Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Sunday, February 19, 2017

St. Thomas Amicus Supporting Cert. re. RFRA in the Military

Here's a news release concerning the latest brief filed by the Religious Liberty Appellate Clinic that I supervise at St. Thomas. It's an amicus curiae brief in Sterling v. United States, a cert petition involving the application of RFRA in the military. The petitioner, Marine LCpl Monifa Sterling, "was court-martialed for, among other things, objecting to a superior’s order to remove from her work station three small signs displaying a Bible verse." (It's Isaiah 54:17: "No weapon formed against me shall prosper.") Whether or not LCpl Sterling should ultimately win her case, the Court of Appeals for the Armed Forces wrongly cut off her claims at the threshold, making some bad errors in holding that the order to remove the verses had not "substantially burdened" her religious exercise. As the news item explains:

The courts held that Sterling had not been burdened because she had not shown that the order violated any religious tenet that she display signs, because she had not given clear notice that the signs were religious, and because she had not asked for a religious accommodation through the military’s administrative processes.

The certiorari petition and the St. Thomas clinic’s amicus brief argue that all these grounds for denying RFRA’s application are inconsistent with the statute and precedents. Moreover, they argue, the Supreme Court must review the decision because these grounds would broadly restrict the rights of military personnel—Sikh, Jewish, Christian, and others—to follow their religious practices in the military when it would not undercut combat-readiness or good order.

“The [military courts’] narrow conception of burden,” the clinic’s amicus brief states, “wrongly rejects claims at the threshold and neuters RFRA’s requirement—equally applicable in the military—that substantial restrictions on religious activity must be justified by compelling governmental interests.”

... The organizations joining the brief include several religious denominations; the National Association of Evangelicals; the Christian Legal Society (co-counsel); and the Chaplain Alliance for Religious Liberty, which represents religious organizations certifying 2,600 military chaplains, about 50 percent of those currently serving in the armed forces.

My student Andrew Hanson, class of 2018, did a great job doing much of the drafting on this brief.

Although the odds are always long on a cert petition, keep an eye out for this case. The petition was filed by Paul Clement; there are several other amicus briefs in support; and the justices ordered the government to filed a response after it initially waived responding.

February 19, 2017 in Berg, Thomas, Current Affairs | Permalink

Saturday, February 18, 2017

Solidarity in the era of Trump

What does it mean to practice solidarity at a time marked by intense political divisions and alienation? Emily Esfahani Smith has a thoughtful essay in New York magazine about what it means to belong: 

[A] sense of belonging based on group membership is a false substitute for the real thing. Psychologists say belonging is defined by being in a relationship or part of a community where you are valued for who you are intrinsically. Just like we need food and water to thrive physically, we need to feel valued, needed, and cared for — like we matter to others — to thrive psychologically. Belonging that requires group affiliation is by nature contingent — your value is defined through associating with the group, not through who you are.

Group membership as a false proxy for belonging is nothing new, of course, but it may have taken on a more intense political dimension as we align ourselves according to the views expressed through our social media feeds and reactions to the President's latest [hateful bomb-throwing / plainspoken truth-telling].  Smith offers a beautifully simple example of the mindset to be reclaimed through the story of a restaurant encounter across the political divide.

Catholics have long taught this idea of unconditional belonging via the principle of solidarity -- the "firm and persevering determination to commit oneself . . . to the good of all and of each individual," as John Paul II put it.  This has proven easier to teach than embody, but there's no better time than now to remind ourselves that the most fertile ground in which solidarity can take root is in our immediate sphere of influence, one relationship at a time.  

Solidarity has implications for policy debates, to be sure, but if we're not committed to practicing solidarity in our everyday interactions, it can become a hopelessly abstract description of a worldview, which we then deploy as a bludgeon against those who reject that worldview.  If we value others intrinsically, our capacity for belonging to one another cannot be a function of our political agreement. 

February 18, 2017 in Vischer, Rob | Permalink

Wednesday, February 15, 2017

Camosy on our Post-Truth Culture

Over at Crux -- a relatively new forum for Catholic news, analysis, and commentary edited by the indispensable John Allen Jr. -- Charles Camosy makes some important points in his op-ed on truth in our political culture.  Building on Andrew Sullivan's recent essay on truth-telling in the Trump administration, Camosy locates Trump as just the most extreme example of a post-truth trajectory we've been on for some years (e.g., it depends on the meaning of "is," unborn life as a "clump of cells," "hands up, don't shoot" being "built on a lie").  We are arriving at a moment predicted by Alasdair MacIntyre in After Virtue.  As Camosy reminds us, "[o]nce morality and politics were severed from any common understanding of the good-once the West at least tried to be genuinely plural with regard to our foundational moral principles-we got on a cultural road that could lead nowhere other than where we currently find ourselves."  Camosy calls Catholics to rise up to challenge the post-truth strategy that has become so politically effective, citing the Focolare movement as an example of how we can "create intentionally diverse communities of dialogue - communities in which people with different understandings of the good can at least come together in a shared reality and disagree on the basis of a common set of facts."

