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.

Thursday, July 15, 2004

Virtue Ethics and Legal Education

By Rob Vischer

Last week I was in England to participate in the First International Conference on Lawyers' Ethics, which brought together academics from around the world to discuss theoretical, regulatory, and educational perspectives on professionalism. I was struck by the dominant role that virtue ethics, and morality-driven concepts more broadly, played in many of the presentations. Richard Tur (Oxford) framed the challenge of legal ethics as showing "how anyone living in the law can construct a principled image of self and calling out of the various rules and regulations that govern the legal professions while retaining independence and judgment and thereby . . . contribute . . . to the moral development of the legal professions." Adrian Evans (Monash Univ. - Australia) framed his entire approach around the question: "Can values education 'transform' legal ethics education to make it more effective?" Don Nicolson (University of Strathclyde - UK) argued that "it is not enough that ethical rules tell lawyers how to behave and that lawyers are aware of and understand these rules," for lawyers must also be "motivated to follow the rules and also to follow their moral consciences," and be "sufficiently committed to acting morally in the face of the many counter-pressures that characterise contemporary legal practice." One scholar who takes a deontological, role-differentiated approach to lawyering even lamented the seeming takeover by the virtue ethicists.

There is not nearly as much discussion of values education or virtue ethics in American law schools (Tom Shaffer and his followers being the notable exceptions), which may be attributable, most charitably, to the regulation-heavy approach to lawyering that American law students are responsible for learning. From what I gather, foreign jurisdictions have less "developed" regulatory schemes in that regard. Further, legal ethics is a more recent addition to the academy outside the U.S., where the field received a jump start thanks to the lawyer-dominated scandal of Watergate. As such, it remains to be seen whether or not international legal ethicists will eventually lose sight of the big picture via the academy's tendency toward hyperspecialization and navel-gazing, or whether they will persist in their insistence that virtue has something to do with ethics.

Rob

Tuesday, July 13, 2004

Minimum Wage, Prudential Judgment, and Proper Role of Bishops

By Michael Scaperlanda

Steve raises an interesting point in his post on CST, Economics, and the Minimum Wage. Assuming that the bishops are engaged in an exercise of prudential judgment (as opposed to magisterial teaching) in their call for raising the minimum wage (or any other piece of legislation), their statement raises some troubling issues.

First, isn’t there a danger that taking this position, at least without an explicit disclaimer that this is a matter of prudential judgment on which Catholics can in good conscience disagree, will tend to confuse the faithful who will have trouble distinguishing between magisterial teaching and exercises in prudential judgment?

Second, by making such prudential judgment, do the bishops usurp (or at least marginalize) the proper role of the laity? Paragraph 43 of Gaudium et Spes says that “[s]ecular duties and activities belong properly although not exclusively to laymen. Therefore acting as citizens in the world, whether individually or socially, they will keep the laws proper to each discipline, and labor to equip themselves with a genuine expertise in their various fields. …[E]nlightened by Christian wisdom and giving close attention to the teaching authority of the Church, let the layman take on his own distinctive role.”

Third, by making such prudential judgment, do the bishops stifle or chill debate among the faithful, too closely associating their prudential judgment with the Gospel? Paragraph 43 continues: “Often enough the Christian view of things will itself suggest some specific solution in certain circumstances. Yet it happens rather frequently, and legitimately so, that with equal sincerity some of the faithful will disagree with others on a given matter. Even against the intentions of their proponents, however, solutions proposed on one side or another may be easily confused by many people with the Gospel message. Hence it is necessary for people to remember that no one is allowed in the aforementioned situations to appropriate the Church's authority for his opinion. They should always try to enlighten one another through honest discussion, preserving mutual charity and caring above all for the common good.”

And, Fourth, is their a danger that the bishops, by becoming too entangled in politics at a micro-level on an issue of prudential judgment, will undermine (squander) their own God-given authority to authentically teach on questions of faith and morals? We urgently need our bishops to teach that “the dignity and entire vocation of the human person as well as the welfare of society as a whole have to be respected and fostered; for man is the source, the focus and the end of all economic and social life.” (Paragraph 63) Does this message get drowned out when the bishops take one side in a debate that is open to multiple Catholic Christian perspectives?

