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.

Tuesday, July 26, 2005

Never Let Me Go

By Rick Garnett

Last week (between mountain-biking outings and micro-brew tastings in Colorado), I read Kazuo Ishiguro's new novel, "Never Let Me Go."  I won't give much away, except to remind readers of what every reviewer has already divulged, namely, that the book is "about" clones who are created for the purpose of donating organs until they die.  Run, don't walk, to your bookstore, buy the book, and read it.  Ishiguro explores, using his usual wonderful prose, questions to which we've returned again and again on this blog, namely, what are we, what are we for, and does it matter that we are what we are and that we are for what we are for?

Rick

Monday, July 25, 2005

Althouse on Roberts and recusal

By Rick Garnett

Here is law-prof blogger Ann Althouse's take on the "would Roberts recuse himself in abortion cases" debate.  And here is an op-ed by Jonathan Turley, in which he (in my view) appears to misunderstand the issue entirely.  Turley confuses a decision to recuse -- i.e., a decision not to take an action as a judge that would constitute culpable cooperation with evil -- with a decision to allow one's "personal religious views" to color one's interpretation of the law.

Rick

UPDATE:  Paul Horwitz at Prawfsblawg has a good post on Turley's error.

Hartnett on the Catholic Judge

By Rob Vischer

Seton Hall law prof Ed Hartnett has emailed me his own thoughtful take on our conversation.  It's well worth reading and pondering:

Cardinal Dulles has emphasized that judges’ “primary task is to apply the existing law, not to decide cases according to their personal convictions about what the law ought to be.” Avery Cardinal Dulles, Catholic Social Teaching and American Legal Practice, 30 Fordham Urban L. J. 277, 287 (2002).  So, too, John Garvey, has written, “Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.” John H. Garvey & Amy V. Coney, Catholic Judges in Capital Cases, 81 Marq, L. Rev. 303, 343 (1998).  Of course, a legal regime may be so corrupt that a judge should undermine that regime by deciding cases contrary to the law.  “But it is hardly possible to make that claim about our own legal system.”  While it “has flaws,” viewed as a whole, “it is a decent and just institution that judges should take care to preserve.” Id. at 343.  Similarly,  if “the existing law is truly contrary to the conscientious convictions of the judge, the judge may have to recuse herself rather than cooperate in a morally evil action.” Cardinal Dulles, 30 Fordham Urban L. J. at 288.   

Dean Garvey has undertaken a detailed analysis of the recusal question in the context of capital punishment, concluding that faithful Catholic judges may not sentence individuals to death, but may preside over the guilt phase of a capital trial, affirm a death sentence on appeal, and refuse to disturb a death sentence on collateral review. Garvey & Coney, 81 Marq. L. Rev. at 306, 329.  Garvey explains  that an appellate judge, unlike the sentencing judge, can rightly say that “he does not intentionally direct or promote the defendant’s execution,” but instead simply that “the trial court did its job,” and that the “responsibility for life and death lies somewhere else.” Id. at 327-28.  He adds that it “would be unwise from the point of view of death row inmates to leave the interpretation of the constitution to death-qualified judges.” Id. at 330.
       
Whatever the meris of the particular line drawn by Dean Garvey, it is important to realize that all judicial acts are not the same.  Simply because a faithful Catholic judge may not order that an abortion take place does not mean that a faithful Catholic judge may not determine to whom the law allocates the responsibility for making decisions regarding abortion.  This is perhaps easiest to see in the context of a the legal decision regarding the scope of national power: Surely a faithful Catholic judge could decide whether the constitution empowers the national government, as opposed to the states, to regulate abortion.  May a faithful Catholic judge ever decide that the law allocates the responsibility for making decisions regarding abortion to the mother?  I think that the answer has to be yes.  Suppose Roe and Casey were overruled, and a particular state legislature decided not to limit in any way certain early abortions. If a case were nonetheless brought seeking to block such an abortion, surely a faithful Catholic judge could decide that there was no law authorizing the bringing of such a legal claim.  As Justice Scalia has noted, “States may, if they wish, permit abortion-on-demand.” Planned Parenthood v. Casey, 505 U.S. 833 (1992) (Scalia, J., dissenting).

