David A. Armstrong, J.D., Ethical Leadership, 14 Intercultural Hum. Rts. L. Rev. 13 (2019)
Our world is in desperate need of Ethical Leaders. In turmoil, it tumbles toward the abyss of hatred, violence, and anarchy. The cry for leaders with an authentic ethical agenda dedicated to the common good rises, and it assumes increasing urgency. This contribution is meant to honor John and June Mary Makdisi, intellectual and moral leaders of the academy. Their upcoming retirement provides the welcome occasion to reflect on responsible leadership in the necessarily joint universe of law and morality. This essay undertakes to delimit the proper understanding of ethical leadership, provides historical examples, and explores the question as to whether ethical leadership can be taught.
Ira Bedzow, Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property. Edited by Thomas C. Berg, Roman Cholij, and Simon Ravenscroft. Cambridge: Cambridge University Press, 2019. Pp. 31, 36 J.L. & Religion 433 (2021)
Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property, edited by Thomas C. Berg, Roman Cholij, and Simon Ravenscroft, begins to do just that. The collection of essays that comprise the book arose out of an international conference on this theme, “Patents on Life: Through the Lenses of Law, Religious Faith and Social Justice.” The conference itself was inspired by a direct invitation from the papal representative, the apostolic nuncio, to the United Nations in Geneva to the Von Hügel Institute for Critical Catholic Inquiry at St. Edmund's College to produce a report for the Holy See on how the patent system could be used to achieve fair distribution of benefits and social good.
Gordon T. Butler, John the Theologian: Toward Integrating Law and Religion, 14 Intercultural Hum. Rts. L. Rev. 41 (2019)
As a teacher, John demonstrated his broad interest in the law by teaching important basic courses, including Property, Contracts, Evidence, and Remedies. Adding to this his interest in teaching *42 natural law, he could almost be a law school in his own right. He was able to infuse a moral element into that course with the introduction of the thought of St. Thomas Aquinas2 and Catholic social teaching. With his academic and scholarly background in Islamic law and Catholic social teaching, as well as natural law, it is not surprising that John's interest led him to pursue advanced religious studies at Catholic University of America, where he earned a Master's and Ph.D. degree in Moral Theology and Ethics. His dissertation sprang from Pope John Paul II's reinterpretation in the encyclical, Veritatis Splendor (“The Splendor of Truth”), of St. Thomas Aquinas' statement that the “morality of the human act depends primarily and fundamentally on the ‘object’ rationally chosen by the deliberate will,” and that, to grasp this object, one must “place oneself in the perspective of the acting person.”3 John evaluates the writings of two contemporary scholars who reached inconsistent interpretations of Aquinas' statement. John's dissertation evaluates these interpretations in light of Aquinas' writings and the writings of certain precursors to Aquinas and concludes that, except for some misinterpretations of Aquinas, the contemporary scholars are largely faithful in their *43 respective interpretations.
Jonathan Cantarero, Religion in the Writing: A Literary Analysis of Justice Kennedy on Abortion, 20 U. Md. L.J. Race, Religion, Gender & Class 36 (2020)
This article considers the link between religion and rhetoric in the writing style of Former Supreme Court Justice Anthony Kennedy. During his thirty years on the Supreme Court, Justice Kennedy, a lifelong Catholic, earned a reputation as the pivotal “swing vote” on morally-charged cases, particularly those involving abortion.1 Given that Justice Kennedy often wrote the majority or concurring opinion in these cases,2 it is worth considering whether, and to what extent, his religious views shaped his legal analysis in authoring those landmark opinions.
David A. Cordero Heredia & Nicholas Koeppen, Oil Extraction, Indigenous Peoples Living in Voluntary Isolation, and Genocide: The Case of the Tagaeri and Taromenane Peoples, 34 Harv. Hum. Rts. J. 117 (2021)
This Article utilizes the crime of genocide's requisite elements to analyze the massacres of the Tagaeri and Taromenane Peoples (Tagaeri-Taromenane). The Tagaeri-Taromenane are Indigenous peoples living in voluntary isolation in the Ecuadorian Amazon who are endangered by the oil and timber industries and the expansion of peasant settlements in their territory. This Article first provides a brief history of the Tagaeri-Taromenane massacres and then discusses the “intent to destroy a group” element of the crime of genocide as enumerated in international human rights jurisprudence. In concluding, the authors propose that the oil industry's public and private actors' direct control over the events that led to the massacres could establish criminal liability for those actors.
