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.

Monday, February 19, 2007

The New Speech Code

By Rob Vischer

While I'm sympathetic to the argument that committed same-sex relationships warrant some sort of legal recognition, I have never been particularly sympathetic to the argument that marriage between a man and a woman should be viewed simply as one among an infinite number of self-defining options.  Once we head in that direction, we just might end up in bizarro-world:

Nurses and other health care professionals should avoid using the terms ‘mom’ and ‘dad’ to refer to family relationships since the terms could be offensive to homosexual couples with children, a new directive published by Scotland’s National Health Service recommends. . . .

The booklet calls for a “zero-tolerance policy to discriminatory language” among Scotland’s health care system. Included in discriminatory language is the use of terms that assume a traditional family structure of mother, father and children, according to the NHS directive. . . .

“Individual circumstances lead to varied family structures and parenting arrangements. It is important to be aware of this. When talking to children, consider using ‘parents‘, ‘carers’ or ‘guardians’ rather than ‘mother’ or ‘father‘.

Along the same lines, the directive points out, use of the terms ‘husband’, ‘wife’ and ‘marriage’ is not acceptable since such terms exclude lesbian, gay and bisexual people. Instead, health care workers should use the terms ‘partners’ and ‘next of kin’. Since ‘next of kin’ is often understood to mean nearest blood relative, however, the booklet recommends that it may be preferable to use ‘partner, close friend or close relative’ to avoid confusion.

Summer Catholic Social Thought Institute

By Rick Garnett

Information about the Summer Catholic Social Thought Institute, to be held May 21-25 in Washington D.C., is here.  The Institute is co-sponsored by the CUA Department of Sociology and the Society of Catholic Social Scientists.  Speakers include Catholic law prof George Garvey, of CUA. 

Sunday, February 18, 2007

"Grassroots Abortion War"

By Rick Garnett

This Time magazine article, "The Grassroots Abortion War," on crisis-pregnancy centers, their work, and their critics, is worth a look.

Individual and Community

By Rick Garnett

Check out this post, by Mike Rappaport, over at "The Right Coast."  In the post, Rappaport quotes from, and discusses, this op-ed by a 2006 Nobel Prize winner, Edmund Phelps.  Here is a bit from the Phelps piece, called "Entrepreneurial Culture:  Why European Economies Lag Behind the U.S.":

As is increasingly admitted, the economic performance in nearly every Continental country is generally poor compared to the U.S. and a few other countries that share the U.S.'s characteristics. Productivity in the Continental Big Three--Germany, France and Italy--stopped gaining ground on the U.S. in the early 1990s, then lost ground as a result of recent slowdowns and the U.S. speed-up. Unemployment rates are generally far higher than those in the U.S., U.K., Canada and Ireland. And labor force participation rates have been lower for decades. Relatedly, the employee engagement and job satisfaction reported in surveys are mostly lower, too.

It is reasonable to infer that the economic systems on the Continent are not well structured for high performance. . . .

Many economists attribute the Continent's higher unemployment and lower participation, if not also its lower productivity, to the Continent's social model--in particular, the plethora of social insurance entitlements and the taxes to pay for them. The standard argument is fallacious, though. . . .

In my thesis, the Continental economies' root problem is a dearth of economic dynamism--loosely, the rate of commercially successful innovation. . . .

. . .  Germany, Italy and France appear to possess less dynamism than do the U.S. and the others. . . .

Further, I argue that the cause of that dearth of dynamism lies in the sort of "economic model" found in most, if not all, of the Continental countries. . . .

There are two dimensions to a country's economic model. One part consists of its economic institutions. These institutions on the Continent do not look to be good for dynamism. . . .

The other part of the economic model consists of various elements of the country's economic culture. Some cultural attributes in a country may have direct effects on performance--on top of their indirect effects through the institutions they foster. Values and attitudes are analogous to institutions--some impede, others enable. . . .

