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, February 22, 2011

Questioning the constitutionality of the individual mandate

In this new paper, I seek to provide *part* of a Catholic context for countering *some* of the overly simple libertarian opposition to the individual mandate component of the Obama healthcare legislation.  I haven't made up my mind concerning whether or not legislation that depends on the individual mandate for its financial viability was/is *prudent* (I am dubious that more "insurance" is the solution to the current healthcare problem), and I certainly object to many aspects of the current legislation (many of the them earlier addressed by the USCCB).  I do think, though, that some of the arguments offered against the constitutionality of the individual mandate, above all Randy Barnett's (the focus of my paper), deserve resistance on authentically Catholic grounds.

 

Tuesday, February 8, 2011

A Republic of Statutes

Villanova Law has been in the news of late, alas, but far more interesting (and nourishing) than any of that will be the Scarpa Conference this Friday.  I link here to the details, which I've mentioned on MOJ twice before.  You can't beat this line-up.  Bill Eskridge (Yale) and John Ferejohn (NYU) will co-keynote a discussion dedicated to exploring their monumental book A Republic of Statutes (Yale, 2010).  The other speakers will be Henry Paul Monaghan (Columbia), Martin Shapiro (Berkeley), Jane Schacter (Stanford), David Stras (Minnesota Supreme Court), Ted Ruger (Penn), Kristin Hickman (Minnesota), and Tom Merrill (Columbia).  Talk about a *range* of super-smart perspectives on some of the most imporant terrestrial topics!! 

Tuesday, January 18, 2011

Hobbes?

I went straight from class this afternoon to hear the keynote address, by Angela Harris (Boalt Hall), that kicked off Villanova Law's annual weeklong celebration of the life and legacy of Dr. Martin Luther King. Harris spoke eloquently and inspiringly about various currents of thought that animated Dr. King's dream, including the role of love in overcoming the effects and causes of the structural and personal sins and shortcomings that we face as individuals and as a society. In identifying the causes that must be overcome, Harris emphasized a "Hobbesian" legal culture.  This caused me to sit up.  Having taught Hobbes just thirty minutes earlier in the "Justice and Rights" class from which I had dashed to the lecture, I even had a copy of Leviathan in hand as Harris elaborated, to some extent, what about our way of conceptualizing, practicing, and teaching law is Hobbesian.  Harris seemed to represent that law as the establishment presents and practices it is Hobbesian in inspiration, justification, and operation.  Obviously, the devil here is, as always, in the particulars.  To the extent we are committed to crude forms of positivism, I see Harris's point about how Hobbes is at work in the jurisprudential picture.  Harris, however, seemed to be making something like the categorically different point that we as a culture view law as little or no more than established power controlling the weak.  Hobbes, of course, had a different case to make overall (the normative one about how to realize the demands of an emaciated natural law), but I do understand why he is invoked in connection with the more limited positivistic thesis.  What I don't see, however, is that our legal practice is accurately summarized as being broadly committed to merely accepting the results of power.  Arguments from justice are cognizable in our practice of law, the more so as they are articulated through modalities of legal reasoning accepted within our legal tradition.  The latter qualification may sound "conservative," but in fact it is an invitation to recognize the ways in which our legal tradition is in fact open to the incremental -- and sometimes bold -- *development* of legal institutions in the service of ordered liberty.  "Conservative" doesn't begin to do justice to the aspirations of our legal system as it functions most of the time.  And I don't believe we are, collectively, closet Hobbesians.

Saturday, January 15, 2011

The Scarpa Conference at Villanova Law: Eskridge, Ferejohn, Finnis, and many others

Please mark your calendars for the next Scarpa Conference on Law, Politics, and Culture to be held on Friday, February 11, 2011, at Villanova Law.  As previously announced here, this year's version of the annual conference will be dedicated to study of the important and controversial new book A Republic of Statutes: The New American Constitution (Yale University Press, 2010).  The book's distinguished co-authors, Bill Eskridge (Yale) and John Ferejohn (NYU), will co-keynote the conference.  Other speakers will include Henry Paul Monaghan (Columbia), Thomas Merrill (Columbia), Jane Schacter (Stanford), David Stras (Minnesota Supreme Court), Kristin Hickman (Minnesota), Martin Shapiro (Boalt Hall), Ted Ruger (Penn), and Brennan (Villanova).  More information about attending the conference will be available here.  It's sure to be a great intellectual time -- please try to attend!

For those who really like to plan ahead, I am delighted to announce that the sixth-annual Scarpa Conference on Law, Politics, and Culture will feature John Finnis (Notre Dame and Oxford) as its keynote speaker.  The conference will be held on Friday, September 30, 2011.  Oxford University Press will soon publish The Collected Essays of John Finnis (in five volumes) and a new edition of his classic Natural Law and Natural Rights, which makes  2011 an especially apt time to celebrate and explore the work and legacy of Professor Finnis.  Details about the conference will follow in due course. We at Villanova are very pleased to be hosting this event to honor John Finnis and his pioneering work on topics ranging from practical reason and nuclear deterrence to action theory and Shakespeare. 

