Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, February 24, 2017

Call for Papers: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Prof. Samuel Levine (Touro) passed on this information, which might be of interest to MOJ readers:

Submissions and nominations of articles are now being accepted for the eighth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility, with submissions limited to those that have a publication date of calendar year 2017.  The prize will be awarded at the 2018 AALS Annual Meeting in San Diego.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu<mailto:slevine@tourolaw.edu%3cmailto:slevine@tourolaw.edu>.  The deadline for submissions and nominations is September 1, 2017.

February 24, 2017 in Garnett, Rick | Permalink

Inazu on the University

For those who have not (yet) read John Inazu's important recent book, Confident Pluralism, you can get a helpful preview of his prescriptions through a short essay he has just posted, Law, Religion, and the Purpose of the University.  Key sentence: "If we can make university a place for MacIntyre’s constrained disagreement and Murray’s warring creeds, we can help to initiate students into the kind of conflict through which they learn to live together rather than fracture through indifference, apathy, or violence."

February 24, 2017 in Vischer, Rob | Permalink

Thursday, February 23, 2017

When is "all-out war" an appropriate political strategy?

I continue to be troubled by many of President Trump’s stated priorities, chosen narratives, and policy decisions.  I confess that I am also troubled by the opposition’s deepening embrace of across-the-board resistance to the Trump administration per se, rather than resistance targeting particular actions and statements.  This tactic did not originate with Democrats in 2017, of course, though it appears that we may witness a significant ratcheting up of the obstructionist tendencies reflected previously in the GOP’s default stance toward President Obama.  

How should Catholics think about, and respond to, a political culture that appears set to cast every disagreement on policies and priorities as part of a no-holds-barred contest of good versus evil? I know that Catholic philosophers and theologians have contributed key insights to our understanding of the moral permissibility/obligation of armed resistance and conscientious objection, for example, but our current climate poses a different question: Under what circumstances should citizens and elected officials withhold all cooperation and support from those elected officials with whom they disagree?  This is not just about resisting the enforcement of enacted laws (though it likely will include that); it’s also about refusing to offer even selective encouragement, build relationships, or compromise across the great Trump divide – and punishing those elected officials who do.  Is across-the-board resistance morally justifiable short of a regime that lacks any political legitimacy (e.g., took power by force) or reflects a sustained and deliberate course of action that conflicts totally with the moral law (e.g., the Nazis)?

I believe that Catholic social teaching on the importance of participatory political structures and practices is premised on an orientation toward optimism, cooperation, good faith, and a willingness to discern the potential for positive outcomes, even from elected officials who lack virtue. I do not believe that a stance of across-the-board resistance to our duly elected officials is morally justifiable unless and until we are at the point at which political revolution is morally justifiable.  That might be simultaneously harshly judgmental and hopelessly naïve on my part.  I’m certainly open to being persuaded that I’m wrong.  This strikes me as a subject that warrants more insight from the Catholic intellectual tradition, and soon.

February 23, 2017 in Vischer, Rob | Permalink

Wednesday, February 22, 2017

Is the Catholic Church Anti-Woman?

That's the question the Aquinas Institute at University of Colorado at Boulder is asking UChicago Law Professor Mary Anne Case and me - tomorrow night.  Apparently, it's a sold out event. 

February 22, 2017 in Bachiochi, Erika | Permalink

Tuesday, February 21, 2017

The Beatitudes: The Trump Rewrite

Minnesota's very own Garrison Keillor (of Prairie Home Companion fame) offers a revision of the Beatitudes in Trumpian style.  Herewith a sample:

The Lord is my shepherd. Okay? Totally. Big league. He is a tremendous shepherd. The best. No comparison. I know more than most people about herding sheep. And that’s why I won the election in a landslide, and it’s why my company is doing very, very well. Because He said, “I’m with you, Donald. You will never want.”

Find the rest at the Washington Post site here.

February 21, 2017 in Sisk, Greg | Permalink

Newman on "the World" . . . and ambition, pride, and work-life balance

It's hard to go wrong, reading Newman sermons, but this one ("The World our enemy") really jumped out at me.  Those of us who are blessed with interesting jobs -- in the academy, law, etc. -- might be able to identify well with some of the temptations he discusses.  A bit:

By the world, then, is meant this course of things which we see carried on by means of human agency, with all its duties and pursuits. It is not necessarily a sinful system; rather it is framed, as I have said, by God Himself, and therefore cannot be otherwise than good. And yet even thus considering it, we are bid not to love the world: even in this sense the world is an enemy of our souls; and for this reason, because the love of it is dangerous to beings circumstanced as we are,—things in themselves good being not good to us sinners. And this state of things which we see, fair and excellent in itself, is very likely (for the very reason {30} that it is seen, and because the spiritual and future world is not seen) to seduce our wayward hearts from our true and eternal good. As the traveller on serious business may be tempted to linger, while he gazes on the beauty of the prospect which opens on his way, so this well-ordered and divinely-governed world, with all its blessings of sense and knowledge, may lead us to neglect those interests which will endure when itself has passed away. In truth, it promises more than it can fulfil. The goods of life and the applause of men have their excellence, and, as far as they go, are really good; but they are short-lived. And hence it is that many pursuits in themselves honest and right, are nevertheless to be engaged in with caution, lest they seduce us; and those perhaps with especial caution, which tend to the well-being of men in this life. The sciences, for instance, of good government, of acquiring wealth, of preventing and relieving want, and the like, are for this reason especially dangerous; for fixing, as they do, our exertions on this world as an end, they go far to persuade us that they have no other end; they accustom us to think too much of success in life and temporal prosperity; nay, they may even teach us to be jealous of religion and its institutions, as if these stood in our way, preventing us from doing so much for the worldly interests of mankind as we might wish.

February 21, 2017 in Garnett, Rick | Permalink

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