Mirror of Justice
type: channel
description: A blog dedicated to the development of Catholic legal theory.
language: en-US
date: 2024-12-23T07:55:27-05:00
generator agent: www.typepad.com
items: Pres. Biden commutes most federal death sentences
items: Hittinger on "The Dignity of Society: Catholic Social Thought and Natural Law"
items: Happy Repeal Day!
items: Viva Cristo Rey!
items: "The Father of the School Choice Movement"
items: "On the Dignity of Society: Catholic Social Thought and Natural Law"
items: A great opinion, and win, in an important religious-freedom case
items: Scholarly Impact and Catholic Legal Education (Part Four)
items: Scholarly Impact and Catholic Legal Education (Part Three)
items: Scholarly Impact and Catholic Legal Education (Part Two)
items: Garnett & Barclay on religious-freedom laws and abortion regulations
items: Scholarly Impact and Catholic Legal Education (Part One)
items: Ranking the Scholarly Impact of Law Faculties -- 2024
items: We Are Hiring!
items: Christian Scholar's Review Interviews on "the Legal Vocation"
items: "Marie Antoinette and the Stories We Prefer To Tell"
items: "How 'Religious' Is a 'Religious Employer'? Church History and the Future of American Religious Liberty Litigation"
items: The Religiously Affiliated Law School Conference: "Forming Lawyer-Stewards"
items: The Republicans and the Pro-Life Cause in the Age of Trump
items: The Tiresome Claim that Pro-Life Legal Measures Violate the Establishment Clause
items: Fifteen years of the Annual Law and Religion Roundtable
items: Kilpatrick on Institutional Neutrality and Institutional Fidelity at the University; Bray on the Common Law and the Catholic Intellectual Tradition
items: Cathy Kaveny on "Dignitats Infinita"
items: Some responses to Anthony Annett on Social Democracy and Catholic Social Thought
items: Call for Papers: Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Pres. Biden commutes most federal death sentences
type: item
description: A report on today's announcement is here. Here's a bit: “Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole,” Biden announced in a statement released...
encoded: A report on today's announcement is here. Here's a bit: “Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole,” Biden announced in a statement released Monday. Notably, the president did not commute the sentences of three people whose crimes included mass shootings or acts of terrorism: Dzhokhar Tsarnaev, one of two brothers responsible for the deadly Boston Marathon bombing in 2013; Dylann Roof, a White nationalist who massacred nine people at a historically Black church in Charleston, South Carolina, in 2015; and Robert Bowers, who killed 11 worshippers at Pittsburgh’s Tree of Life Synagogue in 2018. “These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder,” Biden said, referring to his Justice Department’s halt on federal executions. I would welcome legislation (federal and / or state) that abandoned capital punishment as a sanction. At the same time, I do not believe that capital punishment violates the Constitution (and so judges should not use creative interpretations to bring about abolition) and I also think it is not consistent with the role of the "executive" to, in a blanket way, effectively nullify legislative and electoral choices. It would have been, in my view, better had Pres. Biden, when he was Vice President Biden, used his influence, and large congressional majorities, and political capital, to work for a legislative repeal. It also seems to me that the reasons the President gives for commuting most of the federal death sentences apply with equal force to the "high profile" ones he is letting stand. If anything, his decision not to commute in the cases where it would be politically controversial to do so is inconsistent with his (correct) concern that political considerations distort the application of capital punishment. I hope, though, that this news pr…
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-12-23T07:55:27-05:00

Hittinger on "The Dignity of Society: Catholic Social Thought and Natural Law"
type: item
description: My copy of Russ Hittinger's new book -- which pulls together and synthesizes a lot of his great writing on the Catholic Social Teaching tradition, natural law, social-ontology, political theology, and more -- just arrived. It looks to be a...
encoded: My copy of Russ Hittinger's new book -- which pulls together and synthesizes a lot of his great writing on the Catholic Social Teaching tradition, natural law, social-ontology, political theology, and more -- just arrived. It looks to be a perfect Christmas gift! Get yours ASAP!
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-12-05T08:47:40-05:00

Happy Repeal Day!
type: item
description: On this day, in 1933, the 21st Amendment was ratified, repealing the 18th, which had provided for the prohibition of the "manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United...
encoded: On this day, in 1933, the 21st Amendment was ratified, repealing the 18th, which had provided for the prohibition of the "manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes[.]" For an excellent book about the Prohibition experiment, its history and context, and its (very interesting) legal and constitutional implications and legacy, check out Daniel Okrent's Last Call. One of the (many) not-done things on my list of "things I'd like to do as a law professor" is a seminar-course, based on Okrent's book, about Prohibition (broadly understood), including its connection to immigration, anti-Catholicism, the rise of federal criminal law, census and districting shenanigans, legal moralism, etc. Someday . . .
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-12-05T08:43:35-05:00

