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.

Friday, September 22, 2006

Vischer on Lawyers, Judges and Conscience

By Amy Uelmen

Last evening here at Fordham we were fortunate to have MOJ’s own Rob Vischer as the featured speaker for the first in this year’s Catholic Lawyer’s Program lecture series, Faithful Citizenship, which explored “When Conscience Clashes with State Law & Policy: The Distinctions Between Lawyers and Judges.”  We were treated to a wonderful in-depth analysis which is part of Rob’s larger project on the role of conscience and prudence in the legal system as a whole. 

The thrust of Rob’s argument (who can correct me if I got it wrong) was that there should be much wider latitude for attorneys to bring their conscience to bear on professional decisions, because for the most part the market allows clients to seek a variety of avenues for representation.  Judges, in contrast, are not market actors, and so outside areas where discretion would normally be brought to bear, exercise of one’s personal and perhaps idiosyncratic conscience may threaten the rule of law, fairness, predictability, and other values of the legal system.  For the purposes of our project, one especially interesting aspect of the presentation was its groudning in principles of CST: subsidiarity, solidarity, reciprocity, and the common good.

The response by my colleague Bruce Green then initiated a terrific open discussion with the participating attorneys.

I look forward to seeing his paper posted soon – there’s much to chew on.

Torture and the Ticking Time Bomb

By Amy Uelmen

Now that Rob has taught me about these fancy links... Here's the online version of a brief essay I did for the Focolare's monthly magazine, Torture and the Ticking Time Bomb.  Part of the analysis aims to make accessible for a grass-roots audience David Luban's argument on the same subject.  My essay appeared together with a excellent piece by Gerald Russello, "Catholic Teaching and Torture." (but sorry, that's not on line). 

Thursday, September 21, 2006

Yearning for the Infinite

By Rick Garnett

This year's annual fall conference (Nov. 30-Dec. 2) of the Notre Dame Center for Ethics and Culture has as its theme "Modernity:  Yearning for the Infinite."  For more info, go here.  The Center's annual conference is always a fun and fruitful time, and this one looks to be no exception.  Here's some of the promotional blurb:

What clearly stands behind the modern era’s demand for freedom is the promise: You will be like God….The implicit goal of all modern freedom is, in the end, to be like a god, dependent of nothing and nobody, with one’s freedom not restricted by anyone else’s….Being completely free, without the competition of any other freedom, without any “from” or “for”—behind that stands, not an image of God, but the image of an idol.” — Pope Benedict XVI, Truth and Tolerance.

Our aim with our seventh annual fall conference is to bring together a large number of respected scholars representing all the main academic fields, from Catholic, non-Catholic, and secular institutions, to provide spirited discussion of the underlying causes of the intellectual epoch we have come to call modernity; of the relationship between the main theses of modernity and the Magisterium of the Church in the last century; and the impact of modernity upon work in philosophy, theology, law, literature, the arts, as well as other fields of intellectual inquiry and endeavor.

Confirmed speakers of particular interest to Catholic law profs include Russ Hittinger and Steve Smith.

"Taking Accommodation Seriously"

By Rick Garnett

I have posted on SSRN a piece, co-written with my student, Joshua Dunlap, on the Supreme Court's recent O Centro case, which involved the interpretation and application of the Religious Freedom Restoration Act.  It's called "Taking Accommodation Seriously:  Religious Freedom and the O Centro Case."  Here is the abstract:

The big stories from the Supreme Court's 2005-06 Term were about military commissions and enemy combatants, political redistricting and campaign contributions, and the nomination and confirmation – the first in more than a decade – of two new Justices. Largely overlooked in the crush of Court-related coverage was the Term's lone church-state decision, Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, involving the ritualized, but illegal, use by a small religious community from Brazil of a hallucinogenic tea called "hoasca."

Strictly speaking, O Centro was not a Religion Clauses case at all. It involved the interpretation and application of a particular statute, the federal Religious Freedom Restoration Act ("RFRA"). And, the Justices agreed with the courts below that the Act requires the government to demonstrate, in a particularized, more-than-conclusory way, that its refusal to exempt from the scope of the drug laws the otherwise-illegal religious use of hoasca is justified by a compelling state interest.