[The weakness of certain entrepreneurial values is an "impediment to a revival of dynamism there."  But this is not the only impediment.]  There is the solidarist aim of protecting the "social partners"--communities and regions, business owners, organized labor and the professions--from disruptive market forces. There is also the consensualist aim of blocking business initiatives that lack the consent of the "stakeholders"--those, such as employees, customers and rival companies, thought to have a stake besides the owners. There is an intellectual current elevating community and society over individual engagement and personal growth, which springs from antimaterialist and egalitarian strains in Western culture. There is also the "scientism" that holds that state-directed research is the key to higher productivity. Equally, there is the tradition of hierarchical organization in Continental countries. Lastly, there a strain of anti-commercialism. "A German would rather say he had inherited his fortune than say he made it himself," the economist Hans-Werner Sinn once remarked to me.  . . .

What would be an appropriately CST-informed reaction to this?

Edith Stein Conference at Notre Dame

By Michael Scaperlanda

If you'll be in the South Bend area next weekend, you might want to check this out:

Students host Edith Stein conference to address healing in women

By: Shannon Chapla
Date: February 15, 2007

A group of University of Notre Dame students is hosting a two-day conference to address healing for women who have been victimized in body and spirit and to discuss the manner in which contemporary culture imperils the dignity of women.

The conference, titled “The Edith Stein Project: Toward Integral Healing for Women and Culture,” will be held Feb. 23 and 24 (Friday and Saturday) in McKenna Hall on campus, and is open to the public.

For more of the article, click here.

Preliminary Call for Articles -- The 2007 Conference on Catholic Social Thought and the Law.

By Rick Garnett

I wanted to announce that the Fifth (mirabile dictu!) Conference on Catholic Social Thought and the Law will be held on September 21, 2007, sponsored by Villanova University School of Law and the Journal of Catholic Social Thought, and held at the Villanova Conference Center outside of Philadelphia.This year's topic will be "CST on the the Market, the State and the Law." The goal of this conference will be to shed some light on the never-ending battle over where CST stands on economic life, economic regulation and the virtues and deficiencies of the market. Those who have followed the MOJ debates on just wage, corporate law and globalization will remember the very different points of view among those of us working in the CST vineyard. This topic will, I think, bring to the fore the difficulties of translating the broad precepts of CST into specific policy and legal applications. Those difficulties, however, do not relegate CST to the airy realms of abstraction, leaving the tough questions to "prudential" resolution: If CST is to mean anything, it must somehow guide or constrain our choices in a serious way. In other words, we have to ask whether CST is broad enough to encompass the very different conceptions of economics, politics and law that have invoked its name. Our conference will be broadly interdisciplinary as usual, including law profs, economists, business ethicists, theologians and others. I will be posting a more formal call for articles shortly. The articles will be published in the JCST as usual. My colleague Mike Moreland will be joining me in organizing this and future conferences; feel free to contact either of us with questions, though we will be publicizing all the logistical details before too long.

           A note on last year's conference on the "The Meaning of the Preferential Option for the Poor for the Law:" The articles are all going through the editing process (some are finished) and we hope to publish that issue of the JCST by the end of the semester.

--Mark

Friday, February 16, 2007

Friendship conference at Baylor

By Rick Garnett

We are abundantly blessed in the conference department this Spring, it appears.  Check out this one, at Baylor:

Inaugural Baylor Symposium on Faith and Culture

Friendship: Quests for Character, Community, and Truth

Thursday, October 25-Saturday, October 27, 2007

Baylor University, Waco, Texas

Featured Speakers:

C. Stephen Evans (Baylor University)
Paul Griffiths (University of Illinois at Chicago)
Thomas Hibbs (Baylor University)
Alan Jacobs (Wheaton College)
Dominic Manganiello (University of Ottawa)
Mary Nichols (Baylor University)
Charles Pinches (University of Scranton)
Robert Putnam (Harvard University)
Robert C. Roberts (Baylor University)
Nancy Sherman (Georgetown University)
Paul Wadell (St. Norbert College)
Carolinne White (University of Oxford)

Because we so naturally esteem friendship, Augustine wrote, our conscience condemns us if we do not meet friendship with friendship. When we do, we open ourselves to transforming possibilities-personal, civic, and even spiritual.