Finally, if the call for raising the minimum wage is not an exercise of prudential judgment but a matter of magisterial teaching, the bishops ought to make that abundantly clear.

As an aside, I want to plead ignorance and make clear that I am not informed enough to intelligently take a side in the minimum wage debate.

Michael

Monday, July 12, 2004

CST, Economics, and the Minimum Wage

By Steve Bainbridge

The US Conference of Catholic Bishops supports an increase in the minimum wage, opining that:

Work has a special place in Catholic social thought: work is more than just a job; it is a reflection of our human dignity, and a way to contribute to the common good. Most important, it is the ordinary way people meet their material needs and community obligations. In Catholic teaching, the principle of a living wage is integral to our understanding of human work. Wages must be adequate for workers to provide for themselves and their families in dignity. Because the minimum wage is not a living wage, the Catholic bishops have supported increasing the minimum wage over the decades. The minimum wage needs to be raised to help restore its purchasing power, not just for the goods and services one can buy but for the self-esteem and self-worth it affords the worker. The United States Conference of Catholic Bishops supports legislation that would increase the minimum wage and is urging Congress to raise the minimum wage in a timely and meaningful way.
Query to what extent the Bishops' support for increasing the minimum wage is based on prudential considerations rather than magisterial teaching? The Bishops' statement of support, for example, opines that:
An increase in the minimum wage will not increase joblessness: opponents of the minimum wage often argue that it increases unemployment for entry-level workers, thereby hurting the very people it is meant to help. Recent empirical studies failed to find any systematic, significant job loss associated with minimum wage increases. Studies of the 1996-97 and the 1990-91 federal minimum wage increases as well as studies of several state minimum wage increases have similar results.
In fact, as I've noted over on my personal blog, a substantial majority of economists still agree with the statement "Minimum wages increase unemployment among young and unskilled workers." The studies identified by the Bishops, moreover, are contradicted by the work of a number of labor economists (see, e.g., David Neumark). At the very least, it seems, the Bishops have "puffed" the data.

An interesting research question thus follows: Is the Bishops' position on the minimum wage dependent on the empirical data? Or would CST justify an increase in the minimum wage even if it was proven that an increase in the minimum wage modestly reduced employment for low-wage workers? If so, how?

Or suppose there's something else going on here. Econoblogger Tyler Cowen observes:

Gordon Tullock notes that the government can make an employer raise nominal money wages, but can't stop him from turning off the air conditioner. [A more optimistic scenario is that the employer invests in creating a higher-productivity job.] Surely just about every job out there can be made worse, one way or another, in a way that saves the employer money.
So the scenario is now simple. The government boosts the minimum wage. Low-wage workers earn more. Few lose their jobs. Workers sweat more too, one way or another. Few are much better off.
This would explain the empirical studies on which the Bishops seem to rely. Yet, if this interpretation of the data is correct, is it still fair to say that an increase in the minimum wage promotes human dignity?

My point is this: The empirical evidence on the minimum wage is highly contested. In their recent statement, the Bishops ignored that controversy in favor of citing studies on only one side. I call this disingenuous, at best (dishonest would be a better word). Instead of resting their argument on contested empirics, the Bishops should have either (1) admitted that this is a prudential matter on which Catholics can disagree or (2) found a nonconsequential justification for raising the minimum wage that Catholics would accept regardless of their view of the empirical data.

Thoughts on the Wharton School Treatment

By Amy Uelmen

Mark, I had a similar reaction to a recent (5/17/04) America article by Frederick Gluck, “Can the Church Learn from Wal-Mart?” Of course there’s plenty of room for improvement in “management” and transparency… But I agree that that it’s important to highlight the Church’s core spiritual message and the ways in which this message is itself the motor for change.

