As we continue to make progress toward a post-pandemic future, we need to recognize that COVID is not the only force that has driven us apart from one another. We are hopeful that social distancing requirements will be relaxed in the coming months, but we’d be naïve to believe that physical proximity will be sufficient to bring us all back together.
I was reminded of that reality this morning by a Star-Tribune article about the bar owner in Albert Lea, Minnesota who defied the governor’s pandemic restrictions and is now on the run. What was most striking in the coverage were the diametrically opposed opinions of Albert Lea residents: some praised her for bravely resisting government overreach, and some condemned her for prioritizing herself over her community’s health.
So how should we train our graduates to be effective lawyers for the bar owner in Albert Lea? She has, I presume, a deep-seated opposition to wearing masks as a response to the COVID pandemic, as may virtually all of her customers, business associates, family members, and friends. When she asks our graduate for advice regarding compliance, how should our graduate respond? With a categorial “you must comply,” or should she also opine on the chances of an enforcement action, the potential penalties, or the legality of encouraging customers to invoke disability exemptions from mask-wearing? Does our graduate’s own view of masks’ efficacy as a virus safeguard matter to her advice? Does our graduate’s belief that her client is misunderstanding the purpose and intent of the mask mandate matter to her advice? What if she believes that the misunderstanding is shared widely by all of the groups whose views matter to her client? And how can she ensure that she is navigating these tensions with client-centered humility without undermining the rule of law? Put simply, how should relationships matter to a lawyer’s work in our deeply divided nation?
This is not just about COVID, of course. Our responses to pandemic restrictions are part of a broader set of beliefs that together comprise the social identities that are driving the grand sorting of our nation into increasingly distant and hostile camps. Our perception of the debates surrounding the Derek Chauvin trial, the influx of undocumented immigrants in Texas, Georgia’s new election laws, climate change, the prioritization of religious liberty, and a wide variety of pressing policy issues are shaped by the lenses we bring. Increasingly, Americans’ lenses are based on the camp with which they identify, rather than on their own assessment of the particular issue’s merits.
This is one reason why I believe that legal education is absolutely essential to our nation’s future. Law schools teach suspension of judgment, critical thinking, the cultivation of trust, precision with language, detached empathy, and the courage to represent unpopular clients and causes – these are all important habits for a divided nation. And Catholic law schools should bring a long-overlooked dimension to the conversation: a willingness to go deeper, to discuss moral claims and the relationships that give rise to them. If lawyers are not attentive to this dimension, we will be of limited help bridging a divide that is not primarily about legal interpretation or technique, and is not simply a product of opposing moral claims—it’s a product of cultures that shape and sustain opposing moral claims. Lawyers need to learn how to build trust across cultural boundaries.
We should think carefully about how we respond to the pressure points that our nation’s division will produce in the coming days. We should never use division as an excuse to weaken our moral commitments, to withdraw from political engagement, or to slide toward an apathy-driven acceptance of the status quo. However, we should be clear that the mission of Catholic legal education is not ultimately a call to win the battle for one warring camp or the other – it’s a call to help restore the relationships that have been broken.
Religious Liberty: Where We Are and Where We're Going, the inaugural event in a series entitled Courtrooms to Classrooms, will be a panel discussion featuring the Honorable Matthew J. Kacsmaryk, U.S. District Judge, U.S. District Court for the Northern District of Texas; and James A. Sonne, Law Professor, Stanford Law School, Founding Director, Religious Liberty Clinic at Stanford Law School. Andrew Graham, Senior Fellow at the Religious Freedom Institute, will moderate the discussion, which will focus on the state of religious liberty in the United States, current trends affecting this fundamental right, and how potential legislation and case law may affect America’s First Freedom in the future.
Insert here [ ] all of the usual (and correct) criticisms of the USNWR law-school rankings. And, insert here [ ] the necessary caveats relating to the fact that the rankings' new incorporation of student-loan-debt matters did not help my own institution. All that aside, it's far from clear to me why this incorporation makes much sense. Just two, not-at-all-original concerns, for now: First, as others have noted, it could create incentives to (all things considered) prefer admitting wealthier students. And (a more abstract point, I guess), it seems to neglect the likelihood that higher student-debt loads at graduation are related to students' calculations/predictions regarding the value of education, networks, credentials, etc., in which they are investing. We should care more, it seems to me, about whether those predictions are well-grounded than about the fact of student loans.
On the other hand: I kind of like the possibilitythat the new metric could disincentivize the practice of using transfer-admissions (and strategically-small first-year classes) as a revenue-enhancing mechanism. We'll see, I guess . . .
A federal court just ruled against Wayne State University, finding that it discriminated against InterVarsity Christian Fellowship, a religious student club, when it kicked the group off campus for requiring its leaders to be Christians. As the court stated, at Wayne State, “[s]tudent groups were permitted to restrict leadership based on sex, gender identity, political partisanship, ideology, creed, ethnicity, and even GPA and physical attractiveness.” However, religious groups were not allowed to require that leaders share any of a group’s religious beliefs and at Wayne State, it was a “small group of Christians, who were denied [student organization] benefits because they require their Christian leaders to be . . . Christian.”