February 15, 2017 in Vischer, Rob | Permalink

Sunday, February 12, 2017

Wendel & Luban on religious lawyering

Two of my favorite legal ethics scholars -- Brad Wendel and David Luban -- have joined forces to write an accessible history of philosophical legal ethics.  Breaking down the relatively short (40-year) span of serious theoretical work in the field into two waves, the first grounded in moral philosophy and the second grounded in political philosophy, Wendel and Luban provide a helpful introduction to how scholars have criticized and defended the lawyer's role against broader normative frameworks.  MoJ readers might be especially interested in the treatment of the religious-lawyering perspective, championed most famously by Tom Shaffer.  The authors conclude:

A Christian lawyer may wonder, for example, whether it is possible to be a lawyer without being involved in the fallenness of all human institutions, including the law. Since the answer to questions formulated in these terms would themselves be dependent upon other theological commitments, the influence of the religious-lawyering literature was somewhat limited. Its wider impact depended upon its translation into what Rawls would call public reasons, in which case it risked losing its distinctive prophetic voice.

They're undoubtedly correct to characterize the influence of the religious-lawyering literature as "limited" (at least for now), but I'm not entirely certain that those limits are strictly a function of a failure to undertake a Rawlsian translation.  That's a longer conversation.  In the meantime, you should check out the paper - it is worth your time.

February 12, 2017 in Vischer, Rob | Permalink

Saturday, February 11, 2017

Where are Catholic law schools on the road to character?

I finally got around to reading The Road to Character by David Brooks. Brooks often receives the same criticisms as law professors doing interdisciplinary scholarship – i.e., that our work reflects a glibness and lack of depth, skating from one field of knowledge to another without mastery.  I see Brooks (and many law professors) as providing a needed service in making a broad set of relevant insights more broadly accessible than they would ever be if left solely in the hands of the scholars who have spent their whole careers studying a single field.  What may be lost in depth is gained in currency.  The same is true of his latest work.

I enjoyed The Road to Character for many reasons, but for MoJ purposes, it made me think about the role that Catholic law schools can play in character development.  Brooks points out early in the book that today, “teachers tend to look for their students’ intellectual strengths, so they can cultivate them,” but a century ago, they “tended to look for their students’ moral weaknesses, so they could correct them.”

He recounts asking the head of a prestigious prep school how the school teaches students about character. She responded “by telling me how many hours of community service the students do. That is to say, when I asked her about something internal, she answered by talking about something external.”  Brooks observes that “[m]any people today have deep moral and altruistic yearnings but, lacking a moral vocabulary, they tend to convert moral questions into resource allocation questions.”

What would Catholic law schools say if Brooks asked us how we teach about character? I admit that our public service requirement would be a strong candidate for inclusion in my answer (at least before reading this book).  Law schools also – I hope – work to inculcate the norms and dispositions that are integral to membership in the legal profession.  And some schools (including St. Thomas) are doing more to facilitate self-awareness (through required exercises like Strengths Finder and courses that allot time for structured self-reflection), which is a necessary component of character development.

But should we do more to tap our theological resources? As Brooks explains, for example:

[S]in is a necessary part of our mental furniture [because] without it, the whole method of character building dissolves. From time immemorial, people have achieved glory by achieving great external things, but they have built character by struggling against their internal sins. People become solid, stable, and worthy of self-respect because they have defeated or at least struggled with their own demons. If you take away the concept of sin, then you take away the thing the good person struggles against.

Of all the historical figures Brooks mined for insights on character development, the most powerful (not surprisingly) was Augustine. According to Brooks, Augustine observed that “people can understand themselves only by looking at forces that transcend themselves. Human life points beyond itself.”  For Augustine, at least, there was no substitute for the divine, and “if you think you can organize your own salvation you are magnifying the very sin that keeps you from it.”  I don't know if Augustine's insights are as translatable outside a Christian experience as the structure of Brooks' survey approach implies (take a bit of Dwight Eisenhower here, a bit of George Eliot here, and some Augustine for good measure).  Transformative religious experience is a tricky road-to-character program ingredient for law schools open to students from any or no faith tradition. 