Viva Cristo Rey!
type: item
description: In my experience, homilists in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today. Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that...
encoded: In my experience, homilists in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today. Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion. This feast is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-11-24T08:25:27-05:00

"The Father of the School Choice Movement"
type: item
description: James Schuls (Missouri) has a fascinating piece in the latest Journal of School Choice called "The Father of the School Choice Movement", about Fr. Virgil Blum. I am more than a little bit sheepish about the fact that I'd never...
encoded: James Schuls (Missouri) has a fascinating piece in the latest Journal of School Choice called "The Father of the School Choice Movement", about Fr. Virgil Blum. I am more than a little bit sheepish about the fact that I'd never heard of Fr. Blum! Here is the abstract: Milton Friedman is widely considered the intellectual father of the school choice movement. While Friedman deserves much credit, Father Virgil Blum stands out as an influential figure in the nascent school choice movement. Using archival research, this paper examines Blum’s contributions to the movement. From his 1954 doctoral dissertation, which made the legal case for funding religious schools, to his 1958 book, Freedom of Choice in Education, and his decades-long career as a professor, Blum was a tireless advocate for educational freedom. While Friedman made the market argument, Blum made the legal, moral, and religious freedom arguments for school choice.
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-10-11T10:29:50-04:00

"On the Dignity of Society: Catholic Social Thought and Natural Law"
type: item
description: Well, it's Russ Hittinger on Catholic Social Thought so, "self-recommending" but . . . if you are in or near Chicago on November 7, don't miss this event at the Lumen Christi Institute: Russell Hittinger has long been one of...
encoded: Well, it's Russ Hittinger on Catholic Social Thought so, "self-recommending" but . . . if you are in or near Chicago on November 7, don't miss this event at the Lumen Christi Institute: Russell Hittinger has long been one of the world's leading scholars of Catholic social teaching and natural law theory. His most recent book, On the Dignity of Society, presents the fruit of his mature thinking on fundamental issues in Catholic political thought. Rooted in Thomistic philosophy and natural law theory, but also animated by his study of St. Augustine and thus sensitive to historical contexts and arenas for moral and theological disputation, Hittinger articulates the deepest principles of the Church's social teaching and sheds considerable light on their historical applications. At this event, Profs. Mary Hirschfeld and R. H. Helmholz will discuss Hittinger's latest work, and the event will conclude with a response from Prof. Hittinger. On Saturday, Russ Hittinger and Scott Roniger will lead a master class titled "What Is a Society? On the Coherence of Catholic Social Thought from Pope Leo XIII to Pope Francis."
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-10-08T10:39:43-04:00

A great opinion, and win, in an important religious-freedom case
type: item
description: Out of a federal district court in North Dakota, courtesy of Judge Daniel Traynor, here Download Gov.uscourts.ndd.65135.31.0 is an excellent opinion, granting a motion for a preliminary injunction filed by the Catholic Benefits Association (represented by the great Martin Nussbaum...
encoded: Out of a federal district court in North Dakota, courtesy of Judge Daniel Traynor, here Download Gov.uscourts.ndd.65135.31.0 is an excellent opinion, granting a motion for a preliminary injunction filed by the Catholic Benefits Association (represented by the great Martin Nussbaum and his team) in a case involving (yet) another administrative/executive effort to limit religious freedom. I particularly enjoyed this footnote: "Unchecked government power creates martyrs like Dietrich Bonhoeffer, imprisoned and executed for expressing opposition to euthanasia and the persecution of Jews; Miguel Pro, arrested and eventually executed for violation of Mexico’s anti-Catholic Calles Law; and Thomas More, famous for being executed by the British king for the crime of not saying anything." Viva Cristo Rey!
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-09-25T19:25:48-04:00