It would be a mistake, though, move past the decision too quickly, and for at least two reasons. First, it is no small thing that the new Roberts Court – unanimously – has made it clear that the tighter constraints imposed by Congress on the national government really do bind. The Smith case teaches clearly that the political process is the main arena, and politically accountable actors are the primary players, when it comes to accommodating the special needs of religious believers. O Centro is entirely consistent with this teaching. However, it also underscores the point that when that process, and those actors, produce such an accommodation, courts and officials are to take it seriously. Second, it appears that the Justices have, with one voice, rejected the notion that such accommodations amount to an unconstitutional privileging, endorsement, or establishment of religion. Again, the Constitution for the most part permits – for better or worse – governments to regulate in ways that, in effect, burden religious exercise. At the same time, and no less certainly, it allows – and even invites – governments to lift or ease the burdens on religion that even neutral official actions often impose. O Centro affirms that, notwithstanding our constitutional commitment to religious freedom through limited government and the separation of the institutions of religion and government, it is and remains in the best of our traditions to "single out" lived religious faith as deserving accommodation.

Comments welcome!

Leiter on blogs

By Rick Garnett

Brian Leiter has this essay, "Why Blogs Are Bad for Legal Scholarship," at the Yale Law Journal's "Pocket Part."  He writes, among other things:

Blogs differ from other Internet services because they combine three characteristics: they are unmediated (like so much of what is on the Internet), public (like SSRN), and normative (like much e-mail about scholarly topics). It is this conjunction that makes blogs special, and especially dangerous—at least for legal scholarship. (Philosophy, my other academic field, is less vulnerable on this score, for reasons I’ll return to in a moment.) Any second-rate scholar can have an opinion, however ignorant or confused, about the merits of someone’s work, and express that opinion in an e-mail to a colleague elsewhere. Now imagine that same ignorant or confused opinion broadcast to thousands: that is what blogs make possible. Indeed, blogs do more than that: they make possible the repeated and systematic broadcast of non-expert opinions, opinions that can then be picked up and amplified by other non-expert blogs. The result is often what Timur Kuran and Cass Sunstein would call an “availability cascade[.]" . . .

Unlike philosophy blogs, law blogs are susceptible to availability cascades, and for two reasons. One reason is that the legal academy often lacks expert mediators. To be sure, there are plenty of experts who read law blogs and who can tell right away when the half-baked tripe of Generic Law Blog’s good friend is being passed off as a “significant” contribution. The problem is that reputational effects in the legal academy are mediated by two institutions whose primary arbiters are not, themselves, experts or even quasi-experts, and so are especially vulnerable to availability cascades. First, one of the major venues for legal scholarship remains the student-edited law reviews, and the student editors of these journals are only irregularly and by happenstance in a position to offer expert resistance to an availability cascade initiated by the law blogs. Second, the legal academy, because of the enormous public interest in law, is more susceptible to the journalistic reception of legal ideas, and journalists are, with rare exceptions, not experts. Even those journalists who regularly cover law tend to be especially susceptible to what apparently more expert law professors with blogs have to say. With scholarly discourse in law hostage, at least partly, to these two non-expert mediating devices, the potential for availability cascades to lead to the dissemination of weak scholarship is high.

Of course, there is another culprit in this story, namely, the blogs themselves. If the leading law blogs were written only by the leading scholars, the availability cascades that occur would be more likely to raise, rather than lower, the level of scholarly discussion. But that is, unsurprisingly, not the case. The most visible and highly trafficked law-related blogs have one, and only one, thing in common: they were started relatively early in the “blog boom,” that is, in 2001 or 2002. (Many, but not all, also tilt noticeably to the right.) Latecomers, like the Becker-Posner Blog or the University of Chicago Law Faculty Blog, which generally have much higher intellectual content, get nothing like the traffic of the early arrivals. As the economists like to say, the “barriers to entry” to the Internet in general, and the “blogosphere” in particular, are low, and not just in monetary terms. One need not be a good scholar, or an intellectual heavyweight, to have a blog, and if one got into the blog game early enough, one can thrive, especially with an audience of non-expert consumers. . . .