Though the highest form of friendship might be a school of virtue, a source of solidarity in bearing life's burdens, and (following Aquinas) an avenue to Christian charity and friendship with God, friendship is increasingly difficult to realize within our culture, especially given the challenges posed by radical individualism, mobility, and political, racial, and religious division. Technologies like the Internet change how we view friendship: we are drawn more to 'Facebook' encounters than face-to-face relationships. Yet the quests for character, community, and truth that are made possible through friendship invite perceptive critiques of contemporary society as well as creative proposals for renewed forms of personal and civic life.

Ezra Klein on prison rape

By Rick Garnett

Ezra Klein points to a glaring moral failure on our (i.e., we Americans') part:

[P]olitically tough as it may be to address, it's morally abhorrent to ignore. And we have to remember: Every single time we sentence a suspect to jail time, we are tacitly consenting not merely to his imprisonment, but to his savage sexual assault, with all the physical and psychological damage it will bring.

The "hardening" Supreme Court?

By Rick Garnett

A few days ago, Dahlia Lithwick had a piece in which she remarked on what she took to be a strange fact, namely, that "American support for the death penalty is diminishing—except on the Supreme Court."  Now, as other bloggers have contended (convincing, I think) Lithwick's argument is not very strong:  That some justices continue to enforce and apply duly enacted laws that permit the death penalty, and regulate post-conviction-review processes is an apple to the orange of changing public views on the wisdom of capital punishment.

Another thought, though:  Lithwick observes that "in a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to harden in the one institution that was, until recently, showing real doubt: the Supreme Court. . . .   In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to harden in the one institution that was, until recently, showing real doubt: the Supreme Court."

It strikes me that this indictment has more force if directed against, say, the Court majority in the Stenberg case (invalidating a state's partial-birth-abortion ban).  It is quite clear that the public does not support -- if it ever did -- the abortion regime constitutionalized in Roe v. Wade.  (To the extent the public supports Roe, it is, I think, because they believe that regime is less absolutist than it is.)  States and Congress are passing law after law, attempting to regulate reasonably abortion.  And yet, in a "curious application of Newtonian physics," there were (until recently) five Justices on the Court who . . . etc. etc. etc.

Why do universities exist?

By Rick Garnett

A few days ago, Prof. Geoff Stone put up a long, very personal post on the University of Chicago Law Faculty Blog, "Darfur and the Kalven Report:  A Personal Journey."  In that post, he discussed and reflected on the University of Chicago's recent decision -- based on the Kalven Report -- not to divest from Darfur.  Prof. Stone describes the evolution of his own views regarding the University of Chicago's decision not to "take a stand" against the Vietnam war, and of his reasons for thinking, now, that the University got it right, then and now. 

The post includes (as did the Kalven Report) claims about the nature, function, and role of the university, that struck me as worth reflecting upon.  Here's a (fairly long) excerpt, and then some thoughts about it:

. . .  Universities – most especially this university – exist for a very special reason. They exist to create a forum in which students, professors, and researchers may explore every issue from every side without fear of official condemnation or judgment.  They exist to enable talented and committed individuals to seek the truth. They exist to serve as a safe haven in which even the most controversial and despised views may be aired, confronted, and considered. They do not exist so students, faculty, researchers, and administrators can vote to determine the truth. They do not exist to proclaim the truth. For a university, it takes much more courage to stand silent, then to yield to the pressure and temptation to take sides. But once a university takes sides, it is no longer a university.