But we cannot ignore Augustine's lessons for education.  Since “you become what you love,” Augustine believed that education should entail the reordering of our loves. Brooks explains that “[w]e don’t become better because we acquire new information. We become better because we acquire better loves.” As such, “[w]hen you go to a school, it should offer you new things to love.”  What are we teaching our students to love?

In the book’s conclusion, Brooks laments the rise of the meritocracy mindset, in which the self is seen as “a vessel of human capital,” rather than the seat of the soul; the self is thus about talent, not character.” The meritocracy has shaped our definition of character, as the term now “is used less to describe traits like selflessness, generosity, self-sacrifice, and other qualities that sometimes make worldly success less likely,” and more often “used to describe traits like self-control, grit, resilience, and tenacity, qualities that make worldly success more likely.”

With the pressure to attract the best and brightest, and to maximize those students’ chances of gainful post-graduation employment, it is not easy for law schools to be counter-cultural when it comes to character formation. But Catholic law schools may be positioned to broaden the conversation in ways that create space for our students to grapple with the classic understanding of character.  The road to character, as Brooks puts it, “begins with an accurate understanding of our nature, and the core of that understanding is that we are flawed creatures.”  Character, in the end, is “a set of dispositions, desires, and habits that are slowly engraved during the struggle against your own weakness.”  Our faith tradition provides a framework through which to conceive of such a struggle, and we (hopefully) have a community that can support the struggle.  We all need, in Brooks’ memorable phrasing, “redemptive assistance from outside,” for we “wage our struggles in conjunction with others waging theirs, and the boundaries between us are indistinct.”

Can we help our students see beyond the external striving that makes up so much of the law school experience and identify the internal struggle that is constitutive of character? If so, what form could that help take?

February 11, 2017 in Vischer, Rob | Permalink

Brennan and Brewbaker on Christian Legal Thought

Here's a new casebook, from Foundation, on Christian Legal Thought, thanks to Prof. Bill Brewbaker and our own Prof. Patrick Brennan.  Congrats!

Check out the table of contents - fascinating materials.  Here's hoping it's adopted widely, and that professors at many law schools -- not just religiously affiliated ones -- consider offering the course.

February 11, 2017 in Garnett, Rick | Permalink

Friday, February 10, 2017

Civil friendship in a digital age

John Allen Jr. is always worth reading, and he has a lovely reflection comparing "two different Americas" through the lens of New York City's "two Dolans" -- the Knicks owner (angry and confrontational) and the Cardinal (open and committed to friendship despite disagreements).  He identifies as a "defining quality of [Cardinal Timothy Dolan] a relentless determination to keep lines of communication open, never to demonize or alienate anyone, and to demonstrate that one can have strong convictions without forever going to war against people who don’t share them."  The roots of this quality are best captured, according to Allen, by a story the Cardinal tells about his dad:

My dad was a very upbeat guy, with a tremendous sense of humor, who would always see the best in people. The kind of people that others didn’t get along with, he liked. It was almost like he wanted to give them a chance … Dad’s philosophy of life was that if you can get somebody on a lawn chair, outside on a Sunday, while he was doing pork steaks in the barbeque pit, listening to Harry Caray and the Saint Louis Cardinals in the background with a bottle of Busch, you could win over anybody. There’s nobody that if you eyeball, and really start talking to … rare would be the person with whom you could not find common ground.

This beautifully conveys the attitude of civil friendship, which calls citizens to live the virtue of solidarity within the political community.  As illustrated by the Cardinal's recollection, we are to assume the good will of our neighbors; not make our relationships with our fellow citizens contingent on political agreement, worldview alignment, or personality compatibility; and recognize that connections across difference and disagreement are intrinsically valuable, not just instrumentally advantageous.  But how do we embody this spirit when so little of our social interaction takes place in any sort of face-to-face venue, much less on lawn chairs around the barbeque pit? 

One obvious (but by no means easy) answer is to reallocate and reprioritize our time toward the face-to-face.  We should do that, early and often, but that will only go so far in terms of shaping the society-wide perceptions of politics- and worldview-driven division and alienation.  The front porch and neighborhood coffee shop are not going to reemerge as the primary venues for engaging our fellow citizens across our differences anytime soon.  As such, it is absolutely vital that scholars, community advocates, clergy, politicians, and neighborhood grill masters spend time thinking and sharing ideas about how we talk to each other across difference, especially when those exchanges are facilitated by technology, not by adjoining back yards.  I mean more than internet etiquette, I think.  Can emerging technologies actually help use digital tendencies to promote face-to-face relationships?  (I'm thinking, for example, of apps like Next Door.)  Can technology make local politics more accessible -- and appealing -- to residents?  Can opinion leaders change the tone and expectations of political engagement, whether in-person or online, and can the public incentivize them doing so?  How can we train young people (and not-so-young people) to embrace vulnerability? 

