My colleague and MoJ-er Greg Sisk is interviewed by Christianity Today regarding his empirical work on the success rates of religious liberty litigants.
Wednesday, December 20, 2006
Sisk on Religious Liberty
Access v. Excellence
Today's New York Times reports on public universities raising tuition in their quest to be ranked among the elite. To what extent are Catholic universities (and law schools) sacrificing access in order to achieve excellence? And does our conception of excellence make room for our provision of access?
Monday, December 18, 2006
The Decline of Christendom (& the YMCA)
I work out at our local YMCA, and every day the staff posts a different "inspirational" quote at the facility's entrance. Last week, they posted a quote from Freud: "The more the fruits of knowledge become accessible to men, the more widespread is the decline of religious belief." I found myself more puzzled than inspired, wondering what figures such as D.L. Moody (who was a YMCA missionary in the 1860s) would think of Freud being the welcome mat for the instition they had labored so long to build.
Most signs of the YMCA's religious roots dropped away long ago, of course. Today's Chicago Tribune reports on a movement to put the "Christ" back into the Young Men's Christian Association. Not surprisingly, it is not being embraced on all fronts. As the president of the YMCA of metro Chicago explained, "Religion is a very personal thing, not an institutional thing."
Thursday, December 14, 2006
Human Worth as Collateral
- Northeastern law prof Rashmi Dyal-Chand has posted her paper, Human Worth as Collateral. Here is the abstract:
Human worth has taken on a surprising new role: that of market asset. Specifically, lenders in radically different contexts are using their borrowers' human worth as collateral in loan transactions. The two examples of this new collateralization that I examine are credit card lending in the United States and microlending programs in the Third World. I conclude that the use of human worth in these two contexts is too similar to be coincidental. Rather, this new collateralization is a product of globalization. For those interested in the effect of law on globalization, this convergence in the market for credit teaches important lessons. In both the contexts I examine, the laws governing secured and unsecured lending fail to recognize human worth as collateral. For this reason, the new collateralization serves as a counter-example to the claimed centrality of the rule of law in economic development.
And here's an excerpt from the paper:
[L]enders in very different contexts have begun to collateralize human worth. I build my case on two examples. The first is the puzzlingly high level of unsecured lending to American consumers by means of the credit card, despite the ease of secured home equity lending. I conclude that this mystery is partly explained by credit card lenders' collateralization of human worth through the mechanism of credit reporting. The second example is the puzzlingly high level of unsecured lending to impoverished rural women in Bangladesh by means of the Grameen Bank's microlending program. I conclude that this mystery is also explained by the lender's collateralization of human worth, this time through the mechanism of peer lending.
I have not read the entire paper, but this line of inquiry seems to be rich with implications for Catholic legal theory. For example, does bringing the language of human worth into the discourse provide a more robust -- and anthropologically authentic -- ground for criticizing predatory lending?
Tuesday, December 12, 2006
Jesus the Manly Man
The insightful folks over at Get Religion dissect the LA Times' coverage of the Christian manliness movement. (If that brings to mind Promise Keepers, think again -- the PKers are angst-ridden schoolgirls by comparison.) And Mary Ruiz offers her own explanation of the eminently mockable phenomenon over at First Things. My only question: When Pope John Paul II stated that "both man and woman make their specific contribution" to the common good, could this be what he had in mind for the fellas?
Monday, December 11, 2006
Essentially a Mother
Tennessee law prof Jennifer Hendricks has won the AALS junior scholars paper contest with Essentially a Mother. From the abstract:
Rather than following existing precedent on parental rights, the law of high-tech parenthood is tending sharply in the direction of denigrating gestation, defining parenthood exclusively in terms of genes or contracts. I show that conferring parental rights on gestational mothers would produce better outcomes and be more consistent with the best aspects of existing constitutional precedents.
Friday, December 8, 2006
Immaculate Conception
I confess that the Church's requirement that Catholics believe in the immaculate conception of Mary has been more of a source of befuddlement than inspiration for me. (St. Bernard of Clairvaux ridiculed the belief as a "puerile absurdity.") David Scott has an essay that tries to sort it out. (HT: Open Book)
Is the "moment" of conception a myth?
