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.

Saturday, January 2, 2021

We should all be disturbed by GOP senators' call to revisit election results

By Rob Vischer

Those who know my politics know that I can hardly be described as a left-wing radical. I believe that a strong, healthy, and principled Republican party is good for our country. That’s why I’m so discouraged by Ted Cruz’s announcement today that he and a group of GOP senators will object to the certification of electors this week and ask for the appointment of an Electoral Commission to conduct a 10-day audit of votes, after which “individual states would evaluate the Commission's findings and could convene a special legislative session to certify a change in their vote, if needed.” This should disturb anyone who believes that facts and respect for process should matter in a democracy. A few comments:
 
First, the senators’ reasoning is circular. Senator Cruz’s statement indicates that the results should be contested because many Americans doubt the election’s integrity. In other words, the primary rationale offered by a group of GOP leaders for behaving as though the election was stolen is the fact that many Americans believe the election was stolen, which is a result of GOP leaders spending the last two months behaving as though the election was stolen.
 
Second, the senators know that this is not going to work. As my friend and election law expert Derek Muller points out, a 10-day audit would require Congress to pass a new statute to amend the Electoral Act before January 6. That’s just not going to happen. I knew Ted Cruz in law school and worked with him on the law review – he’s a very smart guy. He knows this is not going to work, and he knows the election wasn’t stolen. This is simply a political performance to curry favor with the President’s core supporters, who have been whipped into a frenzy by a constant stream of irresponsible claims.
 
Third, the election was not stolen. The Trump campaign has lost at least 60 lawsuits at this point, with judges from across the ideological spectrum uniformly agreeing that the claims lack merit. Senator Ben Sasse – as conservative as they come – concluded that there is “little evidence of fraud, and what evidence we do have does not come anywhere close to adding up to a different winner of the presidential election.” Instead, according to Sen. Sasse, what we have is a President and his allied organizations having raised, since Election Day, “well over half a billion (billion!) dollars from supporters who have been led to believe that they’re contributing to a ferocious legal defense.”
 
Fourth, if you think the election was stolen through a massive global conspiracy, please step back and reflect for a moment. Conspiracy theorists never admit to being wrong – data points that seem to undercut their theory are simply taken as evidence that the conspiracy is even bigger than they imagined. Lin Wood – one of the lawyers leading the charge on “stolen election” claims – now says that Chief Justice Roberts adopted his children through a pedophile ring and Vice-President Pence will be executed by a firing squad for his complicity in the plot to steal the election. Is this really the company you want to keep?
 
Finally, would I be speaking out if Democrats were pulling these stunts against a Republican candidate who had prevailed? Absolutely. And unfortunately, you may have a chance to see if I’m true to my word because the precedent has now been set. Our norms for the peaceful transfer of power – both written and unwritten – have been turned upside-down, so the path is wide open for the Democrats to do the same thing when it suits them. If you’re applauding the wild claims from President Trump, Senator Cruz, and other GOP politicians who should know better, will you still be applauding if the Democrats try this strategy in 2024 and it works?

Wednesday, December 30, 2020

Coming to grips with conspiracy theories

By Rob Vischer

As we close out 2020, it’s important to recognize that one contributing factor to this year’s tumult is Americans’ tendency to embrace outlandish conspiracy theories. When we can’t even agree on basic facts, it makes collaboration to address complex problems extraordinarily difficult. We’re seeing it now predominantly on the right (e.g., unfounded claims of a global conspiracy to steal the election, allegations that COVID is a hoax or that Bill Gates is using the vaccine to track people, the rise of Q Anon), but folks on the left should resist the temptation to feel self-righteous.
 
Conspiracy theories appeal to a deep-seated human desire for certainty in a messy world, and that appeal is not limited to one side of the political spectrum. Those on the left have traditionally been more likely to ignore scientific data in promoting claims that vaccines cause autism, for example. And polling data from several years ago found that the percentage of Democrats who suspected that the federal government knew ahead of time about the 9/11 attacks was roughly the same as the percentage of Republicans who suspected that President Obama was born in a foreign country. This is a human problem, and one that is growing more dire as many media companies contort to satisfy our demand for content that confirms the beliefs we already have.
 
So as a new year begins, are there modest steps we can take to guard our minds from the temptation of conspiracy theories? I’ll share three things that have been helpful for me and one that I hope to pursue more in the new year.
 
The first is pretty simple: I subscribe to our local newspaper. I read the paper every morning because it is one of the only non-self-curated forms of media available to me. And even though I spend much of my day reading things on a screen, I read a hard copy newspaper for the very reason that I can’t just click on the hyperlinks that appeal to me. The physical act of viewing an assortment of primarily local news that is the same assortment my neighbors from across the political spectrum are reading each morning is a small but, in my view, important step toward getting myself out of the information bubble that social media have empowered me to create.
 
