Monday, February 12, 2007
No, not that V-day -- the one connected to that play -- but this one: February 11 (yesterday) was Vatican Independence Day, the day of the signing of the 1929 Lateran Pacts that made the Holy See a sovereign entity over the 168 acres of Rome now known as the Vatican City-State. I know I'll be drinking a fine Italian red to celebrate . . . .
(Thanks for the reminder to Whispers in the Loggia.)
Given the many MOJ posts on conscience clauses and conscience-based exemptions, this item from Professor Friedman's "Religion Clause" blog might be of interest:
Today's issue of the New England Journal of Medicine carries a special article titled Religion, Conscience, and Controversial Clinical Practices. It reports on a survey of 1144 practicing U.S. physicians regarding their views on situations in which patients request a legal medical procedure to which the physician objects on moral grounds. The study concluded that "most physicians believe that it is ethically permissible for doctors to explain their moral objections to patients (63%). Most also believe that physicians are obligated to present all options (86%) and to refer the patient to another clinician who does not object to the requested procedure (71%).... [However] many physicians do not consider themselves obligated to disclose information about or refer patients for legal but morally controversial medical procedures. Patients who want information about and access to such procedures may need to inquire proactively to determine whether their physicians would accommodate such requests." Today's Chicago Tribune reports on the study.
This blog was inaugurated on February 3, 2004, with this post:
Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.
A few things about this blog and us:
1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.
2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.
3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.
4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.
5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)
6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!
Thanks to all MOJ bloggers and readers, past and present (and future!). We've had thousands of posts, and hundreds of thousands of hits. Obviously, we've raised far more questions than we've answered, but I like to think that we've avoided some of the narcissism and navel-gazing that can afflict blogging, and have also shown that respectful, collegial, charitable disagreement is possible and fruitful. On to year four!
MoJ readers might be interested in Marty Lederman's speculation (based on an excerpt from Jan Crawford Greenberg's new book on the Supreme Court) about why the Bush Administration passed over Michael McConnell for a Supreme Court vacancy.
The New York Times' public editor responds to complaints about the recent front-page story proclaiming that more than half of American women now live without a husband. The tally was made possible by counting 15 year-olds as "women living without a spouse." (A previous MoJ post on the criticism is here.) The editor concludes:
The eye-catching assertion that more women in America were living without a husband than with one obviously vaulted this article to Page One. “It is true that the 51 percent benchmark probably lifted this story onto the front page,” Jack Kadden, a deputy national editor who oversaw its preparation, wrote in an e-mail. “It is certainly what caught our attention.”
It was discouraging to find yet another article with an unusual angle that didn’t seem to encounter many skeptical editors as it made its way to the front page. “At the Page One meeting there was agreement that the story was especially newsworthy because of the for-the-first-time-more-living-alone-than-with-a-spouse angle,” Jill Abramson, the managing editor for news, wrote to me in an e-mail. “No questions about the methodology or age categories were discussed.”
Since a faculty hire as humdrum as the Dalai Lama is worth trumpeting on MoJ, I feel obliged to announce a faculty hire even more impressive: longtime MoJ-er Susan Stabile, the Dean George W. Matheson Professor of Law at St. John's, will be joining Lisa Schiltz, Greg Sisk, Tom Berg, and me on the faculty of the University of St. Thomas Law School at the close of the academic year. Needless to say, we are incredibly excited to have her on board as the St. Thomas project continues to unfold.
The "weddings & celebrations" page of the New York Times can be a surprisingly provocative read, and today is no exception. Consider the story of Sharon Drager and Wyit Wright (HT: Volokh):
By 1996 [Dr. Drager] was divorced again. She was also lonely and began looking online for old friends. She found Mr. Wright’s e-mail address. She remembered being both “apprehensive and excited” when she began typing, “I don’t know if you remember me.”
His response came 15 minutes later. By then, he said, his home life was troubled. He was heartened “to hear from someone who you never thought you would hear from again.”
