Hofstra law prof (and MoJ-friend) Ron Colombo and his friends at The Conglomerate are having an interesting debate about whether Bernie Madoff's actions are properly labeled "extraordinarily evil."
Tuesday, June 30, 2009
Can property crimes be "extraordinarily evil?"
Monday, June 29, 2009
Marriage equality: what should we expect from government?
In the past, I've expressed skepticism about reasons offered for excluding same-sex couples from the institution of marriage. I've also expressed concern that same-sex marriage brings a potentially expansive role for the state given the lack of social, cultural, biological, and religious support for same-sex marriage (in comparision to traditional marriage). A quote from yesterday's Frank Rich column in the New York Times perfectly captures my concern:
One gay leader invited to the Oval Office . . . was Jennifer Chrisler of the Family Equality Council, an advocacy organization for gay families based in Massachusetts. She showed a photo of her 7-year-old twin sons, Tom and Tim, to Obama. The president cooed. “I told him they’re following in Sasha’s footsteps, entering the second grade,” she recounted to me last week. “It was a very human exchange between two parents.”
Chrisler seized the moment to appeal to the president on behalf of her boys. “The worst thing you can experience as parents is to feel your children are discriminated against,” she told him. “Imagine if you have to explain every day who your parents are and that they’re as real as every family is.” Chrisler said that she and her children “want a president who will make that go away,” adding, “I believe in his heart he wants that to happen, his political mistakes notwithstanding.”
I think the bullying experienced by children of same-sex couples is a problem that should be addressed (and is being addressed in the schools with which I'm familiar). But if we're at the point of expecting the federal government to ensure that everyone treats every family form as being just "as real" as every other family form, we have a problem.
Abortion as the "pro-life" option
Over at PrawfsBlawg, Naomi Cahn and June Carbone assert that women who have abortions do so not because of concern that the pregnancy will interfere with their own life paths, but because they care deeply about the unborn child's future, and they are unable to make the commitments needed to ensure the child's flourishing. Cahn and Carbone suggest that the pro-choice case needs to be reframed in these terms. I'm skeptical on the empirical claim (I'm sure that some women do have abortions for that reason, but is there any empirical evidence that most or, as Carbone and Cahn seem to suggest, virtually all do?), and I'm doubtful on the normative claim -- i.e., that non-existence is preferable to an existence that lacks a decent chance for "flourishing" (whatever that is supposed to mean in this context).
Sunday, June 28, 2009
What deference does a Catholic owe to the Church's social teaching?
Along with Lisa, I'm teaching in the St. Thomas-Villanova summer program in Rome. This is only my third visit to Rome, so I still have a lot to explore, but one recurring theme is the extent to which the city is both an encouragement and an obstacle to my faith. The encouragement comes on occasions such as last week's papal audience, when a large, exuberant, and diverse crowd becomes a tangible reminder of the Church's beauty and awe-inspiring scope. The obstacles come as I routinely find myself face to face with chapters from history in which the teachings of Christ are practically impossible to discern in the Church's witness to the world.
I spent the afternoon today at the Jewish Museum in the Temple Maggiore, built on the site of the old Jewish Ghetto. The museum painfully recounts the oppressive laws enacted and enforced by a succession of popes against Rome's Jewish community. As a Catholic, it was especially troubling to recall how the Jewish community had to look to the birth of the secular Italian state as its source of liberation from the Church.
So was the Church's teaching over those centuries regarding how Christians should live with (or sadly, should not live with) the Jews an example of Catholic social teaching that was in error? If I was a Catholic living in Rome during those centuries, would it have been just and proper for me to object to the Church's treatment of our Jewish neighbors, and perhaps even to engage in action designed to thwart the implementation of the Church's rules? Even if the Church forbade me from doing so, or accused me of having a poorly formed conscience? I assume the answer to all of these questions is "yes," right?
If so, then what deference do we owe Church authority in an area of social teaching? Is it a matter of expertise (e.g., popes don't know much about economics?) or a function of the underlying principles (e.g., the sanctity of human life provides a more consistent and applicable rule than the universal destination of human goods does?) Is a Catholic's stance toward CST driven solely by the persuasive merits of the teaching, or by the fact that it is the Church doing the teaching? And if the latter, how do we distinguish the situation where a good Catholic should have (in my view) openly and vigorously dissented from the Church's social teaching about the Jews from today's situations where a Catholic believes that the Church's social teaching is in error?
