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, December 17, 2015

Dickens on Model Rule of Professional Conduct 1.2: "I would rather be hanged in my own way."

By Marc DeGirolami

I have not taught Professional Responsibility in a few years, but when I did, one unit concerned the allocation of authority as between a client and a lawyer. The rule is 1.2, which states in relevant part: "a lawyer shall abide by a client's decisions concerning the objectives of representation and...shall consult with the client as to the means by which they are to be pursued..." In my experience, discussion of this provision tends to focus on a few, fairly dull, contemporary oddities without a great deal of depth in them--the Unabomber case, or scattershot debates between Supreme Court justices about the ends of litigation, and so on. 

But there is a wonderful illustration of the conflict that the rule perhaps means, in its typically arid and exsanguinous way, to address, in Dickens's "Bleak House." Here is the scene: an upright and honorable, though down-on-his-luck, military man, Mr. George, has been wrongfully accused of the murder of a prominent and rather nasty lawyer, Mr. Tulkinghorn, who represented one of George's creditors. George is being held in custody and his friends, who include the novel's main protagonists, come to visit and express sympathy. And to advise that he get a lawyer for his defense. But here is George's reaction (in Chapter LII, titled "Obstinacy," in discussion with Mr. Jarndyce, who is referred to by the narrator, Esther Summerson, as "my guardian"):

"You must have a lawyer," pursued my guardian. "We must engage a good one for you."

"I ask your pardon, sir," said Mr. George, with a step backward. "I am equally obliged. But I must decidedly beg to be excused from anything of that sort."

"You won't have a lawyer?"

"No, sir." Mr. George shook his head in the most emphatic manner. "I thank you all the same, sir, but--no lawyer!"

"Why not?"

"I don't take kindly to the breed," said Mr. George. "Gridley didn't. And--if you'll excuse my saying so much--I should hardly have thought you did yourself, sir."

"That's Equity," my guardian explained, a little at a loss; "that's Equity, George."

"Is it, indeed, sir?" returned the trooper, in his off-hand manner. "I am not acquainted with those shades of names, myself, but in a general way I objected to the breed."

Unfolding his arms and changing his position, he stood with one massive hand upon the table, and the other on his hip, as complete a picture of a man who was not to be moved from a fixed purpose as I ever saw. It was in vain that we all three talked to him, and endeavoured to persuade him; he listened with that gentleness which went so well with his bluff bearing, but was evidently no more shaken by our representations than his place of confinement was.

"Pray think, once more, Mr. George," said I. "Have you no wish, in reference to your case?"

"I certainly could wish it to be tried, miss," he returned, "by court-martial; but that is out of the question, as I am well-aware. If you will be so good as to favour me with your attention for a couple of minutes, miss, not more, I'll endeavour to explain myself as clearly as I can."

He looked at us all three in turn, shook his head a little as if he were adjusting it in the stock and collar of a tight uniform, and after a moment's reflection went on.

"You see, miss, I have been handcuffed and taken into custody, and brought here. I am a marked and disgraced man, and here I am....I don't particularly complain of that. Though I am in these present quarters through no immediately preceding fault of mine, I can very well understand that if I hadn't gone into the vagabond way in my youth, this wouldn't have happened. It has happened. Then comes the question, how to meet it."

He rubbed his swarthy forehead for a moment, with a good-humoured look, and said apologetically, "I am such a short-winded talker that I must think a bit." Having thought a bit, he looked up again, and resumed.

"How to meet it. Now, the unfortunate deceased was himself a lawyer, and had a pretty tight hold of me. I don't wish to rake up his ashes, but he had, what I should call if he was living, a Devil of a tight hold of me. I don't like his trade the better for that. If I had kept clear of his trade, I should have kept outside this place. But that's not what I mean. Now, suppose I had killed him....What should I have done as soon as I was hard and fast here? Got a lawyer."....

"I should have got a lawyer, and he would have said (as I have often read in the newspapers), 'my client says nothing, my client reserves his defence--my client this, that, and t'other.' Well, 'tis not the custom of that breed to go straight, according to my opinion, or to think that other men do. Say, I am innocent, and I get a lawyer. He would be as likely to believe me guilty as not; perhaps more. What would he do, whether or not? Act as if I was;--shut my mouth up, tell me not to commit myself, keep circumstances back, chop the evidence small, quibble, and get me off perhaps! But, Ms. Summerson, do I care for getting off in that way; or would I rather be hanged in my own way--if you'll excuse my mentioning anything so disagreeable to a lady?"

He had warmed into his subject now, and was under no further necessity to wait a bit.

