods. Yet in so proposing, DeGirolami is not simply commenting on the quandaries of practical ethics, but describing what it means to act responsibly, to judge rightly and prudently, in a world defined by such limits. A jurisprudence grounded not in abstract principle, but in the lived experience of the world, cannot but confront the need to make tragic choices. “In law,” DeGirolami writes, “it is necessary that one side win and the other lose, yet the inevitability of loss does not preclude choice.” Law, DeGirolami adds, might even be “centrally about the sacrifices entailed by choice making” (p. 99). In encountering such language, one thinks of Augustine’s judge in Book 19 of City of God. Confronted by the “darkness” of making tragic choices, the judge yearns to escape the misery of the office. Yet, impelled by duty, the judge submits to unhappiness, executes the violent decisions of law, and cries out to God with the Psalmist “From my necessities deliver Thou me.” Tragedy finds a paradoxical if limited coherence only within this divine economy. Though DeGirolami never frames his account of tragedy on such express theological turns, an Augustinian impulse never seems far from the surface of his account.
Sherif Girgis, known to readers of Mirror of Justice for his scholarly contributions in other contexts, has published an extremely interesting note proposing a new view of the mens rea of accomplice liability. Rather than focusing on the accomplice's state of mind as to the principal's offense, Girgis argues that one should focus on the accomplice's state of mind as to the principal's state of mind. To put it in concrete terms, if Cassius sells Brutus a knife and Brutus kills Caesar with the knife, then in order to convict Cassius as an accomplice, we ought not to focus on the degree to which Cassius knew or intended that Brutus would kill Caesar with the knife, but instead on Cassius's investment in Brutus's intention (not in Brutus's act) to kill Caesar. For Girgis, this would allow us, for example, to convict Cassius of accomplice liability if he drives Brutus's getaway chariot, having gotten his payment for doing so up front. It would justify accomplice liability whether or not Brutus was ultimately successful in killing Caesar. It's Cassius's disposition toward Brutus's intention, not Cassius's disposition toward Brutus's act, that makes the difference in Girgis's account. "So we can infer that Cassius at some point stands ready to promote Brutus’s intention—to get him to stick to the plan, if he starts to waver."
It's a very interesting approach, and one that, as Girgis rightly notes, ought to be of particular interest to those that recognize retributivism as a legitimate penological function (Girgis does not defend accomplice liability on any specific ground--his aim in this paper is to explore the mens rea of complicity). One question I had concerns the mens rea of knowledge. Girgis writes that accomplice liability for knowledge alone picks up too many cases in which we would not want to assign liability, while accomplice liability for purpose to accomplish the malign end is too demanding. I agree with the latter view. But I can imagine situations in which knowledge might shade into the sort of culpable state of mind as to the principal's intent that matters to Girgis. Suppose a gun salesman knows that it is extremely likely (bordering on certain) that the guns he sells will be used by the purchasers to kill members of rival gangs. And suppose further that nearly all of the gun salesman's revenue comes from selling these guns to these purchasers. Couldn't we say that at that point, the gun salesman's stance as to the purchasers' state of mind is culpable--that he "intends" the purchasers' "guilty minds"? I suppose it might depend on the level of specificity that we require as to the victim (killing X vs. killing unspecified members of rival gangs). But if we could say that, then it seems that we would need a graduated approach to the mens rea of knowledge in these kinds of cases (I think Girgis alludes to something like this at 477). At any rate, read the piece.
Thursday, November 7, 2013
From ZENIT: "Catholic Relief Services, the charity organization of the US bishops,
is partnering with Special Olympics International to expand services
for those with intellectual disabilities in developing countries and
help them thrive.
. . . The partnership builds on the strengths of each organization. CRS
works in 91 countries providing solutions to address tough problems such
as poverty, hunger, drought, disease and emergencies, reaching more
than 100 million of the world’s poorest people each year. Special
Olympics has grown to become the largest global public health
organization dedicated to serving people with intellectual disabilities.
The chairman of Special Olympics, Timothy Shriver, noted how those
with disabilities "are among the most marginalized, isolated and
neglected populations in the world."
"They and their families have not been adequately or proportionately
represented in development strategies, interventions, funding or goals,"
he said. "This partnership will help address that urgent need."
The CEO and president of CRS, Carolyn Woo, also welcomed the
partnership, saying it will help the aid agency to "strengthen health
systems to diagnose and address the needs of children with intellectual
disabilities." "
