In this piece, Where Do Partners Come From?, Professor Theodore Seto traces which law schools do best with respect to producing partners in the National Law Journal's 100 largest law firms. The study has nothing to do with Catholicism, right? Well...if you look at those schools which most grossly outperform their US News ranking (see page 5), with one exception (Miami), they are all Catholic institutions. In order of outperformance: St. John's [tooting horn noise], Villanova, DePaul, Catholic, and Loyola Chicago (and Georgetown, too, seems hugely to outperform its US News position). Explanations? Network effects? Alumni stickiness? Divine intervention in response to the errors of all-too-human US News rankers?
Wednesday, August 17, 2011
Catholic Legal Institutions and Large Law Firm Partners
Kahan on Neutrality
Via Larry Solum, I see that Dan Kahan has posted a draft of the Harvard Law Review Foreword for the fall, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law. Readers here will know that neutrality is a currently favored family of approaches to religious liberty, and Professor Kahan even quotes a tract from the McCreary County case as one of the piece's epigraphs. I say family of approaches because there are all kinds of theories of neutrality, substantive and formal, and I know that there will be new and quite sophisticated theories of neutrality in the offing soon enough. Neutrality of one kind seems to be the position demanded by Employment Division v. Smith; neutrality of another represents the current position of the Court on establishment issues of school funding. Neutrality of yet another kind characterizes the position of the European Court of Human Rights in various cases involving issues of religious liberty (one in which proselytism figures prominently). And neutrality, of course, has its keen critics.
Professor Kahan is critical of neutrality talk. He believes that it is actually counterproductive to the Court's perceived legitimacy (and that perceived legitimacy seems to be a very important concern for Kahan in the piece). He says that neutrality talk exacerbates the sense in which we engage in and perceive others to be engaging in "motivated reasoning" -- "the tendency of people to unconsciously process information -- including logical and empirical arguments, oral advocacy, and even their own sense impressions -- to promote goals or interests extrinsic to the decisionmaking at hand." (6)
I have not read the whole piece yet, but it seems to me that it should be interesting to people who think about the religion clauses. I did read the following statements in the introduction, though:
Waldron on "Equal Moral Status" and "Right Reason"
This paper, by Jeremy Waldron, might be of interest:
Does ‘Equal Moral Status’ Add Anything to Right Reason?
Jeremy Waldron
New York University (NYU) - School of Law
July 29, 2011
NYU School of Law, Public Law Research Paper No. 11-52
Abstract:
This paper explores the possibility that the principle of basic equality might be explicated by reference to the idea that humans constitute a "single-status" community. It explores some difficulties with the idea of status in its original legal habitat. These difficulties include skepticism about status fostered by John Austin and others. The paper attempts to answer this skepticism, and it concludes (along with Jeremy Bentham, who in this respect disagreed with his disciple) that once one takes a dynamic view of a legal system, the idea of legal status is not an eliminable idea. The paper then examines the distinction between what I call "sortal-status" and "condition-status." Sortal status works from the idea that law recognizes different kinds of human being: racist and sexist legal systems are characterized by sortal-status concepts. Condition-status recognizes that persons may get into various scrapes, situations, conditions, and vicissitudes, or pass through certain stages, that are marked by status distinctions. (These include infancy, alienage, felony, bankruptcy, matriage, military service etc.) Once one makes this distinction, then the idea of a single (sortal) status society becomes a promising vehicle for expressing ideas about moral equality.
"On Truth and Trade"
There's an interesting conversation, here, at the Dappled Things blog, about capitalism, distributism, economics, and the "Catholic vision of the Good Life." Specifically, the question posed is whether "capitalism" or "distributism" is the "economic system that is most compatible with a Catholic understanding of the good life." Profs. Robert Miller and John Medaille respond. Check it out!
Tuesday, August 16, 2011
SCOTUS Blog Post on Gay Marriage, the Prop 8 Case, and Religious Liberty
The SCOTUS Blog is running an online symposium on Perry v. Schwarzenegger and Windsor v. United States, the cases challenging state and federal provisions limiting civil marriage to opposite-sex couples. My contribution is here (more are coming from a variety of contributors). Although I express sympathy for same-sex marriage as a matter of wisdom and policy, I argue that "[t]o say that same-sex civil marriage should be recognized does not mean, of course, that judges should require it under the Constitution":
In making that distinction, one could raise arguments about proper methods of constitutional interpretation, or warn about political blowback that aggressive judicial decisions can trigger (as even some pro-choice observers have remarked about Roe v. Wade). I focus, however, on a different reason for the Court to tread gently in Perry: the religious liberty of traditionalist objectors to gay marriage, and how legislative recognition of marriage may be a better vehicle than judicial rulings for balancing religious liberty and gay rights.
