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, September 1, 2022

Religiously Affiliated Law Schools conference . . . coming up!

By Rick Garnett

After a little bit of a hiatus, the conference of the Religiously Affiliated Law Schools is coming up, and is this year being hosted by Prof. Sam Levine and his team at Touro.  I hope to see MOJ bloggers and readers there!  Here's the conference info.  The theme is, well, broad: "The Past, Present, and Future of Religiously Affiliated Law Schools".  Come join us!

Here is the program:

Conference Program

Thursday, September 15 

  • 9:00 - 9:30 am - Breakfast and Welcome
    Elena B. Langan, Dean and Professor of Law, Touro Law Center
    Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer

  • 9:30 - 10:30 am - Religion in the Intellectual Life of the Law School
    Jeffrey A. Brauch, Professor, Executive Director, Center for Global Justice, Regent University School of Law --- Moderator
    Rodger Citron, Associate Dean for Research and Scholarship and Professor of Law, Touro Law Center
    Brad J. Lingo, Dean, Regent University School of Law     
    Judith A. McMorrow, Professor of Law, Boston College Law School 

  • 10:30 - 10:40 am - Break

  • 10:40 - 11:40 am -- Religion and Faculty Hiring
    Deseriee Kennedy, Professor of Law, Touro Law Center -- Moderator 
    John M. Breen, Georgia Reithal Professor of Law, Loyola University Chicago
    Michael A. Helfand,  Brenden Mann Foundation Chair in Law and Religion and Co-Director, Nootbaar Institute for Law, Religion and Ethics, Pepperdine Caruso School of Law 
    Lucia A. Silecchia, Professor of Law and Associate Dean for Faculty Research,
    Catholic University of America, Columbus School of Law

  • 11:40 - 11:50 am - Break

  • 11:50 am - 12:50 pm - Religious Thought in Criminal Law Scholarship and Advocacy
    Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
    Melina A. Healey, Director of Clinical Programs and Assistant Clinical Professor, Touro Law Center 
    Marah Stith McLeod, Associate Professor of Law, Notre Dame Law School 
    Honorable Richard J. Sullivan, United States Circuit Court Judge for the Second Circuit

  • 12:50 - 2:30 pm - Lunch/Tour of Central Islip State Hospital Cemetery

  • 2:30 - 3:40 pm - Past, Present, and Future of Religiously Affiliated Law Schools (I)

    Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
    Marvin Krislov, President, Pace University  
    Tim Perrin, Senior Vice President for Strategic Implementation, Pepperdine University
    D. Gordon Smith, Dean, Ira A. Fulton Chair and Professor of Law, BYU Law School

  • 3:40 - 3:50 pm - Break

  • 3:50 - 5:00 pm - Past, Present, and Future of Religiously Affiliated Law Schools (II)
    Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
    Fayneese S. Miller, President, Hamline University 
    Rod Smolla, President, Vermont Law and Graduate School
    Michael Waterstone,  Fritz B. Burns Dean, Loyola Law School, Senior Vice President, Loyola Marymount University, Professor of Law  

  • 5:00 pm - Tour and Reception, Judaica Room, Gould Law Library

  • 6:00 pm - Dinner

Friday, September 16

  • 9:00 - 9:30 am - Breakfast

  • 9:30 - 10:30 am Religion and the Practice of Law (I)
    Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
    Jeanne Bishop,  Assistant Public Defender at Cook County Public Defender's Office
    Allen Fagin, Former Chairman, Proskauer Rose, LLP; Board Member & Senior Advisor, Validity Finance  
    Joel A. Nichols, Interim Dean and Mengler Chair in Law, Univ. of St. Thomas (MN) 

  • 10:30 - 10:45 am - Break

  • 10:45 - 11:45 am - Religion and the Practice of Law (II)
    Tiffany C. Graham, Associate Dean for Diversity and Inclusion and Associate Professor of Law, Touro Law Center -- Moderator 
    Honorable Joseph F. Bianco, United States Circuit Court Judge for the Second Circuit
    Jordi Goodman, Visiting Clinical Assistant Professor, BU/MIT Technology Law Clinic,
    Boston University School of Law
    Randy Lee, Professor of Law, Widener Law Commonwealth 

  • 12:00 - 1:00 pm - Lunch and Keynote Address
    Russell G. Pearce, Edward & Marilyn Bellet Chair in Legal Ethics, Morality, and Religion
    Fordham University School of Law

  • 1:00 - 2:15 pm - Religious Liberty Advocacy
    John Linarelli, Associate Dean for Academic Affairs and Professor of Law, Touro Law Center -- Moderator 
    Nathan J. Diament, Executive Director, Orthodox Union Advocacy Center
    Josh McDaniel, Visiting Assistant Clinical Professor of Law, Director, Religious Freedom Clinic, Harvard Law School
    John Meiser, Supervising Attorney, Religious Liberty Clinic, Notre Dame Law School
    Lori Windham, Senior Counsel, Becket

  • 2:15 - 2:30 pm - Closing Remarks
    Elena B. Langan, Dean and Professor of Law, Touro Law Center
    Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer

 

 

Wednesday, August 31, 2022

"Traditionalism Rising"

By Marc DeGirolami

That is the title of my new draft paper, developing work I’ve been at for the last 3-4 years, incorporating some of the decisions from this term, and setting out some justifications for this method of doing constitutional law. Here is the abstract:

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics.

