Mirror of Justice

[The following article is from the October 28th issue of the National Catholic Reporter.  I've reprinted the whole article below, because a link to the article won't do a nonsubscriber any good.  Among those quoted in the article:  MOJers Greg Kalscheur, Mark Sargent, and Susan Stabile.]

Catholicism and teaching law:
Catholic law schools grapple with faith's influence
By PATRICIA LEFEVERE

Increasingly law schools that call themselves Catholic are raising questions about the nature of their Catholic identity. Is it even desirable to have such an identity? Does the linking of Catholic and lawyer feel uncomfortable -- except when uttered by the local bishop from the cathedral pulpit at the annual Red Mass? And in what way -- if at all -- are graduates of Catholic law schools different from those who earned their degree from a state or public university?

Talk about what does and what should distinguish a Catholic law school from a secular institution fill law professors’ blogs and are the stuff of law reviews, conferences and classroom discussions at many of the 27 law schools that call themselves Catholic.

These institutions, located in 17 states, the District of Columbia and Puerto Rico, are currently educating some 22,000 future lawyers -- the majority of them Catholic. Eight of the schools have been around over a century. The 27 schools employ more than 1,100 full-time faculty and some 1,500 adjuncts.

From such an infrastructure, one might expect a uniquely Catholic perspective on the law, a Catholic contribution to legal theory or an overriding Catholic moral voice on issues involving property, contracts, securities regulation or criminal procedure.

“Yes, it should be there,” said Thomas Shaffer, professor emeritus and former dean of Notre Dame Law School. “Catholicism has always copied too much in trying to come to terms with the secular university,” he said. “Some law schools may be still doing that.”

A legal ethicist, Shaffer has been looking at Catholic legal education and the making of the Christian lawyer for some 30 years. The question of Catholicism in Catholic law schools is undergoing a kind of revival, he said. The humanistic approach, dominant for four decades, now faces a challenge from religiously affiliated law schools, be they Catholic, Protestant or Jewish, he said.

Shaffer said he thinks the movement has less to do with the Vatican’s 1990 Ex Corde Ecclesiae -- requiring theologians in Catholic institutions to be in conformity with the church’s magisterium -- than it does with the keen interest Catholic law schools have always had in ethics. These schools are now expressing this concern through exploring Catholic social teaching, he said.

The shift toward distinctly Catholic law schools has “turned the corner” at Notre Dame in South Bend, Ind., Boston College and New York’s Fordham University, said Shaffer. “I scratch my head about Georgetown. It’s so urban and so large.”

Last semester Jesuit Fr. Gregory Kalscheur coordinated three evening conversations on the Jesuit, Catholic identity and mission of Boston College Law School, where Kalscheur, a lawyer, is assistant professor. About 30 faculty attended one or more of the series, which continued this past summer.

In addition, Kalscheur has conducted three retreats for 45 law students, introducing them to discernment skills, based on a model of St. Ignatius Loyola, founder of the Jesuits. A dozen faculty members took part in the retreats.

Many contemporary academics shy away from any admission of religion into the conversation, afraid it will make the religious voice “the predominant, privileged or the excluding voice,” he said. “My own fear is that prolonged failure to confront that fear explicitly and directly has helped to marginalize and exclude the religious voice.”

To make sure the voice of the Catholic tradition itself is not devalued, ignored or made invisible out of concern for offending those of other religious traditions or no religious tradition remains a challenge for law schools that seek to be “authentically Jesuit,” the priest said. “We have to be more explicit about the faith dimensions of our social justice mission. We have to move forward in ways that will generate increased trust, not anxiety or suspicion.”

Interfaith law

At Fordham Law School, hundreds of the 1,546 students are Jewish, Buddhist, Muslim, Hindu and of no faith at all. The same diversity applies to the nearly 300 full-time and adjunct faculty. -- Patricia Lefevere Russell Pearce Russell Pearce, an observant Jew, teaches at Fordham and codirects its Stein Center for Law and Ethics. He said he supports the school’s Catholic identity and its mission of educating the whole person “in the service of others.”

Fordham’s identity is “inclusive, respectful and supportive of all,” Pearce said. The fact that “a Catholic law school has placed a Jew in a position of leadership sends a signal that it’s living up to its mission.

“Jesuit universities are saying, ‘Catholics can learn from non-Catholics,’ ” said Pearce.

Throughout its 100-year history, Fordham Law School has been concerned with “access,” said Dean William Treanor. At first it was access to the bar for Irish Catholics, then it was access to a legal education for Jews.

Monthly dialogues on what it might mean to be a Catholic law school have drawn a third of the faculty in recent years -- the majority of them non-Catholic. Many have traveled to Fordham’s main campus in the Bronx to visit with Jesuits in their residence.

“This school was founded by those who saw diversity and dialogue as virtues -- as something to be cherished,” said Treanor. In the classroom that translates as “inclusion and dialogue,” not “imposition or indoctrination,” he said.