Scholarly Impact and Catholic Legal Education (Part Four)
type: item
description: [This is the last in a series of four posts. This post is new this year, adapted from the introductory remarks to our report of the new Scholarly Impact Ranking for 2024.] Be encouraged, my colleagues in the legal academy....
encoded: [This is the last in a series of four posts. This post is new this year, adapted from the introductory remarks to our report of the new Scholarly Impact Ranking for 2024.] Be encouraged, my colleagues in the legal academy. Those long days, weekends, semester breaks, and summers devoted to legal scholarship can make a difference. Believe it. Intelligence, nuanced understanding, critical analysis, and creative resolution matter more, that is true. But don’t belittle the value of basic hard work in building a scholarly profile for any law professor. And that scholarly diligence should pay dividends in multiple ways, perhaps including the scholarly impact of your work by drawing citations from other scholars. The cynic may reply that hard work simply does not result in greater scholarly visibility, unless the scholar is already at a top ranked law school. The skeptic doubts that greater productivity and higher quality work achieved through longer hours makes any difference in scholarly impact. Legal academia is too hierarchical, and rank positions are too fixed for one person working hard to make a difference, so says our detractor. I respectfully, but strongly, disagree. To say that it is difficult to move upward should never be mistaken to mean that it is impossible. There is ample evidence that individual scholarly achievements do matter, both to that individual scholar and to the law faculty on which he or she currently serves―or the law faculty that later recruits that individual for a lateral move. One of the distinct pleasures in conducting our Scholarly Impact Ranking every three years is to see the impact made by law professors at a variety of law schools. Individual scholarly successes aggregated for a law school’s tenured faculty may also make a substantial difference. Law faculties as a collection of individual scholars can and do change in composition, sometimes dramatically, which then changes the scholarly portrait projected into academia. When a law scho…
subject: Sisk, Greg
creator: Greg Sisk
date: 2024-09-20T16:05:05-04:00

Scholarly Impact and Catholic Legal Education (Part Three)
type: item
description: A few days ago, after reporting the 2024 update to the Scholarly Impact Ranking of law faculties (here), I began a series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education. This is...
encoded: A few days ago, after reporting the 2024 update to the Scholarly Impact Ranking of law faculties (here), I began a series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education. This is the third of four posts in the series. The first point, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing. My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often assigned to religiously-affiliated law schools. My third point today is that, as Catholic Christians, we have been called to share the Gospel, both directly and indirectly. The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than Saint John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae: “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.” For some of us on law school faculties, that directive means writing on Catholic legal theory and applying Christian-grounded principles to the legal and social issues of the day. For all of us, it means conducting the search for the truth with integrity and dedication. The search for the truth is hard work — and for Catholic academics that hard work requires scholarly engagement. Turning again to the words of Ex Corde, for a Catholic university Included among its research activities, therefore, will be a study of serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, the protection of natur…
subject: Sisk, Greg
creator: Greg Sisk
date: 2024-09-16T18:47:21-04:00

Scholarly Impact and Catholic Legal Education (Part Two)
type: item
description: Recently, I reported the 2024 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here. Three years ago, I posted a series on the importance of...
encoded: Recently, I reported the 2024 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here. Three years ago, I posted a series on the importance of scholarly activity and scholarly impact for Catholic legal education. I am revising and re-posting those, as they remain just as salient today, along with a new post of encouragement. This is the second in the series of four. The first point, which I made in a post last week, is that a meaningfully Catholic law school must be an intellectually engaged law school. Intellectual excitement and depth cannot be sustained without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing. My second point goes not only to Catholic legal education, but Catholic higher education in general: Through our scholarly excellence and prominence, we witness to society the vibrancy of intellectual discourse by persons of faith. Throughout American history — and with increasing tendency today — persons of devout religious faith have often been discounted in academic and other elite cultural circles, sometimes regarded as intellectually inferior. As but one pertinent example, those who study reputational-based rankings of law schools (such as the U.S. News ranking which gives considerable weight to reputational surveys) have observed a “religious law school discount.” See Monte N. Stewart & H. Dennis Tolley, Investigating Possible Bias: The American Legal Academy’s View of Religious Affiliated Law Schools, 54 J. Legal Educ. 136 (2004). A law school that is religiously affiliated is likely to be downgraded an ordinal ranking level or more — due to poorer survey scoring by academic peers — when compared to otherwise equivalent law schools on objective measures such as student profile, employment statistics, faculty scholarly impact, etc. The strongest counterpoint to this "religious law school discount" is to prove the falsity of t…
subject: Sisk, Greg
creator: Greg Sisk
date: 2024-09-12T12:02:48-04:00