Friday, November 19, 2010

Ministers of the Law

I have now posted Lawmaking, Administration, and Traces of Civic Republicanism: Thoughts on Jean Porter's Ministers of the Law, a short paper I prepared for Villanova's recent Catholic Social Thought conference that was devoted to Porter's new book.  I heartily recommend the book (though there's plenty in it that I disagree with).  Some of my friends at the Fed Soc won't like some of what I've got to say in favor of Porter's account of the purpose of law, but that's okay. 

Wednesday, November 3, 2010

Senator Kelly Ayotte, Villanova Law '93

A moment of pride and promise at Villanova Law!  Kelly Ayotte, Villanova Law Class of '93, has been elected to the U.S. Senate.  Ayotte is the first Villanova Law alum to serve as a U.S. Senator.  We are very proud of Senator-elect Ayotte.  Ayotte's election follows by a few days the great news of the inspiring appointment  of John Gotanda as the next Dean of Villanova Law.

Thursday, October 28, 2010

New dean named for Villanova Law

I am delighted to report that my colleague and friend, John Gotanda, has been named the sixth dean of Villanova Law.  Fr. Peter Donohue, OSA, the President of Villanova University, made the announcement this afternoon, bringing to a happy conclusion a thorough national search that vetted many distinguished candidates.  John Gotanda enjoys the respect and trust of the Villanova faculty and wider Law School community.   A cherished teacher and efficient administrator, John is equipped to be a natural leader of this community.  I have no doubt that in his new role Dean John Gotanda  will continue to serve the Villanova community with his trademark energy, vision, seriousness of purpose, and commitment to the highest academic standards.  John Gotanda is wonderfully understated, and in this will lie, I believe, one of the keys to his assured success as a faithful and imaginative steward of the religious heritage of Villanova.  In carrying forward the Catholic and Augustinian mission of the Law School, he will build on the incredible work done here by Mark Sargent.  I am grateful to John for accepting this task, and I know many in the MoJ community will join me in congratulating John on his appointment.                    

The University's official announcement is here.

 

Sunday, October 24, 2010

Jean Porter's Ministers of the Law

This past Friday, Villanova Law hosted its ninth-annual Symposium on Catholic Social Thought and Law, now named for Joseph T. McCullen.  Past symposia went directly to topics in CST, but this year we decided to approach such topics by focusing on Jean Porter's brand new book, Ministers of the Law: A Natural Law Theory of Legal Authority.  The very first copies of the book arrived via overnight delivery in time to be unveiled on Friday.  Readers of MoJ will want to order this volume right away: as its title indicates, it concerns both the natural law and legal authority, and its constructive account of their interrelatedness is both novel and important.  I would make my own the words of Russ Hittinger's blurb on the book's cover:  "Jean Porter accomplishes a most unusual thing.  She illuminates and at the same time renders subtle in every hue and shade a most difficult set of questions on natural law.  I could not stop reading, and in some places disagreeing with, this splendid work.  I think it is her best yet."  It's got everything from Gratian to HLA Hart, and all of it a subtle but constructive balance.

All of the papers from the conference will be published in the Journal of Catholic Social Thought.  In addition to the papers by Porter and by me, we can look forward to papers by Kevin Flannery, SJ (Gregorian University), Brad Lewis (CUA), Francis Mootz III (UNLV), Maris Tinture (Oxford), and Nick Wolterstorff (Yale). 

Whatever else is wrong with the world, it's wonderful to be in dialogue with such serious-minded folks about such important, pressing issues.  As I said, buy Porter's book!  Brien Tierney says this about it: "A major contribution to modern debates on the grounding of law."  And my friend Ken Pennington:  "This book should be required reading for every American constitutional scholar and, in particular, every American Supreme Court justice."  I say amen to that. 

Wednesday, October 20, 2010

How many branches of U.S. government?

And now we're informed by that same columnist I mentioned yesterday that "the Supreme Court [of the United States] is an independent branch of government."  I hope the folks reading the National Catholic Reporter aren't learning *all* their law from this columnist.  First separation; now a new independent branch . . . .  What next?

Tuesday, October 19, 2010

Where lies the ignorance?

At the following link, a columnist attempts to ridicule a political actor for her not knowing where in the Constitution one can find "the separation of church and state."  I, for one, don't know where to find such a principle in our Constitution, though I do understand why we *should* interpret the Constitution in a way that respects both the independence and *possible* interaction of these two "sovereign" spheres.  Whatever the referenced politician's shortcomings (they are considerable, in my view) or merits, she surely makes, even if unwittingly, a good point about our Constitution:  That document simply does not make the separationist point, even if the interpretations of the Constitution that march in the separation direction, or at least some of them, can be defended on honorable grounds. I fear that the columnist's attempt at ridicule backfires.