Fordham boasts the largest pro bono and community service program among the dozen New York City-area law schools. Last year 500 students volunteered more than 75,000 hours, serving the poor and those of limited means in such areas as domestic violence, unemployment, housing, family court mediation, immigration, police misconduct, environment and death penalty advocacy, and community service.

At Villanova Law School in Philadelphia, Dean Mark Sarget doubted that law schools have turned the corner in the direction of their Catholic identity. In the latest U.S. News & World Report ranking of the 100 best law schools, Villanova tied with the University of San Diego, a Jesuit law school, for 63rd spot, up from 76th in 2004. The 13 Jesuit schools account for 57 percent of students in U.S. Catholic law schools.

These ratings are “the life and death of law schools,” said Sarget. Of schools outranking Villanova in the current tally, Georgetown was at 14th, Notre Dame 24th, Boston College and Fordham among five schools rated 27th and Loyola in Los Angeles at 58th, “only Notre Dame has a Catholic identity,” he said. The others he found had “little or very little Catholic identity.”

“Every law school will say, ‘We’re Catholic, because we teach jurisprudence and ethics and we do clinic,’ ” Sarget told NCR. But all law schools require ethics courses and “they all have clinics,” he said.

Clinics allow student lawyers the chance to practice law with attorneys and professors and work with judges. Many involve outreach to the poor, immigrants and victims of discrimination. Villanova’s clinical law practice “is organized expressly for mission,” Sarget said. It is modeled after the school’s namesake, St. Thomas of Villanova, who said: “Anticipate the needs of those who are ashamed to beg, for to make them ask for help is to make them buy it.”

Sarget pointed to “a movement among Catholic law professors who are very self-consciously asking how our church tradition and teaching can influence Catholic legal theory.” The movement is most alive on the blog mirrorofjustice.com, where 25 or so academics at Catholic law schools meet to address issues that grew out of a conference on Catholic social teaching and the law, organized by Sarget at Villanova in 2003. Mass is held in St. Thomas More Chapel at the University of St. Thomas School of Law in Minneapolis.

Sarget said that a genuinely Catholic law school would have no qualms about the use of Catholic symbols in its buildings or publications. It would include prayer at law school functions, the observance of Christian holidays and a liturgical life.

The dean was quick to stress that Villanova’s law faculty is “very cooperative” even though many find the identity issue difficult. Traditionally law schools have had a much more secular faculty than other schools or departments of a Catholic university.

Indeed a chief reason why many Catholic law schools differ little from their secular counterparts is because committed Catholics are a minority on their staff. Many full-time faculty members are only nominally Catholic, of different faiths, or irreligious, Sarget said. “Some are even hostile to Catholicism, either as a matter of principle or of prejudice.”

Non-Catholic teachers at schools like Villanova, Notre Dame and the 13 Jesuit law faculties need not fear losing their jobs. These institutions will still employ the best constitutional law candidate who applies, regardless of his or her faith background, and will want to retain a diverse faculty, noted four deans interviewed by NCR. However, these schools are making candidates for jobs well aware of the school’s Catholic identity and asking new hires to respect their mission and to try to see how they can contribute to it.

Still, there is no shortcut to Catholic identity without a law school retaining “a critical mass of Catholics” both among its scholars and students, Sarget argued. This does not mean “affirmative action for Catholics,” but rather “hiring toward mission,” he said.

New law schools

The two newest Catholic law schools -- the University of St. Thomas in Minneapolis and Ave Marie in Ann Arbor, Mich. -- say that their students, even non-Catholic ones, enroll because of the faith-based identity that both schools seek to nurture.

The first thing one notices upon entering the spacious four-story atrium of the St. Thomas School of Law in downtown Minneapolis is a statue of Thomas More and a chapel where Mass is said daily. Close by is a meditation room.

Not an ordinary office block or learning center, the $36 million edifice, which opened in 2003, announces its mission: “Integrating faith and reason in the search for truth through a focus on morality and social justice.”

“You may think this is dean puffery, but there are lots of Catholic law schools in the U.S. Yet none of them is doing the variety of things to establish their Catholic identity that our law school is doing,” said St. Thomas’ law dean, Tom Mengler.

The model is that of servant-leadership, he said. “We’re integrating faith and reason throughout the curriculum. The school is committed to social justice and to service.”

According to Mengler, of the 200 lawyers graduated in 2004 and 2005, 14 to 15 percent of them are engaged in some form of public interest law. The national average is about 3 percent, he said.

Many of them found their vocation to public service law by fulfilling the 50-hour requirement for community service over their three years in law school. Others may have discovered it in jurisprudence courses where students get exposed to the Catholic intellectual tradition or at numerous colloquia where faculty staff and students learn about Catholic social teaching and its implications for law.

The school boasts of its Mentor Externship -- a program that requires every student to be paired with a working attorney or judge in the community. Some 450 lawyers take part, including 48 judges. Not only do would-be lawyers accompany a professional to a deposition, an appellate argument or client meeting, they also combine experiential learning with a focus on ethics and professionalism, said Lisa Montpetit Brabbit, who directs the mentor program.