Realistically, true friendship will not be the aim in most political engagement that takes place in a digital world.  But an orientation toward friendship should still shape that engagement.  That's what civil friendship contemplates; we need to figure out what it looks like today. 

February 10, 2017 in Vischer, Rob | Permalink

Alberto Mora: It's Not Just About How to Protect the Country; It's About How to Protect Our Values

President Trump now has twice stated that, if the United States experiences a terrorist attack on American soil, the blood will be on the hands of the judges who have stayed the effect of his travel ban against seven majority Muslim nations.

190px-Alberto_MoraThis crude attempt to intimidate those committed to the rule of rule into setting aside legal qualms about presidential action closely resembles the post-9/11 argument made by some who wanted legal cover to employ extraordinary interrogation methods – that is, torture – against detainees who might have information about Al Qaeda terrorist plots.  Advocates for the use of waterboarding and other “harsh” measures during the Bush Administration argued that lawyers who timidly resisted with legal objections would then be responsible the thousands of deaths that would be lost in the next terrorist attack. 

During that earlier episode, Alberto Mora, the general counsel for the United States Navy, responded with words that should resonate today:  “The debate here isn’t only how to protect the country. It’s how to protect our values.”

February 10, 2017 | Permalink

Thursday, February 9, 2017

Christian Legal Thought: Materials and Cases (Foundation Press, 2017)

It was a while in the making, but Brennan and Brewbaker's Christian Legal Thought: Materials and Cases will be published momentarily -- that is, any day now -- by Foundation Press, well in time for Fall adoption.  Here is Foundation's description of the book: 

This text examines law and legal institutions through the broad lens of Christian thought, both Catholic and Protestant. The book addresses methodological issues in Christian legal scholarship (What makes legal thought “Christian”?); the relevance of Christian theological doctrines—such as creation, the Christian conception of the human person, the kingdom of God, and the natural and divine laws—for reflection on law; the significance of historical context for Christian legal thought; Christian reflection on important jurisprudential issues and concepts, such as equality, justice, rights, and the rule of law; and Christian perspectives on various legal subjects, such as contracts, torts, and property. The point of the book is less to prescribe what a Christian legal theory should entail in the way of outcomes than to use the Christian faith as a lens through which to understand, and reflect critically upon, law and legal institutions.

Here is where the book's table of contents can be viewed and complimentary copies requested from the publisher.

It was a joy and an honor to collaborate with my dear friend and MOJ-friend Bill Brewbaker, William Alfred Rose Professor of Law at the University of Alabama School of Law, in writing this book.  The process itself was inspiring to the authors, and both Bill and I hope that the finished product reveals something of what the breadth of Christian thought offers to those who think or believe that law is something we should care about and that la should, in turn, convey our care to this needy world of ours.  Not a book about "law and religion," Christian Legal Thought: Materials and Cases is a book, for use in law school and other classrooms, about what Christianity, Catholic and Protestant, can tell us -- and has already told us -- about the ends and the limits of law.  The book does not shy away from differences between Catholic and Protestant thought, nor from historical and ongoing disagreements internal to the Catholic tradition or to the several Protestant denominations discussed; it does, however, look for common ground both among Christians and between Christians and contributors to our (legal) culture who are not Christians. 

I'll blog later more about the topics and themes of the book than the table of contents can reveal.  For now, though, I'd like to thank, on Bill's and my own behalf, all those MOJ bloggers, MOJ friends, and MOJ readers, as well as many, many others, for the guidance and encouragement they gave us in what turned out to be a more challenging project than we had imagined at its outset.  The book's index records just some of many familiar names, many of them familiar from MOJ itself, whose work in the Christian-legal-thought vineyard we have tried to harvest for the purposes animating our book.  We will be grateful to receive suggestions, as well as notices of omission or of corrigenda, for the next edition.  The current edition is obtainable not only from Foundation but also, of course, from here.

Finally, at least for now, I should add that Foundation will be publishing a thick Teacher's Manual to accompany the book. Although  running a little behind the book in the production schedule, the Manual will be out very soon.  We wrote the Manual with the goal, among others, of making it easier for those who otherwise might hesitate to offer a course in Christian legal thought.      

February 9, 2017 in Brennan, Patrick | Permalink

Will anti-Trump = pro-institutions?

In America magazine, Bill McGarvey has an optimistic essay suggesting that the Trump administration is inspiring a defense of institutions that the public had long taken for granted:

The good news? These unprecedented executive actions [by President Trump] have inspired equally unprecedented public outrage. Countless people—men, women, young, old, from every imaginable background—have taken to the streets to protest. People who have never been activists before are getting involved. In this time of institutional diminishment, it has taken the threat to stable institutions that we take for granted for millions to awaken and rise up in their defense.

