Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, August 12, 2014

A Victory for Confidentiality in Prisoner Legal Correspondence With Lawyers: University of St. Thomas Appellate Clinic

For I was in prison and you visited me.  (Matthew 25:36)

Prisoncellblock

As lawyers, we have the opportunity and means not only to follow Christ’s call to visit those in prison but to use our privileged access to the legal system to directly assist those in prison, by seeking to overturn wrongful convictions, by challenging unjust and excessive sentences, and by working to uphold the dignity of the “neighbor” who is subject to incarceration.

As lawyers who work regularly with prisoners are painfully aware, it is always an uphill battle to present a prisoner’s plea to a court.  But as a testament to the ever-present (if sometimes seemingly dormant) potential for genuine justice in our court system, a deserving prisoner does win one, at least once in a while.

So I am delighted to report a victory in the Ninth Circuit yesterday for the basic right of prisoners to correspond with their lawyers without such legal mail being read by prison officials — a success attributable to the persistence of a death row inmate, Scott Nordstrom, and to the legal representation we were able to provide him through the University of St. Thomas Appellate Clinic.

Consistent with our Catholic social justice mission at the University of St. Thomas, we’ve established an Appellate Clinic in which I work with a team of students to provide pro bono representation to pro se parties in federal appellate litigation.  Over the past year, Michelle King and Joy Nissen Beitzel, now recent graduates of the law school, have been working with me on a case involving an Arizona death row inmate, Scott Nordstrom, who challenged the prison’s policy and practice of reading inmate correspondence with attorneys.  We were supported in this effort by our partners at the University of Arkansas Federal Appellate Litigation Project:  Professor Dustin Buehler and students Mason Boling and Lauren Murphy

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Monday, August 11, 2014

A Plea on behalf of Victims of ISIS/ISIL Barbarism in Iraq

I have created a website, www.iraqrescue.org, at which I have posted "A Plea on Behalf of the Victims of ISIS/ISIL Barbarism in Iraq." I will paste in the text of the statement below this note. I would be grateful if friends would read the plea and, if you agree, go to the website and add your name as a signer. This is a serious matter, and I recognize that not everyone will, in conscience, see the issues just as I do. Of course, I want everyone to follow his or her conscience in deciding whether to join the signers.
 

A Plea on Behalf of Victims of ISIS/ISIL Barbarism in Iraq
 
The so-called Islamic State of Iraq (ISIS/ISIL) is conducting a campaign of genocide against Christians, Yazidis, and others in Iraq.  In its fanatical effort to establish a caliphate, ISIS/ISIL has engaged in crimes against humanity by deliberately causing mass starvation and dehydration, and by committing unconscionable acts of barbarism against noncombatants, including defenseless women, children, and elderly persons.

It is imperative that the United States and the international community act immediately and decisively to stop the ISIS/ISIL genocide and prevent the further victimization of religious minorities. This goal cannot be achieved apart from the use of military force to degrade and disable ISIS/ISIL forces. President Obama was right to order airstrikes against ISIS/ISIL to stop its advance on key cities, as well as to provide humanitarian assistance to people fleeing their assaults. Much more needs to be done, however, and there is no time to waste.

We, the undersigned, are Democrats, Republicans, and Independents.  We are conservatives, liberals, and moderates.  We represent various religious traditions and shades of belief.  None of us glorifies war or underestimates the risks entailed by the use of military force. Where non-military means of resolving disputes and protecting human rights are available, we always and strongly favor those means. However, the evidence is overwhelming that such means will not be capable of protecting the victims of the genocide already unfolding at the hands of ISIS/ISIL.  That is why Iraq’s Chaldean Patriarch Sako has requested military intervention.