Univ. of Missouri law prof Philip Peters has posted his new paper, The Ambiguous Meaning of Human Conception. (HT: Solum) Here is the abstract:
Nearly all of the state and federal laws that treat embryos as persons contain a fundamental ambiguity. Contrary to common belief, there is no “moment” of conception. Instead, conception is a forty-eight hour process, during which the haploid genomes of the sperm and egg are gradually and precisely transformed into the functioning diploid genome of a new human embryo. During that two-day period, many common clinical and laboratories activities take place, including the culling of unsuitable embryos, the freezing of others, and the testing of embryos for genetic abnormalities. The legal status of these activities will turn on the point in the two-day process of conception that is chosen to trigger the life-begins-at-conception laws.
In this Article, I argue that laws triggered by conception should not take effect until the process of conceiving a new diploid embryo is complete. This occurs when the embryonic genome begins to function, roughly forty-eight hours after insemination, at the eight-cell stage. Prior to that, a new human life is being conceived, but has not yet been conceived. Although many people will find this a surprising conclusion, it is consistent with both the gradual nature of the transformation from gametes to embryo and with the goals that the authors of these laws sought to accomplish.
Thursday, December 7, 2006
Sex as Metatheory
I agree with Michael S. that sex is a fundamental component of the human person, and thus a fundamental component of Catholic legal theory. But I'm not sure I would go so far as to say that "[r]eflecting on the design of our bodies, our radical incompleteness, our intense desire (especially in males) to “use” another’s body to satisfy our own needs, and a whole host of related topics can offer insight into the origin and nature of community, the need for rules (and hence the need for promulgators of rules) to govern behaviour, the origins and nature of government and other governing structures (the corporation, etc.)."
Here's the tension, in my view: Our need for law derives in significant part from our fallen condition. We are selfish and we need rules to rein in our selfishness. But the ideal for sexuality (the lifelong coupling of a man and woman) is not in response to our selfishness, but to our incompleteness. Adam and Eve did not need the criminal law in the Garden of Eden, but they still needed each other. Corporate management does not need to face punishment for self-dealing because they are incomplete, but because they are selfish. An authentic view of sexuality allows us to transcend our selfishness; law accounts for our selfishness. I totally agree that our understanding of the human person must include an articulation of human sexuality. But I'm still not sure how far the articulation of human sexuality gets us toward a comprehensive theory of law.
Wednesday, December 6, 2006
Pragmatism and the Rule of Law
Catholic legal theory needs to account for the rule of law and the extent to which extralegal values have a role to play in adjudication. Over at Balkinization, Brian Tamanaha dissects Judge Posner's vision of "pragmatic adjudication," as outlined in a recent debate with Brian Leiter, as a threat to the rule of law. In his writing, Judge Posner has argued that the duty of judges is "always [to] try to do the best they can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past." Here's an excerpt from Tamanaha's critique:
My argument is that Posner’s descriptive claim is wrong: most judges strive to come up with the best—the strongest—legal outcome as dictated by the applicable rules. They do this whether the legal rules are clear or complicated and uncertain. When no strongest legal answer exists, which does happen, they may well try to figure out the most reasonable result in the manner that Posner suggests (what else can they do?). Of course, rule-bound judges still pay attention to results and consequences. When the outcome dictated by the rules is extremely unpalatable, they will struggle with the law to avoid this result. This does not change the fact that their overarching orientation is to try to figure out what the law requires, and to duly comply. This orientation is essential to a rule of law system.
This, too, is a realistic view of judging. Like Posner, I am a pragmatist. And my argument is that, for pragmatic reasons, owing to the harmful consequences to the rule of law that will follow from adopting Posner’s approach, judges should reject his pragmatic adjudication. . . .The danger is this: if people within and outside the legal culture succumb to his view that judges already in fact decide cases in this manner, and should decide cases in this manner, more and more judges will begin to reason in this fashion. Then his descriptive claim will be correct, and, I fear, we will discover the untoward consequences of his prescriptive claim.
On this final point, the dialogue between Judge Posner and Professor Leiter was worrisome for another reason. It was an event sponsored by the Federalist Society at the University of Chicago Law School. Yet this group, explicitly dedicated to promoting the appointment of judges who commit themselves to follow the law, hardly challenged his ideas, which are fundamentally antithetical to this objective.
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