I hope he's right, but I think it's too early to tell.  One concern I have is that the political movement that ultimately wins out over President Trump's populist nationalism will build on Trump's political strategy and simply replace his substantive policy ideas and worldview.  Trump succeeded, in part, by promoting a cynical view of institutions, which, in his rhetoric, are largely indistinguishable from "the establishment."  Will the Democratic Party's next standard-bearer beat out his or her rivals with a full-throated defense of institutions, or by using Trump's tactics ("the system is rigged") to accomplish different policy goals while doubling down on cynicism toward institutions?  The case for institutions may be too nuanced to get much oxygen  in a political climate where outrage will be the dominant element for the foreseeable future.

February 9, 2017 in Vischer, Rob | Permalink

Wednesday, February 8, 2017

Lewis on "The Common Good" as an "Ensemble of Conditions"

Prof. Bradley Lewis (CUA) shared with me what I thought was an excellent (and succinct) discussion of the concept of "the common good" in modern Catholic Social Thought. Download Lewis on the Common Good (1).  Highly recommended. 

February 8, 2017 in Garnett, Rick | Permalink

Tuesday, February 7, 2017

Pope Francis on Religious Freedom in China

John Allen has a piece on what he calls Pope Francis's "puzzling" remarks on religious freedom in China.  Here's a bit:

In the English translation provided by El Pais, here’s what the pope is quoted as having said: “In China, churches are crowded. In China they can worship freely.”

In the original Spanish, the pope’s statement wasn’t quite that bald. What he said was, “En China las iglesias están llenas. Se puede practicar la religión en China,” which translates as, “In China the churches are full … one can practice religion in China.”

There is, of course, a big difference between saying religion can be practiced someplace, which can imply despite difficulties and dangers, and claiming that one can “worship freely” there.

Nevertheless, the fact that Pope Francis appeared to suggest that the climate for religious freedom in China is basically positive likely will irritate, even outrage, people who know the reality, and who have been working on behalf of the country’s religious minorities.

I hope there will be some clarification coming from the Holy See, or ideally from the Holy Father himself.  It is not merely puzzling, but simply false, to state that "[i]n China they can worship freely."  (Not only is the freedom of religion -- correctly understood to include religiously motivated action in the public square -- not protected, not even the mere "freedom of worship" is in fact respected.)  The Spanish statement -- "one can practice religion in China" -- is, I suppose, technically true, in the sense that one can always practice religion in totalitarian or tyrannical societies . . . if one is willing to be punished for it.  Allen concludes:

Of course, Francis may be engaged in that time-honored Vatican strategy of playing the long game, playing down provocative rhetoric in order to advance the relationship with Beijing, ideally affording Rome greater leverage to achieve positive change. Further, the pope may be concerned that Christians on the ground in China would be the ones to pay the price should he indulge in finger-pointing and denunciations.

Still, those Catholics in China these days behind bars, or who fear ending up there, may be forgiven for wishing that, once in a while, their pope would speak publicly and clearly about their sacrifice.

Whenever that day may be, it certainly wasn’t the El Pais interview.

It certainly wasn't.

February 7, 2017 in Garnett, Rick | Permalink

Happy Birthday to St. Thomas More

Thomas More

February 7, 2017 | Permalink

Thursday, February 2, 2017

Counting on lawyers

If you're a lawyer in need of an optimism boost about your chosen profession, I have an op-ed in today's Star-Tribune that might help:

[I]n the end, Americans like to poke fun at lawyers only until they need one. Few of us will ever sue the president of the United States. Much of our work takes place in a small office, a crowded courtroom, or across the table from a client who may be feeling scared, hopeless, and invisible. If we take the rule of law seriously, we must be cognizant not only of an overreaching executive branch, but of an overreaching landlord, employer, business partner, or prosecutor.

Lawyers, at their best, help remedy disparities before the law. Those disparities can stem from imbalances in political power, social standing, financial resources, or information. At a time in U.S. history when we cannot seem to agree on much, committing to a level playing field before the law may be a great place to start.