Friday, August 5, 2022

"The New Thoreaus"

By Marc DeGirolami

My colleague, Mark Movsesian, has just posted this new and very interesting paper. It discusses a new and rising pressure point on the legal conception of religion. It also argues for the indispensability of a communal element for legal purposes. Here's the abstract:

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the 19th Century Transcendentalist, Henry David Thoreau, would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly 66 million people—now claim, like Thoreau, to follow our own, idiosyncratic spiritual paths. The New Thoreaus already have begun to appear in the cases, including recent vaccine mandate challenges, and courts will increasingly face the question whether purely idiosyncratic beliefs and practices qualify as religious for legal purposes. In this essay, I argue that Yoder’s insight was basically correct: the existence of a religious community is a crucial factor in the definition of religion. Religion cannot mean an exclusively communal phenomenon; a categorical rule would slight a long American tradition of respecting individual religious conscience and create difficult line-drawing problems. Nonetheless, the farther one gets from a religious community, the more idiosyncratic one’s spiritual path, the less plausible it is to claim that one’s beliefs and practices are religious, for legal purposes.

Monday, July 25, 2022

The Contrasting Visions of the Judiciary in Brown and Dobbs

By Michael Scaperlanda

I have a short piece contrasting the Dobbs' Court's approach to judicial reasoning with that employed in Brown v. Board of Education. Here is a snippet: 

Brown v. Board of Education rightly mortally wounded Plessy v. Ferguson, and Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade. But Brown and Dobbs represent contrasting visions of the role of the judiciary in shaping American society. The Brown Court placed itself in the central role of creating a just society. The Dobbs Court cast itself in the supporting role of referee applying the standards set down by the Constitution, while locating the task of forming a just society in state legislatures on issues the Constitution is silent about.

Sunday, July 17, 2022

Smolin on "Children, Mothers, Religious Liberty, and the Mission of the Catholic Church"

By Rick Garnett

Prof. David Smolin (Samford) has a new paper out, which will be of interest to many MOJ readers.  Here is the abstract:

This article addresses, from religious liberty and theological perspectives, two sets of serious errors in the treatment of mothers and children, in which the Catholic Church (and other churches) participated.  These serious errors have created credibility gaps regarding the Church’s mission and societal role in assisting vulnerable children and families. 
 
Hence, much of this article is a theological examination of what went wrong in regard to two now prominent wrongs:  the residential schools for indigenous children in Canada, the United States, and Australia, and the treatment of single mothers and their children in Canada, the United States, Ireland, the United Kingdom, and Belgium.   The theological journey is necessary to the religious liberty claims for internal reasons---fidelity to the faith---and for external reasons---credibility to society so that society can see and understand that the church has and is learning from its own mistakes.  
 
The theological examination of these wrongs is framed by a discussion of the 9-0 victory of Catholic Social Services (CSS) in the Fulton v. City of Philadelphia case.   This religious liberty victory upon examination is based on the Supreme Court’s  very positive view of the work of CSS in the foster care system.  Religious liberty in the context of cooperative work between the government and religious agencies ultimately does require that the work of the Church is viewed as fulfilling secular goals of government.   
 
 
 

 

Wednesday, July 13, 2022

A rare example of statesmanship--and courage--by an academic administrator

By Robert George

I am reproducing here a Statement by Marschall S. Runge, MD, PhD, Dean of the Medical School of the University of Michigan, demonstrating the proper response by a leader of a public or non-sectarian private institution of higher learning to efforts to dis-invite or de-platform speakers or impose ideological litmus tests. The speaker in question here was Professor Kristin Collier, MD, who came under attack by campus ideologues because she believes in the sanctity of human life in all stages and conditions. Dean Runge refused to capitulate to the mob.

-----------------

Dear Medical School faculty, students and fellows,
 
The Medical School White Coat Ceremony is a special day for our medical students and their families as they are welcomed into the medical profession. The ceremony is a meaningful tradition that celebrates U-M medical students as they prepare to become leaders in medicine.
 
Kristin Collier, M.D., was chosen as the keynote speaker for the 2022 White Coat Ceremony based on nominations and voting by members of the U-M Medical School Gold Humanism Honor Society, which is comprised of medical students, house officers, and faculty. The Society chapter, which was formed at U-M Medical School in 2016, represents exemplars of humanistic patient care and who serve as role models, mentors, and leaders in medicine.
 