Garnett & Barclay on religious-freedom laws and abortion regulations
type: item
description: Along with my colleague, Prof. Stephanie Barclay (Georgetown), I have a short essay up at City Journal, explaining why Indiana's religious-freedom protections do not require exemptions from that state's abortion regulations. Here's a bit: In Dobbs v. Jackson Women’s Health...
encoded: Along with my colleague, Prof. Stephanie Barclay (Georgetown), I have a short essay up at City Journal, explaining why Indiana's religious-freedom protections do not require exemptions from that state's abortion regulations. Here's a bit: In Dobbs v. Jackson Women’s Health Organization (2022), the U.S. Supreme Court abandoned its mistaken rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), affirming that American political communities are constitutionally permitted to regulate abortion. Soon after Dobbs, Indiana enacted Senate Enrolled Act No. 1 (what we call the “abortion law”), which prohibits abortion except when a pregnancy seriously endangers a mother’s health or life, a pregnancy is the result of rape or incest, or the unborn child has a “lethal . . . anomaly.” Several claimants challenged the abortion law as a violation of Indiana’s Religious Freedom Restoration Act. They argued, in other words, that because the abortion law imposes a substantial burden on their religious exercise, rooted in the sincerely held religious belief that abortions are sometimes not only permissible but required, they are entitled to an exemption from the law. A number of legal commentators have advanced similar arguments. And in the spring of 2024, an Indiana appeals court agreed, for the most part, with the challengers’ claims. While acknowledging that the federal and state constitutions permit Indiana to regulate abortion, the court concluded that the challengers were likely to succeed with their claim that the state cannot justify enforcing the abortion law in cases where such enforcement burdens religious exercise. The court of appeals was wrong, though, and Indiana’s supreme court should reject its reasoning (as we have argued in an amicus brief). Indiana, quite appropriately, protects the fundamental right to religious freedom. That right, however, does not entitle the claimants to an exemption from the state’s duly enacted and constitutionally permissible a…
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-09-10T14:39:30-04:00

Scholarly Impact and Catholic Legal Education (Part One)
type: item
description: A few days ago, I reported the 2024 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded. The post is here. and the full report is...
encoded: A few days ago, I reported the 2024 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded. The post is here. and the full report is here. Every three years, I also post to Mirror of Justice a series on the importance of scholarly activity and scholarly impact for Catholic legal education. Over the next week, I'll repost revised versions of these posts, as they remain just as salient today, and will also a post of encouragement for legal scholars. Whenever a report or study is published on the scholarly activities of law professors, it is likely to provoke some critical responses questioning whether legal scholarship has any practical value. Someone is likely to argue yet again that law professors spend too much time on scholarly writing at the expense of their teaching responsibilities. In my view, this suggests a false conflict between scholarship and teaching. We should not view scholarly work and teaching as competing with each other, rather than understanding that the intellectual preparation found in scholarly research and writing is complementary to greater depth in teaching. As we wrote in our 2018 report on scholarly impact: Why would students want to learn from the law professor who arrives at the classroom podium only after abandoning rigorous written engagement with legal problems? How can we expect students to be inspired to professional leadership, masterful and dedicated client representation, and principled law reform if their professors do not exemplify the intellectual curiosity, the breadth of thought, and the conscientious inquiry of a legal scholar? When I am asked, with respect to my own institution, the University of St. Thomas, whether we should continue to strive for scholarly excellence and national scholarly prominence or whether we should devote greater attention to teaching and enhancing professional formation, my answer is an unequivocal “yes!” We as tenured faculty …
subject: Sisk, Greg
creator: Greg Sisk
date: 2024-09-10T12:54:17-04:00

Ranking the Scholarly Impact of Law Faculties -- 2024
type: item
description: Every three years, I lead a team at the University of St. Thomas (Minnesota) to study the scholarly citations of thousands of tenured law professors (involving some half-a-million citations) to measure the scholarly impact of American law faculties, that is,...
encoded: Every three years, I lead a team at the University of St. Thomas (Minnesota) to study the scholarly citations of thousands of tenured law professors (involving some half-a-million citations) to measure the scholarly impact of American law faculties, that is, whether other scholars are actually relying on their written works of scholarship. Using the basic methodology pioneered by Professor Brian Leiter at the University of Chicago, we rank approximately the top third of law schools. With the full study available here, I am pasting the Top 50 below. Five Catholic law schools appear in or near the Top 50-- Georgetown, the University of St. Thomas, the University of San Diego, Notre Dame, and the University of San Francisco. In the coming days, I'll renew my thoughts about the importance/value of scholarship at Catholic law schools, which again I share every three years when this study is complete. Rank Law School Weighted Score 1 Yale 1255 2 Chicago 1120 3 Harvard 1016 4 NYU 898 5 Columbia 813 6 Cal-Berkeley 747 7 Pennsylvania 739 8 Stanford 728 9 Vanderbilt 695 10 Virginia 669 11 Duke 636 11 UCLA 636 13 Cornell 612 14 Michigan 571 15 Georgetown 562 16 Northwestern 552 17 George Washington 507 18 Emory 474 18 Cal-Davis 470 20 Fordham 464 20 Texas 464 22 Cal-Irvine 439 23 William & Mary 428 23 Minnesota 427 23 U. St. Thomas 425 26 USC 408 27 Boston University 404 28 Washington University 387 29 Brooklyn 374 30 North Carolina 369 30 Florida 366 30 Utah 364 30 George Mason 361 34 Cardozo 355 34 Ohio State 353 34 U. San Diego 349 34 Florida State 346 38 Illinois 344 38 Notre Dame 338 38 Arizona 332 41 Colorado 328 42 BYU 316 43 Case Western 306 43 Cal-SF 304 43 Kansas 301 43 Arizona State 299 47 U. San Francisco 293 47 Georgia 291 47 Temple 289 47 Washington & Lee 287 47 Chicago-Kent 282
subject: Sisk, Greg
creator: Greg Sisk
date: 2024-09-06T15:02:28-04:00

