Monday, March 17, 2008
MoJ-ers will be interested in Noah Feldman's new essay. An excerpt:
[T]oday’s Muslims are not being completely fanciful when they act and speak as though Shariah can structure a constitutional state subject to the rule of law. One big reason that Islamist political parties do so well running on a Shariah platform is that their constituents recognize that Shariah once augured a balanced state in which legal rights were respected.
Last night, I watched the first episode -- "Join or Die" -- of the HBO mini-series, "John Adams." (The series is based on the popular David McCullough biography.) Paul Giamatti -- an excellent actor, in my view -- plays Adams, and Laura Linney plays Abigail Adams. I've been looking forward to the series ever since I first heard about it and, so far, I'm not disappointed.
Last night's episode focused on Adams's role as a defense lawyer for British soldiers charged in connection with the 1770 Boston Massacre. There were more than enough stirring "rule of law" and "importance of zealous counsel for the accused" moments to justify recommending the episode to first-year law students. The episode ended with a dramatic speech on "liberty" by Adams (in a church), and with his departure for (I gather) the First Continental Congress. So far, the show seems to be doing a good job of highlighting Adams's struggle to keep-in-balance his "conservative" (that is, his unease-with-revolution) instincts with his "liberty" commitments. I'm looking forward to more!
Of particular interest to MOJ readers, in connection with John Adams, might be this essay, by John Witte, which compares the views of Adams and Jefferson on religion.
At precisely the same time that Jefferson was at work defending his 1779 Bill for the Establishment of Religious Freedom for Virginia, John Adams was at work drafting the Massachusetts Constitution. “It can no longer be called in question,” he wrote, that “authority in magistrates and obedience of citizens can be grounded on reason, morality, and the Christian religion,” without succumbing to “the monkery of priests or the knavery of politicians.” It also could no longer be called into question that peace and justice required the state to guarantee religious liberty to all. The best constitutional formula to attain these two goals, Adams concluded, is for the state to balance the freedom of many private religions with the establishment of one public religion.
On the one hand, every society must protect a plurality of peaceable private religions—the rights of which are limited only by the parallel rights of other religions and the duties of the established public religion. The notion that a state could coerce all persons into adherence to a common public religion was for Adams a philosophical fiction. Persons would make their own private judgments in matters of faith. Any attempt to coerce their consciences would only breed hypocrisy and resentment.
Moreover, the maintenance of religious plurality was essential for the protection of civil society and civil liberties. “Checks and balances, Jefferson,” Adams later wrote to his friend at Monticello, “are our only Security, for the progress of Mind, as well as the Security of Body. Every Species of Christians would persecute Deists, as either Sect would persecute another, if it had unchecked and unbalanced Power. Nay, the Deists would persecute Christians, and Atheists would persecute Deists, with as unrelenting Cruelty, as any Christians would persecute them or one another. Know thyself, Human nature!”
Saturday, March 15, 2008
Here is a good review of Susan Jacoby's "disappointing" "Age of American Unreason":
. . . This is disappointing, because "The Age of American Unreason" poses fascinating questions about the nature of American ignorance. Are we really getting more anti-intellectual, and if so, why? Why did presidential sound bites drop from 42.3 seconds in 1968 to 7.8 seconds in 2000? Why, if America is so religious, are the majority of citizens unable to name the Bible's first book? And is this surge in "unreason" a real change, or are the ignorant, previously rendered to the sidelines, simply getting more airtime?
The book's strongest point comes with Jacoby's analysis of recent technological advances. Video and the Internet, she points out, rose together with several important social developments, not all of them welcome: "resistance to the idea of aesthetic hierarchy," shortened attention spans, and the tendency "to tune out any voice that is not an echo." The last, seen prominently in today's blogging universe, leads to imaginary, isolated worlds where all agree--and where users can anonymously slander those who don't. "The unwillingness to give a hearing to contradictory viewpoints," Jacoby writes, correctly, "or to imagine that one might learn anything from an ideological or cultural opponent, represents a departure from the best side of American popular and elite intellectual traditions."