"I would rather be hanged in my own way. And I mean to be! I don't intend to say," looking round upon us, with his powerful arms akimbo and his dark eyebrows raised, "that I am more partial to being hanged than any other man. What I say is, I must come off clear and full or not at all. Therefore, when I hear stated against me what is true, I say it's true; and when they tell me, 'whatever you say will be used,' I tell them I don't mind that; I mean it to be used. If they can't make me innocent out of the whole truth, they are not likely to do it out of anything less, or anything else. And if they are, it's worth nothing to me."

Wednesday, December 16, 2015

The Expressive Power of Law

By Patrick McKinley Brennan

The expressive power of law defies capture by those inclined  ("caused"?) to reduce compliance with (or obedience to) law to either deterrence or "legitimacy."  I recommend in this vein Richard McAdams's The Expressive Powers of Law: Theories and Limits (Harvard 2015), a book that can be read especially profitably in tandem with Fred Schauer's The Force of Law (Harvard 2015).  Schauer's careful argument for the place of coercion in law's efficacy is somewhat overstated, in my view, and McAdams's account, while doing too little to expose the place in law of reasons for action per se, does a fine job of both demonstrating and refusing to exaggerate law's power of suggestion.  With dignitary harms multiplying as causes of action, it's timely to clarify whether the operation of law's expressive power that does not lead to compliance should nonetheless a cause of action make.        

Capt. Singh's Beard and Turban and Religious Liberty

By Thomas Berg

Good news, for the moment, from The Hill, about the ability of American soldiers to follow their faith in ways consistent with real military needs:

The Army has granted a temporary religious accommodation for a Sikh member of the armed forces, who will be allowed to wear a beard and turban when he reports to a new post on Monday.

"My Sikh faith and military service are two core parts of who I am,” Capt. Simratpal Singh, 27, said in a statement issued Monday....

The Army, which maintains meticulous grooming standards, must decide whether to make the accommodation permanent. It has granted thousands of exceptions for beards based on medical reasons, according to a legal group working on behalf of Singh, which said his accommodation is only the fourth such given since the early 1980s. 

Here is the Army's letter with the interim permission. Congratulations--and best wishes in the future on this case--to The Becket Fund, which continues with its mission of defending religious liberty for all faiths.

An important reminder

By Rick Garnett

In the October 2015 issue of First Things, Rusty Reno concludes a sobering short piece on our religious-freedom challenges with this: "There will be no United States of America in one thousand years.  But there will be synagogues and churches.  The future is ours."  

Tuesday, December 15, 2015

Catholic Universities and Unions, Again

By Michael Moreland

Over at NCR, Michael Sean Winters has a post about the latest case involving adjunct faculty unionization efforts at Catholic universities, this time at Loyola-Chicago (following on similar cases at Seattle University, St. Xavier in Chicago, Manhattan College, Duquesne, and others). Those schools (along with the Association of Catholic Colleges and Universities and the Association of Jesuit Colleges and Universities in amicus briefs) have been engaged in an argument with the National Labor Relations Board for the past few years about NLRB jurisdiction over adjunct faculty unions. I’ve written about the issue previously here at MOJ.

At the outset, I resist the characterization (though understand why it would be rhetorically effective, especially in a Catholic setting) to frame this issue as one of being “for” or “against” unions. Before this is a freewheeling debate about Catholic social teaching or the value of unions, NLRB jurisdiction over adjunct faculty collective bargaining at Catholic universities is a straightforward and narrow question of statutory interpretation. Absent clear congressional intent to place teachers at religious institutions under the jurisdiction of the National Labor Relations Act, the canon of constitutional avoidance requires that the statute be interpreted so as to avoid raising First Amendment problems. That is the unambiguous holding of the Supreme Court’s decision in NLRB v. Catholic Bishop in 1979 (and for reasons that Doug Laycock classically expressed here). Every subsequent decision in the circuit courts looking at NLRB jurisdiction over religiously affiliated universities—from then-Judge Breyer’s controlling opinion in Universidad Central de Bayanom v. NLRB, 793 F.2d 383 (1st Cir. 1986) (en banc) (Breyer, J., for half of an equally divided court), to the D.C. Circuit’s opinion in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002)—agrees with that interpretation of the NLRA’s scope. The legal argument against NLRB jurisdiction over adjunct faculty unions at religiously affiliated schools (absent congressional amendment of the NLRA or a Supreme Court case revisiting Catholic Bishop) is about as clear as you can get.