People who run blogs tend to respond badly, indeed harshly, to the suggestion that blogs are not as important as their proprietors think they are. Be that as it may, my sense is that blogs have been bad for legal scholarship, leading to increased visibility for mediocre scholars and half-baked ideas and to a dumbing down of standards and judgments.

Two mechanisms still exist for counteracting these developments. First, more first-rate scholars may enter the blogosphere, and use their pre-Internet gravitas to shift the terms of discussion. Second, the shift to peer-refereed publications in the legal academy—most of the best work in law and economics and law and philosophy, for example, now appears in faculty-edited journals—will ameliorate the significance of availability cascades on non-expert mediators like students and journalists.

I suppose I disagree -- I'd have to, wouldn't I? -- with Professor Leiter about the extent to which law-prof-bloggers are more ignorant or overrated than other academic bloggers.  Still, the piece provides reasons for caution and care. 

I would have thought the real reason blogs are bad for scholarship is because they are so delightfully time-sucking.

More Benedict reading

By Rick Garnett

Some more posts and pieces, which might be of interest, on the Pope and "the speech" . . .

Jacob Levy, at TNR's Open University, writes, in "Those Who Take Their Theology Seriously":

. . . In the post-Reformation west we've come to the view that religious argument ought to be conducted with words, not swords. But that is very different from supposing that the words in which religious argument is conducted ought to be nice touchy-feely ones--much less from supposing that religious argument ought not to take place at all. We ought to expect governments--the American government and the Israeli government, but also the Turkish government and the Pakistani government--to stay out of religious argument proper. But we ought to expect a religious leader to be willing (pace Frost on liberals) to take his or her own side in that argument.

Fr. James Schall writes, in a piece called "The Regensburg Lecture:  Thinking Rightly About God and Man":

. . .  [T]he pope does not only have Islam in mind. He has universities in view, as well as modern thought and other "cultures." The scope of this lecture is breathtaking. But essentially, it is first a theology of history -- it was no accident that the early apostles went to Macedonia, to the Greeks with their minds. The first thing that the early Christian mind had to encounter was mind itself, best represented by the Greeks, perhaps only by them at the time. What was at stake was this very issue about the Word -- the Logos -- about whether it was a kind of amorphous flux that could be this or that, good or bad, according to whatever it decided. Or was there a fundamental distinction in things, a realism that would eventually justify science and all else that man has discovered? Science, after all, has certain theological presuppositions that make it possible to be practiced.

This address is likewise a brief history of modern European philosophy -- that philosophy with roots in the two Testaments and in Greek and Roman thought. But Benedict recognizes that the modern mind is now more relativistic and skeptical. The modern mind doubts that there is reason, and doubts that we can both know and believe. It doubts that faith and reason belong to the same sphere, yet that is what Europe is. And Europe is not just another "culture," but is the culture in which the confrontation of reason and revelation took place and in which the relations were hammered out.

It is not without profound interest that the pope chose precisely a university in which to deliver this lecture. It is not an encyclical. It is not a "doctrinal" statement. It is not a homily. It is a lecture to a university faculty and to its students -- and not just to those in Regensburg sitting before him. In this sense it strikes at the very heart of the intellectual acaedia, to the intellectual sloth, of our time, to the refusal to think about the important thing with the tools that we have been given. What we know as universities in the modern world originated in the Church, in a space in which the whole could be talked about. Benedict knows that all disorders in politics and morals originate in the minds of the learned. It is there that we must begin to address our public issues, including that of Islam, but also questions of life, of morality, and of what we are about.