February 2, 2017 in Vischer, Rob | Permalink

Polarization and media consumption

Today I presented a lecture at St. Joseph's University titled "Catholic Universities and our Polarized Nation."  I focused on how we can model the concept of civil friendship on campus and beyond.  Among several attributes of a commitment to civil friendship, I highlighted the need for coherence in our political engagement:

Citizens may disagree on a given issue, but even those who do should be persuaded of the internal logic and consistency of the worldview and values that animate our positions. If critics perceived that Catholics were willing to move heaven and earth to stop same-sex marriage, but were not willing to lift a finger to roll back no-fault divorce laws, the perception would be that our objective is not to defend the institution of marriage, but rather to keep gays out of it. Opponents of Trump who deemed him unfit for office because of his treatment of women but rushed to defend President Clinton against the women who accused him of sexual misconduct are vulnerable to charges of incoherence and hypocrisy. A lack of coherence in our political engagement doesn’t just make our advocacy less effective – it promotes cynicism, suggesting that politics is just about power, not about reason or principle.

The prompted a line of questioning from students and faculty after the lecture, asking how our media consumption can promote cynicism and make coherence more difficult.  One student even asked me which sources I rely on for news if I'm trying to maintain a nuanced, evenhanded understanding of events.  In these and other exchanges, I have observed a strong desire among students to be engaged with the world but confused about how to sort through media perspectives/bias in ways that don't boil down to picking a side.  The delegitimizing effect of (real or perceived) bias is exacerbated by the social media platforms through which we are encountering the news -- every link served up with a snarky comment thread.  In past decades, we may have been too naïve in our consumption of news; now, we're raising a generation inclined to believe that everyone reporting the news has an angle, so our choices are either to stop paying attention or choose camps and stay there.  I think we need to devote sustained attention to this problem -- not just the problem of media bias, but the problem of reacting to media bias by dismissing "mainstream" sources of news as tainted to the point of worthlessness.  This problem did not begin with Donald Trump, but he is taking it to a new level with sweeping #fakenews pronouncements.  (Promoting widespread distrust in our institutions may prove to be the most destructive legacy of President Trump.  Can #fakelaw be far behind #fakenews?) 

Savvy media consumption is key to a coherent worldview and the cultivation of empathy for those with different perspectives and life experiences.  If we're going to tackle our society's polarization head-on, that will have to be at the center of the conversation.   

February 2, 2017 in Vischer, Rob | Permalink

Gorsuch on Intention, the Formation of Character, and the Western Legal Tradition

Michael has already quoted a passage from Judge Neil Gorsuch's chapter in the Finnis festschrift (Reason, Morality, and Law (Keown & George, eds. 2013)). Here's another one that caught my attention (419-20):

Not only does Finnis help us to see that the traditional intent-knowledge distinction in law bears analytical power overlooked by its critics. He also helps expose the undergirding normative reasons for the law's traditional cognizance of intention. He reminds us, for example, that some of the law's harshest punishments are often (and have long been) reserved for intentional wrongs precisely because to intend something is to endorse it as a matter of free will--and freely choosing something matters. Our intentional choices reflect and shape our character--who we are and who we wish to be--in a way that unintended or accidental consequences cannot. Our intentional choices define us. They last, remain as part of one's will, one's orientation toward the world. They differ qualitatively from consequences that happen accidentally, unintentionally....

This is a view, of course, that has long and deeply resonated through American and British jurisprudence, and indeed the Western tradition. It is precisely why the law treats the spring gun owner who maims or kills intentionally so differently from the negligent driver whose conduct yields the same result. As Roscoe Pound once put it, our "substantive criminal law is," at least at minimum, "based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong."

And then from Professor Finnis's reflection on Judge Gorsuch's chapter (564-65), which comments interestingly on the tendency of tort law to wipe out the distinction between intention and foreseeability:

The underlying point is that--put at its briefest--what is intended so figures in the acting person's proposal that it is adopted--chosen and made his or her own, as end and/or means--in the adopting of the proposal, whereas the side effects, however foreseeable and foreseen and perhaps very 'directly' caused, are not adopted, but only accepted or permitted.

February 2, 2017 in DeGirolami, Marc | Permalink

Wednesday, February 1, 2017

Symposium Papers on Law and Religion in an Increasingly Polarized America

The Lewis and Clark Law Review, with the guidance of Professor Jim Oleske, has put together a very nice symposium on Law and Religion in an Increasingly Polarized America. Very interesting papers by Kathleen Brady, Kent Greenawalt, Jessie Hill, Andy Koppelman, Ron Krotoszynski, Chip Lupu and Bob Tuttle, Jim Oleske, and Robin Wilson.

I've got a piece in there too, Religious Accommodation, Religious Tradition, and Political Polarization, which takes a somewhat critical look at the religious accommodation regime from, as it were, the other side. 

February 1, 2017 in DeGirolami, Marc | Permalink

The Gorsuch nomination

Like Kevin, I have a short piece up at First Things on the Gorsuch nomination.  A bit:

So, this is 2017: A few days after issuing an incompetently executed, morally dubious, and in many ways misguided executive order on immigrants and refugees, the president nominated an outstanding and unassailable jurist to succeed Justice Antonin Scalia. . . .