But that hasn’t stopped the NLRB from engaging in more than 30 years’ worth of conceptual gymnastics to avoid the implications of those holdings (grounded in the Board’s non-acquiescence to circuit court precedents, see D.L. Baker, Inc., 351 NLRB 515, 529, fn. 42 (2007)). As I noted after the Board’s decision in the Pacific Lutheran case, the test now applied for withholding NLRB jurisdiction over faculty is whether the university “hold[s] out faculty as performing a specific religious function,” which requires, for example, findings about whether and which faculty engage in “religious indoctrination” (whatever that is) or whether the school has a commitment to academic freedom. (As an aside, I should clarify that this applies only to non tenure-track faculty, as tenure-track faculty are deemed “managerial employees” under the Supreme Court’s decision in NLRB v. Yeshiva University in 1980.) And, again, this means that the Board is exercising its judgment about the incompatibility of academic freedom with a religious mission or whether only faculty engaging in “religious indoctrination” are serving the mission of a school, both propositions that are widely rejected in American Catholic higher education. This inquiry, just as the earlier “substantially religious character” test, poses a serious risk of entanglement in the mission of religiously affiliated schools, a risk not posed by regulations about, say, asbestos or lead paint (which Winters cites for his argument).

A quick concluding point about how this comports with Catholic teaching on the rights of workers to organize. As argued in detail by Kathleen Brady in this article, there should be some hesitation before simply assimilating Catholic social teaching on unions to the NLRA’s framework. As Kathleen notes, Rerum Novarum and successive papal social encyclicals emphasize the fundamentally cooperative relationship between management and labor, not the conflict and balancing of interests that marks the approach of the NLRA. That cooperative vision of labor relations—and not the NLRB’s cramped definition of what constitutes a religious institution—should serve as our guide for resolving this debate.

Resolved: Dick Posner is the Donald Trump of Article III

By Kevin C. Walsh

I’ve been quite taken lately with Scott Adams’s use of his Moist Robot and Master Persuader ideas to make sense of Donald Trump. So I thought I would try on Adams’s filter for a while and see if it helped me understand matters closer to my areas of interest.

One of those is the judicial power.

Filter on, I looked around my digital world. And this is what came into focus:

Dick Posner is the Donald Trump of Article III.

Among life-tenured federal judges, Judge Posner is The Donald.

Think about it:

There’s more, of course, but let’s step back and consider concerns or counter-arguments.

Isn’t it a bit mean to compare Posner with Trump given their different day-job duties in law and politics? Maybe a bit. But not that much, and it’s a fair comparison. Trump and Posner are both highly effective people, very successful in their respective lines of work. Both would probably kind of like the comparison at some level.

Anyhow, “that’s mean” is more of a concern than a counter-argument. It does point to the question of motive, though. And here I must admit that I would like the Posner as Trump idea to stick.

Justice Scalia is my old boss, and I view him with affection. He can surely take care of himself. But some of Posner’s personal attacks on him offend me. The latest—accusing Scalia of pushing majoritarian theocracy—is particularly confounding given Posner’s own views on the Constitution and law.

Posner thinks "[t]he notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense." And he also thinks that "whatever judges do within their jurisdiction is law." Put these two together in the mind of someone who decides constitutional cases, and you have a recipe for lawless constitutional law.

Next, stir in Posner’s views on the relationship between public opinion and constitutional law. ("I do think the change in public opinion was decisive for all the courts that ruled in favor of creating a constitutional right to same-sex marriage.") And throw in the idea of Liberty as a goddess. Who’s the majoritarian theocrat now?

(Lest you think this idea of Goddess Liberty far-fetched, consider that the West Wall frieze at the Supreme Court of the United States has an allegorical depiction of Divine Inspiration speaking to Justice. Some federal judges (though not Posner) occasionally act as if they take the allegory a bit too personally.)

Anyhow, Posner is surely of the view that turnabout is fair play. If this post were to bother him in any way that he would care about enough to do anything substantial, he would probably crush me. (If I ever finish this book I'm working on, maybe I'll be lucky enough for him to write a review trashing it. But I suspect a wry smile is more likely.) I do expect “Scalia is the Trump of Article III” to emerge from somewhere, though, if it hasn’t already. So it’s not like there’s no downside to peddling the comparison.

I make no pretense of dispassion in tagging Posner as Trump, but it’s not as if I am incapable of assessing Posner dispassionately. I’ve co-authored an article about him (and Judge Wilkinson) that assesses his thought somewhat favorably (or at least not unfavorably). And who can’t recognize Posner’s particular gifts? 

Lately, though, Posner’s been reminding me of someone else, and that’s Donald Trump. So I thought I’d share.

My claim that Posner Is The Trump Of Article III is obviously debatable. And it would be fun to see it debated. So hopefully this post gets picked up by a blog with a lively comment section. (Maybe someone will read it and think "How Appealing," and it then gets discovered by The Volokh Conspiracy (bat signal to Orin Kerr) or Josh Blackman?)