"The Age of American Unreason," ultimately, falls prey to this very vice. An initially promising book touching on compelling themes is consistently derailed by the author's ever-grinding ax: a real hostility to--and a significant misunderstanding of--American religion. That this is done while largely giving a pass to secular quasi-religions like communism further impairs the argument. Jacoby is indeed correct that a little bit of misinformation can be a dangerous thing. It certainly does its own share of damage to what could have been an intriguing, timely study of American intellectual life.
Friday, March 14, 2008
My colleague Michael Stokes Paulsen has a preview of a high-profile Supreme Court ruling due in 2010. An excerpt:
This case presents the issue we carefully reserved in Lawrence. See Slip Op. at 18 (noting that that case did "not involve . . . prostitution"). We now conclude that the liberty recognized in Lawrence applies equally to private, consensual sexual conduct by adults, in whatever form of intimacy those adults design. The fact that the arrangement might, in some sense, be thought commercial does not necessarily indicate that it is anything other than consensual.
Thursday, March 13, 2008
In August of 2005 in an earlier posting I commented on the attempt in the Massachusetts legislature to impose financial reporting obligations on churches which the Commonwealth’s attorney general would have the authority to investigate. [HERE] In my earlier posting, I suggested a parallel between Old England (during the time of King Henry VIII) and New England recalling the various pressures put on the Church to toe the line imposed by King Henry regarding his divorce and the Act of Succession and the oath required under that act. The 2005 Massachusetts legislative effort to impose this obligation fortunately did not take place since the legislation was not enacted. However, new legislation has been reintroduced in the current legislative term to duplicate the previous effort to pressure the Church. The Massachusetts Catholic Conference has testified against the refiled legislation. [HERE] The state has also introduced other legislation that would amend the charitable immunity statutes by increasing the civil liability or eliminating the immunity of charitable institutions specifically including civil claims emerging from criminal or tortious acts involving sexual abuse of children. The Massachusetts Catholic Conference has also testified on this legislation. [HERE] In the context of the second category of legislation, the legislative efforts to increase civil liability or eliminating immunity would not apply to public education institutions which would continue to enjoy and exercise the protections of limitations and immunity.
It would appear that these legislative proposals are once again designed to target, at least in large part, the Church in the Commonwealth of Massachusetts. Sadly and tragically, in the “Cradle of Liberty” as the Commonwealth of Massachusetts is sometimes called, religious liberty and libertas ecclesiae are once again under pressure by the state, perhaps with the support of various interest groups who are not friends of the Church. For the crimes and torts committed by members of the Church in the past, the Church herself has suffered greatly. Almost every day I walk by the property that once was the former chancery, archbishop’s residence, and seminary grounds of the Archdiocese of Boston. This property was sold to pay victims of past abuse. I do not lament the fact that the Church was held responsible for the torts and crimes committed by its members. But I do lament the fact that the new legislation appears to be geared to putting pressure on the Church herself whenever someone in the Commonwealth’s government decides to pressure the Church into doing something she should not do or cannot do. RJA sj
This will, I think, be of interest to many MOJ-readers.
New York Times
March 13, 2008
Priest-Cosmologist Wins $1.6 Million Templeton Prize
The $1.6 million Templeton Prize, the richest award made to an individual by a philanthropic organization, was given Wednesday to Michael Heller, 72, a Roman Catholic priest, cosmologist and philosopher who has spent his life asking, and perhaps more impressively answering, questions like “Does the universe need to have a cause?”
The John Templeton Foundation, which awards grants to encourage scientific discovery on the “big questions” in science and philosophy, commended Professor Heller, who is from Poland, for his extensive writings that have “evoked new and important consideration of some of humankind’s most profound concepts.”
Much of Professor Heller’s career has been dedicated to reconciling the known scientific world with the unknowable dimensions of God.
In doing so, he has argued against a “God of the gaps” strategy for relating science and religion, a view that uses God to explain what science cannot.
Professor Heller said he believed, for example, that the religious objection to teaching evolution “is one of the greatest misunderstandings” because it “introduces a contradiction or opposition between God and chance.”
In a telephone interview, Professor Heller explained his affinity for the two fields: “I always wanted to do the most important things, and what can be more important than science and religion? Science gives us knowledge, and religion gives us meaning. Both are prerequisites of the decent existence.”