It is unfortunate, in a way, that the nomination of such a fine judge comes in the context of a silly prime-time announcement ceremony, in the midst of other controversies, introduced by such a clunky, self-referential speech by the president. Judge Gorsuch is a gifted, eloquent writer and a thoughtful, careful judge. He will not regard himself as beholden to the president who nominated him but will instead, I am confident, do his best to decide in accord with the law and his own formation, education, and values. . . .

February 1, 2017 in Garnett, Rick | Permalink

"Gorsuch After Scalia" at First Things

I've written a brief take for First Things on the Gorsuch nomination, "Gorsuch After Scalia." 

Here's the opener:

The president’s introduction of Judge Neil Gorsuch to the nation as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia’s death gave us a lift we sorely needed. Finally, something to be at peace about in our public life.

And a bit from the middle: 

In my (pre-election) Supreme Court round-up for this journal last year, “The Court After Scalia,” I suggested that “no new justices for a spell might be better than adding anyone who could make it through our rotten confirmation process.” I was wrong. Judge Gorsuch can and will make it through, and the Court will be better with him on it. The biggest reason why someone of his caliber and judicial character can get confirmed now, though, is that the balance of the Court will not be altered by his confirmation but simply reset to where it was before Justice Scalia’s death. If the next opening comes from a vacancy left by Anthony Kennedy, Stephen Breyer, or Ruth Bader Ginsburg, the wheels may yet come off the wagon.

February 1, 2017 in Walsh, Kevin | Permalink

Congratulations to Judge Gorsuch (and a Note on the Importance of Intention)

I am delighted by the President's nomination last evening of Judge Neil Gorsuch to the Supreme Court. Judge Gorsuch and I overlapped in our service in the Bush Administration, and we have kept in occasional touch since he left DC to go on the Tenth Circuit in 2006. I've used his superb book, The Future of Assisted Suicide and Euthanasia (Princeton UP, 2006), several times when teaching seminars on bioethics issues (the book's origins are in a doctoral dissertation at Oxford under the mighty John Finnis). Among the book's many virtues (especially for teaching with it) are the ways in which Judge Gorsuch so fairly and honestly lays out the arguments on all sides of the issues he explores.

For now, I wanted also to mention an essay Judge Gorsuch contributed to a Festschrift for John Finnis. The essay takes up the important question of intention in criminal law and torts, and it is a powerful argument against utilitarian bases for liability (Gorsuch uses Richard Posner's discussion of spring gun cases such as Bird v. Holbrook and Glanville Williams's work on criminal law). A bit here:

[T]here are still other normative justifications for the special emphasis the law places on intentional conduct. One has to do with human equality. When someone intends to harm another person, Finnis encourages us to remember, “[t]he reality and fulfillment of those others is radically subjected to one’s own reality and fulfilment, or to the reality and fulfilment of some other group of persons. In intending harm, one precisely makes their loss one’s gain, or the gain of some others; one to that extent uses them up, treats them as material, as a resource.” People, no less than material, become means to another’s end. To analyze Bird v. Holbrook as the challengers to extant law would have us, we ask merely whether superior collective social consequences are produced by ruling for the plaintiff or defendant. On this account, there is nothing particularly special about the individual. Like any other input or good, it gives way whenever some competing and ostensibly more important collective social good is at stake. But it is exactly to prevent all this that the law has traditionally held, in both crime and tort, that one generally ought not choose or intend to harm another person, and that failing to observe this rule is a particularly grave wrong. This traditional rule “expresses and preserves each individual person’s…dignity…as an equal.” It recognizes that “to choose harm is the paradigmatic wrong; the exemplary instance of denial of right.” It stands as a bulwark against those who would allow the human individual to become nothing more than another commodity to be used up in aid of another’s (or others’) ends.

Neil M. Gorsuch, Intention and the Allocation of Risk, in Reason, Morality, and Law 413, 420 (John Keown and Robert P. George, eds., 2013) (citations omitted).

February 1, 2017 in Moreland, Michael | Permalink

Monday, January 30, 2017

We've Been There

When it comes to religious discrimination, we Catholics have been there before in American history.  We’ve been reviled as ignorant and subservient subjects of a foreign monarchy.  We’ve been subjected to second-class status.  We’ve been accused of undermining American values.

People of good faith will have differences of policy on national security, immigration, educational policy, etc.  The need for exercise of prudential judgment in implementing such policies must be acknowledged. Liberty

But we as Catholics above all others have a moral duty to stand up against discrimination on the basis of faith, whether blatantly expressed or hidden with a thin veil.