Of scraped knees and broken legs; an observation on Blaine and Jefferson

By Kevin C. Walsh

Thanks to Rick for the pointer to the WSJ piece on the use of Blaine Amendments. I liked this paragraph near the end of it, in which the author explains the benefits denied by application of a Blaine Amendment to forbid a religious school from receiving a state grant to resurface its playground:

Although the playground-resurfacing program in Missouri provides aid directly to schools, the program’s environmental and safety goals are entirely secular. Those recycled tire bits are not going to indoctrinate the children playing on them. Rubberized playgrounds might save knees and the environment, but they do not save souls.

The claim seems something like the legal contrapositive (if that makes any sense) of Jefferson's comment about why his neighbor's religious beliefs (in comparison with the government's) did him no harm: 

The legitimate powers of government extend to such acts only as are injurious to others.  But it does me no injury for my neighbour to say there are twenty gods, or no god.  It neither picks my pocket nor breaks my leg. 

Anti-School Choice Religious Bigotry

By Rick Garnett

Read Michael Bindas's Wall Street Journal piece on the way the Blaine Amendments continue to hamstring educational reform in many states.   The Supreme Court might get a chance to do the right thing soon.  (Here's hoping that, if given the chance, the justices do do the right thing!)

Under Caesar's Sword: Christian Response to Persecution

By Rick Garnett

I just returned from a fascinating, engaging, and challenging conference in Rome, called "Under Caesar's Sword:  An International Conference on Christian Response to Persecution."  For more on the conference -- and on the multi-year research project of which it is a part -- go here. 

"Under Caesar’s Sword" is a collaborative global research project that investigates how Christian communities respond when their religious freedom is severely violated. It is a partnership of the Center for Civil and Human Rights at the University of Notre Dame and theReligious Freedom Project at the Berkley Center for Religion, Peace, and World Affairs at Georgetown University.

We heard from religious leaders, activists, scholars, and believers from around the word -- from the Chaldean Catholic Patriarch of Babylon, the Syriac Patriarch of Antioch, the Cardinal Archbishop of Yangon, the General Bishop of the Coptic Orthodox Church in the United Kingdom, the U.S. Ambassador-at-Large for International Religious Freedom and many, many more.  Big kudos to my friends and colleagues, Dan Philpott and Tim Shah, and their colleagues.

The testimonies of those living under often very severe persecution -- in some cases, of members of communities facing obliteration -- and oppression was powerful and moving.  And, frankly, "convicting," in the sense that a common theme of the presentations from those living and working in troubled lands was "why are you (that is, those of us in the west) standing silent, on the sidelines, while this is happening?  How can you just stand by?"  Indeed.

Valuing the Work of the Home

By Erika Bachiochi

Last week, Lisa Schiltz blogged about some of the presentations at the Vatican meeting on women and work. She mentioned Bryan Sanderson, now Chairman of the Home Renaissance Foundation, former CEO of BP and current trustee of the Economist. I too enjoyed his presentation for its substance--and because it was he who was saying it.  Here's a bit from it (find the whole thing here): 

A dichotomy evident in contemporary thought is that of the work of the home and work in the broader market. They are seen to be rivals, with the latter taking the cake in terms of social prestige, legal and political recognition, and perceived importance in our society. This is detrimental to sustainable business practices, and unfair to the millions of people who look after their homes, and the care of the people in them, with a professional outlook. Every worker, and that includes every homemaker, has a home, and needs to care for that home, whether directly or through contracting and overseeing services that allow for a healthy and balanced home environment, and in turn family life, to flourish. Care of the material and social environment of the home impacts people in the same way that the material environment at a BP facility can have a profound impact on the overall success of the operations, and the risks involved. The homes of the nation impact the productivity and overall wellbeing and morale of the employees of any firm. Without the stability of schedules and routines, healthy and balanced meals, clean and welcoming spaces for work, sleep and family enjoyment that the home provides, stress levels and the ability to work well outside the domestic sphere are seriously jeopardized. Inside and outside the towers of company headquarters and the ivory towers of academia, we ought not forget this. We need to seriously examine how corporate practices, at all levels, can actively take the realities of family and home life into account. It is not merely about balancing two competing worlds, but understanding how the success of each is a strength for the other....

 

I will end by paraphrasing Moses and the Old Testament. He says in Deuteronomy what will determine the future of the people will not be strength whether military or demographic but the values and ideals that permeate society, justice, compassion, welfare, social responsibility, love of neighbour and stranger and care for the poor, lonely and disenfranchised. Don’t even think you can survive without these values. You can’t. They are learnt in the home.

 

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