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.

Tuesday, August 26, 2008

Should Catholic law schools "game the system?"

The Wall Street Journal has a front-page story about the debate over whether US News should start counting the credentials of part-time students in creating its law school rankings.  A number of Catholic law schools are among those that place lower-LSAT/GPA students in part-time programs, then admit them to the regular program in the second year (when they no longer count for US News purposes).  Some deans argue that changing the rankings will push schools to stop admitting students who might turn out to be capable lawyers.  Former Toledo dean Phillip Closius, whose school skyrocketed from the fourth to the second tier, is candid: "U.S. News is not a moral code, it's a set of seriously flawed rules of a magazine, and I follow the rules...without hiding anything," he says.  Larry Ribstein wonders how this is different from the businesses that "game the system" in terms of their accounting practices.  Former Houston dean Nancy Rapoport recounts that managing the rankings is like “trying to meet analysts' quarterly expectations by massaging the numbers."  John Steele notes that this is the most powerful kind of teaching by law schools: teaching by example. 

Does a Catholic law school have a responsibility to its current students to be as highly ranked as possible, within the limits of the US News rules?  (If so, does a Catholic-owned business have a responsibility to its investors to maximize profit within the limits of the law?)  Should Catholic law schools be held to a higher standard when it comes to "cooking the books?"  [Inescapably fallen human nature alert: I like to think that I favor the US News change because it eliminates an unfair way to avoid the spirit of the reporting rules, but perhaps it's because my current institution does not have a part-time program and thus stands to benefit from the change.]

Pennsylvania homeschooling decision

There seems to be a lot of litigation about home-schooling. After the California decision (see a post here), the Third Circuit has now weighed in with a decision involving Pennsylvania's regulation of home-schooling. (Here is the decision in Combs v. Homer-Center School District, which the Third Circuit decided on August 21, 2008.)

The decision is quite interesting. There is a fascinating discussion in the concurring opinion by Chief Judge Scirica. In that opinion, Chief Jusge Scirica addresses the parents' claim under Pennsylvania state law and concludes that the parents had not shown that the regulations violated a "specific tenet" of their religion because the parents had only cited general Biblical statements supporting parental control over their children's religious education. The parents could not cite a "specific" tenet of their religion prohibiting state review of their children's education.

On the federal issues, the court concluded that Smith controlled the free exercise issue. On the parental rights/substantive due process claim, the court concluded that parental right to control education did not extend to the type of claim the parents asserted in this case (the right to free from all reporting requirements and "discretionary" state oversight). The Court rejected a claim based on Yoder because the Pennsylvania requirements didn't threaten the families' entire way of life.

The court's treatment of the federal issues is in line with other treatments of parental rights issues, but this standard approach seems to underestimate the impact on parents and to be too willing to defer to state power.

Richard M.

Monday, August 25, 2008

Biden as VP Candidate: An Episcopal Headache?

Biden VP nomination could touch off episcopal split
By JOHN L. ALLEN JR.
August 25, 2008

As the Democratic National Convention opens in Denver, here’s an irony worth pondering: Perhaps the most disappointed group in America over the choice of a Roman Catholic as the party’s nominee for vice president may well be the country’s Catholic bishops.

That’s not necessarily any reflection on the personal merits of Delaware Senator Joseph Biden, but rather what kind of Catholic he is, and what that means for the American bishops between now and November 4 (and perhaps for four or eight years after that).

Abortion Prosecution

John Bogart has posted his paper, Crime and Moral Condemnation.  Here's the abstract:

An examination of the enforcement of California's anti-abortion statute over a 50 year period in Sacramento, focusing on particular prosecutions suggests that abortion was not treated as a serious moral wrong. The erratic pattern of enforcement and sentencing suggests prosecution under the feticide statute was part of an effort by the California Medical Association to exert greater control over medical services, not that there was any significant condemnation of abortion providers or of women obtaining abortions.

Evangelicals for Human Rights ... and Against Torture

conference_08_header

At Mercer University, just outside Atlanta, on September 11-12.   Check out the agenda (here), which looks very interesting.

Saturday, August 23, 2008

U.S. Bishops on doctors and conscience

"A U.S. bishops' aide welcomed a draft of federal regulations aimed to beef up existing legislation protecting health care providers' right to conscientiously object to participating in abortions."  More here.