Wednesday, June 24, 2009
Zamir and Medina on Public and Private Morality
Two Hebrew University law profs have posted a new paper, "Public and Private Morality," that may be of interest to MoJ readers. Here's the abstract:
This is a chapter of a book titled Law, Economics, and Morality, which proposes to integrate threshold deontological constraints (and options) with cost-benefit analysis, thus combining economic methodology with deontological morality (forthcoming, Oxford University Press). The chapter addresses the argument that even if moderate deontology is the correct moral theory for individuals, consequentialism is the appropriate moral theory for legal policymakers such as legislators, judges, and regulators, and for academic policy-analysts. It claims that this argument confuses, among other things, between constraints and options and between the actor’s perspective and the perspective of an external reviewer. It ultimately rejects the alleged dichotomy between personal and public morality.
Monday, June 22, 2009
Is an attorney's moral deference a problem?
In light of our conversation about the Catholic legal thought project being too disconnected from the practice of law, I thought readers might be interested in this exchange about how lawyers should view their professional roles. The Northwestern Law Review Colloquy has published an essay by Michael Hatfield titled "Professionalizing Moral Deference." Hatfield uses the torture memos as evidence of a broader problem: our tendency to professionalize lawyers to view moral deference as a moral good. Here's an excerpt:
From the beginning of law school, a lawyer is idealized as a zealous advocate for her client’s objective. This biased zealousness is justified by an appeal to the adversarial American legal system. Each side has a lawyer, and each lawyer is devoted to one side. The professional role is to further the client’s objective, even if, personally, the lawyer opposes it. The young lawyer learns to defer to the client’s moral conclusions about the objective. But the young lawyer also learns to defer to the legal system’s conclusions that this is what lawyers should do. We are told to suspend our personal moral instincts and to have faith that the legal system accomplishes a greater moral good by our accepting a truncated personal moral role than it could accomplish if we accepted full personal moral responsibility for what we help our clients do. We are professionalized into believing that we are at no personal moral risk so long as we do a professional job (for which we will be well paid). We are told to accept the moral good of moral deference—both to our clients and to the system. We are professionalized to believe that moral deference is simply what lawyers do, as if it were a self-evident, natural principle that pardoned our moral misgivings.
I've written a response essay titled "Professionalizing Moral Engagement." Here's the opening:
In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.” In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition. There is no reason to believe, however, that Yoo’s moral intuition would have led him to reject the conclusions set forth in the memos, and there is some evidence that his moral intuition helped shape his analysis. Seen in this light, the memos could be construed—in direct opposition to Hatfield’s characterization—as evidence that law schools need to redouble their efforts to train lawyers to override their moral intuition. But this reaction would miss the partial truth underlying Hatfield’s analysis. The torture memos do underscore a desensitizing that afflicts many lawyers, though its implications are broader—and perhaps less insurmountable—than Hatfield describes. Although he is undoubtedly correct that lawyers should “stop telling [one another] that overcoming personal moral squeamishness is the great call of the law,” the law’s call is a bit more nuanced: although lawyers should not ignore their own moral squeamishness, neither should they wallow in it. The lawyer’s cognizance of her own moral intuition should mark the beginning, not the end, of her inquiry into the moral dimension of the representation.
So should Catholic legal thought buy into the notion that an attorney's moral deference to her client is a problem? My views are set out in the essay, and I'd welcome feedback.
Sunday, June 21, 2009
Why should we respond to SSM by having the state get out of marriage?
Over at Public Discourse, David Novak has a typically thoughtful take on same-sex marriage, and while I find the various elements of his analysis reasonable, I have a hard time connecting all the dots. He argues that a child has a natural right to be raised by his or her biological father and mother. The tricky part with this argument, of course, is what you do with adoption. Here's how Novak handles it:
Despite all my talk about natural parentage and childhood, I am in favor of the institution of adoption. Surely, a child’s right to being raised by adults is better upheld by adoptive parents than by natural parents, when these natural parents are unable or unwilling to raise their natural offspring. And, in principle, I am not opposed to a gay or lesbian couple being able to raise a child whose natural parents have abandoned him or her (whether voluntarily, or necessarily in cases of death or debilitating illness). Surely, a child is better raised by a couple who love him or her and each other than being raised in the less personal setting of an orphanage, or being raised by foster parents who are paid by the state to care for children nobody else wants, and who do so at less cost to the state than the cost of maintaining orphanages. Nevertheless, all things being equal, I think it is best that such an abandoned child be adopted by a heterosexual married couple rather than be adopted by a homosexual couple. That is because a heterosexual couple can better simulate—perhaps improve upon—the heterosexual union that produced this child and should be raising this child. It better simulates the duty of the natural parents to this child, a duty they would not or could not exercise. This, by the way, is not arguing empirically that opposite sex couples are necessarily better at raising children than same-sex couples. My arguments are based on the concepts of rights, not on the concept of utility. Thus my arguments are a priori, not a posteriori.