Jude O. Ezeanokwasa PhD, JCD, LLM, BL, BTh., BPhil, Arresting the Nigerian Herders-Farmers Conflict: The Unconstitutionality of the Ruga Policy, 15 Intercultural Hum. Rts. L. Rev. 171 (2020)
The Ruga policy which the Federal Government claims to be aimed at ending the herders-farmers conflict that has claimed thousands of lives and rendered thousands internally displaced is perceived in most segments of the Nigeria society as a policy that would exacerbate rather than end the conflict. It seeks to establish in the States of the Federation settlements for Fulani herders who are usually illegally armed with guns as against unarmed local farmers. Due to stiff opposition from mostly non-Fulani ethnic nationalities Government suspended the policy. Since the policy is only suspended and not jettisoned, it is possible that government can revisit it. A key step in assessing the germaneness of this policy is whether or not it is in tune with the extant Constitution of Nigeria, the 1999 Constitution, and this paper concludes that it is not.
David F. Forte, The Faith and Moral of Justice Antonin Scalia, 14 Intercultural Hum. Rts. L. Rev. 67 (2019)
During Antonin and Maureen Scalia's honeymoon year, they saw Robert Bolt's play, A Man for All Seasons, in London.107 St. Thomas More, at least Bolt's depiction of him, became a model for Scalia, or a confirmation of Scalia's own understanding of how he should conduct his own life. More's distinction between the laws of God and the laws of man struck Scalia as just right. More resigned his chancellorship because he could not affirm Henry VIII's illegal divorce and displacement of the Pope as the head of the Church in England. But More was a reluctant martyr. He avoided sacrificing himself for a cause, until there was no other moral option. Through it all, More championed the positive law, “Man's laws, not God's.” It was the rule of law that protects all, even the most evil of men (or *92 spirits). Scalia's law was the Constitution, a noble document, but one which allowed men, and states, to make some kinds of bad law. Like More, Scalia would remain the “King's (the Constitution's) good servant” until there was no other option. And as More would resist the importuning of his son-in-law Roper, so Antonin Scalia would resist the importunings of causes, advocates, and justices (and popes), who thought they had the key to the “law” the supervened the Constitution. When it came, without escape, to a choice between man's law and God's, then More would choose God's law, as would Antonin Scalia, if it ever came to that. But Antonin Scalia fought to make sure that it never did.
Lauren Gilbert, A Justice School: Teaching Forced Migration Through Experiential Learning, 14 Intercultural Hum. Rts. L. Rev. 129 (2019)
The need for committed and competent public interest lawyers has never been greater, in light of the recent assault by our own government on individual rights.1 We are at a unique juncture in U.S. history where there is both a supply and demand for social justice lawyers.2 Law schools, however, still fall short in their support and preparation of students who want to be public interest lawyers.3 As Dean of St. Thomas University School of Law from 1999 to 2003, *130 John Makdisi demonstrated a commitment to training community lawyers who could provide high-quality, low-cost legal services to persons who otherwise would not have access to legal representation.4 This article is a tribute to him. Law school administrations that talk the talk of serving underrepresented communities also need to walk the walk by prioritizing such work through their curricular offerings and extracurricular programs, including pro bono activities. It is vital that students see from Day One of law school that they can use their legal training to make a positive difference in the world, and that throughout their three years of law school they learn the doctrine, develop the litigation skills, and have the kinds of experiential opportunities that will prepare them for this work. Law schools that embrace this mission should redefine themselves as justice schools.5
Maria Cristina González, Family Law: Above and Beyond the Call of Duty, 14 Intercultural Hum. Rts. L. Rev. 263 (2019)
Family law practitioners play a delicate and important role in the lives of clients and their families. As lawyers, we have a duty and an obligation to listen to and understand the client's legal needs, while competently advocating to meet their goals and expectations. But how often do we really pay attention to the mental and spiritual needs of our clients to achieve their goal? ... This article invites family law practitioners to quiet our own souls by incorporating spirituality or mindful tactics into our own lives first. To go beyond the hourly rate, automated advice and performance, and dig deep inside ourselves to heal and increase our own level of awareness in order to extend consciousness to others. In doing so, we will plant a seed of long-term success and rewards for our clients, while nurturing and maturing the soul of the lawyer in the process.
