Over the past several months, a good deal of public discussion has appeared in various media sources, including web logs, about the perceived surplus of lawyers, the present cost of legal education, and the declining applicant pools of would-be law students who are reassessing the economics of investing large sums of money on legal education. I would think that most of the contributors to the Mirror of Justice have heard and participated in discussions about these topics formally and informally at our respective institutions.
I, for one, do not view any form of higher education as a market-driven economy. I often respond negatively when education is passed off as the equivalent of some product or merchandise in which the purveyor, i.e., the educational institution, needs to find its “market” in order to be successful. I realize that there are important economic elements of education in general and of higher education, including legal education, in particular. But I think it unwise to make important decisions about education as if it were a market only seeking to survive, especially in difficult economic times.
I also realize that many educational institutions, including law schools, like to portray themselves a filling some kind of niche in the world of higher education. As a member of a religious order that founded over several dozen institutions of higher learning in the United States, over half of them with law schools, I often hear my confreres in the order and my lay colleagues assert that “our” schools have the niche of meeting the needs of “social justice,” and it is “social justice” that is the raison d’être of and for these law schools. If this line of reasoning and justification is to be followed, then it is “social justice” which enables these institutions to attract students and faculty to join their ranks. I find a similar justification offered by other institutions that were founded by other religious orders or dioceses and choose to use the moniker “Catholic”.
But is “social justice” really the element that makes Catholic legal education distinctive and attractive to future students and faculty? What is “social justice”—what constitutes it? While I am at it, are there law schools which are for “social injustice”? Frankly, I find the term “social justice” being susceptible to many different, often conflicting definitions and thus realize it difficult to justify the distinctiveness of a law school that identifies itself as Catholic by relying on this nebulous term. Moreover, I have seen definitions of “social justice” that would include practices or beliefs which are antithetical to the Church’s teachings, e.g., abortion, same-sex marriage, euthanasia, some kinds of bio-medical experimentation. No, I don’t think “social justice” is the real element that makes a law school one that can call itself distinctively Catholic.
If there is, in fact, a declining interest in attending law school these days, is there something that can make a law school Catholic in fact knowing that it must also prepare students to become good practitioners of what is supposed to be a noble profession?
Indeed there is. Of course it would be found in an institution that is not ashamed of Catholic teachings, many of which have a direct or indirect bearing on the law. As laws and legal education deal with many of the same issues—e.g., labor-management issues, regulation of economic markets, the use of force, the role of sovereignty in the international order, just compensation in wages and in reparations (damages), criminal matters, health care regulation, etc.—why should a law school that relies on the modifier “Catholic” not be motivated to allow these great teachings to inspire the direction in which its curriculum is formed and taught?
Or is the temptation really to be just like everyone else? If this is the case, then there really is nothing that makes a Catholic law school really distinctive. And if there is nothing distinctive about it in regards to the substantive content of its curriculum and its outlook, then is there any reason to think it will fare better than other law schools given the current climate of the decreasing interest in obtaining a legal education?
Joe Knippenberg notes evangelicals' support for (MoJer) Rober George's conclusions regarding marriage, but their discomfort with how he gets there. Albert Mohler writes:
[A]t the end of the day, I am not very hopeful that a society hell bent on moral revolution is going to be held in check by our arguments by the moral law, the natural law. I’m thankful, however, that Robert P. George is making those arguments. I’m thankful that he’s making them better than just about anyone else is making them. And as an evangelical, we have every reason to use natural law arguments, we just don’t believe that in the end they’re going to be enough. That’s where we have to come back with the final issue always being the gospel.
Knippenberg asks, "how much of a difference is there in the end between the natural law of someone like Robert George and the reliance on Gospel and grace of someone like Albert Mohler?" I don't want to speak for Robby, and I'm leery of venturing into theological waters that are over my head, but I'm pretty sure that he would not reject "reliance on Gospel and grace," though he might be more optimistic about reason's capacity to function as a sign of God's grace, even among those who have not embraced the Gospel.
The Journal of Catholic Legal Studies has just published the proceedings of a conference, Laïcité in Comparative Perspective, organized by our Center for Law and Religion (under the able directorship of Mark Movsesian) and held in Paris last year. Our keynote speaker was Doug Laycock, who gave an artful comparative talk. The conference was very useful in no small measure because of the presence of French and Spanish contributors.
Those who are interested can find the proceedings here.
Thanks to Rick for flagging Michael Walzer's criticism of the West's military intervention in Libya. I agree with Walzer's concerns, but I wonder if there is a way to ground the case against the intervention in terms sounding directly in the Church's just war doctrine. For me at least, it was relatively easy to explain my opposition to the Bush administration's invasion of Iraq: there was no showing that a preemptive war was necessitated by "imminent" grave harm to the U.S., and the war's rationale (at least as stated by President Bush) seemed to place a much greater value on American lives than on Iraqi lives. I also oppose the Obama administration's actions in Libya, but I have a hard time placing "incoherence" within just war doctrine. Here's para. 2309 of the Catechism:
The strict conditions for legitimate defense by military force require rigorous consideration. The gravity of such a decision makes it subject to rigorous conditions of moral legitimacy. At one and the same time:
- the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;
- all other means of putting an end to it must have been shown to be impractical or ineffective;
- there must be serious prospects of success;
- the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power of modem means of destruction weighs very heavily in evaluating this condition.
These are the traditional elements enumerated in what is called the "just war" doctrine.
The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.
If the aim of the intervention is humanitarian, doesn't it fail the "serious prospects for success" prong by merely extending the conflict? Does just war doctrine speak to this conflict in other ways, or are these factors largely superfluous to a serious moral evaluation of the intervention?