The public in general, and litigants in particular, are entitled to have judges who will decide cases in accordance with the law rather than in accordance with their own moral or religious convictions.  The law requires disqualification if a judge “has a personal bias” or if “his impartiality might reasonably be questioned.” 28 U.S.C. § 455.  If a judge knows that his religious convictions permit him to reach only one possible result in the case, he should disqualify himself.  If, regardless of the law, a judge’s moral convictions require that he can only decide a case one way, he cannot decide the case at all. See Garvey & Coney,  81 Marq, L. Rev. at 334 (stating that a judge who cannot give the judgment which the law requires must recuse); id. at 339 (stating that a judge who cannot consider the possibility of imposing a death sentence should recuse from conducting a sentencing hearing in a capital case).

An abortion clinic once unsuccessfully sought the disqualification of Judge Noonan from a case, contending that his “fervently-held religious beliefs would compromise [his] ability to apply the law.” Feminist Women’s Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995).  He denied the motion, evidently confident that he could decide the case in accordance with the law.  For if his religious convictions had precluded him from deciding the case in accordance with the law, he would have been obligated to disqualify himself.  We can be sure that if the Church takes the position that a faithful Catholic judge must either decide a case in accordance with his religious convictions or recuse himself, there will be many more recusal motions targeted at Catholic judges.  The unfortunate result could be the stilling of judicial voices such as that of Judge Noonan, who wrote eloquently about the constitutionality of a law prohibiting the promotion of suicide. Compassion in Dying v. State of Washington, 49 F.3d 586 (9th Cir. 1995).   And I do not think that it will do (although some might find it tempting) for a judge to decide the legal merits of the case and then recuse only if, in his view, the law calls for a decision at variance with his religious convictions, but stay in the case if his legal view coincides with his religious convictions: The point of disqualification is to prevent improper influences on the legal decision in the first place.  Indeed, Judge Noonan closed his opinion by emphasizing that the ”compass of a federal judge . . . is the Constitution of the United States.” 49 F.3d at 594.

For faithful Catholic judges (particularly inferior federal judges who believe that Roe was wrongly decided), it must be extraordinarily painful to decide a case involving abortion.  Indeed, recusal might well be a personal relief.  But abandoning the field to those without religious objections to abortion is hardly well calculated to make the law more sensitive to the sanctity of life.   And if it is never morally permissible for a faithful Catholic judge to decide cases in accordance with Roe and Casey, then faithful Catholic judges may well have no role in deciding the constitutional status of abortion.   If Justice Kennedy is required to recuse himself in abortion cases, it seems to me that Justices Scalia and Thomas are too.  Put bluntly, if as a matter of Catholic morality, faithful Catholic judges can never decide cases in accordance with Roe and Casey, then, as a matter of law, I don't think that they can participate in cases that limit or overrule Roe and Casey either.

I would be happy to receive comments, corrections, criticisms, and suggested readings -- including general works to help me understand better the workings of the distinction between formal and material cooperation.

Canon 915: Withdrawal of Communion, Protecting the Sacrament, and Avoiding Public Scandal

By Greg Sisk

Patrick Brennan's reminder that the canon law rules regarding admission to communion concern the sacramental life of the Church is important. At the same time, however, the question cannot be separated entirely from what an individual's "performance in a legislative or judicial role should be." Canon 915 is, as Professor Brennan notes, designed "to protect the ecclesial life of the whole Catholic communion." That includes the responsibility of the bishop as pastor of the diocese to be concerned about the salvation of the soul of the person who asks for communion as well as the souls of the entire congregation.

Thus, while Canon 916 directs the individual to ascertain his or her own suitability for the Eucharist as a general matter, Canon 915 directs affirmative withholding of communion in certain circumstances. The Church places original responsibility on each individual, generally assumes good faith on the part of congregants, and, thus, ordinarily offers communion to all who come to the altar at Mass. The Church, however, always has retained and sometimes has exercised the power and obligation to deny admission to Holy Communion when scandal to the faithful would occur because of the public character of the Eucharist and the notoriety of the supplicant.