Stefanus Hendrianto, S.J., The Last Testament of Justice Scalia: On Aquinas and the Law, 34 Notre Dame J.L. Ethics & Pub. Pol'y 197 (2020)
On January 7, 2016, Justice Antonin Scalia delivered his last public lecture, titled Saint Thomas Aquinas and Law. Analysts have criticized Scalia for having an anachronistic reading of Aquinas. But those analysts had missed seeing that Scalia was searching for a deeper meaning instead of chastising Aquinas's theory of law. This Article investigates whether Aquinas's theological insights and Scalia's jurisprudence show similar traits. This Article argues that although Scalia's jurisprudence is not identical with Aquinas's theology, their positions are much closer than people would immediately imagine. They shared similar views on the limits of judicial authority and the need to find a balance between the private goods and the common good. This Article postulates that in his last lecture, Scalia was expressing his fear of subjectivity in the process of judging, in which Aquinas theory of interpretation might justify the volitional status of legal interpretation. Nevertheless, Aquinas believed that a virtuous judge must not seek honor and glory, but rather to direct people toward the common good. Thus, both Aquinas and Scalia shared a similar view that a reasonable judge must avoid sentimentality and personal values in judging.
Lloyd Hitoshi Mayer & Zachary B. Pohlman, What Is Caesar's, What Is God's: Fundamental Public Policy for Churches, 44 Harv. J.L. & Pub. Pol'y 145 (2021)
Bob Jones University v. United States is a highly debated Supreme Court decision, both regarding whether it was correct and what exactly it stands for, and a rarely applied one. Its recognition of a “fundamental public policy doctrine” that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case, and Congress has shown no desire to change the underlying statutes to alter the case's result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances. The mention of the decision during oral argument in Obergefell v. Hodges raised the specter of more vigorous and broader application of the doctrine, however. It renewed debate about what public policies other than avoiding racial discrimination in education might qualify as fundamental and also whether and to what extent the doctrine should apply to churches, as opposed to the religious schools involved in the original case.
Cindy Izquierdo, Not Your Average Summer Camp: Children in Immigration Detention, 22 Scholar: St. Mary's L. Rev. & Soc. Just. 101 (2020)
Plagued by a decade long civil war, funded by the United States government, the United States was a main contributor to the violence that engendered the deaths and displacement of many Salvadorans.2 Post-war, a massive and catastrophic wave of prolonged gang violence erupted in the streets of El Salvador.3 The United States was amid the plight of displaced Central American immigrants all along; from contributing billions to corrupt Central American governments, to firearm trafficking, and arming the criminal syndicates that commit violent crimes against children.4 ....12 Deportations further gang behavior because one contributing factor is America's demand for illegal drugs--a lucrative business that entices gang members.13
Andrew K. Jennings, Conscience Leave, 35 Notre Dame J.L. Ethics & Pub. Pol'y 649 (2021)
In the federal government, political officials come and go while civil servants remain. In the ordinary course, the political officials make decisions about what policies the government will pursue while civil servants use their labor and expertise to carry those policies out--even when they disagree with them. But what happens when political officials pursue policies that civil servants view as deviating from normal bounds--policies that are unethical, immoral, or unlawful? This Article examines when and how civil servants might object to such policies, including going so far as to leave government service. It concludes that when faced with such situations, employees' personal benefit-cost analyses will generally lead them to not object to deviating policies.