We Are Hiring!
type: item
description: The Catholic University of America, Columbus School of Law, is hiring. Scholars with all different sorts of interests are welcome, though we have particular curricular needs in corporate law, commercial law, professional responsibility, and evidence. We are also seeking candidates...
encoded: The Catholic University of America, Columbus School of Law, is hiring. Scholars with all different sorts of interests are welcome, though we have particular curricular needs in corporate law, commercial law, professional responsibility, and evidence. We are also seeking candidates who may be interested in participating in our University’s Institute for Latin American and Iberian Studies. I can attest that it is a very exciting and energizing time to be at our school, as we strive to build a distinctively Catholic institution. Come see what we are about. Interested applicants should submit their materials to the attention of Dean Stephen Payne, lanerk@cua.edu.
subject: DeGirolami, Marc
creator: Marc DeGirolami
date: 2024-08-27T08:03:42-04:00

Christian Scholar's Review Interviews on "the Legal Vocation"
type: item
description: Professor Todd Ream of Indiana Wesleyan has conducted a series of interviews with legal scholars on the legal vocation as part of his "Saturdays at Seven" feature on the Christian Scholar's Review. There are interviews there with Professors John Inazu,...
encoded: Professor Todd Ream of Indiana Wesleyan has conducted a series of interviews with legal scholars on the legal vocation as part of his "Saturdays at Seven" feature on the Christian Scholar's Review. There are interviews there with Professors John Inazu, John Witte, Michael McConnell, Cathleen Kaveny, and me, with one more to follow next week with David Skeel. They offer some nice insight about some of the background and experiences of these folks before they became professors. Here's the one with me.
subject: DeGirolami, Marc
creator: Marc DeGirolami
date: 2024-08-25T10:00:37-04:00

"Marie Antoinette and the Stories We Prefer To Tell"
type: item
description: Like many, I was . . . underwhelmed by the Opening Ceremonies for the recent Olympic Games in Paris (although, as a longtime heavy-metal fan, I liked Gojira's rendition of "Ah! Ça Ira”, notwithstanding the song's connection with the French...
encoded: Like many, I was . . . underwhelmed by the Opening Ceremonies for the recent Olympic Games in Paris (although, as a longtime heavy-metal fan, I liked Gojira's rendition of "Ah! Ça Ira”, notwithstanding the song's connection with the French Terror). And, I was similarly unimpressed by the gaslighting engaged in by the many commentators (including Catholics who should know better) who played the "ackshully" card with respect to the irreverent depiction of the Last Supper. As it happened, I was listening to the the multipart podcast series, by the (excellent) "Rest Is History" team, on the lead-up to the Revolution, which included an entire episode on the extent to which Marie Antoinette became, largely without justification, and in no small part because of the republicans' misogyny and nativism, an object of public odium. Then, to see the (bizarre) decision by the French organizers of the Games to celebrate her murder-by-mob (and, by extension, the general enterprise of Killing-for-Year-Zero) . . . it was quite a thing. And, this essay, by Joseph Toates, is a very interesting reflection on that decision: The execution of Marie Antoinette and the treatment of her family is nothing for France to be proud of. Her punishment is the first evidence of a revolution run amok. The spirit of her trial was public vengeance and it can barely be considered a legal proceeding. Her child, age seven, was forced to testify under duress and in prison to incestuous rape by his mother. The effort put forth to bring this particular charge against Marie shows that the trial was not solely about her conduct of affairs of state, but rather about humiliating her publicly. Marie refused to answer the charge in the courtroom, saying it was beneath her dignity as a mother. Killing Marie was not an act of justice. It was extrajudicial public revenge and an act worthy of, if not outright condemnation, then at least very careful reconsideration. The imprisonment and death of her son is a clear exam…
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-08-17T12:48:47-04:00