They corresponded by e-mail off and on for five years. “Every time his name popped up,” Dr. Drager felt a bolt of excitement.
After 9/11, their conversation changed. Mr. Wright, who had always thought he could fix anything, had by then concluded that his family life was irrevocably broken.
He suggested to Dr. Drager that they meet in Las Vegas the next year and go on a group river-rafting trip through the Grand Canyon. He told his wife about the trip but not about his companion.
I realize that there is often an overlap between a previous marriage and the relationship giving rise to the new marriage, but I did not realize that the overlap is now to be publicly noted (even chuckled over?) as simply another anecdotal indication of the myriad ways in which our lifelong commitments end and begin again with someone invariably more delightful than our previous partner.
Sunday, February 11, 2007
Critiqued family detention center opens its doors
Copyright 2007 Houston Chronicle
TAYLOR — Painted sunflowers bloomed on the cinderblock. Teddy bears smiled from metal bunk beds in the cells. Slides and swings adorned a small playground rimmed in razor wire.
At the T. Don Hutto Residential Center, shown to the media Friday for the first time since it opened nine months ago, images of childhood were juxtaposed against the cavern-cold feel of a former prison. It's a place where standard-issue navy detention uniforms come in infant onesies.
The Hutto Center, built as a correctional center for adults, is now one of only two facilities in the country at which immigrant parents and children seeking asylum or facing deportation are detained, at a cost of $2.8 million a month, U.S. Immigration and Customs Enforcement officials who led the tour said.
"We've been historically criticized for breaking families apart," said Gary Mead, ICE assistant director for detention and removal operations in Washington, D.C. "We feel this is a humane approach for keeping families together."
After the Sept. 11 attacks, the immigration department abandoned its "catch and release" method of handling immigrant families from countries other than Mexico, largely because most immigrants failed to report to their court hearings.
Human rights groups say that Hutto, operated by the for-profit Corrections Corporation of America, is no place for children. Detainees have complained of poor food, lagging medical attention, substandard education and a sharply structured penal-like environment that Congress has specifically advised against where children are concerned. ...
For more of the article.
I missed this when it came out, but last week Prof. Bainbridge responded to my post responding to his post questioning whether the minimum wage was consistent with Catholic teachings on the just wage, which seemed to require an individualized assessment of the just wage in any given context.
In his most recent post, he takes issue with my reliance on Economic Justice for All, arguing that (1) it is not authoritative as such because it was undermined by Centesimus Annus (per Neuhaus) and (2) its teachings on the minimum wage are no more than prudential judgments, entitled to less respect than statements of principle.
On (1), I, for one, find Neuhaus's readings of CA to be fairly unconvincing. But no matter, because I don't think I need to defend the authority of EJFA to make my point.
On (2), I think Prof. Bainbridge is missing my point, mostly because I did not make it all that clear in my post. Prof. Bainbridge is looking for an authoritative statement that support for the minimum wage (or the minimum wage increase) is mandatory in the same way that opposition to laws permitting abortion is mandatory (that is, at all times and places). I agree with him that there is no such statement, as there are with abortion and euthanasia. Such a statement would be fairly silly, because different societies will have different ways of guaranteeing that a worker receives a just wage. In a society with a government-guaranteed basic wage, social insurance, public education (or vouchers), a strong labor movement, and universal health care, for example, there would be no need for a minimum wage law at all.
But I take issue with the premise of his argument that the only way someone can fall out of step with the Catholic social tradition is by failing to follow a clearly articulated rule. It's just not that easy. Sometimes, the Church says: "Do X & Y." (e.g., Support laws prohibiting abortion and oppose laws legalizing it.) Other times, it says, "Apply principles X & Y."
What we have in this area, however, are principles at work in the Church's authoritative teachings on the economy, including the American bishops' discussion of the minimum wage. (I wouldn't really expect the Vatican to discuss in detail an economic policy so specific to the American experience.) Among others, those principles are that (1) the unfettered market is not an adequate mechanism to guarantee economic justice to workers; (2) the state has an obligation to foster such justice by monitoring and regulating the operation of the market, provided that it does not trample on subsidiary entities capable of doing the same job; and (3) that in formulating its policy responses to the market, we must focus on the well being of the worst off. (I'm going to dispense with citations for these principles, because I think they're uncontroversial, but I'm happy to supply them on demand.)