Professor Heller said he planned to use his prize to create a center for the study of science and theology at the Pontifical Academy of Theology, in Krakow, Poland, where he is a faculty member.
Professor Heller was born in 1936 in Tarnow, Poland, one of five children in a deeply religious family devoted to intellectual interests. His mother, a schoolteacher, and his father, a mechanical and electrical engineer, fled to Russia in 1939 before the Nazi occupation.
On returning years later to Poland, where Communist authorities sought to oppress intellectuals and priests, Professor Heller found shelter for his work in the Catholic Church. He was ordained at 23, but spent just one year ministering to a parish before he felt compelled to return to academia.
“It was one of the most difficult years of my life,” Professor Heller said. “This confrontation of this highly idealistic approach to life with everyday life is very painful.”
“When I was asked to attend to a dying person,” he said, “I was not prepared for life myself, so I had a difficult time to prepare someone to pass away. When you are confronted with such an immediate fact, you never think about the high goals of your life.”
The prize will be officially awarded in London by Prince Philip, the Duke of Edinburgh, in a private ceremony on May 7 at Buckingham Palace.
Wednesday, March 12, 2008
Last evening, Prof. Douglas Kmiec, friend and colleague to all of us here at Mirror of Justice, spoke at the University of St. Thomas School of Law on “The Call to Faith-ful Citizenship & the 2008 Primary.” (The program was sponsored by The Murphy Institute for Catholic Thought, Law, and Public Policy, the co-director of which is MoJ’s own Tom Berg.) Doug Kmiec offered his thinking on the 2008 presidential race and explained how he came to the place where, as he said in his now-famous Slate essay, he believes Barack Obama is “a natural for the Catholic vote.”
In his presentation last night, Professor Kmiec described with eloquence and feeling his personal journey in American presidential politics as a Catholic who takes his faith seriously, beginning with the John F. Kennedy campaign while he was in junior high school, from involvement in the Robert F. Kennedy and George McGovern campaigns, to his inspiration by Ronald Reagan and later participation in his administration, and culminating (for now) with his recent service with the Mitt Romney campaign. By the end of the evening, I certainly had a better understanding of how Doug Kmiec came to his current place of disaffection for other candidates and intrigue with Obama. But I remain less than convinced that he had outlined a path that is natural for other Catholic voters.
To begin with, the empirical evidence as I have reviewed it concerning the Catholic part of the electorate appears to offer anything but encouraging news to the Obama candidacy. In his Slate essay, Doug Kmiec suggested that, in his quest for the Democratic presidential nomination against Senator Hillary Clinton, “Obama has been narrowing the gap, using the Catholic vote to vault to victory.” This commentary was written a month ago, and a month is long time in any primary season, and a very long time in this roller-coaster year. So very much has changed since February. But doesn't the longitudinal evidence since January confirm a powerful trend away from Obama by Catholic voters?
From the beginning of the primary season, Senator Clinton has out-polled Senator Obama among Catholics by wide margins in most states and overall. (The CNN web site has a complete set of the exit polls from each primary state, a must-see web site for the political junkie.) In a heavily Catholic state like Massachusetts, for example, Senator Clinton won the Catholic vote by almost 2-1, notwithstanding that Senator Kennedy had enthusiastically endorsed and campaigned for Senator Obama. In California, as another example, the Catholic vote broke 2-1 for Clinton over Obama, rising to nearly 3-1 among Catholics who attend weekly Mass. Poignantly, even while winning his home state of Illinois by a 2-1 margin, the favorite son Obama still lost the Catholic vote in to Clinton (although it was close there).
The Obama campaign initially tried to downplay the electoral gap, arguing that the Obama deficit in Catholic votes was merely a manifestation of the campaign’s weakness among Hispanic voters (thus acknowledging one manifest weakness to try to ward off another). (See here and here.) And the news media appeared to cooperate in accepting this explanation—for a while.