We have received both positive and negative feedback on the choice of our keynote speaker. The White Coat Ceremony is not a platform for discussion of controversial issues, and Dr. Collier never planned to address a divisive topic as part of her remarks.  Our values speak about honoring the critical importance of diversity of personal thought and ideas, which is foundational to academic freedom and excellence. We would not revoke a speaker because they have different personal ideas than others.
 
At this year’s White Coat ceremony, we will be honoring 168 outstanding scholars and formally welcoming them as the University of Michigan's newest class of medical students. This is an important day for them and their families, and we hope that all will honor this day dedicated to them and their families.
 
A forum on the importance of diversity of thought is being planned by Michigan Medicine, and additional details will be shared soon.
 
Sincerely,
Marschall S. Runge, M.D., Ph.D.
Dean, University of Michigan Medical School
Executive Vice President for Medical Affairs
CEO, Michigan Medicine

 

Vatican Radio Interview on "Liberalism's Limits"

By Marc DeGirolami

Our conference, "Liberalism's Limits: Religious Exemptions and Hate Speech," which we co-sponsored with LUMSA last week in Rome, was a great success. Mark Movsesian and I will publish some of the conference proceedings after giving the participants time to revise their contributions. In the meanwhile, here is an interesting interview conducted by Radio Vaticana with Professors Cesare Mirabelli (President Emeritus of Italy's Constitutional Court and one of our keynote speakers) and our colleague, friend, and conference co-organizer, Professor Monica Lugato, about the conference and some of our broader joint projects.

The interview is in Italian, but I'm taking the liberty of translating loosely a portion of what Professor Lugato said to give our English-speaking readers a sense of the proceedings: "This conference was in a line of academic projects undertaken jointly by our universities dating from 2014 [and as early as 2012] with the idea of discussing some central and complex themes concerning the problem of living together--of how to live together in societies marked today by substantial pluralism. The objects of this general theme have been conferences concerning aspects of religious freedom as well as the legal and political implications of the concept of tradition. Within this general line of inquiry, it was natural to confront the problems of the limits of liberalism, and in particular liberalism's tendency to render absolute certain individual liberties. Some of the questions asked at the conference might be grouped into two categories: on the one hand, questions about whether liberalism, at least in its classical sense, has exhausted itself; and on the other hand, questions about whether liberal political and legal systems demand certain limits on individual liberties just in order to survive as liberal systems, and what those limits might be."

Friday, July 1, 2022

"We the People" Podcast on Carson v. Makin and Kennedy v. Bremerton School District

By Michael Moreland

I greatly enjoyed doing the National Constitution Center's "We the People" podcast (available here) with Dean Erwin Chemerinsky (UC Berkeley Law) and moderated by Jeffrey Rosen on the Supreme Court's recent decisions on school funding and prayer--Dean Chemerinsky and I had a lot of spirited but respectful disagreements!

Re-Post: Abortion, Religion, and the Accusation of Establishment

By John M. Breen

Sara Feigenholtz -- Statue of Liberty Pope Gun

The Post-Dobbs world in which we now live has brought with it an oft-repeated accusation, now voiced with renewed vigor: the pro-life position is inherently religious and so cannot serve as the foundation for any law restricting abortion.  This accusation is an attempt to win an argument without really having one – to declare illicit and rule out of bounds ab initio an opposing point of view.  Moreover, it is an accusation that draws upon the ugly history of anti-Catholic animus and violence in the United States.  It is a slur that seeks to paint the advocates of the pro-life position as religious zealots who seek to impose the moral demands of their faith on the public at large.  The image above, posted by an Illinois State Senator following the Dobbs ruling (and referred to in Rick Garnett’s First Things piece) reflects the hate directed toward Catholics as a result of the Church’s efforts to protect and foster unborn human life.

In responding to this accusation, some might find it helpful to consider my article Abortion, Religion, and the Accusation of Establishment.  I am reposting it here following Rick’s suggestion.  In the piece I engage in a line-by-line critique of Justice Stevens’ opinions in Thornburgh, Webster, and Casey where he attempts to show that the pro-life position is inherently religious such that, when it is embodied in law, it constitutes an establishment of religion in violation of the Constitution.  Like others who level this accusation, Stevens fails in this regard.  Indeed, he does nothing to actually show the religious nature of the normative premises he opposes.  He merely assumes that they are religious, and in so doing channels the anti-Catholic sentiment now once again on vivid display throughout our country.

I will have more to say about this in a subsequent post.

Thursday, June 30, 2022

Podcast on the School Funding and Prayer Cases

By Marc DeGirolami

To say that the past Supreme Court term was consequential might be to understate matters. Mark Movsesian and I have this Legal Spirits podcast discussing Carson v. Makin and Kennedy v. Bremerton School District, two important church-state cases--potentially as important as we have seen in some time. Listen in!

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