As Professor Robert George has said, “Let us, Muslims and Christians alike, forget past quarrels and stand together for righteousness, justice, and the dignity of all.”  When too many would like to divide, and when others act through ignorance or incompetence in a manner that divides us, we should choose the path of unity and solidarity.

January 30, 2017 in Sisk, Greg | Permalink

Statement by Father John I. Jenkins, C.S.C., president, University of Notre Dame ...

... on "[t]he sweeping, indiscriminate and abrupt character of President Trump’s recent Executive Order ...", here.

January 30, 2017 in Perry, Michael | Permalink

Sunday, January 29, 2017

Political virtues and Trump's refugee order

Why is there a strong likelihood that this weekend's chaos will repeat itself over the next four years?  It's not simply about the clash of worldviews or a politically divided citizenry.  We have largely learned to live with our disagreements, and I highly doubt that tougher immigration laws from President Rubio or President Kasich would've brought thousands of protesters to airport terminals and city centers.  The outrage is not a product of our failure to realize that President Obama barred Iraqis in 2011, or that we've always had limits on the number of refugees admitted, or that this is what our President said he would do on the campaign trail.  The outrage arises from a combination of the substantive overreaching, the background anti-Muslim rhetoric, the rushed timing, the failure to consult, the confused roll-out, and the utter failure to contextualize the EO as part of a broader story: perhaps a story of the EO as a regrettable but necessary concession to our fallen world, to be undertaken along with a redoubled commitment to care for our Muslim brothers and sisters who are here legally, along with refugees from around the world who are vetted under whatever new processes emerge.  I still might disagree with such a decision on the merits, but it would be a disagreement, period.  In context, the current EO feels like a repudiation of core American values.  I think it boils down to a question of character, which is why I'm afraid that it's a harbinger of things to come.  

As the Church has been trying to tell us for many years, the character of our leaders matters (and yes, the Church's own history sadly reflects that fact):

[R]esponsible authority . . .  means authority exercised with those virtues that make it possible to put power into practice as service (patience, modesty, moderation, charity, efforts to share), an authority exercised by persons who are able to accept the common good, and not prestige or the gaining of personal advantages, as the true goal of their work.

Compendium of the Social Doctrine of the Church para. 410.

You may not think that Jimmy Carter or George H.W. Bush were effective Presidents. That's fine - reasonable people can disagree about either one. But I submit that they were good men, and their goodness made them better Presidents than they otherwise would have been.

January 29, 2017 in Vischer, Rob | Permalink

Some disturbing background on the contraception-coverage-mandate conflict

Often during the past few years, I've heard the argument that, somehow, the Catholic bishops and other entities challenging the application of the contraception-coverage mandate were on-the-march "culture warriors" waging a misguided offensive campaign instead of pursuing compromise.  As I see it, and as I've said on this blog, it was not the challengers who asked for this conflict. In any event, Michael Wear's new bookReclaiming Hope, apparently details the cynical calculations of at least some in the previous administration who saw in the issue an opportunity to marginalize the bishops for political gain.  (Mark Halperin and John Heilemann had chronicled some of this in their account of the 2012 election, Double Down.)   Here's a bit from Jim Geraghty's review:

In describing the battle that erupted between the administration and the Little Sisters of the Poor over Obamacare’s contraception mandate, Wear casts himself as Cassandra. “This was not a standard disagreement between religious conservatives and a progressive White House, but instead a potentially landscape-shifting conflict-stoking move. This reality was conveyed to the highest levels of the White House repeatedly.” He claims that the administration chose “the path of most resistance” in the contraception fight as a deliberate, cynical political strategy: “A senior political advisor repeatedly thought that the bishops’ complaints would bolster a useful campaign narrative: that supporters of their view, including Republican Mitt Romney, held anachronistic views about women and family planning.’”

Unfortunately, there are more than a few reasons to think cynical attacks on Catholic bishops by prominent White House staffers will continue. . . .

January 29, 2017 in Garnett, Rick | Permalink

Saturday, January 28, 2017

Misogyny Does Not Arise Out of Nothingness

It has been two weeks of protests and counter protests here in Washington. So much energy and so much concern hang in the atmosphere. Additionally, for some of us the time between November and now has been one of reflection as to how low on the totem pole women actually are seen in America. Like many, I fear that we are all attacking symptoms of the problem, and ignoring the larger causes. In my view we create a culture awash in objectification of women, and then wonder how it is that so many could overlook repugnant treatment of women by candidates.

I shared a more in depth reflection here over at National Review Online…

January 28, 2017 | Permalink