"How 'Religious' Is a 'Religious Employer'? Church History and the Future of American Religious Liberty Litigation"
type: item
description: My student, Dennis Wieboldt -- a JD/PhD candidate in History at Notre Dame -- has a new paper up at SSRN (with the title in the title of this post!). Here is the abstract: Since the Supreme Court’s 1990 decision...
encoded: My student, Dennis Wieboldt -- a JD/PhD candidate in History at Notre Dame -- has a new paper up at SSRN (with the title in the title of this post!). Here is the abstract: Since the Supreme Court’s 1990 decision in Employment Division v. Smith to immunize “neutral” and “generally applicable” laws that burden religion from strict scrutiny, judges and scholars have become increasingly attuned to the challenges posed by First Amendment judicial balancing. To some, Smith’s enduring virtue is that it provides judges with a clear way to avoid the seemingly inappropriate weighing of interests that was once required under the strict-scrutiny regimes of Wisconsin v. Yoder and Sherbert v. Verner. To others, however, the jealous protection that strict scrutiny provides to religious claimants is normatively desirable and merely requires judges to embrace a tiers-of-scrutiny framework that is not all too unusual in constitutional adjudication writ large. In light of Fulton v. City of Philadelphia, the scholarship on both sides of this debate has increased in volume and complexity. This article challenges those writing both in favor of and in opposition to the use of strict scrutiny in religious liberty litigation to (re)consider how the discipline of church history can aid judges in the disposition of particular cases and controversies arising under the First Amendment. To do so, this article takes as its principal subject a near-decade-long dispute that remains ongoing in New York about whether the Empire State’s Superintendent of Financial Services can require Catholic dioceses and social service agencies to include abortion coverage in their healthcare plans. Setting aside the fact that this case—Roman Catholic Diocese of Albany v. Vullo—may prompt the Supreme Court to again reconsider Smith, the contours of this litigation reveal how the concerns about judicial balancing that have motivated many critiques of First Amendment strict scrutiny are overstated. What, one might ask…
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-07-22T13:24:28-04:00

The Religiously Affiliated Law School Conference: "Forming Lawyer-Stewards"
type: item
description: This year's (well, it's biennial) Religiously Affiliated Law Schools conference will be held on September 12-13, 2024, at Fordham. The theme is "Forming Lawyer-Stewards: The Special Role of Religiously Affiliated Law Schools." Fordham's new president, Tania Tetlow, will be the...
encoded: This year's (well, it's biennial) Religiously Affiliated Law Schools conference will be held on September 12-13, 2024, at Fordham. The theme is "Forming Lawyer-Stewards: The Special Role of Religiously Affiliated Law Schools." Fordham's new president, Tania Tetlow, will be the keynote. More information, including registration (there's CLE available!) is here: Join us at the 2024 Religiously Affiliated Law School (RALS) biennial Conference, delving into the vital concept of stewardship — a principle deeply rooted in many of the world’s major religions. Our aim is to explore the critical role of lawyers as stewards of both our communities and the world. Employing a dialogue-based approach, the conference shall bring attendees together in small but diverse working groups where they will discuss how stewardship intersects with key areas such as the environment, criminal justice, and immigration. We look forward to welcoming students, legal scholars, law school administrators, and legal practitioners' voices as we explore the concept of lawyer-stewards.
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-07-20T07:39:34-04:00

The Republicans and the Pro-Life Cause in the Age of Trump
type: item
description: I published the following reflection a couple of months ago as part of a First Things magazine symposium on politics after the Dobbs decision. Regrettably, what I said has been fully confirmed by the events unfolding as part of the...
encoded: I published the following reflection a couple of months ago as part of a First Things magazine symposium on politics after the Dobbs decision. Regrettably, what I said has been fully confirmed by the events unfolding as part of the Republican National Convention, especially the re-drafting of the Republican Party's platform. Donald Trump, in announcing his support for the IVF industry and his rejection of any federal legislation to protect babies from the lethal violence of abortion, has made it clear that he is not pro-life. Nor is he exactly pro-choice. He is, quite simply, pro-Trump. As anyone who has followed Trump’s career knows, the most fundamental thing about him is that he is transactional. The art of living is the “art of the deal.” Trump’s message to his pro-life supporters boiled down to (and here I’ll translate for you), “Hey look, gals and guys, I upheld my end of the deal I made with you in 2016. Roe v. Wade is gone.” But now, with the demise of Roe activating the Democratic Party’s extremely pro-abortion base, a politician’s being genuinely pro-life—working for actual legal protection for unborn babies—appears to be a heavy political liability. So, Trump’s message is this: “I’ve got to get elected to save the country, so I’m not going to do anything to protect unborn babies. Whatever the states want to do about abortion—permit it, forbid it, permit it up to fifteen weeks, permit it up to birth—is fine with me.” Trump has, effectively, endorsed Stephen A. Douglas’s concept of “popular sovereignty.” So, it is incumbent on pro-life Americans to acknowledge the tragic fact that we do not have a pro-life presidential candidate representing a major political party in 2024. Trump has made it clear that he won’t help the pro-life cause, even incrementally, and Biden is utterly beholden to the abortion lobby. Where does that leave the pro-life movement? Whether Trump wins or loses, the future of the pro-life cause depends on whether there is a prominent Repub…
creator: Robert George
date: 2024-07-18T14:24:49-04:00