A heavy topic, no doubt, and Cardinal Burke discusses it, here. A taste:
In my presentation tonight, I want to reflect with you on the crisis of Christian culture in the West and our call to build anew a strong Catholic culture, in fidelity to our vocation to give witness to Christ and, therefore, to be martyrs for the faith. First, I will set the context of the living of our Christian vocation in the present time, as presented to us by Pope Benedict XVI who urges us to study again, in particular, the moral teaching of His saintly predecessor, the Venerable, soon to be Blessed, Pope John Paul II. I will, then, present briefly the teaching of Pope John Paul II on holiness of life as the program of the new evangelization. Drawing upon the teaching of both Pope John Paul II and Pope Benedict XVI, I will give particular attention to the witness to the truth regarding human sexuality, as fundamental to holiness of life, and to the question of conscience as the irreplaceable and secure guide in the pursuit of holiness of life. The final part of my presentation is a reflection on witness as martyrdom and the various forms which it takes. . . .
I came across that, to me, strange sounding and discomfiting statement, from Meyer v. Grant, a 1988 decision, while reading the Ninth Circuit's various opinions denying rehearing en banc in United States v. Alvarez, a case in which the panel ruled that the Stolen Valor Act, which criminalizes knowing lies about whether one has received military honors, violates the freedom of speech. The opinions are here. (Thanks to George Wright for kindly calling the case to my attention).
I have more knowledge about the Religion Clauses than the Free Speech Clause, but I am slowly trying to learn. Still, I cannot imagine that anyone would say that the Religion Clauses are "value-free provisions," and I can't recall that sort of statement ever being made by any court (can you, good readers?). Questions for speech mavens: is it really true that the Speech Clause is value-free? If so, in what way? As a matter of the substance of the speech only, or more than just that?
UPDATE: I chased down Meyer v. Grant, and it looks like the Court cited with approval the "value-free" language, but the phrase itself was drawn from the 10th Circuit opinion. Thanks again to Prof. Wright.
I want to flag this interesting and illuminating paper by Michael Heise and our co-blogger and empirical scholar extraordinaire Greg Sisk. The abstract:
In our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause decisions by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in federal court, it appears to be ideology much, if not all, of the way down.
Alternative ideology variables of Party-of-Appointing-President and Common Space Scores were highly significant (at the p < .001 level) and the magnitude of the effect on case outcomes was dramatic. Holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 percent before Republican-appointed judges. Thus, an Establish¬ment Clause claimant’s chances for success were 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. Using Common Space Scores as a proxy for ideology, the more liberal judges were predicted to approve such claims at a 62.5 percent rate, compared with acceptance by the more conservative judges only 23.2 percent of the time.
A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same “God Gap” that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of the notorious lack of clarity in the Supreme Court’s Establishment Clause jurisprudence and a consequent low level of law formality, the door has been thrown wide open to unrestrained political judging. Sadly, the Supreme Court’s Establishment Clause doctrine has become an attractive nuisance for political judging.
Fortunately, our study provides an empirical basis for hope that clarification and tightening of doctrine in the Establishment Clause field may constrain judicial discretion and suppress political judging. With the significant impact on lower courts of a precedential shift by the Supreme Court included within our study, the empirical evidence suggests that clearer legal parameters can make a meaningful and measurable difference and lead to a more legally grounded approach to adjudication.
Apparently, the census does not follow Super Bowl ads:
The population of Detroit has fallen back 100 years.
The flight of middle-class African-Americans to the suburbs fueled an exodus that cut Detroit's population 25% in the past decade to 713,777, according to Census Bureau data released Tuesday. That's the city's lowest population level since the 1910 census, when automobile mass production was making Detroit Detroit.
60 years ago, Detroit was America's 6th largest city. Of more parochial interest, perhaps, the Diocese of Detroit is older than the state of Michigan; it is home to approximately 300 parishes and missions, and 100 Catholic schools. But, again, it seems, as an urban community, to be imploding (or "dying"), in a way that (it strikes me) is unique in the United States today.
Why is this happening? Could it have been prevented? Can it be stopped, slowed, or reversed? Should we (i.e., people who are interested in what Catholic social theory and teaching has to say about the law's project of ordering human communities) care?
UPDATE: Here is an interesting post on the "sad Detroit census numbers" by a graduate of Notre Dame's Architecture school, who is currently studying urban policy and design.
At The New Republic, Michael Walzer makes a "case against our attack on Libya." (At the same time, Jack Goldsmith insists that -- just or not -- the attacks are constitutional, even if then-Sen. Obama seems not to have thought so, in 2007.) And, here is a link to Paul Ramsey's (I think) helpful book, "The Just War."
At Public Discourse, reviewing the new book by my friend Chris Kaczor (Philosophy, Loyola-LA), Raymond Hain brings us up to speed on the current state of the national abortion debate. A bit:
. . . Kaczor defends an endowment account of human personhood over against the performance accounts defended by Singer, Tooley, and others. A performance account of human personhood “holds that a being is to be accorded respect if and only if the being functions in a given way,” whereas an endowment account “holds that each human being has inherent moral worth simply by virtue of the kind of being it is.” And by “endowment” Kaczor means “an intrinsic, dynamic orientation towards self-expressive activity [like] . . . rationality, autonomy, and respect.” Are you a person because you are something that actually engages in rational and free conscious activity, or are you a person because you are the kind of thing that engages in rational and free conscious activity?
It is only, argues Kaczor, if we look to the kind of thing that you are rather than your actual activity that we will be able to escape many serious moral difficulties. . . .