Second, when I argue about ideas – and arguing about ideas is a healthy feature of our democracy – I try to be specific and substantive in my critiques of those with whom I disagree. Name-calling is great if we’re looking for retweets or FB likes, not so much if we’re looking to build mutual understanding. Our arguments should also be coherent. A lack of coherence doesn’t just make our advocacy less effective – it promotes cynicism, suggesting that politics is just about power, not about reason or principle. This sort of cynicism drives people to disregard our shared capacity for reason and embrace political messages premised on tribalism and us-versus-them narratives.
 
Third, because many of today's challenges require help from scientists, I try to remember that science cannot tell me what to value, but science can provide insights about our world that help me live out my values. I trust science to do what it does well. Disregarding the findings of science because we’re concerned about the political or religious views of particular scientists just doesn’t make sense. As Steven Pinker puts it, “An endorsement of scientific thinking must first of all be distinguished from any belief that members of the occupational guild called 'science' are particularly wise or noble. The culture of science is based on the opposite belief -- its signature practices (including open debate, peer review, and double-blind methods) are designed to circumvent the sins to which scientists, being human, are vulnerable.”
 
Fourth – and this is the one I hope to work on more in the coming year – I firmly believe that I should spend more time focused on local politics than on national politics. When I spend my time and emotional energy engaging on national politics, I’m talking about distant figures with whom I have no relationship, and it’s easy for me to cast them as shadowy forces in a global good-versus-evil narrative. When Americans are focused primarily on Donald Trump, Joe Biden, George Soros, or the Koch brothers, it’s no wonder conspiracy theories find fertile ground. The local is important because it’s a path to relationship. We should all have hands-on experience learning that opposing views about the presidential election do not preclude collaboration on beautifying the local park, improving our schools, or creating recreational programs to help at-risk kids. I may still disagree with my neighbor Bill’s views, but it will be much harder to dismiss his views as part of a sinister global conspiracy – he’s just Bill, and I know he loves his kids as much as I love mine. I’m not suggesting that we withdraw from national politics, but we may need to rethink our priorities.
 
It's a scary world, and we are caught in a downward spiral: as Americans lose trust in each other, we try to make sense of the world by believing the worst about each other, regardless of whether the belief is supported by evidence. And when we loudly proclaim those beliefs, those who disagree with us trust us even less. And the spiral continues. To be clear, we’re not going to rebuild trust and negate the attraction of conspiracy theories overnight. But if we’re hoping for a future that is brighter than the present, we have to start somewhere.

Tuesday, December 29, 2020

St. Thomas Becket 850: Rowan Williams Lecture and Reading Suggestions

By Michael Moreland

St. Thomas Becket was martyred at Canterbury Cathedral 850 years ago today. Here are some suggestions to mark the feast:

The McCullen Center at Villanova was pleased to co-sponsor a recent lecture for the occasion by Rowan Williams on the legacy of the conflict between Henry II and Becket for the law of church and state, and it is available here.

Some previous entries from me about Becket and Magna Carta,  John Guy's 2012 biography, and G. K. Chesterton on Becket are here, here, and here.

For those interested in the historical background to the legal conflict that led to Becket's assassination, I highly recommend Anne Duggan's 2004 biography (in addition to Guy's accessible biography). More detailed coverage of the canonical and jurisdictional issues is available in papers by her late husband Charles Duggan, especially "The Significance of the Becket Dispute in the History of the English Church," Ampleforth Journal 75 (1970): 365-75 and "The Becket Dispute and the Criminous Clerks," Bulletin of the Institute of Historical Research 35 (1962): 1-28, both of which are reprinted in Canon Law in Medieval England: The Becket Dispute and Decretal Collections (London: Variorum Reprints, 1982). Finally, Beryl Smalley's The Becket Conflict and the Schools: A Study of Intellectuals in Politics in the Twelfth Century (Oxford: Basil Blackwell, 1973) is a splendid work of intellectual history and discussion of the figures advising Becket such as Herbert of Bosham and John of Salisbury.

Barron on the Use and Misuse of "Culture Warrior"

By Rick Garnett

I recommend this short post by Bishop Robert Barron, "'Culture Warrior' and the Fallacy of Misplaced Correctness."  It opens with this:

One of the least illuminating descriptors that makes its way around the Catholic commentariat is “culture warrior.” 

