I've read Susan's, Richard's and Tom's comments on Catholic law reviews with interest. Naturally, this is an issue i have been involved with for a while, so I have some thoughts:
1. There is a need for venues to publish some of the kinds of things that some of us write. Articles heavy on explicit Catholic (or religious) content are often not of interest to most law reviews at both Catholic and secular law schools. This is not just because a particular position is substantively unacceptable (though it may be, such as a pro life position), but because all the god-talk is just unpalatable to many student editors. They don't grok it, as we used to say in the '60's. That being said, both secular and Catholic school journals from time to time will do symposia on faith and law, or religious lawyering and so on. There is, of course, always the estimable Journal of Law and Religion, and there is no shortage of places to publish on the traditional church/state issues. The problem is often when someone is writing from WITHIN a religious tradition, such as Catholicism, and focusing primarily on what a legal or jurisprudential question means within that tradition, and how it is solved within that tradition. It is true that most Catholic general/primary law reviews are not any more interested in that than a secular school journal, and may even be more wary, with the usual fears about a religious "takeover" etc. Notre Dame, St. Tommy, and Ave are notable exceptions. I will say, however, that this may be changing. Richard talked about the Creighton symposia; at Villanova the LRev publishes articles of the type I am describing thru our Giannella Lecture (see Cathy Kaveny's recent piece) and next year we will begin publishing annually in our Law Review (not the JCST) the papers from Patrick Brennan's new Scarpa Symposium, which will provide a Catholic take on legal philosophy and jurisprudence; and I am sure that there are some other examples. So long as those law reviews happily make some room for that kind of scholarship, I am undisturbed that most general law reviews in most Catholic law schools are publishing the same kinds of things as most other LRevs. That is also one of our functions as law schools. The question is whether all (or many) of them will do pub Catholic stuff at all, let alone happily.
2. That being said, I think we are starting to get lots of mileage out of our new specialty journals such as St John's new J. Cath Leg. Stud and Villanova's J. Cath. Soc. Thought, going into its fourth year. We are both looking explicitly for articles written from within the Tradition, which have limited appeal to most LRevs. I don't think it matters much whether they are the primary journal or not. The other advantage is that these journals can be peer-reviewed and edited journals, which legal ed needs. The VJCST falls in that category, tho we use some student help for bluebooking etc.
3. Before we all run out and start new journals, however, I will state a caution: we still do not have a critical mass of Catholic legal scholars around the country, in Catholic law schools or elsewhere, to generate a steady flow of work for lot of such journals to publish. To be sure, we have come an immense distance in the last five years. Thru MOJ, the symposia around the country that Tom mentions, those of us who have been around for a while have found each other; we have identified and supported promising young people; and our interaction has stimulated much more work of the type I have described than was being done before. All of this is having an impact on hiring, the intellectual life of our law schools and much more. We have indeed become a movement. With these journals, we not only have platforms for pubs and symposia, we get students involved in what we are doing. This will all be supported by the planned national workshops on Catholic Social Teaching and the Law for law profs (more on that later). We are still a bit away from establishing a national critical mass, though I am confident we will get there soon.
--Mark
The NBC Nightly News had a report suggesting that Pope Benedict is reconsidering the Church's stance on condom use in the battle against AIDS in Africa.
Rob
UPDATE: According to this story from the Catholic News Agency, NBC might be overreaching in discerning any imminent change in Church policy.
Monday, April 24, 2006
Thanks to Susan for posting the quote from the University of St. Thomas Law Journal's webpage about the journal serving the school's mission. We have an all symposium-format right now and have published symposia on topics like John Noonan's scholarship and judging, same-sex marriage, business ethics, "pro-life progressivism," American "exceptionalism" in foreign policy, and alternatives to incarceration. In each case we have tried to put Catholic views in conversation and debate with each other and with other perspectives on current moral and legal issues. As the Journal's faculty advisor, I have to admit that there were practical, and not only principled, reasons why we were not particularly tempted with seeking simply "to publish the best articles [we could] (or, at least, articles by the most prominent legal scholars who will publish with [us]), regardless of subject matter." We knew that because our journal and law school were new, the process of competing for unsolicited articles would be very difficult. We followed Randy Barnett's advice and adopted the format of symposia with faculty heavily involved in conceiving the events and securing speakers. We expected this to improve greatly the quality of articles and contributors we published, and I believe it has.