The question in the area of the minimum wage is not whether opponents are breaking any rules set out by the Church's authoritative teaching, but whether they're applying the right principles (the three I've mentioned, among others) or some other principle (e.g., "Maximize aggregate utility." or, perhaps, "Do what's in the best interests of your supporters in the U.S. Chamber of Commerce.") I think I agree with Prof. Bainbridge that it's impossible to tell the answer to this question just from looking at someone's position on the minimum wage in isolation. But bringing the operative principles into dialog with the precise constellation of economic policies in place and on the table for discussion in our society -- including a nearly exclusive reliance on wages for the employed working class to get the resources they need, along with a weak labor movement -- I find it very difficult to reconcile opposition to the minimum wage as such with the principles I've mentioned (I'm not talking yet here about the decision to raise the minimum wage, which -- I agree with Prof. Bainbridge -- is a question one step more removed). And that is why, I think, notwithstanding CA, the Catholic bishops continue to unqualifiedly support the minimum wage (and demand its increase), as Prof. Bainbridge observes in his post. I think someone who would favor reliance on an unregulated market for wages (that is, someone who would oppose the minimum wage) cannot plausibly claim consistency with the aforementioned principles unless he at least proposes and works for the implementation of alternative policies to guarantee that workers receive the material resources to which they're entitled.
For what it's worth, I think the same goes for increases in the minimum wage, but I agree that that argument introduces a number of other considerations. There's little doubt that, by itself, the current federal minimum wage is not a "just wage," as that term has been defined within CST (except perhaps for those teenagers Prof. Bainbridge discussed in his original post). From what I've read, a nontrivial number of American working families are dependent upon the minimum wage (or upon wages that are just above the minimum wage and probably tied to the minimum wage, at least indirectly). But if that is the case, raising the minimum wage seems like one obvious way to remedy the problem. If, however, you think that raising the minimum wage would do more harm than good (e.g., due to effects on employment), as opponents to the increase claim, that does not let you off the hook within Catholic economic teaching. To plausibly claim consistency with the principles at work in this area, you must come forward with your own policy prescriptions for guaranteeing that the poorest workers receive a just wage that does not involve reliance on the market to sort it all out. As far as I can tell, no such proposals have been forthcoming from opponents of the minimum wage increase.
Saturday, February 10, 2007
A change in immigration policy now allows families who are in the U.S. illegally to be detained. Last summer, Immigration and Customs Enforcement began holding entire families, including small children, at a converted prison outside of Austin, Texas.
Officials say that before the facility opened, illegal immigrants with children were often released with a notice to appear before an immigration judge. But the immigrants rarely made their court dates.
Greg Mead, director of the Hutto Family Residential Facility, says the facility is crucial to make sure these illegal immigrants don't disappear.
But the facility, a converted high-security prison, is coming under increased criticism. Attorneys for the detainees, many of whom are seeking political asylum, say it is abhorrent that small children, including babies, are being incarcerated.
The Hutto facility currently holds 375 people, more than 200 of them children; its maximum capacity is listed at 512 people. Everyone, from adults to children to infants, wears uniforms of either blue or green.
And, of course, when you put people in prison, even small children, folks will treat them like prisoners. So we have this lovely story:
The tour of the T. Don Hutto Family Residential Facility, a former state prison near Austin, came a week after the Ibrahim family was released when a federal immigration board agreed to reconsider their request for asylum.
Attorneys for the Ibrahims, who arrived in suburban Dallas in 2001, say the five family members felt humiliated by the conditions at Hutto. Court papers allege that 5-year-old Faten Ibrahim was yelled at and threatened because she didn't stand still during head counts.
StatCounter
PageViews
Since February 19, 2008