In the case of the pro-abortion politician, the danger of scandal to the faithful is manifested precisely from his or her public behavior. Thus, the public witness of the Church for life, the public repudiation of a pro-abortion politicians of the Church's witness, and the rules for admission to the Eucharist are interwined. The political effect of withholding of communion from politicians who break communion with the Church, whether segregationists in the 1950s or pro-abortion politicians today, is, to be sure, not the primary or animating purpose of the ecclesial action, but neither is it unintended or incidental, as it bears on the avoidance of scandal and the Church's public witness. (Although I may address it in a future posting, I deliberately have limited this posting to the question of the Catholic politician rather than the Catholic judge, as the judicial role raises further complications.)

Below I set forth an excerpt from an article that I wrote with my University of St. Thomas colleague, Charles Reid, that was published last fall in the Catholic Lawyer. [Please note that this is only an excerpt of a larger work, that addresses other elements of this question, and that I have omitted the footnotes. The full article may be accessed at this link

* * *
Excerpt: Gregory C. Sisk & Charles J. Reid, Jr., Abortion, Bishops, Eucharist, and Politicians: A Question of Communion, 43 Catholic Lawyer 255, 84-87 (2004):

"Canon 915 of the Code of Canon Law, which states the bases for denial of admission to Holy Communion, sets forth four signals of the nature of the sin justifying pastoral action: (1) obstinacy, (2) persistence (sometimes translated as “perseverance”), (3) manifestness, and (4) gravity.

First, the sin is obstinate if the person, despite the objective wrongfulness of the proposed conduct through the Church’s teaching or the intrinsically evil nature of the act, nonetheless is adamant in carrying through with the deed. Thus, as discussed above, pastoral teaching and counseling ought to precede any resort to denial of communion, so as to ensure that the person involved has been instructed in the Church’s unswerving solicitude for innocent human life and how this relates most forcefully to legal protection of the unborn. If, however, the person refuses or is unaffected by pastoral counseling, the inherent evil of abortion leaves no room for the plea of ignorance as to the wrongfulness of the destruction of the unborn. In any event, it can hardly be doubted that the Church’s teaching on this issue has been clearly and regularly stated, leaving no one confused as to where the Church stands.

Second, a person persists or perseveres in sin when the wrongful act is part of a pattern of behavior, that is, it “endures in time.” With respect to a politician, then, the question is not one of maintaining some type of “score-card” or evaluating each individual legislative vote on abortion in isolation. Rather, the question is whether the politician has welded in public life an unbroken chain of support for abortion rights and opposition to measures to restrict abortion on demand. Still, a politician may not excuse a consistent “pro-choice” voting record by protesting that the right to abortion is constitutionally fixed and thus he or she is a helpless spectator on the matter. As Pope John Paul II wrote in his Encyclical Evangelium Vitae: “[W]hen it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and lessening its negative consequences at the level of general opinion and public morality.”

Third, the sin must be manifest before withdrawal of communion is directed. The word “manifest” could either be read to modify the gravity of the sin, that is, meaning that the gravity of the sin must be obvious, as having reference to the public nature of the sin, or both. To the extent that it is an adjective attaching to the gravity of the sin, the manifest evil of abortion, and the legal regime that licenses it, has already been discussed in the first point above. To the extent that it may be argued that it is a qualifier as applied to this situation, that is, that the wrongness of supporting abortion rights is different in kind from the evil of directly procuring an abortion, that point is discussed next. In the context of politicians and abortion, the word “manifest”—having a plain meaning consistent with scriptural use of being visible and evident—implicates the public nature of political advocacy or political action. As Cardinal Joseph Ratzinger wrote to the American bishops, a politician’s cooperation with this evil is made manifest by “consistently campaigning and voting for permissive abortion and euthanasia laws.”

Indeed, it is that very public aspect of a Catholic politician’s rejection of fundamental Church teaching that so poignantly creates scandal for the faithful. As the Pontifical Council for Legislative Texts declared, “the reception of the Body of Christ when one is publicly unworthy constitutes an objective harm to the ecclesial communion; it is a behavior that affects the rights of the Church and of all the faithful to live in accord with the exigencies of that communion.”