Here is Sandro Magister ("Islam's Unreasonable War Against Pope Benedict XVI"):

. . . [T]his is not a pope who submits himself to such censorship or self-censorship, which he sees as being inopportune and dangerous indeed when it concerns the pillars of his preaching. His goal on his trip to Germany was to illuminate before modern man – whether Christian, agnostic, or of another faith; from Europe, Africa, or Asia – that simple and supreme truth that is the other side of the truth to which he dedicated the encyclical “Deus Caritas Est.” God is love, but he is also reason, he is the “Logos.” And so when reason separates itself from God, it closes in upon itself. And likewise, faith in an “irrational” God, an absolute, unbridled will, can become the seed of violence. Every religion, culture, and civilization is exposed to this twofold error – not only Islam, but also Christianity, toward which the pope directed almost the entirety of his preaching.

And, Reul Marc Gerecht writes ("The Pope's Divisions"):

Let us be frank: There is absolutely nothing in the pope's speech that isn't appropriate or pertinent to a civilized discussion of revealed religions and ethics. Even if one is not a believer in any revealed faith, or has some memory of the conflict, daily cruelty and forced conversion meted out by representatives of Rome's bishops, or has some skepticism about the church's commitment to defending the liberal ideas of the Enlightenment, one can be thankful that the pope sees Christianity as a vehicle of peace and tries to explain why he thinks this is so.

More on McGreevy

By Rick Garnett

Thanks to Michael for linking to John McGreevy's fascinating Commonweal piece, "Catholics, Democrats, and the GOP."  McGreevy's engaging and fair-minded presentation of "how we got here" -- that is, of Catholics' shifting place in the American political scene -- is very helpful to thinking through the "what do we do now?" question that Eduardo' piece (and my own post) address. 

Interesting Story: "Allah's Trailblazer"

By Michael Perry

Sightings  9/21/06

Allah's Trailblazer
-- R. Jonathan Moore

Minnesota's fifth congressional district is about to make some history.

This past week, Keith Ellison defeated three challengers to receive the Democrat-Farmer-Labor Party's nomination for the U.S. House of Representatives.  Given the district's Democratic leanings, Ellison is virtually assured a spot in the 110th Congress.

Ellison will become the first African American to represent Minnesota in Washington.  That might be enough history for one district, which includes Minneapolis and some suburbs, and is around 70 percent white.  But in Ellison, Fifth District voters will also be sending to Congress the nation's very first Muslim representative.

During the primary campaign, the 43-year-old Ellison, a college convert to Islam, had to respond to charges of associating with Nation of Islam leader Louis Farrakhan.  While in law school, writing as "Keith Hakim," Ellison contributed school newspaper columns defending Farrakhan against charges of anti-Semitism and criticizing affirmative action as a "sneaky" substitute for reparations.  And in the mid-1990s, Ellison helped organize Minnesota's delegation to Farrakhan's Million Man March.

However, Ellison has denied ever belonging to the Nation of Islam, and he has directly renounced anti-Semitism in public and in letters to Jewish community organizations.  Though some Jewish leaders remain unconvinced, a Minneapolis Jewish newspaper endorsed him in the primary, and several high-profile Jewish Democrats have supported him publicly and financially.

So far, for most Democrats, what matters has not been Ellison's religion but his political similarity to former senator Paul Wellstone (who died in 2002).  Ellison has marked himself as a passionate progressive by calling for the withdrawal of troops from Iraq, for strong support of labor, and for universal health care.  The charismatic candidate even adopted Wellstone's familiar green for his campaign posters.

In winning the backing of longtime Wellstone advocates Sam and Sylvia Kaplan, the particularities of his faith mattered less than the commonality of their politics.  "What came through to us," said Sylvia, "was he believes in social justice and the common good, which is a Jewish tradition."

At a recent campaign stop, Ellison again addressed the religion issue.  "I'm a Muslim.  I'm proud to be a Muslim," he said.  "But I'm not running as a Muslim candidate."  Although he has not hesitated to greet the burgeoning Somali population in Minnesota with a heartfelt "Salaam Alaikum," he would rather talk about Iraq and health care than about religion.