The idea of legal training at a Catholic law school is not to get rich, but to serve God and the neediest among us, said St. Thomas law professor Patrick Shiltz, who believes that lesson has yet to be taught in most law schools that call themselves Catholic.

At St. Thomas the bulk of students and faculty have come because of the mission, said Virgil Wiebe, associate professor of law. “We’re highly mission-focused. If you want to pick a fight here, it’s about ‘You’re not living up to the mission.’ ”

Wiebe, a Mennonite, said, “I knew when I came to St. Thomas I’d not have to change my faith, hide it or apologize about it.” The faculty, while racially, ethnically and religiously diverse, supports the mission, he said.

Wiebe codirects the Interprofessional Center for Counseling and Legal Services, a clinical education program in which law students work in tandem with students from St. Thomas’ School of Social Work and Graduate School of Professional Psychology. Working with those from other disciplines helps law students to consider not only the legal obstacles of their clients, but also the emotional, spiritual and economic challenges they face, Wiebe said.

The standard St. Thomas has set for itself at times “gets thrown back in our face,” he said. “We get it coming and going. We’re not doctrinaire enough or we’re too religious.”

Mengler objected to being “pigeonholed” as a conservative law school. “We’ve a faculty of 25 -- conservatives and liberals, people of all perspectives. All of us are dedicated to the mission of formation, social justice and servant leadership.”

Comfortable conservative

Bernard Dobranski At Ave Maria School of Law, dean and president Bernard Dobranski is not uncomfortable being labeled “conservative.” He makes no apologies for the perspective of his institution, which was founded by Domino’s Pizza mogul Tom Monaghan in 1999: “We’re Roman Catholic and very insistent about what we’re doing here. You don’t come to Ave Maria unless you want to see the whole range of how Catholic moral and intellectual tradition affects the law.”

Critics who speak of Ave Maria’s “narrowness” and say that “all we do is defend the magisterium and talk about natural law haven’t been here,” Dobranski said. “We try to bring in something from our Catholic intellectual tradition, where it’s appropriate and relevant.”

In ethics, jurisprudence, even in commercial law classes, professors have been able to integrate the teachings of John Paul II, Aquinas and Augustine, he said. “We thought it would be impossible in procedure courses.” Then along came an Australian visitor, who was able to elicit Catholic teaching on subsidiarity when looking at the exercise of jurisdiction in federal and state courts.

Dobranski cited “a wealth of Jewish and Protestant scholarship” that has been summoned when professors look at the nature of individual and communal property rights.

Discussions about the use of law to enforce moral standards are ongoing -- particularly after the recent Supreme Court ruling striking down Texas’ sodomy laws. Dobranski held that the legal debates of the late 1950s and early 1960s that led to the decriminalization of prostitution and homosexuality were not guided by morality.

Dobranski said the school’s graduates pass the bar at the rate of 92 percent -- the highest among six law schools in Michigan. In each of the first two graduating classes, 20 percent of students got jobs as clerks in trial and appellate courts.

While Dobranski has yet to survey students, he said, “Lots leave here thinking they can overturn Roe v. Wade.”

The student body is more than 75 percent Catholic, with most of the others representing evangelical and mainline Protestant denominations. Last year eight Mormans chose Ave Maria, as did four Muslims, at least one Buddhist and “one self-proclaimed pagan hedonist,” Dobranski said. Racial minorities make up 16 percent of the 222 students including several Koreans and Mexicans, but few African-Americans. The dean said efforts were underway to attract more African-Americans.

Urgent moral issues confront society, said Susan Stabile, law professor at St. John’s School of Law in Jamaica, Queens, N.Y., and emerging lawyers would do well to view them enlightened by two millennia of church teaching. She cited Leo XIII’s 1891 encyclical, Rerum Novarum, which called for the outlawing of child labor. “Still it exists,” she said.

In her first year course, “Introduction to Law and the Legal Profession,” Stabile has looked at the church’s just war theory and at the ethical dimensions of the “torture memo” that defined treatment of prisoners of war being held by the U.S. military at Guantánamo Bay.

Religious, racial and ethnic diversity thrive at St. John’s, she said, recalling that it was poor Jewish students from Brooklyn who came to the Vincentian Fathers asking them to build a law school so they might attend. Working-class Catholics, Jews and persons of other beliefs still predominate at the law school.

In the last several years, 15 to 20 percent of graduates took jobs in government or public interest law while 55 to 60 percent of them have gone into private practice.

Raising the Catholic identity issue at faculty forums has its critics. “The concern that gets expressed is that we not proselytize students and that students be free to disagree with what’s presented,” she said.

Next May Stabile and other academics from Catholic law schools will gather at Fordham for a conference on Catholic social teaching and the law. The event will be interdisciplinary and is designed to support those who want to see Catholic social thought have a bigger part in Catholic law curriculums.

“My bet is no one besides St. Thomas and Ave Maria is doing this across the board,” Stabile said.