John Paul II’s own ideas for the Church’s “management” program in the 2001 Apostolic Letter Novo Millennio Iueunte are beautiful – “we shall not be saved by a formula but by a Person, and the assurance which he gives us: I am with you!” (below are a couple more appetizers).

Perhaps what we need most right now is the experience of the Person of Christ, present in the community – and this is the fire which can burn away any egoism, pride, and lack of responsibility which lead to mismanagement or lack of transparency. “Were not our hearts burning [within us] while he spoke to us on the way and opened the scriptures to us?” (Luke 24:32).

From Novo Millennio n.29: "We are certainly not seduced by the naive expectation that, faced with the great challenges of our time, we shall find some magic formula. No, we shall not be saved by a formula but by a Person, and the assurance which he gives us: I am with you! It is not therefore a matter of inventing a "new program". The program already exists: it is the plan found in the Gospel and in the living Tradition, it is the same as ever. Ultimately, it has its centre in Christ himself, who is to be known, loved and imitated, so that in him we may live the life of the Trinity, and with him transform history until its fulfillment in the heavenly Jerusalem."

From n.43: "To make the Church the home and the school of communion: that is the great challenge facing us in the millennium which is now beginning, if we wish to be faithful to God's plan and respond to the world's deepest yearnings. But what does this mean in practice? Here too, our thoughts could run immediately to the action to be undertaken, but that would not be the right impulse to follow. Before making practical plans, we need to promote a spirituality of communion, making it the guiding principle of education wherever individuals and Christians are formed, wherever ministers of the altar, consecrated persons, and pastoral workers are trained, wherever families and communities are being built up . . . Let us have no illusions: unless we follow this spiritual path, external structures of communion will serve very little purpose. They would become mechanisms without a soul, "masks" of communion rather than its means of expression and growth."

Call for Papers

By Amy Uelmen

Strangers No Longer: Immigration Law & Policy in the Light of Religious Values
Fordham University School of Law, New York

Thursday February 24, 2005 | Inter-faith, interdisciplinary scholars’ workshop
Friday February 25, 2005 | Inter-faith, interdisciplinary conference for lawyers, social workers, community activists, clergy, and scholars.

The United States has welcomed more immigrants than any other country – more than 50 million in all – and still admits between 500,000 and 1 million persons a year. That we are “a society of immigrants” is, as President John F. Kennedy put it, “the secret of America: a nation of people with the fresh memory of old traditions who dare to explore new frontiers.”

Yet we also know that our immigration history is not without its shadows. Some of the “huddled masses yearning to breathe free” have met not a “golden door” but racism, prejudice, and fear. The domestic and international events that have followed in the wake of the tragedy of September 11th have deeply challenged our identity as a “society of immigrants.”

Each year the Fordham University School of Law Institute on Religion, Law & Lawyer’s Work sponsors an inter-faith interdisciplinary conference and scholars’ workshop to explore how religious values might shed light on and enrich a particular area of legal practice. Among other questions, Strangers No Longer hopes to consider:

• The ways in which religious values and commitments support and inform efforts to reform immigration law and policy so that they respect human dignity, human rights, and solidarity.

• The extent to which citizens’ religious values and convictions clash with current laws and regulations regarding immigrants and undocumented workers, and the impact of these conflicts on how they think about and relate to the law.

• The ways in which a deeper understanding of religious values and traditions may help to heal increased tensions and division in a post-September 11th world.

• The ways in which religious values can help open the horizons of US immigration law and policy toward a more comprehensive appreciation of the economic and political factors leading to immigration.