The humanitarian proposal is hard to refuse, because it postulates that we can achieve justice if everyone simply becomes aware of their essential human likeness. The Christian proposal is hard to accept, because it affirms that all human beings are prisoners of an injustice from which they cannot escape by their own efforts.
Excellent article in Public Discourse. Our Reading Group at ND Law School’s Program on Church, State & Society read Manent last semester and it led to some great conversations.
Abstract This chapter examines John Paul II’s contribution to law as a statesman, world leader, and universal pastor of the Roman Catholic Church. John Paul II’s approach to the law was shaped by the stark realities of having suffered firsthand the injustice of two totalitarian regimes and the cruelties of the Second World War. An ardent defender of human rights, especially the rights to life and religious liberty, John Paul II saw in human dignity and human solidarity the two great levers for advancing the development of legal systems. Lastly, this chapter explores John Paul II’s invaluable role in updating and reforming the canon law of the Catholic Church. He had a singular role in promulgating the Code of Canon Law of 1983, the Code of Canons of the Eastern Churches of 1990, and the Apostolic Constitution Pastor Bonus of 1988 on reforming the Roman Curia. For these and other relevant legal contributions, John Paul II well deserves the title of jurist.
For this great feast of the Annunciation, two versions of Justice Scalia's oft-told story about the best lesson he learned as an undergraduate at Georgetown:
Perhaps the best lesson I ever learned here at Georgetown occurred during my oral comprehensive examination in my major (history) at the end of my senior year. My history professor was Dr. Wilkinson, a prince of a man. He was the chairman of the three-professor panel that examined me. And I did, if I may say so myself, a smashingly good job. As the time for the examination was almost at hand, Dr. Wilkinson asked me one last question, which seemed to me a softball. Of all the historical events you have studied, he said, which one in your opinion had the most impact upon the world? How could I possibly get this wrong? There was no obviously single correct answer. The only issue was what good answer I should choose. The French Revolution perhaps? Or the Battle of Thermopylae—or of Lepanto? Or the American Revolution? I forget what I picked, because it was all driven out of my mind when Dr. Wilkinson informed me of the right answer—or at least the right answer if I really believed what he and I thought I believed. Of course it was the Incarnation. Point taken. You must keep everything in perspective and not run your spiritual life and your worldly life as though they are two separate operations.
- Scalia, On Faith, "Away from the noise—making retreats" (1998 Georgetown)
Georgetown University was a very Catholic place when I was there. One of the best lessons I learned was in the course of my oral comprehensive exam in my major subject, history, at the end of senior year. I had done pretty darned well during all of the questioning, and at the end my history professor, Dr. Wilkinson, to whom I am ever indebted, asked me one last, seemingly softball question: If I had to pick a single event as the most significant in all the history I had studied, what would it be? I say it was a softball question because there obviously could not be any single correct answer. So I groped for what might be a good one. What should I say? The Battle of Thermopylae? No, the Battle of Lepanto. No, the French Revolution. No, the Grand Convention of 1787. I forget what answer I gave, but it was wrong. The right one, Dr. Wilkinson informed me, was the Incarnation. Well, of course. Point taken, and an unforgettable lesson learned.
- Scalia, On faith, "Moral Formation--the Character of Higher Catholic Education" (1994, Catholic University).
In his introductory text, Augustine's Quest of Wisdom, Vernon Bourke leads off Chapter XIII ("God and Society") with this long quotation from the twelfth book of Augustine's Literal Commentary on Genesis:
These are the two loves: the first is holy, the second foul; the first is social, the second selfish; the first consults the common welfare for the sake of a celestial society; the second grasps at a selfish control of social affairs for the sake of arrogant domination; the first is submissive to God, the second tries to rival God; the first is quiet, the second restless; the first is peaceful, the second trouble-making; the first prefers truth to the praises of those who are in error, the second is greedy for praise however it may be obtained; the first is friendly, the second envious; the first desires for its neighbor what it wishes for itself, the second desires to subjugate its neighbor; the first rules its neighbor for the good of the neighbor, the second for its own advantage; and (these two loves) make a distinction among the angels, the first love belongs to the good angels, the second to the bad angels; and they also separate the two "cities" founded among the race of men, under the wonderful and ineffable Providence of God, administering and ordering all things which have been created; the first (city) is that of the just, the second (city) is that of the wicked. And though they are now, during the course of time, intermingled, they shall be divided at the last judgment; the first, being joined by the good angels under its King, shall attain eternal life; the second, in union with the bad angels under its king, shall be sent into eternal fire. Perhaps, we shall treat, God willing, of these two cities, more fully in another place.
I don't know about you, reader, but I'm not sure I can act well from the first kind of love on Twitter. Too often and too easily it seems so much I see externally and experience internally is foul, selfish, aiming at control for the sake of domination, rivaling God, restless, trouble-making, greedy for praise, envious, aiming at subjugation of neighbor and self-advantage.
As today's feast day comes to an end, let us pause to bring to mind and treasure the silence of St. Joseph.