But then came Ohio and Rhode Island last week, the most recent big states on the primary calendar, each of which has small numbers of Hispanics. The Catholic margin for Clinton over Obama not only persisted, but remained overwhelming. (See here.) In Ohio, the Catholic margin was somewhat under 2-1 for Clinton over Obama, while in Rhode Island, one of the most Catholic states in the nation and where Catholics made up a majority of the primary electorate, the margin for Clinton over Obama exceeded 2-1.
Demographics may well play a role in explaining why Obama has failed to attract Catholic voters in the primary campaign, but it may go much deeper than strong Hispanic support for Clinton. Obama’s centers of support have been African-Americans, who are more Protestant than other ethnic groups, and affluent white liberals, who as a demographic group are mostly secular but are seasoned with liberal Mainline Protestantism. By contrast, Clinton’s vote has been anchored not only in Hispanics, who indeed are heavily Catholic, but also in the traditional lunch-bucket Democrats of the working class, who in states like Massachusetts, Ohio, and Pennsylvania are disproportionately Catholic. Given that the last state mentioned here is the next big one on the primary calendar, what happens in Pennsylvania will be the next important data-point on this subject.
Others have argued that Obama’s softness among Catholics is a matter of style, with one commentator saying that Obama “speaks in the cadences of the black church, with a real Protestant approach.” Given that anyone of any political viewpoint who listens to Obama will find appeal in his inspirational style, dismissing Catholic disaffection from Obama as due to speaking style alone is unpersuasive. But perhaps the style of campaign itself, and the self-reverential tone of the content of that speaking, may account for some of the Catholic disaffection.
Might it be that the sometimes messianic quality of the Obama campaign has made many people of faith, Catholic and otherwise, uncomfortable? While the “Cult of Obama” certainly has been fanned by the media, the Obama campaign has exploited and promoted that approach when it serves their purposes. Recall those reports (here and here ) about how “[v]olunteer trainees at Camp Obama are told not to talk issues with voters, but to offer personal testimony about how they ‘came’ to Obama”? Notice how the other leading candidates, Senators Clinton and McCain, regularly hold town meetings and take questions from voters, while Senator Obama apparently prefers large rallies where he speaks to adoring crowds (see here). And, for heaven’s sake (pun intended), remember the Washington Post’s report on Barack Obama’s speech at Dartmouth College before the New Hampshire Primary in which he said: “My job this morning is to be so persuasive . . . that a light will shine through that window, a beam of light will come down upon you, you will experience an epiphany, and you will suddenly realize that you must go to the polls and vote for Barack.” Sure, I know Obama was just offering a little campaign humor (I do hope!), but the revival tent approach certainly has been staged by the Obama campaign. Isn’t it just possible that the self-revering focus of the Obama campaign has been off-putting to people of faith?
And then, of course, there is substance. We here on MoJ have long debated, and God willing will long continue to debate, the range of issues of public significance that should be of concern to any Catholic, indeed any person interested in the common good. But, of course, a candidate’s attitude toward the sanctity of human life will and should be remain the top of any hierarchy of Catholic public values. While there are Catholics who find themselves voting Democratic despite that party’s general exclusion of pro-life views, my friends here on MoJ and elsewhere tell me that they feel awkward doing so. My guess is that most voting Catholics on the Democratic side share that feeling and thus, quite naturally, if they have to vote for another pro-choice Democrat (for other reasons), would prefer that he or she at least be somewhat less objectionable, somewhat less "in your face" about it. (We'll leave for another day our ongoing friendly debate about whether, when, and how wise is that justification for supporting any pro-choice candidate.)
In this respect, Senator Clinton’s position on abortion of course is unacceptable, but she has at least made some noises on occasion deprecating abortion and she has managed to avoid being associated with some of the most extreme positions on the subject. A long way to go, in my estimation, but the question of the moment is comparative. By contrast, Senator Obama’s actions as an Illinois state senator to kill (pun intended) the Born Alive Infant Protection Act has drawn considerable attention in recent weeks (see here). Even NARAL did not oppose this bill and it passed the United States Senate by a unanimous voice vote (before Senator Obama’s election to that body). Thus, Obama has come across to knowledgeable voters as “More Pro-Choice Than NARAL.”