If you are interested in presenting a paper at either the conference or the workshop, please submit a two-page proposal describing how you would discuss any of the themes noted above. Please mail or email proposals by SEPTEMBER 15, 2004 to:

Amy Uelmen, Director, Institute on Religion, Law & Lawyer’s Work
Fordham University School of Law, 140 West 62nd Street
New York, New York 10023 Email: [email protected]

Saturday, July 10, 2004

Catholic Church Gets the Wharton School Treatment

By Rick Garnett

I attended a fascinating conference yesterday and today entitled "The Church in America, Leadership Roundtable 2004," sponsored by and held at the Wharton School here in Phildelphia. The conference was surprising in many ways, not least of all because of its location at the University of Pennsylvania, which is not noted for its friendliness to religion and the Catholic Church in particular. But it demonstrates Wharton's extraordinary ability to marshal the energy and money of its many successful grads, in this case committed Catholics deeply interested in their church. The conference gathered about 200 Catholic leaders, both lay and clerical, including many bishops, to talk about the Church as a problem in management. The group consisted of clerics (bishops, priests and nuns who run church institutions), academics (mostly Catholic university presidents and a few deans), CEOs, and some well known Catholic intellectualswriters/consultants (if that's a category). While it was genuinely fascinating, and one of the most civil Catholic conferences I've attended, it left me with a few qualms.
The organizors' assumptions were articulated in terms something like this:

1. The Church in America is on a "burning platform" (a term coined by former GE mogul Jack Welch); it must change or it will gradually fall apart; the status quo is not an option.

2. The key to survival and new growth is a mangerial revolution: the Church must abndon its "feudal" organization and way of doing business and adopt a "performance culture", accountability, modern human resources practices, modern market analysis and communication techniques, and strategic planning. This does not require applying a corporate model or abandoning the dioceses' autonomy; a sophisticated partnership model would be more appropriate.

3. None of that would be possible, however, without a radical expansion of the role of laity not just in parish life, but in leadership (not necessarily sacramental) roles at all levels.

My response to all this was a classic Catholic "Yes, but..." I certainly agree the Church is on a burning platform, that a managerial revolution is needed, particularly with respect to accountability, and recognition of the importance of the laity is not just a matter of necessity because of the disappearance of priests and nuns, but for sound theological reasons. Nevertheless, this analysis, while correct and helpful, overstates the importance of the managerial issues, because it does not explain adequately why the platform is burning. It is burning not just because many bishops have shown themselves to be inept or misguided managers, as the response to the sexual abuse cases has shown. It is burning, first, because the Church's core spiritual message is falling on increasingly deaf ears in a culture profoundly inimical to its beliefs and values, and, second, because Catholics are so divided among themselves about what Catholicism means and what it means to be a good Catholic. We can hire McKinsey or some other high powered business consultant to create a beautiful, well-engineered, gleaming managerial enterprise, but if it is producing the spiritual equivalent of buggy whips, it is still going to fail. My worry is that the Church's problems are of a different order than those that can be addressed by managerial remedies, even very important ones such as greater pastoral and financial accountability.

Of course, I don't want to set up too stark an antithesis here: better management will enable the Church's spiritual message to be conveyed more effectively, and its resources deployed more efficiently and with more credibility. Structural reforms that lend more dignity to the laity's (ESPECIALLY WOMEN"S) vocations and contributions will have a very positive spiritual effect. But, to mix metaphors, we need a wellspring of spiritual renewal to douse the flames on the burning platform.

-Mark

The Privatization of Marriage

By Michael Scaperlanda

Matt Sharp (Vanderbilt law student) passed on to me the following letter from Senator Mark Dayton (D. Mn.) to Jason Adkins (Univ. of Minnesota law student) It raises some of the same separation of church and state issues that have been addressed multiple times on this blog, most recently in a post by Rick. In this letter, Senator Dayton advocates privatizing the institution of marriage (giving it to God) while Ceasar (the state) creates a new and different institution.

Any reactions?


“Dear Mr. Adkins:

The current frenzy to amend the United States Constitution on marriage is unwise and unnecessary. Tragically, it has aroused prejudices against gay men and lesbian women and destroyed some of the important progress in recent years toward understanding and tolerance.

In the Bible, Jesus says, "Render unto Caesar, that which is Caesar's. Render unto God, that which is God's." I believe that "marriage," which is now used in both religious ceremonies and social contracts, should belong to God. In many church wedding services, marriage is described as "an institution created by God." They conclude, "Whom God has joined together, let no one cast asunder."