The Tiresome Claim that Pro-Life Legal Measures Violate the Establishment Clause
type: item
description: Recently Caroline Corbin published an article "Religion Clause Challenges to Early Abortion Bans." Larry Solum posted a link to the piece on his blog and on Twitter. In response, Rick Garnett graciously linked to my article "Abortion, Religion, and the...
encoded: Recently Caroline Corbin published an article "Religion Clause Challenges to Early Abortion Bans." Larry Solum posted a link to the piece on his blog and on Twitter. In response, Rick Garnett graciously linked to my article "Abortion, Religion, and the Accusation of Establishment" (here). Below is my response on Twitter to Corbin's piece, specifically to her claim that laws recognizing conception as the beginning of the life of a human being violate the Establishment Clause. In the post-Dobbs era one can expect to see abortion proponents more and more frequently claim both a free exercise right to abortion and an establsihment clause limit on abortion restrictions. The Establishment Clause claim is tiresome. The claim that legislation outlawing abortion is inherently religious and so violates EC is a mere assertion – an oft-repeated assertion, but one that has not gained intellectual substance with repetition. Corbin’s paper is full of assertion, but not argument. She merely asserts that the Harris v. McRae line of reasoning (i.e. laws which coincide with religious tenets are not unconstitutional) is “not persuasive” (p. 47). She asserts that, unlike laws against theft and murder, there is no “genuine and legitimate secular reason” to outlaw abortion based on the premise that the life of a human being begins at conception. Hedging her bets, she asserts that “ostensible secular reasons usually collapse back into the religious assumption.” Of course, if these reasons “usually collapse” into religion but not always, then laws outlawing abortion can be supported by secular reasons. But she leaves this unexplored. Plainly, her assertions are merely that, not conclusions demonstrated by argument. Nowhere does she consider the scientific foundation for the premise that the life of a human being begins at conception – a premise located in the basic texts of embryology. That people may also find support for this in the Bible, well, that’s Harris. Corbin cites Sherry Colb for…
creator: John M. Breen
date: 2024-06-24T23:55:09-04:00

Fifteen years of the Annual Law and Religion Roundtable
type: item
description: Tempus fugit, and all that. I recently returned from Sabanville -- I mean, Tuscaloosa -- and the Annual Law and Religion Roundtable, which I've been organizing and hosting with Nelson Tebbe (Cornell) and our own Paul Horwitz for fifteen (!)...
encoded: Tempus fugit, and all that. I recently returned from Sabanville -- I mean, Tuscaloosa -- and the Annual Law and Religion Roundtable, which I've been organizing and hosting with Nelson Tebbe (Cornell) and our own Paul Horwitz for fifteen (!) years now. We got the idea, if I recall correctly, from a workshop-style conference for younger property-law scholars that Ben Barros (now at Stetson) and Nestor Davidson (now at Fordham) put together out in Colorado. Each year -- well, we had to Zoom two of them, and miss one year altogether, because of COVID - we've held our version at a different school -- a "movable feast", as Paul likes to say! -- and exploited the on-site generosity of different colleagues. Over the years, several hundred scholars -- from a variety of disciplines, at a range of career stages, with a variety of interests and perspectives -- have participated, and we've met from Stanford to Virginia to Toronto to Notre Dame (and a bunch of other places in between). This tradition (!) has been -- for me, anyway! -- a highlight of the academic year. Notwithstanding disagreements about non-trivial questions, methodological differences, and a diversity of commitments and priors, the conversations have been productive and collegial, and the socializing and fellowship uplifting and encouraging. I've been particularly struck by (among other things) how strongly I've come to prefer the roudtable/workshop-type academic gathering to the panels-and-audience type (which is not to say I don't welcome your invitations to the latter!).
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-06-23T11:47:03-04:00