Barron is, in my view, correct.  One encounters this descriptor -- "culture warrior" -- all too often in Catholic commentary, and it is almost always used by more "progressive" Catholics as a way to express disapproval of things that more "conservative" Catholics say and do.  As Barron describes, the label is, often, unhelpfully contrasted with dialogue, mercy, humility, and accompaniment.  As I noted a few years ago, in this post:

There is, to be sure, a lot to regret about the reality of the "culture wars" and the way they've distorted politics and harmed discourse -- among those things, in my view, is the common but unhelpful practice of labeling those with whom one disagrees politically as "culture warriors" -- although it seems to me that regret will not change the reality.  It is simply the case -- and it does not make one a "culture warrior" who is "obsessed" to notice it -- that there are determined, well-funded, and increasingly powerful institutions, actors, and forces at work in the culture, in politics, in the law, and in the academy (for example) that oppose strongly the moral vision, commitments, and witness of the Catholic Church and that are doing what they can -- and they can do a lot -- to marginalize the Church, her teachings, and her institutions in public life.

As Barron notes:

[C]onsider the abstraction “culture warrior” as used . . . as a negative characterization of his opponent. [It] can’t possibly name anything real, since the accuser is every bit as much a culture warrior as the accused. It therefore functions as a smokescreen for what the accuser really wants to say, and I can think of at least two possibilities: either he doesn’t think that the issues his opponent is criticizing should in fact be criticized, or perhaps he feels that the way his opponent is characterizing the issue is unfair. In either case, the real matter is obscured, and the use of the term doesn’t move anyone even a bit closer to the truth. Infinitely preferable to trading in insulting abstractions that apply as much to oneself as to one’s opponent is to engage in the tough work of authentic argument.

Happy Feast of St. Thomas Becket!

By Rick Garnett

Becket

Monday, December 28, 2020

"Reconstructing Malice in the Law of Punitive Damages"

By Marc DeGirolami

I'm pleased to announce that my new paper, Reconstructing Malice in the Law of Punitive Damages, will be published by the Journal of Tort Law next year. The paper is my first foray into tort law scholarship, though I have been teaching Torts for the last 3 years at St. John’s. Malice, in the common law of crime and tort, is a thorny subject with a complicated and ancient lineage. Indeed, there are interesting connections between law and religion, on the one hand, and notions of malice in the law, on the other. But malice’s legacy was questioned beginning in the 19th century with Holmes (and others including J.F. Stephen) and then repudiated more decisively in the work of 20th century tort law giants like William Prosser and criminal law giants like Herbert Wechsler. And many others.

This paper attempts to reconstruct a historically correct, conceptually coherent, and normatively compelling case for malice’s reintroduction into the law of punitive damages. It also speculates about the utility of this reconstructed account of malice in other fields, especially criminal law. Finally, though this paper does not approach this topic, it does suggest the possibility of reconstructivism as a broader theory of law and legal development, something about which I hope to write in the future. Here is the abstract.

Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.

This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.

Saturday, December 26, 2020

Abuse of the Pardon Power: Highlighting the Positive Good of Clemency as Described by Mark Osler and a Shameless Self-Promotion of a Past Work of Mine

By Greg Sisk

President Trump's pardon of corrupt political cronies and another group of war criminals who murdered children and other innocents was indeed "nauseating." Not only are they grotesquely unjustified, but they leave a negative impression about the positive good of clemency. For a most important discussion of these issues, including a wonderful colloquy with my University of St. Thomas colleague, Mark Osler, I encourage everyone to watch this program.

Much of my recent work focuses on accountability for official wrongdoing. A most troubling aspect of the recent slew of arbitrary pardons by President Trump is that they come at a point in which he has no accountability for his actions. There is a reason he did not issue these pardons until now, which is that he knew these controversial actions would have further damaged his chances of re-election. But there lies the problem, for which a simple solution is available.

Two decades, ago, in the aftermath of controversial pardons to relatives and cronies by President Clinton at the end of his second term, I wrote an article titled "Suspending the Pardon Power during the Twilight of a Presidential Term". I proposed amending the Constitution to suspend the pardon power, other than to delay an execution, from the date of a presidential election until the inauguration for the next administration. Building on my earlier suggestion of the same in an op-ed, a proposal was introduced in Congress in 2001 to do just that but, alas, went nowhere. It is now time to renew the proposal.

Tuesday, December 22, 2020

A Tax Policy for the Common Good

By Jon Hannah

I recently published a short essay at Public Discourse about the need to extend the above-the-line charitable tax deduction. This is, admittedly, a rather small policy issue that many people overlook. The deduction means that a tax filer making $300 in charitable gifts ends up generally paying $30-$70 less in federal income taxes.

As mentioned in my essay, however, not having an above-the-line charitable tax deduction would actually prove quite unfair to taxpayers and nonprofit organizations that are religious in nature. This is because higher income earners generally give to more secular causes (such as the arts and wealthy universities), and those taxpayers will seemingly always have the charitable tax benefits that come with itemizing. As documented in a 2019 report by Senator Mike Lee and the congressional Joint Economic Committee, lower income earners (rarely itemizing their taxes) are more likely to give their charitable dollars to organizations that are religious in nature, and to nonprofits that directly help those in need in their local communities. 