Thus, government should leave "marriage" to organized religions and their appointed authorities. Government should adopt a different term, such as "marital contract," to define the rights, responsibilities, and protections, which would be accorded any two people, above a certain age, who wish to enter into such a relationship.

We have a choice. We can force this divisive and destructive debate into a Constitutional amendment process, which would inflame ugly prejudices and cruel denunciations in every state for several years; or, we can use different words for two different actions: one religious and one civil. I support the second approach.

My best regards.

Sincerely,

Mark Dayton
United States Senator"

Thursday, July 8, 2004

Kerry's Opposition to Abortion

By Rick Garnett

Harvard Law Student Joshua Davey has posted some thoughts regarding Senator Kerry's recent statement , "I oppose abortion, personally. I don't like abortion. I believe life does begin at conception." However, Senator Kerry continued, "I can't take my Catholic belief, my article of faith, and legislate it on a Protestant or a Jew or an atheist. . . . We have separation of church and state in the United States of America."

Now -- wholly and apart from the debate about pro-abortion-rights Catholic politicians and communion -- Senator Kerry's statement strikes me as quite unfortunate, for at least three reasons: First, the "Catholic belief" that abortion is a grave wrong is not (at least, at I understand it, the Church teaches that it is not) merely an "article of faith." No one is suggesting that Senator Kerry should support laws requiring affirmation of the Trinity or the Resurrection. It is, I think, a shame that so many Catholics seem to embrace uncritically the notion that we affirm the sanctity of life, and embrace other principles of Catholic Social Thought, *simply* as a matter of fideism.

Second, and accordingly, the "separation of church and state" imposes no constraints whatsoever on the right of Catholic legislators -- or any other legislators -- to support laws that limit or discourage abortion (any more than they constrain the right of Catholic legislators to oppose the death penalty, or support a "living wage"). The "separation of church and state" (properly understood) is, in my view, a crucial aspect of authentic religious freedom. That said, the Kennedy / Kerry / (Rawls?) idea that separationism imposes obligations of self-censorship or dis-integration on religious citizens is durable, but pernicious.

Third, Senator Kerry's statement seems to distract attention from what seems a much more interesting and challenging conversation, namely, the one proposed and engaged by Michael Perry in his recent book, "Under God." It seems to me that pro-life Catholic politicians and voters might well decide, for prudential reasons, that political realities and the fact of pluralism weigh against outright bans on abortion, or that a candidates' positions on other issues "outweigh" her mistaken views on abortion. And, as Perry argues, Catholics might well decide, for reasons *internal* to our faith (i.e., reasons not imposed by liberal theory) to avoid "faith based" arguments in certain public contexts. The (important) point, though, is that these decisions should not be regarded as Senator Kerry appears to regard them, i.e., as required by democratic morality or "the separation of church and state".

Rick

Tuesday, July 6, 2004

Decision in Americorps / Notre Dame case

By Rick Garnett

More than a year ago, the American Jewish Congress filed suit in the United States District Court for the District of Columbia, claiming that the participation of "A.C.E." (Alliance for Catholic Education) teachers in the federal Americorps program violates the Establishment Clause. In this opinion, Judge Gladys Kessler agreed, and granted AJC's motion for summary judgment. In a nutshell, "the government funding [i.e., the Americorps funds made available to ACE participants] . . . results in impermissible government indoctrination." (I should disclose that I participated in several discussions with lawyers defending the ACE program in this lawsuit.)

Rick

Th John F. Scarpa Chair in Catholic Legal Studies at Villanova

By Rick Garnett

I am delighted to announce that the first holder of the John F. Scarpa Chair in Catholic Legal Studies at Villanova University School of Law will be Patrick M. Brennan, formerly of Arizona State's law school. Patrick will assume the position effective August 1, 2004, and his inauguration will be held this fall. Needless to say, we are delighted that such an outstanding scholar will be joining our community to play a crucial role in helping us serve our mission as a Catholic and Augustinian institution. I will be posting a press release shortly that will provide more information about Patrick. PS - he will also be joining MOJ shortly as a blogista, and I am sure will make excellent contributions to our conversation.

-Mark

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