Fourth, the sin must be grave, that is, a weighty matter and not a small step aside from the narrow way of salvation. It cannot be gainsaid, and indeed canon law is emphatic on this point, that procuring an abortion is a matter of grave sin. Is a political act that facilitates a deluge of abortions of the same kind and degree? Certainly, it cannot be doubted that for the politician who effectively if not explicitly advocates abortion rights as a positive social good, welcoming endorsements from entities that are directly involved in performing abortions, the advocacy and the manifestly grave evil that is certified are closely tethered together. For a politician who professes reluctance and hesitation about abortion rights, but has not yet fully embraced the mission of protecting innocent human life, the pertinent question will be the sincerity of expressed concerns, as manifested by clear public statements and concrete actions that work against the culture of death, as well as evidence of a continual progression toward more affirmative support for unborn life.

In sum, when a public official uses political power to facilitate the annihilation of the unborn, or deliberately and calculatedly refuses to exercise governmental authority to prevent it, the argument that Church discipline should attach is a quite plausible, if not ineluctable, interpretation of canon law. Indeed, if each individual is free to claim Catholic affiliation when comfortable or advantageous, while assuming a license to emphatically and publicly reject Catholic teaching when expedient, without any fear of rebuke or discipline, then the witness of the Church to the larger society on matters of fundamental human rights could be undone."

Greg Sisk

Is Turley right?

By Rob Vischer

Reader Albert J. Brooks wonders whether Jonathan Turley is correct in asserting that Roberts' stated need to recuse himself in a certain class of cases makes him an inappropriate nominee:

The Constitution and federal law provide for a Supreme Court composed of nine justices. Obviously there will always be unforeseen situations (illness, etc) when one or more Justices can't sit in decision on a case. And there are other cases that could not have been foreseen when the Justice was appointed in which he or she cannot sit due to a conflict of interest.

But when a Justice, for whatever reason and with respect to whatever issue, states ahead of time that he will recuse himself on that issue, is it appropriate or even permissible for the President to nominate and the Senate to confirm the Justice; essentially committing to a Supreme Court of 8 Justices on that particular issue?

Are we entitled to Justices who'll interpet and apply the Constitution and the laws of the United States? And is a Justice who'll commit to doing so, either in light of or without regard to his or her morality, preferable to a Justice who will simply "sit out" some tough cases?

Rob

No Room for Recusal?

By Rob Vischer

It looks like the focus of our discussion on MoJ may soon find a wider audience thanks to an exchange between Judge Roberts and Senator Durbin.  GW law prof Jonathan Turley, in an op-ed for the LA Times, reports:

The exchange occurred during one of Roberts' informal discussions with senators last week. According to two people who attended the meeting, Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).

Renowned for his unflappable style in oral argument, Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.

It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer. In taking office, a justice takes an oath to uphold the Constitution and the laws of the United States. A judge's personal religious views should have no role in the interpretation of the laws.

Rob

Saturday, July 23, 2005

Canon 915

By Patrick McKinley Brennan

I've only had a chance to scan the interesting, recent posts raising questions about the role of the Catholic judge and of the Catholic politician, and asking what bearing "the communion" question might have on our understanding of those roles.  But as we get further into the discussion of these questions, we should be clear, I submit, that whether someone should be denied communion sheds little light on what his or her performance in a legislative or judicial role should be.  As many readers of this blog know, the Canon that governs this aspect of the life of the Church, Canon 915, reads, in relevant part, that they are "not to be admitted to holy communion" who, inter alia, "obstinately persever[e] in manifest grave sin."  This Canon occurs in that part of the Code that concerns the sacramental life of the Church; the Canon, as intended and as understood by the canonists and pastors, is meant to protect the ecclesial life of the whole Catholic communion.  The Canon is not intended to be used, and should not be the basis of action intened, to alter the political process.  An effect on the political process may be an unintended, but known, consequence of a proper application of the Canon, of course.  But whether the judge's or politician's behavior amounts to "persevering in manifest grave sin" is the principal question that needs to asked (and answered, according to the ususal interpretive principles that govern applicaiton of the Code) if the issue is whether a minister of communion should deny communion to the individual judge or politician.  (Other questions include whether the individual has been privately warned, etc.)  No doubt the legislative and judicial roles present very different opportunities for persevering in manifest grave sin, but from the angle of the Church, the issue remains the one of protecting and enriching the ecclesial communion -- in which (according to the Canon 1752, the last Canon of the Code) the "supreme law"  "must always be" "the salvation of souls."            