Therefore we call upon the United States and the international community to do everything necessary to empower local forces fighting ISIS/ISIL in Iraq to protect their people. No options that are consistent with the principles of just war doctrine should be off the table.  We further believe that the United States’ goal must be more comprehensive than simply clamping a short-term lid on the boiling violence that is threatening so many innocents in ISIS/ISIL’s path.  Nothing short of the destruction of ISIS/ISIL as a fighting force will provide long-term protection of victims.

We call upon President Obama and the Congress of the United States to expand airstrikes against ISIS/ISIL with a view to eroding its military power, and to provide full air support for Kurdish and other forces fighting against ISIS/ISIL.  Further, we endorse the Washington Post’s call for the United States to provide arms, ammunition, and equipment to Kurdish forces, Sunni tribesmen, and others who are currently hampered in their ability to fight ISIS/ISIL by a lack of sophisticated weapons and other resources.  The U.S. should also assist with intelligence. We are hopeful that local forces, with adequate support and assistance from the U.S. and the international community, can defeat ISIS/ISIL.

The expansion of humanitarian aid to the displaced and fleeing is also urgent. Local churches and aid agencies are overwhelmed, and we have grave concerns about how these victims of violent religious persecution will be cared for this winter. The U.S. can and should take the lead in providing food, water, medicine, and other essential supplies.

We must be mindful that in addition to stopping the genocide, the U.S. and Europe have very concrete interests in disabling ISIS/ISIL.  As the Washington Post has warned:

“The Islamic State forces, which have captured large numbers of U.S.-supplied heavy weapons, threaten not only the Iraqi and Kurdish governments, but also Lebanon, Turkey and Jordan. With hundreds of Western recruits, they have the ambition and capability to launch attacks against targets in Europe and the United States.”
 
It is also worth bearing in mind that our own nation is not without responsibility for the plight of victims of ISIS/ISIL genocide.  What is happening to these people now, and the further threats they face, would not be happening but for errors and failures of our nation’s own in Iraq.  This can and should be acknowledged by all, despite disagreements we may have among ourselves as to precisely what these errors and failures were, and which political and military leaders are mainly responsible for them. The point is not to point fingers or apportion blame, but to recognize that justice as well as compassion demands that we take the steps necessary to end the ISIL/ISIS campaign of genocide and protect those who are its victims.

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Movsesian on American Humanitarianism and Christian Victims

My colleague Mark Movsesian has a good post on the subject. A bit:

But Mideast Christians are often an afterthought for the United States, and it seems they are in this situation again. A Wall Street Journal report, which quotes unnamed members of the Obama administration, indicates the threat of genocide against Yazidis was the primary factor in the American decision to intervene. “This was qualitatively different from even the awful things that we’ve confronted in different parts of the region because of the targeted nature of it, the scale of it, the fact that this is a whole people,” the official said.

That is a rather myopic view of the situation. We’re offering assistance to 40,000 Yazidi refugees whom ISIS has driven from their homes and threatened to slaughter. Great—we should. But in the weeks before ISIS turned on the Yazidis, it had displaced more than 100,000 Christians from their homes and driven them into the desert. ISIS eliminated major Christian communities in Mosul and Qaraqosh, and the US responded only with a concerned statement from its UN ambassador. And this is to say nothing of the hundreds of thousands of Christians who have become refugees since the invasion of Iraq in 2003. If genocide correctly describes what threatens the Yazidis, it also describes what’s happening to Iraqi Christians. Indeed, many of these Christians are the descendents of people who suffered genocide at the beginning of the 20th century.

There are reasons why America tends to treat Mideast Christians as an afterthought. Mideast Christians lack a natural constituency in American public life. They are, as one commentator observed, too foreign for the Right and too Christian for the Left. Most of our foreign policy elites have a blind spot about them. And I don’t mean to single out the Obama administration. Nina Shea of the Hudson Institute has recounted her attempts to get the Bush administration to focus on the plight of Iraq’s Christians, only to be told by Condoleezza Rice that assistance for Christians would make the United States appear sectarian.