And then he concludes:
I agree with [Martha] Nussbaum when she says: “I personally favor the solution of leaving civil unions to the state and marriage to religions and other private entities.” In fact, for me, such a move would greatly strengthen the social prestige of religious marriage. Yet neither of us is willing to give up on civil marriage, at least not yet. I suspect that giving up on civil marriage now would be an admission of political defeat neither of us is willing to make. In Nussbaum’s case, that would seem to be an admission that the institution of civil marriage cannot be reformed to ever really include all those she wants included in it. In my case, that would seem to be an admission that civil marriage can never be restored to its richer and more coherent traditional meaning. However, since this society is so divided on this question, the disestablishment of civil marriage altogether and its total replacement by civil unions could well be the way this society might have to go for the sake of civil peace.
Here's where I have trouble following the logic: Novak asserts that the public reason of marriage is to "facilitate procreation and the exercise of parental rights and obligations as well as filial rights and obligations." If same-sex couples should be permitted to adopt children -- and indeed, if opposite--sex couples "are not necessarily better at raising children than same-sex couples" -- then why is the inclusion of same-sex couples so disruptive to the public rationale of marriage so as to justify disestablishing civil marriage altogether? (I know he's not calling for that, but he is open to the prospect that it might be the most sensible of the viable options.)
If the state has a role in supporting the commitments that are essential to stable and effective child-rearing, then why abandon civil marriage simply because the institution expands beyond its ideal form, especially since the new form, by my reading of Novak, still supports many (but not all) of the child-rearing goods promoted by marriage? (Obviously, marriage routinely -- nearly always -- is practiced in some sort of non-ideal form among these fallen human vessels, though SSM expands the non-ideal form categorically, under Novak's argument.)
Let me put the question somewhat differently: are committed same-sex couples who raise children together more like a traditional marriage, or more like any other civil contract with no capacity for, or inclination toward, the self-transcendence that should accompany marriage? Even if SSM is deemed to be closer to the latter, isn't ending civil marriage altogether a bit like throwing the baby out with the bath water? I can understand opposition to SSM, but I have a harder time understanding the argument that the proper response to SSM is to get the state out of the marriage business entirely.
Friday, June 19, 2009
What do lawyers need from Catholic legal thought?
Marc DeGirolami adds these further comments to our discussion of CLT's focus on theory:
Part of the trouble with these sorts of discussions is that it is difficult to know exactly what lawyers "need" from Catholic legal thought. Sometimes what they need isn't what they think they need. Sometimes what they think they need is only one small tip of an iceberg that extends much further down than they know about, or perhaps even want to know about. And I hastily add that I am very much among those lawyers who do not know, but who want to know.I am not in disagreement with your correspondent that it is foolish to ignore matters of practicality, or application. But I do very much think that it is unwise to tear away the top-most branch of a tree -- because the urgencies of the day-to-day are all too pressing, or because one just wants to be told the "takeaway" (an ugly, voguish phrase suggesting that what is not immediately consumable is probably useless anyway), or because one finds the branch especially aesthetically pleasing all by itself -- and expect that little fragment to live for long. The branch belongs to the tree. I am not suggesting that your correspondent thinks otherwise. Yet sometimes I wonder in discussions about theory and practice whether those "against theory" can really be against it and still retain a proper sense of intellectual self.