Reader Comments on Catholic Judges and Communion: Part 2

By Thomas Berg

Thanks again to those who have written in comments on our latest thread -- we're glad to hear from you!

Reader Abe Delnore writes:

Brown asks, "does [Roberts] and every other Catholic judge have a duty to subvert the law--Roe--which certainly could be argued is as irredeemably corrupt as the Nazi genocide since it allows 1.3 million abortions to be performed annually in the US?"  Rob Vischer and others raised the specter of conscientious Catholic public servants practicing civil disobedience in
office.

Brown, I think, knows that the law in question is not Rowe or Casey; it is the US Constitution as interpreted in those cases.  Roberts and others have stated some variation of "Rowe is a matter of settled law."  This can only mean that they accept that abortion rights more or less as they exist now in this country are guaranteed by the US Constitution.  Whether they are a good thing or not is another matter.  Brown [Roberts -- ed.] serves on the federal bench and has taken an oath to uphold the US Constitution.  One must conclude that he does not see that venerable document as irredeemably corrupt.

If one believes that the US Constitution is irredemably corrupt, then one certainly must not take an oath to uphold it--particularly not an oath to serve in a voluntary, resignable position with an honorific character such as that of a federal judge.  Forced induction into an army fighting an unjust war that would be a different matter, but no one is coerced into the
ranks of the judiciary.

Vischer's ideas about judges and other officials practicing civil disobedience thus strikes me as absurd.  An official by definition cannot practice civil disobedience as it is normally understood: refusing to obey an unjust law and accepting the consequences.  Surely the most predictable consequence is removal from office, and in a judge's case reversal on appeal.  Wouldn't remaining in office constitute a material cooperation in evil, as well?  The only proper course I can see for a person convicted that the Constitution is irredeemaably corrupt is resignation and withdrawal from office.

[TB writes:]  My reaction to this is that it again overlooks the option of recusal rather than resignation.  I don't know of anyone who thinks that the entire Constitution is corrupted by the reading of abortion rights into the Fourteenth Amendment.  So far as I am aware, the opponents of Roe all think that this is a terrible distortion wreaked upon a document that is otherwise legitimate (if not admirable).  I suppose there are a few ultra-Montanists in America who think that, for example, the prohibition on establishing (pick your preferred faith) or the guarantee of freedom even for erroneous statements or beliefs make the Constitution illegitimate -- but there aren't many of those.  Contrast, for example, slavery, whose repeated protection and countenancing in the original Constitution could lead William Lloyd Garrison to colorably call the document "a covenant with death and an agreement with Hell."

But even having to enforce an isolated (as opposed to pervasive) bad doctrine could -- if the doctrine is bad enough -- require the judge to recuse, even if not to resign.  And although recusal wouldn't cause as much of a furor as would staying in the case and subverting the result through willful misinterpretation, nevertheless the sight of Catholic judges recusing themselves frequently would cause a lot of the turmoil that Elizabeth suggests -- including assertions that Catholics can't be trusted to do their jobs, etc.  So I think we're still back to Elizabeth's question about whether a Catholic judge enforcing Roe can receive communion when a pro-choice politician can't.

Tom B.

Friday, July 22, 2005

Reader Comments on Catholic Judges and Communion: Part 1

By Thomas Berg

My colleague Elizabeth Brown's question about Catholic judges and communion has prompted several comments from readers, which I'll post separately.

Billy Junker writes:

Cannot one make a distinction between interpreting the constitution the best one is able, no matter whether one likes what one finds, and crafting legislation?  A Catholic judge who upholds Roe could merely be saying that he believes the Constitution allows for the right, without saying he believes that the document is correct in allowing for the right.  Indeed, he might say that the Constitution allows for the right, and so must presently be followed, but that the Constitution should be changed-- not, of course, from the bench, but according to the provisions in the Constitution which allow for such change.  It is not his job to enact
legislation but to interpret a given document.  Different from him is the politician who, in the service of the common good, seeks to create laws. 

So I fail to see the problem.