Now we learn of Senator Obama’s July, 2007 speech to a Planned Parenthood political action fundraiser, which is now public (see here). He pledged that he would “not yield” in his commitment to the pro-choice movement. He then promised: “The first thing I’d do as president is sign the Freedom of Choice Act. That’s the first thing that I’d do.” And so I have to ask, for a candidate who says that “culture wars” are “so 90s” and tells us that it is time to move past wedge issues in campaigns, is this promise to make national codification of unlimited abortion rights the centerpiece of his opening act as president the kind of thing that will make him a natural for the Catholic vote? I guess we'll see as election year coverage continues.
Greg Sisk
Thanks to MOJ contributors and readers (but not the hijacking robots) for patience and understanding in the delay to follow up on my promise to respond more fully to Professor Dan Markel’s proposal about his sex education licensing proposal for minors. I am particularly grateful to Rob for his understanding as he was the one who raised the Markel proposal on this website.
So, now, let me address the Markel proposal—is teen sex like teen driving? No, it is not.
I’ll begin my elaboration of this position by reiterating points I have made earlier in other postings: does something like the Markel proposal rob children of their childhood? In my estimation, yes. If we accept the Markel proposal and offer children sex-education licenses, why not marriage licenses? Why not grant children the ability to contract? Why should the franchise be restricted to those over the age of eighteen? Why not enable the military to draft at the age of twelve, eleven, ten, or nine? After all there is precedence for this with that reprehensible practice of child soldiers. Childhood exists for a series of important developmental reasons. It is a time of learning basics about human existence; but it is not a time for them to be thrust into the thicket of human experiences that confound many adults. So why should these burdens be placed upon the shoulders of the young who should be learning first principles and having some fun as well?
My second point is this: if a young person took the family car without family authorization and legal authorization even with a license to drive, there would be problems on many fronts. Does the issuance of a license for teen sex eliminate problems? I doubt this for a number of reasons. I begin with the point I have already made: children are being denied their childhood. Second, even though they may have at earlier stages of life the bodies or bodily abilities of adults, they are still children. Have they learned what needs to be learned as a child about courtesy, graciousness, obedience to proper authority, magnanimity, charity, good citizenship, proper manners… and I hasten, the list could go on before they comprehend the intricacies of sexual relations? These young people may be highly intelligent, but do they have the experiences of and wisdom about life fitting to a young person? Highly unlikely.
If you have any doubt about my response to this last question, take a look at some of your law students who are extremely bright but have not yet learned and mastered basic principles of etiquette for inside and outside the classroom, or for that matter, proper grammar, syntax, spelling and punctuation.
If we don’t learn these first principles on other simpler matters when we are supposed to, how can we be ready to accept the responsibility of more weighty matters like appropriate sexual relations. Think of this response to a problem involving sexual involvement of a young person: “Well, I got my license, why can’t I have sex with whomever I want whenever I want wherever I want?” There is a bit more that needs to be learned about life, about human nature, and about human destiny, that’s what.
I have read and reread Professor Markel’s interesting but flawed proposal. After many readings, I just wondered if he thought that young persons are the equal of a person of his years in every regard? If so, this is a flawed assumption. This flaw is exemplified in his subsequent remark that he is “not opposed to say, gay triplets having sex (or marrying) each other, provided certain conditions are satisfied.” I wonder what “conditions” he had in mind since he does not elaborate on what they are or might be? For the time being, I shall put aside the specifics about these triplets as to whether they are identical, fraternal of the same sex, or fraternal of both sexes.
It appears that a primary motivation for his sex-education licensing proposal is to “provide a safe harbor from prosecution for relations with minors.” Well, I am sure that would be a relief to many, including members of our Church, who have been accused and convicted of child molestation. When all is said and done, does the conferral of a license by the State mean that a person of tender years is truly capable of doing something with dramatic and often drastic consequences that result from sexual relations? I realize that Professor Markel puts some limitation on his proposal, but he nevertheless suggests that we might start with children as young as 14 years old who are to receive sex education licenses. Children of this age, and older, may consent to mowing the lawn at one moment but may well rebel at the thought in the next. So what does this say about their ability to consent to sexual relations—be they with other “minors” or with adults, as Professor Markel opines?