Now, this strikes me as a debatable claim, that "once a university takes sides, it is no longer a university."  Couldn't a university "take sides" on a question, even a contestible moral or policy question, without compromising the ability of faculty to continue exploring that and other questions, and to offer positions at odds with the "side" taken by the University?  Back to Prof. Stone:

. . .  Well-meaning and admirable students demand that the University divest itself of any investments it may have in corporations that do business in Darfur. Certainly, their concern with the tragic events in Darfur is warranted – indeed, compelling. But the University is right not to take a political, social, or moral position.  It is for the students, faculty, trustees, alumni, staff, and friends of the University to take their own positions. It is not for the University to do so for them.

Perhaps not "for them", but what about for itself?  Is it really the case that a University is the kind of enterprise / project / community that must, by definition, not "take . . . positions" on "political, social, or moral" questions?  Back to Stone:

The Kalven Report recognizes that there may be exceptional circumstances in which it is appropriate for the University to take positions on public issues. It may do so in order to protect the fundamental interests of the University itself. For example, the University may legitimately oppose government efforts to curtail freedom of inquiry within the University or to dictate who may or may not be a student or professor here.  The University may also legitimately act on the basis of political, moral, or social judgments if its own conduct would otherwise directly and materially cause serious injustice. For example, the University may appropriately refuse to allow employers to use its placement facilities if they would use those facilities to discriminate against students on the basis of race, religion, gender, ethnicity, or sexual orientation.

What the Kalven Report forbids, however, are decisions of the University designed expressly or symbolically to proclaim “right” moral, political, or social positions. That is the issue presented by those who insist that the University should divest from Darfur. The University’s investments in corporations that may do business in Darfur cannot in any meaningful sense be said directly and materially to have caused the tragedy in Darfur. Those who demand divestment want the University to make a statement about what is morally, politically, and socially “right.” And that is precisely what the University should not do.

Now, this seems a bit jury-rigged, in order to leave room for supporting the position taken by many leading law schools in the recent Rumsfeld case.  Couldn't it be said that, by not -- say -- divesting from Darfur, a university is causing injustice no less "directly and materially" than would be a law school that permitted the military to interview on campus?  Sure, the University's investments did not cause the tragedy in Darfur.  But, letting the JAG interview at Yale Law School is not causing anti-gay discrimination, either.  And, doesn't the identification of those "serious injustices" that trigger this exception involve making, and acting on, moral and other claims and arguments that are no less debatable than those that would, presumably, be offered in support of the pro-divestment arguments?  Wasn't the law schools' position in the Rumsfeld case precisely that they had a First Amendment right to "make a statement" opposing the military's position?

Lawyers know all about slippery slopes. If the University divests from Darfur, then others will surely insist that the University must then divest from corporations that manufacture cigarettes, perform abortions, sell arms to Israel, and pollute the environment. Of course, there are degrees of right and wrong and degrees of evil. But it is not the role of the University to take positions on such questions. Indeed, the University should no more divest on the basis of these sorts of issues than it should prohibit students and faculty from speaking freely on campus in support of tobacco subsidies, the moral legitimacy of murdering abortionists, the right of Palestinians to destroy Israel, or even the morality of genocide. The role of the University is not to "decide" such questions, but to create and nurture an environment in which we may freely and openly debate them, without fearing that the University has already resolved them on our behalf.

As I've suggested above, it strikes me that the force of the "University should not resolve difficult questions on our behalf" is undercut by the "but it is fine for the University to exclude military employers because of the military's immoral policy" caveat.  But putting that aside, I guess I want to resist the first principle that a university, as such, cannot -- without ceasing to be a university -- "take positions" on things.  (Whether it should do so, or should do so promiscuously, is another matter, of course.) 

What do others think?

UPDATE:  At Prawfsblawg, Professor Paul Horwitz has an excellent post, responding to this one.  Check it out.  (Paul's post is particularly interesting, I think, because he is visiting at Notre Dame Law School.)

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