Not surprisingly, Ellison's opponents don't plan to forgive his partial flirtation with black separatism.  Republican Alan Fine has signaled that he'll be painting his competitor with a broad brush in coming weeks.  "The voters of the Fifth District have a clear choice," he said recently.  They can vote Republican, or "they can choose to elect an extremist candidate who has associated himself with the likes of Louis Farrakhan, Khalid Abdul Muhammed [who once called Jews "the bloodsuckers of the black nation"], Kwame Ture [Black Panther leader Stokely Carmichael], Sharif Willis [former Vice Lords gang leader] and others."
The chairman of the state Republican Party, Ron Carey, has made a similar argument: "By supporting Louis Farrakhan ... Ellison has become a national embarrassment for his radical views."  And when terrorist leader Abu Musab al-Zarqawi was killed in Iraq, one blogger recommended that "condolences should be sent to Ellison HQ."

In spite of -- or perhaps because of -- his opponents' guilt-by-association strategy, Ellison will soon belong to the congressional class of 2006.  So it's worth asking, what difference might a Muslim representative make?

Ellison may serve as much more than a role model for American Muslims.  A spokesman for the Council on American-Islamic Relations has said that Ellison's election would "be a tremendous assertion of the fact that we're Americans and we're just as interested in public service as anyone else, and here's the proof -- we have somebody in Congress."  In other words, Ellison may not only show American Muslims who they can become; he might also show suspicious fellow citizens who their Muslim neighbors already are.

Ellison has tried to downplay the political significance of his faith.  "The focus on my religion doesn't bother me, but I feel that it's a distraction from what we need to be talking about," he says.  "My faith informs me.  My faith helps me to remember to be gentle, kind, considerate, fair, respectful.  But I don't make my faith something that other people have to deal with."

Other people, however, have made and will continue to make his faith something that he must deal with.  News of Ellison's primary victory was picked up by media outlets from as far away as Somalia and Qatar, and his American profile will only grow as November nears.  E Pluribus Unum?  Another test awaits.

[R. Jonathan Moore (a long-ago Sightings editor) is Visiting Scholar in the Department of Religious Studies at Grinnell College.]

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

It Isn't Just in China & India...

By Elizabeth Schiltz

..... but also apparently right here in the good ol' U.S.A., where babies are being screened for purposes of sex selection.  CNN reports that the first comprehensive survey of fertility clinics in the U.S. reveals that

A whopping 42 percent of clinics that offer PGD [pre-implantation genetic diagnosis] said they had done so for non-medically related sex selection. Nearly half of those clinics said they would only offer sex selection for a second or subsequent child.

"That's really startling," University of Pennsylvania ethicist Arthur Caplan said of the high number of PGD for sex selection alone. "Family balancing seems like a morally persuasive reason to some people," but doing gender selection just because a couple doesn't want any girls, or any boys, is troubling, he said.

One doctor who offers it takes a different view.

"It performs a much desired service. We're making people happy," said Dr. Jeffrey Steinberg, medical director of Fertility Institutes, which has clinics in Los Angeles, California, Las Vegas, Nevada, and Guadalajara, Mexico.

Many countries ban PGD or restrict it to prevention of serious inherited diseases. Many people from foreign countries travel to the United States to obtain it, especially from countries like China and Canada.

I find a sad, sad, irony in the mental image of Chinese couples travelling to the United States, and then leaving this country "happy" because they have been permitted to select out, leave behind, and almost certainly destroy, their female embryos.

Lisa

Wednesday, September 20, 2006

"Catholics, Democrats & the GOP"

By Michael Perry

John McGreevy, professor of history at Notre Dame, has an article in the September 22 Commonweal:  "Catholics, Democrats & the GOP".  (Clik here to read the whole article.)  An excerpt:

Trolling much of the Catholic press now means drowning in screeds. Sermons on the “crisis of fatherhood,” the “decay of family life,” and the need to check the “deceptive charm” of a culture unwilling to cultivate the virtue of “obedience” substitute for empirical analysis. We “slouch toward Gomorrah” in Robert Bork’s heated phrasing. In retrospect, the 1996 imbroglio at Neuhaus’s First Things over the “judicial usurpation of politics” marked a sectarian warning shot. (The magazine’s editors warned that recent Supreme Court decisions on abortion, especially, meant that matters “have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime.”) More recent attacks by the neocons on the Jesuits, on those Catholics, including some bishops, who upheld traditional end-of-life teaching during the Terri Schiavo melodrama, and on the new archbishop of San Francisco as overly sympathetic to gays are only the most recent volleys.