Dr. Carlson-Thies weighs in on North Coast case

Dr. Stanley Carlson-Thies is a well known expert on questions relating to faith-based social services.  After reading this MOJ post (see also this one) about the recent decision in the North Coast Women's Care case, he sent me this comment:

The North Coast Women's Care decision is troubling for its easy subordination of the religious and conscience rights of doctors to the supposed right of a patient to have a desired procedure performed without inconvenience.  And it is troubling for its easy reliance on the Smith decision's odd logic that, as long as the legislature did not set out to prohibit some exercise of religion, the fact that the exercise is suppressed just the same is not so important. 
Still, the decision seems to me a bit more complex than some commentary suggests.  The legal rule at the center of the case, the California Unruh Act's prohibition of discrimination on the basis of sexual orientation (and multiple other bases), applies to business establishments, including health care practices.  That is, the case is not only about the freedom of medical professionals to exercise their best judgment, but also about the duty of institutions to ensure nondiscriminatory treatment of patients.  The decision strangely suggests that the doctors' religious freedom has been honored because they can continue to believe whatever they wish, even though they are prohibited from acting in accordance with those beliefs by not providing an infertility treatment to unmarried women.  And it proposes an inadequate way for the doctors' to align their actions with their beliefs:  they can simply refuse to provide the treatment to every woman.
But there is another sentence in the decision:  the doctors can avoid the conflict between their conscience and the sexual orientation nondiscrimination requirement by making sure that every patient wanting the treatment will receive "full and equal" access to the procedure through some other physician in the practice who does not object to performing it.  It seems, in fact, that the doctors did try to arrange for an alternative provision of the procedure but that the accommodation did not go smoothly because of an unintended mix-up.  A mountain was made out of that molehill.
Nevertheless, the sentence is important:  what is key is access to the procedure, not a requirement that every doctor must perform every procedure, including those to which they have deep moral and religious objections.  Good thing: surely we want our medical professionals to be motivated by high ideals and deep convictions.  But for this to be a realistic solution, something more is needed than this sentence.  Why must the referral be to some other doctor within the practice?  (Note the hint in the concurring opinion that a doctor with a religious objection who works alone should be able simply to refer a patient to some other practice.  What then about a faith-based practice in which all of the doctors have a conscientious objection to performing certain procedures?)
The state desires to root out sexual orientation discrimination.  But it is constitutionally bound to honor the free exercise of religion.  To accomplish both will require something more than putting clashes before judges.  The legislature ought to fashion a remedy (which might require amending the Unruh act). To honor doctors' religious objects while ensuring that patients have access to all legal procedures the legislature could place the burden of ensuring access elsewhere than on the medical practice itself:  on the state regulatory agency (to make sure that a diverse set of clinics is available in every geographic area), on the state itself (it must provide itself, or contract for, services that otherwise would be inaccessible), the health insurance provider (to ensure that such a service is available in the network or will be covered by an out-of-network clinic), or the employer (make arrangements to pay for the service if the insurer does not).  And even if the burden is on the medical practice, why shouldn't it be able to meet the access requirement by making a referral?
True, in all of these instances, the patient might not have instant and easy access to the desired service.  But why should that be the standard, if the only way of achieving it is by trampling on the constitutionally protected freedom of religion?
I'd like to see commentators and legislators give this unfortunate decision a very careful analysis and not just line up in favor of it or against it.

Interview with Chaput

(Hey, that rhymes.)  Here is an interview with Archbishop Chaput, on conservative-talk-radio-host Hugh Hewitt's show, about the former's new faith-politics-citizenship book (which was mentioned, here at MOJ, a few days ago), the Pope, World Youth Day, vocations, the scandal, etc., etc.  A bit:

Well, you know, people sometimes pigeonhole me as a conservative, and I hope what I am is a Catholic. And I preach the Gospel honestly without compromise, and that cuts to the right and to the left, because the Truth is supposed to set all of us free from our parties and from our prejudices or whatever. So I think people who want to follow the Gospel will offend people on all sides of the political spectrum.

- -    -    -   

HH: Archbishop, in Chapter 10, you write this, and I think maybe it’s one of the core messages. “The Catholic Church exists to make Jesus known, the bring the will of men and women into alignment with God’s will through a relationship with Jesus Christ, the son of God, the Church has a vital role in building peace and reconciliation, promoting justice and defending Creation, but she does that first by proclaiming the whole council of God.” Again and again throughout Render Unto Casear, you’re very careful to say you know, the Church has got a key mission here, which is to get the Gospel out there.

CC: That’s right, and you know, in terms of our engagement in the world around us, whether it be political in that broad sense, or in a more narrow sense political, is about loving our neighbor. That’s why it’s foolish for Catholics to think they can enter into the political world without bringing their faith with them, because we’re required by our faith to engage the world so that human dignity will be supported, and the common good will be served. It’s a more complicated way of just saying we have to love our neighbors as ourselves. And God commands us to do that, so we just can’t work towards our personal salvation, or you know, just wait for God to save us.  God also throws us back into relationship with our neighbors if we truly love Him.

HH: And you also at the very beginning of the book, though, having understood that Christ is at the center of your mission and the Church’s mission, you write, “People who take God seriously will not remain silent about their faith. They will often disagree about doctrine or policy, but they won’t be quiet. For Catholics, the common good can never mean muting themselves in public debate on foundational issues of faith or human dignity. Christian faith is always personal, but never private” That’s going to raise a lot of eyebrows. You’re asking the faithful to be explicit in what they believe and why. 