To draw attention to the plight of Iraq’s Christians is not special pleading. The US should not concern itself only with Christians; other religious minorities deserve our attention, too. But, in the Middle East and around the world, Christians are often targeted for persecution in particularly severe ways, and the human rights community often seems not to notice.

James Mumford on Paul Ryan and a "New Approach to Poverty"

James Mumford has a very thoughtful piece up at The Hedgehog Review, called "A New Approach to Poverty."  It's a reflection on Rep. Ryan's new set of reform proposals relating to relieving poverty (and enhancing opportunities).  Worth a read.

Sunday, August 10, 2014

Fall 2014 Constitutional Theory Seminar

Perhaps not right down the Catholic Legal Theory fairway (but maybe somewhere in the rough), but I'm teaching a seminar in constitutional theory this fall here at St. John's for the first time, and I thought to ask the good readership and writership at MOJ about suggestions. I'm using the terrific reader by Gehardt, Griffin, Rowe, and Solum as my basic text, though I am supplementing it with a number of other materials. I've organized the course to be a little bit interpretation-heavy, and doutbless there are points of emphasis that are slightly particular to my interests (constitutional theory skepticism and the role of history and tradition may figure somewhat more prominently than they otherwise might). But please write to me with recommendations for changes, additions, deletions, etc. The tentative syllabus is after the break.

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Friday, August 8, 2014

Russell Nieli on what the Santa Barbara killer needed and didn't get (hint: it's not "therapy")

In the "Age of Feeling" in which we live, the reality of evil is obscured, and what were once correctly understood as vices are regarded as emotional problems---if they are regarded as problems at all. When the concepts of evil and vice disappear, people lose awareness of the need for repentance and reform; when evil and vice are redescribed as emotional problems, people are deceived into supposing that they can and should be managed by way of therapy. The culture of narcissism and the therapeutic culture are the two sides of one coin. The therapist usurps the role and authority of the priest, and the priest reimagines himself as a therapist.

Today at Public Discourse, my colleague and dear friend Russell Nieli, a Lecturer at Princeton and the author of (among other valuable writings) a superb book on Wittgenstein, offers a deeply thoughtful reflection on the tragic case of Elliot Rodger, the Santa Barbara killer:

"What [Elliot Rodger] needed was not a psychiatrist—he had been seeing therapists and psychiatrists for much of his life—but a preacher or a priest who could explain to him the self-destructive vice lurking within his soul, the importance of gratitude, the necessity of repentance, the evil of covetous envy, and most crucial of all, the importance of charity, humility, loving kindness, and trust in a higher power."

Read the entire essay here:

http://www.thepublicdiscourse.com/2014/08/13555/

Thursday, August 7, 2014

"Religious Identity in a Time of Challenge for Law Schools"

This is the theme of the upcoming annual Religiously Affiliated Law Schools conference, which is being held this year at St. Thomas.  Don't miss it!  

"Freedom of Religion and the Freedom of the Church"

Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church."  (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.)  Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously).  Here's a bit:

Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.”[4] However, he continued, “it has again taken center stage.” It seems that it has.[5] Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”[6]

But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?

 UPDATE:  John Inazu's (excellent) response is available here.

Wednesday, August 6, 2014

Protecting your civil right to shut down the other guy's free speech

Back in the 90s, when I was serving on the U.S. Commission on Civil Rights, I heard witnesses before the Commission and even members say some pretty ridiculous things.  But matters seem to have gone from bad to worse. A current Commissioner---former Nancy Pelosi aide Michael Yaki---is pushing the cause of campus "speech codes." This, mind you, from a guy whose job is to defend people's civil rights.  Here's the story from Yahoo News:

http://news.yahoo.com/democrat-u-civil-rights-commission-wants-speech-codes-131814819.html

Monday, August 4, 2014

Catholic Social Teaching and public-employee unions

Prof. Meghan Clark argued recently, in this piece ("Power to the Public Workers"), that the deeply rooted Catholic principles and teachings having to do with the dignity of work and workers mean, in practice, that public-employee unions should not be distinguished from private-sector-employee unions when it comes to collective bargaining and other labor-related policies.