His proposal appears to be designed to do one thing: to serve as a defense against prosecution for statutory rape—meaning sexual relations with a person under-age. In my estimation this would be a great comfort to those adults who are sexual predators of the young, but their comfort would entail the peril of our young. The fact that the child has received information about “safe sex, the risks of sexually transmitted diseases, and genetic defects arising from consanguineous relations” is not going to protect young people from themselves or from those who are very capable of preying on their vulnerability. The three conditions that Professor Markel would require may eliminate some of the abuses that I have just listed, but, as lawyers, we know that the ground is quite fertile for legal abuse on many other fronts not addressed by his conditions.
I find his “idea of requiring” the registration of a “joint consent form indicating intent to have sexual relations with a designated public official before the activity happens” fascinating but highly problematic. I begin by raising the matter about enforcement. Who will enforce such a licensing scheme? Moreover, will not civil libertarians be up in arms about the role of the State in enforcing expressions involving such personal matters? And, from a Catholic Legal Theory perspective, does the Markel proposal not drive a further wedge between the proper relations involving supervision and protection of parents or legal guardians and the children entrusted to their protection? Professor Markel raises the question regarding issues about State paternalism, but he says nothing about natural paternal duties and how they will be adversely affected if not destroyed.
His proposal then goes through a series of questions raised by students in his class where the concept of the sex education licensing presumably was raised. For example, the fact that a young person has a sex education license does not mean that he or she will be protected from the vulnerabilities of being a young person who engages in risky sexual conduct. His response begins with an analogy to driver education that prepares a young person to obtain a motor vehicle operator’s license. Motor vehicle licensing also bears its dangers, but it is more attuned to the age of a young person of sixteen or seventeen having an ability to drive a car or other specified kinds of motor vehicles. A person of this age category is being licensed to engage in an activity, i.e., driving a motor vehicle, which bears very different consequences than the consequences of having sex with anyone—male or female regardless of age. Professor Markel does not take account of these distinctions. In his estimation they are the same, but in reality they are not. Driving safely is not to be analogized with “safe sex.” Yet he seems to suggest otherwise.
The mind and mental functions determine how well or poorly a young driver, as well as any driver, operates a motor vehicle. “Hormonal impulses” have nothing to do with driving a car, but, as Professor Markel properly notes, they have a lot to do with having sex. His analogy with motor vehicle licensing must fail because of this distinction alone. Nevertheless, he asserts at this stage that the threat of prosecution for violations of either licensing can serve as a deterrent to their abuse. I am sure that the threat of prosecution for a violation of sex education licensing will be a source of comfort for many victims of rape—conventional or statutory.
Let me comment in just a few words on the analogy of the young pizza delivery server and the child pornography actor. A young person who works in the pizza parlor or in the pizza delivery vehicle is serving a pizza—not himself or herself. I am honestly consoled to know that even Professor Markel has reservations about the use of a sex education licenses to work in the pornography business. While I have my disagreements with researchers like Catherine MacKinnon on other issues, she has clearly demonstrated that those children and women co-opted into becoming pornography actors are often enslaved into a system from which escape is precarious. This may be why Professor Markel states his reluctance about carrying the sex education license to this extreme. Interestingly, he suggests an explanation for a reservation that is not given. My answer to this predicament is that there can be no explanation that would justify sex education licenses that would legitimate child pornography.
Finally, let me offer a thought on his critique of parental notification or vetoes. His position is that there should not be any requirement for parental consent in a sex education licensing scheme as he has presented it. But with the implementation of his proposal, he drives one more stake into the heart of the basic unit of society—the family. When we remove children from the supervision and control of parents that is properly theirs, where will young people turn when they finally realize they have encountered problems to which they have no answers or solutions? That they may carry a sex education license in their wallet affords little comfort and no protection. RJA sj
Tuesday, March 11, 2008
What's the point?
New York Times
March 11, 2008
Kissing the Earth Goodbye in About 7.59 Billion Years
In the end, there won’t even be fragments.