I recap my argument (made at greater length here) that the strongest arguments for same-sex marriage--respect for conduct central to personal identity--themselves call for strong religious-liberty accommodations. I argue that judicial declarations of same-sex marriage, as in California, have been (and are likely to be) a less hospitable context than legislation for factoring in countervailing religious-liberty limits. This provides a reason to prefer legislative handling of the marriage issue, and for voters in California to overturn same-sex marriage until they could be confident the religious-liberty concerns would be addressed.
"Religion and the Cult of Tolerance"
Bill McGurn has a piece in the Wall Street Journal today, about the Hosanna-Tabor case (and other important things). Check it out.
Finnis-fest at Notre Dame
One of the many gifts that have come my way, thanks to my position at Notre Dame, has been the chance to work with, learn from, and get to know one of our time's truly great scholars, Prof. John Finnis. To mark the occasion of the publication, by Oxford University Press, of a new five-volume (!!) collection of his essays, Notre Dame Law School is hosting an all-day conference to celebrate John's life and work. More info is here. And, why not buy the books?
Opening a new chapter in the history of Villanova Law
Villanova Law: Restoring a reputation
VSL Dean John Gotanda
by Jeff Blumenthal -- Philadelphia Business Journal
Mark Sargent certainly left an imprint on Villanova University School of Law. But that appears to have taken the form of two black eyes.
Sargent, the school’s dean for 12 years, resigned in June 2009 after being linked to a prostitution ring. Then Monday, an American Bar Association American Bar Association Latest from The Business Journals Villanova Law censured by ABANakasone picked to replace McKenna on First Circuit CourtAmerican Bar Association censures Villanova Law Follow this company investigation indicated that Sargent “directed” three other law school administrators to knowingly report falsified admissions data. The report doesn’t specifically name Sargent, but it says a “former dean” directed the misreporting and that dean and the three other administrators are no longer employed by the school. Sargent was dean when the alleged false reporting occurred from between at least 2002 to 2009. Villanova Law said it could not speak about any former employees but confirmed that the responsible administrators are no longer working at the school.
When longtime Villanova Law professor John Gotanda was elevated to dean this past January, he immediately inherited the false reporting scandal that was uncovered that month through an internal investigation. Already burdened with succeeding Sargent, Gotanda had to spend the next six months trying to get to the bottom of the reporting discrepancies while trying to preserve the school’s reputation and openly communicate with its various constituencies.
Gotanda told me Monday afternoon that the wrongdoing was committed by a “small group of people in secret. There’s no question there was wrongdoing, but we hope people see that once it was uncovered, we stepped up and did the right thing by self-reporting [to the ABA] and taking steps to not just remedy the situation but set up a compliance program equivalent to Sarbanes Oxley.”
The ABA said that is what saved Villanova Law from a more serious penalty such as probation or removal from the list of approved law schools. Instead, it received a public censure that must be posted on its website and the ABA’s Section on Legal Education and Admission to the Bar for the next two years. The school is also required to issue a public statement of correction approved by the ABA and hire a compliance monitor for at least two years.
Villanova Law hired accounting firm KPMG to assess and recommend improvements to all of its procedures revolving around ABA compliance and law firm Freeh Sporkin & Sullivan to develop and monitor all ABA compliance matters and serve as independent compliance officer for the next two years.
Villanova Law students and alumni I’ve interviewed over the past several months said Gotanda was very open with them during course of the investigation. While he took some heat for not speaking publicly on the matter until yesterday, Gotanda said the ABA had asked the school not to speak publicly while the investigation was ongoing.
In addition to seeing its reputation disparaged, Villanova Law also incurred a financial hit. Gotanda said its investigation and compliance remedies cost more than $500,000. Gotanda said he knows the mess is not behind the school.