Tamara F. Lawson, Human Dignity: The Clandestine Factor in Prosecutorial Discretion, 14 Intercultural Hum. Rts. L. Rev. 193 (2019)
Justice and human dignity have an organic and symbiotic relationship. The American Bar Association's Functions and Duties of the Prosecutor Standard 3-1.2(a) outlines that “[t]he prosecutor is an administrator of justice ... [and] should exercise sound discretion and independent judgement in the performance of the prosecution function.”1 The ABA standards further prohibit improper bias2 and proscribe a duty to report and respond to prosecutorial misconduct.3 ABA Standard 3-1.2(b) states: “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.”4 Although rarely openly discussed, I ask now, is it possible to “do justice” while still addressing the human dignity of the criminally accused, the alleged victim, as well as the community? This essay will query whether human dignity plays a role in the prosecutor's daily decisions about justice, and more specifically in the prosecutor's most significant function--the decision to charge or not to charge. Further, if it does play a role, in what manner and in which cases does it *194 operate? Should concerns of human dignity ultimately determine the outcome?
Shaye Loughlin, Conversations from Invisible Neighbors: Fighting the Stigma of Homelessness in Chicago, 13 DePaul J. for Soc. Just. 1 (2020)
Thank you so much for joining us. Today, I think is a great example of DePaul at its best. It's a group of people working together who really care about important social justice issues and bringing the community together to learn and to talk about ways that we can respond to these issues. Each year, the Rinn Law Library sets out to take a deeper dive into a social justice issue. The Center for Public Interest Law and the Journal for Social Justice have been partners in that initiative for the past few years. And this year, that topic is homelessness.
John Makdisi & June Mary Zekan Makdisi, The Transformation of Marriage As A State Institution, 14 Intercultural Hum. Rts. L. Rev. 371 (2019)
The greatest gift God has given us is the ability to love. This article explores the significance of marital love for the well-being of children and how it should be protected through the legal institution of marriage.
Christopher McCrudden, Indirect Religious Discrimination: Resisting the Temptations of Premature Normative Theorization, 34 Harv. Hum. Rts. J. 249 (2021)
Several jurisdictions appear to be grappling with the concept of indirect religious discrimination at an increased rate. The concept connects intriguingly to the concept of freedom of religion in a way that some legal practitioners describe as familial. Additionally, scholars contest its normative foundations. This Essay focuses on legal measures addressing indirect religious discrimination and seeks to cast some light on each of these issues, particularly the concept's normative foundations. In doing so, the Essay highlights the experience of the development and use of indirect religious discrimination in several European jurisdictions: The United Kingdom--including Northern Ireland, which adopts a somewhat different legal position--France, the European Union, and the European Court of Human Rights (“ECtHR”). The use of indirect religious discrimination beyond these and other European jurisdictions is not addressed in any detail, and international human rights law, except the European Convention on Human Rights (“ECHR”), is not considered. Drawing from these diverse sources, this Essay argues that a convincing general normative theory of indirect religious discrimination law--one which seeks to reflect current legal practice rather than supplant it--is premature in its present state of development.
Veryl Victoria Miles, Looking Beyond the Profit and into the Light: Consumer Financial Protection and the Common Good, 35 Notre Dame J.L. Ethics & Pub. Pol'y 93 (2021)
The intention of this Article is to review the various statements of Catholic Social Teaching that are fundamental in describing economic justice and that are most pertinent to any consideration of consumer financial protection as essential to the common good. This review will begin with Pope Leo XIII's *95 1891 encyclical Rerum Novarum4 and other encyclicals that followed Rerum Novarum as a continuum of Church teaching regarding social and economic justice; the pastoral letter from the United States Conference of Catholic Bishops entitled Economic Justice for All (1986);5 and the Pontifical Council of Justice and Peace's handbook on the Vocation of the Business Leader (March 2012).6 The next Part of this Article will include a description of the original goals and mission of the Act and the CFPB, and an assessment of how the intended goals and objectives of the Act and the structure and activities of the CFPB reflect the values and goals of social and economic justice from the perspective of Catholic Social Teaching. That is, to what extent do these legislative and regulatory initiatives bring us closer to providing for and ensuring that consumer financial products and services are accessible, fair, and helpful in meeting the needs of all potential users and the interests and rights of providers in the spirit of economic justice informed by Catholic Social Teaching?