If nature is left to its own devices, about 7.59 billion years from now Earth will be dragged from its orbit by an engorged red Sun and spiral to a rapid vaporous death. That is the forecast according to new calculations by a pair of astronomers, Klaus-Peter Schroeder of the University of Guanajuato in Mexico and Robert Connon Smith of the University of Sussex in England.
Their report, to be published in the Monthly Notices of the Royal Astronomical Society, is the latest and gloomiest installment yet in a long-running debate about the ultimate fate of our planet. Only last year, the discovery of a giant planet orbiting the faint burned-out cinder of a star in Pegasus had suggested that Earth could survive the Sun’s death.
Dr. Smith called the new result “a touch depressing” in a series of e-mail messages. But “looked at another way,” he added, “it is an incentive to do something about finding ways to leave our planet and colonize other areas in the galaxy.”
As for sentimental attachment to any of the geographic features we might have come to know and love, Dr. Smith said, “I should add that the Himalayas are a passing thought anyway. They didn’t even exist until India smashed into Asia less than 60 million years ago — the blink of an eye compared with the billions of years we are discussing.”
While he does not expect the argument to end, Dr. Smith said in an e-mail message that, if anything, in the new calculations he and Dr. Schroeder had underestimated the forces that would be dragging the Earth down toward the Sun.
“So,” he said, “I would be surprised if anyone were able to rescue the Earth again in a future paper.”
[Read the rest of this inspiring, clarifying story ... here.]
[For the Woody Allen fans out there: Does this remind you of the scene--in Annie Hall, I think--where the young Woody's mother is imploring him not to lose perspective. He has just learned that the universe will end. With the Coney Island roller coaster roaring outside, she implores him: "What's that to you?! Do your homework!"]
I just posted a draft of a paper I've been working on titled Moral Engagement Without the "Moral Law": A Post-Canons View of Attorneys' Moral Accountability. I welcome any and all feedback. Here is the abtract:
Several years ago in my Professional Responsibility class, I wanted to see how far I could push my students in their embrace of the notion that the moral evaluation of conduct depends on the professional role one occupies. I asked students to imagine that they were medical researchers in Nazi Germany, and that the authorities brought them to a concentration camp, inviting them to experiment on live human subjects. Would they, as scientists, proceed with the experiments? The first three students I called on answered that they would do the experiments if it would advance the research. One explained that morality is constructed by society, and in that particular society, the experiments would not be considered immoral. Another asked, "If those inmates are going to die anyway, why not have them contribute to the greater good?" The third insisted that the job of the researcher is to expand scientific knowledge, and the job of the government is to define the limits of that research. Absent government prohibition, the researcher has no moral reason not to proceed.
These students, I am confident, did not believe what they were saying. They were engaging my question according to the rules of good lawyering, as they perceived them - figuring out a way around any and all obstacles standing between the actor and a given course of conduct. Indeed, much of the blame for their answers belongs with the messages they receive about the values of the legal profession. Much of the law school experience sends the message, subtly but unmistakably, that cleverness is valued over wisdom, and that the law is simply a problem to be solved, rather than an inescapably moral endeavor.
In comparison to the era when the American Bar Association, via the 1908 Canons of Professional Ethics, could confidently instruct lawyers to "impress upon the client and his undertaking exact compliance with the strictest principles of moral law," today we are more skeptical about the existence of any "moral law," much less that it could or should be impressed upon the client. Recognizing the variability of moral convictions and complexity of moral analysis has understandably made lawyers reluctant to judge their clients by moral standards not reflected in positive law. But this reluctance to judge seems also to have brought a reluctance to engage the client on moral terms. The resulting technocratic view of law is evidenced far beyond the walls of my classroom. A refusal to acknowledge the moral dimension of legal practice has contributed to several of the leading lawyer-fueled scandals of recent years, as well as to the broader malaise that has afflicted the profession for some time. Nevertheless, the prospect of putting morality onto the table of legal representation is unsettling to many. This essay looks to reframe our conception of morality's relevance to professionalism, using the Canons' espousal of moral accountability as an insightful point of entry.
This essay was written as a contribution to the ABA's commemoration of the 100th anniversary of the Canons of Professional Ethics.
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