“It was really damaging to the institution,” Gotanda said. “Once you lose your integrity, it’s hard to regain it. But the entire [Villanova Law] community came together to try and restore our reputation and right the wrong. Students could have abandoned the school but 120 of them helped recruit. And so did alums.”
Gotanda recognizes he still has work to do when it comes to repairing Villanova Law’s reputation. While the school’s most recent U.S. News and World Report ranking fell. Gotanda said the Villanova Law still attracted “high achieving” students whose bar exam passage rates increased in recent years. But only time will tell if the scandal produces any lingering negative residue.
Federalism, Morality, and Online Gambling
It doesn't get any more interesting than an issue that combines morality, federalism, the budget crisis, and a thorny set of questions about statutory interpretation, administrative law, and prosecutorial discretion. All that is in play in this story about several states looking into permitting (and taxing) Internet gambling on lotteries (which some already permit) or more serious games such as online poker. I don't think one needs to be an abolitionist about gambling to wonder whether using widespread online gambling as a revenue tool is a great idea. But one argument is that people are gambling online anyway, so the states might as well try to capture some of the revenue stream from that harmless hobby--or does lifting the legal sanction from online gambling amount to a regressive tax increase on gambling addicts? As the NY Times story notes, there's also the difficult question of the interplay between the 2006 Unlawful Internet Gambling Enforcement Act (which goes after the payment systems for online gambling and was the subject of elaborate regulations on credit card banks at the very end of the Bush Administration) and the Wire Act, with DOJ taking the position that the Wire Act permits prosecution of all online gambling ventures. (As I recall the runup to passage of UIGEA, the savings clause in the statute was intended to steer clear of intrastate gambling and wagering on horse racing, but some states are now pushing a much harder non-preemptive argument.) And the political interests are all over the map--roughly speaking, opposition to online gambling comes from religious conservatives, the professional sports leagues, and the Nevada gaming industry (as the story notes, Senators Reid and Kyl have written to DOJ asking it to crackdown on the states), while banking interests (one of the lead sponsors of legislation to curtail UIGEA is Barney Frank), libertarians, and budget hawks are inclined to permit more online gambling and tax it.
Monday, August 15, 2011
Subsidiarity and Health Care
No concept in Catholic social teaching is more used and abused than the principle of subsidiarity (now frequently conjoined, as in this address by Benedict XVI to the Pontifical Academy of Social Sciences, with solidarity). A significant part of the problem, I think, is the high level of abstraction and inattention to public policy detail that often mark arguments from subsidiarity and/or solidarity. And so Rick Hills's argument over at PrawfsBlawg that we should focus on functional considerations when deciding at what level of government we should regulate health care seems to me exactly the kind of fine-grained public finance analysis that those who take subsidiarity seriously should undertake, even if one might come to different conclusions than Rick does on this or that. After dispensing with "the normatively vacuous precedent slalom that is the PACA litigation," Rick writes that "sensible functional federalism (a) would devolve the regulation of medical practice to the states but (b) would give the national government substantial power to finance health care." As he explains:
First, why give subnational jurisdictions a lead role in the regulation of medical practice? Professional standards for the practice of medicine raise religiously and culturally sensitive issues of life and death, physical privacy, and acceptable risk-taking. National legislation on such matters invites unnecessarily divisive struggles for the commanding heights of federal power. Devolution of such issues reduces the acrimony of pitting Red State folks (who dislike med mal liability but hate avaunt-garde ethical innovations like physician-assisted suicide) against Blue State folks (who have opposite instincts). Given that the choice-of-law rules for medical malpractice and professional discipline predictably assign legislative jurisdiction to the state where medical services are performed, states can easily internalize the costs of their regulatory regimes in terms of inflated or reduced insurance premiums. (This latter point distinguishes standards of professional care from standards for the design of highly mobile pharmaceuticals -- hence, the need for the Food, Drug, & Cosmetic Act).
Second, why give the feds the lead role in healthcare finance? The reason is the familiar point, set forth by Paul Peterson long ago, that the subnational governments cannot redistribute wealth effectively in a federal system characterized by mobility of labor and capital. Any health insurance scheme will involve massive redistribution of wealth from the young to the old, from the rich to the poor, and from the sick to the healthy. The notion that subnational jurisdictions can take the lead in performing these financing functions strikes me as untenable.
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