Kilpatrick on Institutional Neutrality and Institutional Fidelity at the University; Bray on the Common Law and the Catholic Intellectual Tradition
type: item
description: Kevin and I have two episodes on our Sub Deo et Lege podcast that might be of interest to readers here. First, we interviewed Peter Kilpatrick, President of The Catholic University of America, concerning various questions about free speech, free...
encoded: Kevin and I have two episodes on our Sub Deo et Lege podcast that might be of interest to readers here. First, we interviewed Peter Kilpatrick, President of The Catholic University of America, concerning various questions about free speech, free inquiry, and university life and purpose. President Kilpatrick discussed two different models for the university (any university, secular or religious): institutional neutrality and institutional fidelity. Second, we discussed with Professor Samuel Bray of Notre Dame Law School his recent piece on the role of the Catholic Intellectual Tradition on the common law (which came into full strength in a Protestant era). Among Sam's contributions in his piece, which he mentions in our chat, is that the influence is all the greater to the extent that the Catholic Intellectual Tradition is deemed something like the Christian Intellectual Tradition.
subject: DeGirolami, Marc
creator: Marc DeGirolami
date: 2024-06-07T09:22:25-04:00

Cathy Kaveny on "Dignitats Infinita"
type: item
description: Over at Commonweal, there is a group of recent pieces about the new document, Dignitas Infinita. The contribution by Boston College's Cathy Kaveny, "Understanding the Audience", might be of particular interest. Here is a bit: Vatican interventions in secular human-rights...
encoded: Over at Commonweal, there is a group of recent pieces about the new document, Dignitas Infinita. The contribution by Boston College's Cathy Kaveny, "Understanding the Audience", might be of particular interest. Here is a bit: Vatican interventions in secular human-rights discourse have generally had two purposes. The first is to rebut those who critique the UN Declaration and the human-rights regime it generated as alien impositions of a Western colonial framework on non-Western cultures. This is a charge sometimes raised by Arab and Asian countries that have very different understandings of the role and rights of women or the nature of acceptable punishment. It is also mounted by African countries that have different understandings of the basic structure of the family, including polygamy. The Vatican’s second purpose is to resist the interpretation or expansion of universal rights in a purely individualistic or constructivist way—which would, in its view, be an unjustified imposition of certain elements of a Western world-view. In the Vatican’s view, rights are not determined by individual desires, no matter how strong they are. Nor are they designed to protect an individual’s right to construct his or her own identity without reference to objective goods, like the norms of biology, the well-being of other people, or a well-functioning community.
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-06-07T08:42:20-04:00

Some responses to Anthony Annett on Social Democracy and Catholic Social Thought
type: item
description: A little while ago, Anthony Annett had an essay in Commonweal called "The Theology of Social Democracy," the thesis of which was that "Catholic social teaching guides us beyond neoliberalism." Put aside doubts one might have about whether "neoliberalism" has...
encoded: A little while ago, Anthony Annett had an essay in Commonweal called "The Theology of Social Democracy," the thesis of which was that "Catholic social teaching guides us beyond neoliberalism." Put aside doubts one might have about whether "neoliberalism" has agreed upon content or is, instead, a protean epithet used to dismiss all views that have some consonance with human nature and experience; it is certainly the case that Catholic social teaching (correctly understood) guides us beyond "-isms" generally. By "social democracy" Annett means "an economic system predicated on the belief that an economy must be underpinned not only by property rights but also by economic rights. More concretely, in a social democracy, the government supplies public goods, uses the welfare state to protect people from adverse economic circumstances, and promotes unions to make sure that workers can bargain for their fair share of economic progress." Fair enough. It is not controversial, even in the most "neoliberal" crannies of the Catholic intellectual and scholarly space, to note that the Church's proposals regarding the policy implications of the truth about the human person resonate with at least some aspects of "social democracy" and challenge some aspects of its alternatives. It is true, as Annett writes, that the "Catholic social teaching forged a middle path between free-market libertarianism and socialist collectivism" (and, to be clear, statism). There is much in Annett's essay about the "common good", "subsidiarity" (which is often misunderstood), and "integral human development" that is both timely and sound. But, Annett's piece is undermined by a lot of straw-manning and factual mistakes. He writes, for example, "[Social democracy] can be contrasted with the approach of free-market economics or economic libertarianism. Under those two systems, the only rights recognized are property rights. A free-market system might allow for a minimal social safety net to prevent outrigh…
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-05-07T13:30:35-04:00

Call for Papers: Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility
type: item
description: Submissions and nominations of articles are being accepted for the fifteenth 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...
encoded: Submissions and nominations of articles are being accepted for the fifteenth 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 a publication date of 2024. The prize will be awarded at the 2025 AALS Annual Meeting in San Francisco. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu. The deadline for submissions and nominations is September 1, 2024.
subject: Garnett, Rick
creator: Rick Garnett
date: 2024-05-07T12:56:20-04:00