William P. Quigley, Law or Justice? What Future for the Legal Profession?, 14 Intercultural Hum. Rts. L. Rev. 93 (2019)
Justice for only those who can afford it is neither justice for all nor justice at all.1Is the future of our profession law or justice? There is a lot of law in our profession. There is some charity and some generosity. Justice? Not nearly enough to suggest it is at the core of our profession, our mission, or our future.
Dean Patricia E. Roberts, Foreword, 23 Scholar: St. Mary's L. Rev. & Soc. Just. XI (2021)
Since my arrival, I regularly encounter the Marianist spirit, a welcoming, inclusive “atmosphere of congeniality.”1 It is one of the characteristics that called me to St. Mary's initially, the idea that this is a family and that all are invited to sit at the table, a round one with no hierarchy, only equality. Given that we are a Hispanic-serving institution focused on equality around a table, diversity, equity and inclusion are not new concepts for us; they are ever-present as part of the Marianist spirit.
Gabriel Sáenz, America's Second-Class Children: An Examination of President Trump's Immigration Policies on Migrant Children and Inquiry on Justice Through the Catholic Perspective, 22 Scholar: St. Mary's L. Rev. & Soc. Just. 143 (2020)
We already have the building blocks to establish and codify a universal Just Standard that will protect all children, regardless of immigration status, and is rooted in the strong foundation of Natural Law.368 Together, we can ensure Justice for thousands of immigrant children. For we do not have an illegal immigration problem but a humanitarian crisis.369 I believe it is time for the greatest nation in the world--the United States of America--to become that beacon of light for the world again.
Eugene Scalia, John Adams, Legal Representation, and the "Cancel Culture", 44 Harv. J.L. & Pub. Pol'y 333 (2021)
Intolerance and pressure to suppress ideas that may be unwelcome to some poses a special threat to the legal profession. One of the great traditions of the profession is respect for the right to representation of those with whom we disagree, and even to undertake that representation ourselves. John Adams's defense of the British soldiers charged with the Boston Massacre is one of the Nation's most important stories about the practice of law. Adams later described his defense of the soldiers as “one of the most gallant, generous, manly, and disinterested actions of my whole life.”6
Kyle Smith,The Dogma Lives Loudly Within Them: Revisiting the Role of the No Religious Test Clause in Senate Confirmation Hearings , 33 Notre Dame J.L. Ethics & Pub. Pol'y 313 (2019)
The broad wording of the religious test ban in Article VI engraved a policy of religious nondiscrimination on the foundation of the Republic. During an era of intense religious sectarianism, the rule shaped a culture of cooperation and inclusiveness indispensable to the preservation of the Union. The bold step taken to ban religious tests for offices in the United States radically cut against the prevailing norms and forged a new norm to serve as a North Star for future generations. As so many confirmation hearings continue to show, we find ourselves again at a point where sectarianism is deeper than ever. Sectarianism has inspired discrimination and religious tests which, due to their regularity and predictability, contravene the letter, spirit and implications of Article VI. The Constitution's structure makes the issue virtually inaccessible to judicial review or any check or balance. Constitutional norms in effect today demonstrate that this lack of cross-government accountability is no barrier to the restoration of religious nondiscrimination in the Senate, but it is imperative that supporters of nondiscrimination ensure that this norm is sufficiently established before it becomes overshadowed by the emerging desires to narrow protections into irrelevance.