But the symposium-format decision was more than just pragmatic. It also allowed us to choose topics relevant to our mission, where as I said Catholic insights can be placed in conversation and debate with other views. As Richard suggests, this kind of focus can lead to rewarding exchanges and can bring in perspectives that are otherwise overlooked in legal scholarship. Organizing a symposium also can provide a real community-building opportunity for faculty and students to work together in a common scholarly endeavor, far more as equals than in the research-assistant relationship. It is probably no great news to anyone to suggest that symposia, with the involvement of faculty who care, can be a good way to bring Catholic intellectual perspectives into a law review's pages. The Catholic legal-thought journals at Villanova and St. John's are doing this beautifully -- through the efforts of our own Mark and Susan among others -- as the recent conferences on John Paul II and John Courtney Murray show. And good symposia on faith-sensitive topics have appeared in main journals like the Boston College Law Review. The idea of doing symposia is always worth remembering, even if it's not a rocket-science point, and even if there are often obstacles to accomplishing it.
Tom
Some of you may remember that last summer, after the U.S. Supreme Court decided Roper v. Simmons, Rick Garnett posted a comment saying that the case was wrongly decided. (In Roper, the Court ruled that the Eighth Amendment forbids government to inflict capital punishment on anyone who was under eighteen when he committed the crime.) I responded that in my judgment, Roper was rightly decided (even if perhaps wrongly reasoned).
I have just today posted a paper on SSRN in which I argue, inter alia, that even a deferential (Thayerian) justice could vote with the majority in Roper. Some of you may be interested in the argument--and/or in one or more of the other arguments in the paper. This is a "working" paper, and I'd be most grateful for any comments, especially critical comments.
The title of the paper:
PROTECTING CONSTITUTIONALLY ENTRENCHED HUMAN RIGHTS:
WHAT ROLE
SHOULD THE SUPREME COURT PLAY?
(WITH SPECIAL REFERENCE TO CAPITAL
PUNISHMENT, ABORTION, AND SAME-SEX UNIONS)
The SSRN link:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898664
The part of the paper that concerns capital punishment is at pp. 25-51.
The abstract of the paper:
This Essay pursues one of the inquiries begun in my new book, TOWARD A
THEORY OF HUMAN RIGHTS: RELIGION, LAW, COURTS (forthcoming, Cambridge
University Press): What is the proper role of the United States Supreme
Court in protecting constitutionally entrenched human rights?
Some
contemporary legal theorists are hostile to judicial review (e.g., Mark
Tushnet and Jeremy Waldron). In another Essay, I defend judicial
review—but judicial review of a sort different from that with which we
are familiar in the United States. I call the sort of judicial review I
defend “the power of judicial penultimacy”. (The sort of judicial
review with which we are familiar in the United States is “the power of
judicial ultimacy”.) See Michael J. Perry, Protecting Human Rights in
a Democracy: What Role for the Courts? http://papers.ssrn.com/sol3/papers.cfm?abstract_id=380283.
In this Essay, I argue for a second best: Given that the United States
Supreme Court exercises the power of judicial ultimacy, the Court
should exercise that power in a Thayerian (deferential) manner.
I
then illustrate my position by discussing three constitutional
controversies, each of which implicates an issue at the epicenter of
the American “culture wars”: capital punishment, abortion, and same-sex
unions. First, I argue that capital punishment violates the Eighth
Amendment, but I then explain why the Supreme Court should not so rule.
Second, I contend that even if one concludes that state bans on
pre-viability abortions violate the Fourteenth Amendment, one should
not want the Court to so rule. Third, I argue that state refusals to
recognize—state refusals to extend the benefit of law to--same-sex
unions violate the Fourteenth Amendment, but that nonetheless, the
Court should not—not yet—so rule.