Interestingly, the new Coronavirus Relief bill extends the above-the-line option into the 2021 tax year. In fact, the new bill actually doubles the tax benefit for married couples filing jointly, meaning that a married couple can claim an above-the-line deduction of up to $600 in 2021. I think this is a common sense policy move that will inspire more Americans to give to worthy causes.

Monday, December 21, 2020

Taking tribalism seriously

By Rob Vischer

Over the weekend, Franklin Graham tweeted that, because President Trump has been proven right in the past, if he claims that the election was rigged or stolen, Graham believes him.  This tweet was an insightful but troubling distillation of the cultural cognition work that Dan Kahan has been doing for years.  Kahan explains that our debate over climate change, for example, “isn’t about what you know . . . it’s about who you are.”  On many of our hot-button issues, people aren’t “thinking about the arguments,” they’re “thinking about which side they’re on.” 

The journey of the white evangelicals who look to Graham for leadership has been remarkable over the past four years, moving – in very broad terms – from a “we have to vote for Trump because he’s not Hillary,” to more enthusiastic support that looks beyond character issues because of Trump's policy positions, to a wholehearted reliance on Trump's character (trustworthiness) even when there is no evidence to support his claims.  This trajectory – tribe over facts – is not limited to white evangelicals, of course.  I recently asked a circle of friends, all of whom are full-throated opponents of President Trump, if they could cite one positive policy or practice that had been implemented by this administration.  Total silence, followed by protestation of my question’s premise.  The sides have been chosen, and that’s the choice that matters.

This is not going to end on January 20.  President Trump is a powerful accelerant, but not the source. I believe that this is the most pressing challenge we face as a nation, not only because our tribalism is preventing the flourishing of human relationships near and far, but because it makes political collaboration on the many other challenges we face exceedingly difficult.  What does Catholic social teaching have to offer at this time?  Yes, CST offends both tribes because of the substance of the Church's truth claims.  But what does it have to say about our rapid retreat from the world of factual analysis into a cultish tribalism?  The social scientists have plenty to say, but what about the Church?  If the bishops’ contributions to our national political discourse over the next four years does not include the dangers of tribalism as a focal point, that will be an opportunity lost.  Let’s start at a very practical level: if a pastor were to recognize the problem and decide to preach on growing American tribalism, what should he say?

Tuesday, December 15, 2020

Responding to a critique re "Staying Calm About CRT"

By Rob Vischer

I’m grateful for Timon Cline’s critique (at the Cantankerous Calvinist) of my MoJ post about Critical Race Theory, as it’s the sort of substantive engagement that is sorely lacking when Christian leaders, as John Inazu puts it, use the CRT “label as a cudgel” against efforts to promote racial justice within the Church.  I welcome Timon’s contributions and have just a few comments:

First, defining CRT.  CRT can be a tough target to pin down, as is the case with many intellectual movements.  I think Timon deems portions of the Delgado/Stefancic primer on which I rely as misleadingly innocuous re CRT’s core beliefs.  I’m sure that depends on whom we consider to be authentically foundational to the movement.  What is the harm, though, of taking the Delgado/Stefancic understanding of intersectionality, for example, identifying the insights it can provide, then articulating precisely where more robust interpretations fall short of the Christian worldview?  I confess, I’m still not sure why intersectionality’s invocation as an expansive “sensibility," in the work of Kimberle Crenshaw, is necessarily a bad thing.  Again, it seems to me to depend on the particular application we’re talking about.

Second, discerning the nature of Christian leaders’ (categorical) objections.  I highly doubt that the SBC seminary presidents are condemning CRT only after closely reading John Finnis’s take-down of Roberto Unger.  I’m not a legal philosopher, and they’re not either.  They – and other Christian leaders – are engaging CRT in theological (and cultural?) terms.  More than the nature and extent of legal indeterminacy, my best guess is they’re concerned about another point Timon makes: “Racism, for CRT, is no longer personal animus on the basis of ethnicity or skin color, but complicity in the status quo of a white dominant society.” Yes, and the allegation of complicity requires sustained attention and unpacking by Christian leaders before they categorically dismiss its insights.     

Third, assessing the threat / influence.  In response to the comparison I drew between CRT (lots of condemnation) and Law & Economics (not much condemnation), Timon is correct that the former has more explicitly acknowledged influence today than the latter does, particularly on college campuses.  But the difficulty of tracing the influence precisely reflects the complexity of this conversation.  If we look at Law & Economics as one manifestation of a worldview premised on the desirability of maximizing individual preferences, it’s tough to argue that CRT has left a more powerful mark than that.

While I may not be ready to join Timon in his overall assessment of CRT, he and I wholeheartedly agree that this is an area in which Christians need more conversation, not less.

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