CC: I think it’s important. You know, one of the examples I used to underline what I’m trying to say there is to tell a believer that he must be silent in public is like telling a married man he must pretend to be single when he’s at work. And if he does that, he won’t be married very long, because he’ll find somebody else, or his wife will be very disappointed in the fact that he doesn’t love her publicly. And I think our relationship with God is a relationship as a spousal love. You know, He loves the Church as a bridegroom loves his bride, and that it’s important for us to let people know that, not in a way that’s in their face or offensive, but then also to live out the consequences of that, which is to love our neighbor. We can’t say we love God who we can’t see if we don’t love our neighbor who we do see. And that’s political life. Political life is about loving our neighbor. . . . 

UPDATE:  Another interview, this time with ZENIT.

Continue reading

Friday, August 22, 2008

Catholic Capitalism?

In the August 23d issue of The Tablet, there is an article that is required reading for all MOJers:  Clifford Longley, An Acceptable Face for Capitalism.  The article opens thus:

With the all-conquering global free market seeming to trounce all competing social and economic ideologies, a moral and practical framework looks increasingly necessary. Could Catholic social teaching fill the gap?

Click here to read.

Responses to Current Financial Crisis

It is sometimes reassuring to hear that you're not the only one confused about the appropriate response to a situation -- such as the current financial crisis.  The American Banker (available only by subscription) reports on a meeting of Nobel Laureates discussing this issue, and coming to varying conclusions:

Lindau, Germany — Some of the world's brightest economic minds agree the current financial crisis exposed major flaws in the system, but disagree about the role regulators should play in preventing a repeat.

At an annual gathering Thursday of economic Nobel laureates on a tiny, medieval island in southern Germany, three winners of the Nobel Prize in economics and one Peace Prize winner lamented the excessive risk-taking, lax management and impenetrable complexity at the heart of the financial system's current turmoil.

Many of the laureates' criticisms focused on the notion that banking has drifted from its fundamental purpose. Amid a rush to profit, "what's been lost is the idea that a banker has some responsibility to protect the client's interest," said Daniel McFadden, who won the Nobel Memorial Prize in Economic Science in 2000 for research focused on modeling individuals' decision-making processes.

While a market in which homeowners' mortgages can be packaged into securities sold to banks across the globe might be efficient, Mr. McFadden said, "the most efficient way to organize economic activity may also prove to be the most brittle. Congress needs to consider the costs of volatility and instability."

But a rush to regulation could have dire consequences, warned fellow laureate Myron Scholes, who took a Nobel Prize in 1997 for a method of valuing derivatives, which are financial instruments whose price changes based on the value of related assets. Ticking off the financial systems' basic functions — including financing large-scale projects, facilitating saving and assigning prices to assets — Mr. Scholes attributed decades of economic growth to innovations that let institutions "perform these functions more efficiently."

Mr. Scholes, who also co-founded Long-Term Capital Management, a hedge fund that collapsed amid the East Asian and Russian financial crises of the late 1990s, said, "Sometimes, the cost of regulation might be far greater than its benefits." One example, Mr. Scholes said, are the Sarbanes-Oxley accounting rules implemented after Enron Corp.'s collapse earlier this decade. The rules have been criticized as undercutting the U.S.'s attractiveness as a base for investment.

Joseph Stiglitz, a professor of economics at Columbia University who won the Nobel in 2001, suggested misguided innovation itself caused the current turmoil. Noting that homeowners' most important risk assessment is the likelihood that they can retain their home amid market volatility, Mr. Stiglitz said, "These are the problems [financial markets] should have created products to match. But they created risks, and now we're bearing the consequences of this so-called innovation."

There were some areas of agreement. The standards that gauge how much capital banks should hold — called Basel II for the Swiss city in which they were developed — focus too tightly on managing daily risk and not enough on handling crises. "What happens most of the time is not important," said Mr. Scholes, noting the current financial turmoil comes on the heels of the dot-com bubble's bursting and the Asian financial crisis of the early 1990s. "We have to learn how to handle the shocks when they occur."

One idea that might prevent a repeat of the turmoil: a commission that would vet financial products before their release, akin to the U.S. Food and Drug Administration's evaluation of drugs before they are released to the market. Mr. McFadden said, "We may need a financial-instrument administration that tests the robustness of financial instruments and approves only the uses where they can do no harm."

But tinkering with a fundamentally flawed system may not be enough, said Muhammad Yunus, whose success in lending small amounts of money to people too poor for ordinary credit led him and his Grameen Bank to win the Nobel Peace Prize in 2006.

"Our banking is sub sub sub sub prime," said Mr. Yunus, noting his model requires no collateral, offers no insurance, and boasts "no lawyers." The upshot: "Our repayment rate is very high. Like 98 or 99%."