A strong case can be made that
the United States Supreme Court should have, not the power of judicial
ultimacy, but only the power of judicial penultimacy. For better or
worse, however, the Court has the power of judicial ultimacy. Given
that the Court has this power, what role should the Court play in
protecting constitutionally entrenched human rights? In his classic
work, THE LEAST DANGEROUS BRANCH (1962), Alexander Bickel wrote: “The
search must be for a function . . . which differs from the legislative
and executive functions; . . . which can be so exercised as to be
acceptable in a society that generally shares Judge [Learned] Hand’s
satisfaction in a ‘sense of common venture’; which will be effective
when needed; and whose discharge by the courts will not lower the
quality of the other departments’ performance by denuding thjm of the
dignity and burden of their own responsibility.” As this Essay
indicates, I’m inclined to think that in exercising its power of
judicial ultimacy in a Thayerian fashion, the Court would be playing
its proper role—it would be serving its proper function—in protecting
constitutionally entrenched human rights.
How appealing
Thayerian deference is all things considered depends in part on what
the implications of Thayerian deference turn out to be for various
constitutional doctrines. Although in this Essay I pursue the
implications of Thayerian deference for the constitutional
controversies over capital punishment, abortion, and same-sex unions,
there are many other questions to be answered: Can Thayerian deference
accommodate the Supreme Court’s most important free speech decisions?
Its most important antidiscrimination decisions—including, of course,
Brown v. Board of Education? Its most important criminal procedure
decisions? Indeed, perhaps we should not generalize across every
constitutionally entrenched human right; perhaps there are reasons for
thinking that Thayerian deference is appropriate in cases in which
certain human rights are at issue but inappropriate in cases in which
certain other human rights are at issue—the right to freedom of speech,
for example, or the right not to be discriminated against on the basis
of a demeaning view about an aspect of one’s particularity. In any
event, the implications—the consequences—of Thayerian deference surely
bear on our estimate of the all-things-considered appeal of Thayerian
deference. And, accordingly, my fundamental argument in this Essay, in
support of Thayerian deference, is tentative and provisional.
_______________
mp
This is a discussion of great personal interest because among other reasons I am one of the faculty advisors to our law review here at Ave Maria. I think law reviews at Catholic schools can make an enormous contribution, especially if they focus on the distinctive mission of the schools that support them. I think if the law reviews at Catholic law schools try to imitate their secular rivals that they will have wasted an opportunity to contribute to the scholarly debate on issues that are of particular concern to these schools and to the individual faculty members who teach at these schools.
Here is one example. In the mid-1990s, when the debate on same-sex marriage was heating up after events in Hawaii, a group of scholars (from places such as BYU, Catholic U, Creighton, and later Ave Maria) got together to try to ensure that the scholarly literature on the conflicts of laws issues reflected a diverse range of views. Prior to this time, most of the literature on the conflicts issues was very one-sided and not particularly well done. This literature was mainly written by activists who didn't know much about conflicts. There followed a series of law review conferences addressing these issues. Papers from these conferences have been published in the Creighton Law Review (twice, in volumes 32 and 38) and most recently in the Ave Maria Law Review (in volume 3:summer 2005). These law review issues have reflected a variety of views and I think the articles have been and will be cited as among the best articles on these topics. The two longest articles in the Ave Maria issue are by William Reppy from Duke and Lynn Wardle from BYU and they offer very different perspectives on the conflicts issues presented. I think this effort has been very successful. The conferences and law review issues have been of high quality and have reflected a range of views on these topics. Due in large part to the distinctive missions of the schools involved and the people on their faculties, this effort has resulted in encouraging prominent conflicts scholars to think about and publish on the important issues at stake. The literature on the conflicts issues is far better and far more balanced than it was before this effort began.
There is a lot more that could be said about this general topic but I will stop here at this point.
Richard
Some of Eduardo's recent posts (e.g., here) have provided information and claims, or provided links to information and claims -- usually about the bad-acting or mis-steps of the Bush Administration, or Republicans in general -- that are characterized as "data." One on-line dictionary defines "data" as "[f]actual information, especially information organized for analysis or used to reason or make decisions." Let's assume the information in question is "factual." What is the decision that this information -- this "data" -- is supposed to help us make? For the truth of what proposition(s) are these "data" supposed to serve as evidence? (As I hope Eduardo knows, I don't raise this question to be snarky or petty, but to clarify).
As for the 60 Minutes interview, and "moral seriousness", I'm happy to agree that we should think hard about, among other things, the overall "moral seriousness" of those who supported, and opposed, the decision to invade Iraq and oust Saddam Hussein.