Part of this rhetorical overkill stems from disappointment. John Paul II, despite his extraordinary charisma, did not stem the drift away from official church teaching on most of the hot-button sex and gender issues. More Catholic couples now use birth control than at the beginning of John Paul II’s papacy, and the Greenberg/Hogan polling data highlight the sympathy of Catholic voters, even practicing Catholic voters supporting President Bush, for same-sex civil unions.

Within the church, John Paul II’s frequent condemnations of contraception, his fiat against discussion of women’s ordination, his refusal to appoint as bishop any priest not willing to defend Humanae vitae, and his characterization of the modern United States as a “culture of death,” fostered a more sectarian mood. Just this August, Bishop Thomas Doran of Rockford, Illinois, solemnly (and offensively) listed the “sacraments” of the Democratic Party as “abortion, buggery, contraception, divorce, euthanasia, feminism of the radical type, and genetic experimentation and mutilation.” These Democratic positions, Doran cheerfully informed Rockford Catholics, “place us squarely on the road to suicide as a people.”

More politely, Denver archbishop Charles Chaput described Catholics as “timid” in a “culture that grows more estranged from the gospel with every year.” Or, as Chaput explained last year to the New Yorker’s Peter Boyer: “We’re at a time for the church in our country when some Catholics-too many-are discovering that they’ve gradually become non-Catholics who happen to go to Mass. That’s sad and difficult, and a judgment on a generation of Catholic leadership. But it may be exactly the moment of truth the church needs.”

To Chaput and other like-minded Catholics, the primary obstacle to a new evangelization is a “liberal culture” entrenched in the media, the universities, and, crucially, within the church itself. In an eerie echo of the 1960s, these spokespersons urge their coreligionists to reject not just the mainstream media but the Catholic mainstream as well: Protect your children at Steubenville, instead of throwing them to the wolves at Boston College (or Notre Dame). Pennsylvania Senator Rick Santorum even blamed Boston liberalism-instead of, say, Cardinal Bernard Law-for that archdiocese’s implosion during the sexual-abuse crisis, a dubious claim given what the Philadelphia district attorney has recently told us about sexual abuse in that archdiocese....

The Italian priests standing with John Kerry in St. Peter’s Square [at John Paul II's funeral] did not, one imagines, admire Kerry’s almost inarticulate position on abortion. Instead, they opposed the American invasion of Iraq, or the mores of a society that allows economic inequality to reach unprecedented heights. These issues, too, admit of no easy solutions. But engaging the nitty-gritty of, say, what just-war theory requires of Congress and the president, or how we evaluate the relationship between economic growth and inequality, remains more consonant with the most enduring strains of Catholic social thought than issuing partisan manifestoes (see Eduardo Moisés Peñalver, page 20).

Can we do better? How should we actually decrease the abortion rate, given that federal policies on access to abortion matter less than the socio-economic plight of women seeking abortions? How should we understand low abortion rates in Western Europe (where abortion is legal) and high rates in putatively Catholic Latin America (where it is not)?

These questions signal realism, not evasion, certainly for anyone hoping to decrease the actual number of abortions occurring in the United States. Perhaps this campaign season, and the presidential election cycle in 2008 for which it is an inevitable warm-up, mark a test. If so, here’s the final exam question: Can Catholics and other people of goodwill agree to make abortions rare, and mean it, or will the issue remain a rhetorical ploy Republicans exploit and a moral scandal to which Democrats are blind?

Let’s hope we pass.

Want to put some questions to McGreevy?  Thanks to dotCommonweal, you can--on Monday, September 25.  Click here to find out how.

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