I have contended often here at MOJ and elsewhere  that "it is both appropriate and important to distinguish, for purposes of thinking about the implications of the Church's teachings regarding the dignity of work and workers, between public-employee unions and private-sector unions."  To quote an earlier post:

(The point, obviously, is not that public-sector work and workers are less worthy of respect but that the dynamic between employer and employee is meaningfully different and different in ways that are relevant to evaluating the positions, and the power, of public-employee unions.)   As I wrote a few years ago:

To be clear:  Civil society matters; the human person is relational and situated; work is a participation in the creative activity of God; all human persons, because they are persons, possess a dignity; workers have a right to associate, organize, and advocate (consistent with public order and the common good) for their interests; and profit-maximization is not a moral-trump.  Labor unions helped bring about many good things; opponents of labor unions have often done bad things.  It would be wrong for a political community to prohibit or unreasonably burden the freedom of association that workers (like the rest of us) enjoy.  In other words, much of what left-leaning Catholics like Michael Sean Winters andMorning's Minionand Lew Daly have been saying about labor-related matters is true.

But . . . just as "subsidiarity" is more than a slogan about "small government", the writing and thought of Leo XIII on the social question and the social order is not reducible to "unionism, as presently defended and advocated for in early 21st century America, is to be supported by faithful, thoughtful Catholics."  It's not that unions were once necessary, but now they are not.  It's that unionism is to be supported by faithful, thoughtful Catholics when it is consistent with, and actually carrying out, Catholic Social Doctrine, and not (or, at least, not necessarily) when it is not.  To resist overreach and bad-acting by unions is, well, to resist overreach and bad-acting; it's not to stomp on Rerum novarum.

In my view, it is vital to keep in mind, as we try to think with Christ and the Church -- and not with either the Chamber of Commerce or the Democratic Party -- about union-related policy, to take into account (to the extent we can) the costs and benefits of proposals and practices, and to look at what unions are, and are not, actually doing with the power they have, and not merely to wield a "the Church teaches that unions are good" stamp.  In fact, unions and unionism are sometimes bad (just as religious freedom -- which is good -- is sometimes abused). 

For example:  In the United States, teachers unions are, on balance, definitely not good.  They have, historically, been a powerful force for anti-Catholicism and the obstruction of reforms, including reforms that the Church clearly teaches are morally required.  It is a grave injustice to require parents who want their children to be educated in (reasonably regulated and reasonably well performing) Catholic schools to pay twice (that is, to deny public funding to those parents).  Legislatures should not extend special powers to teachers unions, and they should oppose them to the extent it is necessary to re-orient education-related spending and policy in the best interests of children (and in a way that advances religious freedom and pluralism) and not of public employees who work in government-run schools.  Another point:  It isnotgood for unions to use workers’ contributions to support political causes –say, abortion rights – that are not relevant to the association’s purpose and mission.

Prof. Clark writes:

Our teachers, librarians, police, firefighters, sanitation workers, and all civil servants actively contribute to the common good. They and their jobs are not lesser because their wages are funded by your taxes. They have equal dignity with private employees. In this current wave of hostility toward public workers, Catholic social teaching reminds us that the dignity of all workers—public and private—grounds their basic right to association, including the right to unionize and bargain collectively. 

I agree entirely with the first three of these sentences, but have to respectfully disagree with the suggestion that public employees' "equal dignity" means that the content and limits of their "right to unionize" are or should be the same as that of private-sector employees.  That the employer is not "capital" but is, instead, the political community is, it seems to me, very relevant to questions about the employer-employee relationship.  The employer -- again, the political community -- has obligations not only to its employees, but also to citizens, taxpayers, and -- as the looming crisis in underfunded public-employee pensions reminds us -- future generations.