[Tom B. writes,]  If I may put in two cents worth here:  I don't think this disposes of the problem.  Set aside the initial question whether Roe and Casey are even correct readings of the Constitution; assume for present purposes that they are.  At some point, wouldn't we all agree, an existing constitutional provision (or correct interpretation of it) becomes so unjust that the judge must refuse to follow it.  Not by purposeful misinterpretation of the document -- I agree with Mr. Junker on that -- but rather by recusal or resignation, which are options he doesn't consider.  A judge doesn't have any more license than a soldier to participate in an atrocity by saying "I was just following orders (in this case, the orders of the Constitution)."  Elizabeth's reference to Nazis brings up the example of the judges enforcing the worst Nazi laws.

And if the Church's pronouncements on the depth and scope of the abortion wrong lead to denial of communion for pro-choice Catholic politicians, isn't there a pretty good argument that a devout Catholic judge -- including a lower court judge -- must view enforcing Roe and Casey as so great a wrong that s/he must choose recusal or resignation instead?  Of course there are the arguments that this would deprive the nation of the service of Catholics who would make good contributions on other issues -- but one could say that of politicians as well, and the position denying communion to them seems to rest on a rejection of such a balancing calculus.  If one offers reasons why the judge could stay on the case or bench and follow Roe, is one thereby implicitly assigning the wrong of abortion a little bit lower seriousness than the arguments for the denial of communion to politicians suggested?

Tom B.

UPDATE:  David Opderbeck, business law prof at Baruch College-CUNY who operates the interesting blog Through a Glass Darkly, makes a comment that I take to be similar to Mr. Junker's:

Wouldn't there be some distinction based on the respective roles of elected officials and judges?  Patrick Brennan's previous post on "The judge's 'office'" might be relevant here.  An elected official's office in a republican democracy is, in part, to provide moral leadership.  If an elected official fails to provide positive moral leadership on an issue as central to the Church as abortion, the sanction of denying Communion may make sense.  In contrast, one prominent view of the judge's office in a republican democracy is that the judge should interpret and apply the law, not provide moral leadership about what the law should be.  On that understanding of the judicial office, I could see a principled difference in the Church's treatment of politicians and judges regarding abortion law.  I suppose if one is more of a legal positivist or legal realist, though, there might be reason to hold judges to the same standard as politicians.

I still wonder, though, whether this deals with the problem that the judge who enforces Roe is not just not "providing moral leadership," but is directly blocking a legislative effort to protect the unborn from a very great evil.  Is that much different than a legislator voting against such efforts?  Again, the critic of such a judge need not demand that the judge rule and subvert the established law, only that she recuse herself or (more extreme) resign.

Tom B.

Welcome to the Journal of Catholic Legal Studies!

By Rick Garnett

Let's give a grand welcome to the new Journal of Catholic Studies which was just launched as the successor to St. John's Law School's Catholic Lawyer. If the first isue (which I just recieved) is any indication, it will be a marked and much more scholarly improvement on its predecessor. MOJ's own Susan Stabile and her colleague Mike Simons are the presiding geniuses, and their former colleague and MOJ's own Rob Vischer was present at the creation. The first issue is a bit of an MOJ-fest with articles by the two Michaels, Perry and Scaperlanda, and yours truly. Mike Scaperlanda's piece is part of a fascinating (and ecumenical) symposium on "Religious Education and the Liberal State." There is also an intriguing piece that I can't wait to read" "Gotti, Mob Funerals and the Catholic Church." I encourage our readers to support this important new publication by actually subscribing (and to Villanova's Journal of Catholic Social Thought as well!)

The creation of this new journal triggered a few thoughts on what I am now bold enough to call the Catholic Legal Theory Movement. The success of that movement will depend ultimately, of course, on the power of our ideas and our ability to articulate them. But institutions are also important, because they provide platforms for the expression, dissemination and testing of those ideas. Institutions provide places for publication of pieces thay may not appeal to secular publications, conferences where we can meet, and, most important, a support framework for younger scholars finding their way. MOJ is one of those institutions, the Journals of Catholic Legal Studies and Catholic Social Thought are others, as are the workshops and symposia they sponsor, and Catholic organizations are now working with the Fellowship of Christian Law Professors to create an ongoing presence at the AALS Annual Meeting. There is also some evidence that more Catholic law schools are now actually becoming hospitable to Catholic scholarship. The famous term "critical mass" once more comes to mind; we need a critical mass of institutions, as well as people, for Catholic legal theory to flourish.

--Mark

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