Elizabeth Totzke, Note: The Catholic Church and the Paycheck Protection Program: Assessing Nondiscrimination after Trinity Lutheran and Espinoza, 96 Notre Dame L. Rev. 1699 (2021)
Despite the heated response to the Catholic Church's receipt of government funding, the SBA adopted the constitutionally correct standard when it deemed the Catholic Church, as well as other houses of worship, eligible for PPP loans. Although American culture and media continue to cling to the traditional notion of the "wall of separation between church and state," the Court has long abandoned such a paradigm. Most recently, in Trinity Lutheran and again in Espinoza, the Court has embraced a principle of nondiscrimination, which prohibits the government from excluding religious entities based on status alone. 189
Moreover, the legal "writing on the wall" suggests this new principle is part of a larger trend, with several members of the Court willing to continue to expand this doctrine in favor of religion. Because the SBA's official policy, which remains in force, relies on a prohibited status-based discrimination, the SBA should, as FEMA did in 2017, officially adopt its inclusive PPP policy. 190And, other federal agencies should do the same. Such policies not only better align with the Court's First and Fourteenth Amendment jurisprudence, but it also ensures religious entities - as well as those who they employ - are not disadvantaged when the next disaster inevitably strikes. The Free Exercise Clause requires nothing less, and the Establishment Clause requires nothing more.
W. Bradley Wendel, Truthfulness and the Rule of Law, 35 Notre Dame J.L. Ethics & Pub. Pol'y 795 (2021)
This paper is a defense of a principle of the public ethics of truthfulness, understood as a practice of reason-giving that contrasts with the raw exercise of arbitrary power.2 Basic to the analysis here is the distinction between power, coercion, brute force, or domination, on the one hand, and justified, permissible action, on the other. Fundamental normative notions in moral and political philosophy such as rights, justification, legitimacy, and legality all attend in some way to this distinction.3 On one influential conception of morality, an act is wrong if it would be disallowed by a set of principles that no one could reasonably reject.4 In political philosophy, John Rawls argued that all citizens, which would certainly include public officials, have a moral duty of civility to explain how the policies they advocate for, and which involve the exercise of political power, are supported by reasons that all affected persons can be expected to endorse.5 Common to these positions is the notion of reason-giving *796 and the acceptance (or rejection) of reasons by autonomous agents, each acting on their own judgment about the right, the good, and justice. Moral justification and political legitimacy acknowledge others as free and equal,6 treat them with respect or as ends in themselves,7 and establish a relationship of mutual accountability, by insisting that actions be based on reasons that are acceptable to those whose interests are affected.
Siegfried Wiessner & Roza Pati, John and June Mary Makdisi: An Intellectual and Moral Journey, 14 Intercultural Hum. Rts. L. Rev. 1 (2019)
These introductory pages are not enough to do justice to John and June Mary. They are the salt of the Earth. We humbly invite the reader to consider these lines as but the scaffolding, the prelude to the exciting and variegated essays and articles that follow. They will add the deserved elegance to this issue centered on the importance of morals to law--the guiding light of John and June Mary. To us, they are irreplaceable pillars of support. To each other, they are the whole world--a world they want to see embraced in love and for which they join in the favorite prayer of June Mary, the prayer that has inspired her entire adult life: The Peace Prayer of St. Francis of Assisi.
John Witte, Jr. and Justine J. Latterell, Between Martin Luther and Martin Luther King: James Pennington's Struggle for "Sacred Human Rights" Against Slavery, 31 Yale J. L. and Human, 205 (2020)
This Article outlines the human rights theories of nineteenth-century abolitionist and civil rights leader James Pennington. Born into slavery in Maryland, Pennington escaped North and became the first African American to attend Yale. As an ordained Presbyterian clergyman, educator, orator, author, and activist, he adapted traditional Protestant rights theories explicitly to include the rights of all, regardless of race. He emphasized the authority and freedom of the individual conscience as foundational to human rights. He advocated a central role for covenantal institutions including church, state, family, and school as essential for fostering a law and culture of human rights. And he defended the right of all to disobey unjust laws and resist tyrannical regimes. Pennington bridged these theories in novel ways with pacifist teachings, anticipating by more than a century the American civil rights movement led by Martin Luther King, Jr., and others. Though largely forgotten by historians, Pennington was well known and influential among his contemporaries. His life and work represent an important step in the development of law, religion, and human rights.