Thursday, June 18, 2009
DeGirolami on Catholic legal thought and "theory"
Marc DeGirolami responds to my earlier post relating a Catholic attorney's concern that the Catholic legal thought project is too focused on theory:
The fact (at least for me it is a fact) is that "theory" is not a special kind of effete thinking reserved for pointy headed people. Theory is thinking. And many of the issues raised by your practicing correspondent are only adequately addressed by people prepared to engage deeply in theory (he mentions Professor Kaveny in particular, but while her excellent piece on the billable hour may be accessible, it is, surely, highly theoretical too). When I was at Catholic University, Patrick Brennan gave a wonderful talk in which he emphasized that the primary light toward which the CST project must be oriented is "philosophy," by which I took him to mean not necessarily philosophy proper (though there is nothing wrong with that!), but precisely theory -- deep and sustained reflection on the many issues about which CST might have something interesting and illuminating to say.It is also true that "theorizing" is not something that intelligent people can simply choose not to do; one is always theorizing, if one is an intelligent person, whether one calls it that or not, and whether one is conscious of it or not. True, there are different kinds of inquiries suited to different kinds of minds, but one of the reasons for the famous "disjunction" between legal academics and legal practice is the failure to recognize the pervasiveness of theory -- its importance to ordinary, intelligent men and women. And surely, that group includes many law students and practicing attorneys.
Is the Catholic Legal Thought project too focused on theory?
My recap of the Conference on Catholic Legal Thought prompted a reader (and practicing lawyer) to express his concern that our conversations may be too theoretical and too disconnected from the issues that matter to Catholic lawyers. Here's an excerpt of his email:
The disassociation between the world of academia and the world of practice is unfortunate, especially because the Catholic faith is a lived aesthetic experience, not something we just know intellectually. I think a lot of us who are actually practicing law want our friends in academia to do some thinking for us about how we can re-shape the practice of law in the U.S. to make it, as JPII says, "more human and more fraternal." At some level, this will have to go beyond theoretical discussions about the difference between JPII v. Benedict's view of natural law, and will need to involve a critique of the culture in which lawyers live and work, what impact that culture has on the law and the public's perception of the law, and the connection between the culture of law and justice. . . . Too much emphasis on engaging the "law" can make the needs of the human person secondary or even irrelevant, and can render CST just another academic form of analysis rather than a prophetic movement that seeks the liberation of the human person in his daily struggles and burdens.
He offered several examples of lines of inquiry that he would find helpful:
1. The structure of law firms - billable hours (Kaveny has addressed this a little bit), the commercialization of the practice of law, and the problem of over-specialization; lack of mentoring; the loneliness and competitiveness experienced by associates;
2. The connection between the problems in #1 and the huge tuition bills we have from law school that force, or appear to force, many students into big firms. Are Catholic law schools helping students to choose their professional paths wisely, or are Catholic law schools just complicit in promoting the dehumanizing aspects of lthe practice of law, with their own focus on rankings, prestige and endowed chairs?
3. The practice of American-style litigation and whether Catholics can/should participate in it (i.e. fomenting conflict in order to keep the billable clock running; overwhelming opponents who don't have deep pockets with filings and delay tactics that have nothing to do with achieving a just result; using the courts to resolve marriage issues - what does "winning" look like in a marriage dispute; etc).
4. What is a profession? Is the current legal profession actually a profession? Should it matter? Could a reinvigoration of the concept of "profession" help to change the practice of law and in what ways? 5. In what ways are lawyers participating in the healing work of God? Doctors and priests are seen, in many circles, as healers; why are lawyers seen as scoundrels? How does the concept of privilege work into our role as healers, etc.
These, to me, seem like very practical and very important issues that really affect practicing lawyers (and law students) and that also have a social impact (i.e. how we structure law firms affects how those in need of legal services experience lawyers, either as money-grubbers or servants; how we structure law schools affects how available and disposed students are to pursue careers focused on justice, rather than money; etc.). I would love to see academics tackle these issues in order to provide law students and practitioners with a new vision of what it means to be a lawyer.
In fairness, I think some of these areas have been explored by MoJ-ers and other Catholic law profs, but undoubtedly there is more work to be done. (An area that merits much more exploration, in my view, is the role of Catholic law schools in exacerbating or remedying the plight of the debt-laden law student.) The broader question -- whether Catholic legal thought is spending too much time on theory -- merits some discussion. One way I would explain it is this: our project, at least in the context of American law and lawyering, is relatively new. A significant amount of theoretical spade work is needed in order to make the practical implications authentically insightful, rather than just a dressed-up version of our own predispositions.
What do others think: has the Catholic legal thought project been too focused on theory?
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