Bibliography of Catholic Legal Scholarship

Helen M. Alvaré, Church Autonomy After Our Lady of Guadalupe School: Too Broad? Or Broad As It Needs to Be?, 25 Tex. Rev. L. & Pol. 319 (2021)

In Our Lady of Guadalupe School v. Morrissey-Berru (Guadalupe),¹ the Supreme Court reaffirmed that the Religion Clauses of the First Amendment preserve a broad right of church autonomy to determine “matters of ‘faith and doctrine,”’² “church government,”³ and “internal management decisions ... essential to the ... central mission” of religious institutions,⁴ free of state intrusion. It held that this doctrine includes, but is not limited to, a “ministerial exception” banning governmental intrusion into the “selection of the individuals who play certain key roles.”⁵ It concluded that two employees: Agnes Morrissey-Berru and Kristen Biel--teachers of religion and other subjects at two Catholic elementary schools--were legally equivalent to “ministers” who could not, therefore, pursue age and disability discrimination claims against their employers....⁶Part V then takes up possible threats to the church autonomy doctrine in the future, resulting from its breadth. The Guadalupe dissenters and other observers¹² highlight the fear that religious institutions will abuse their roles as employers¹³ and that courts will abdicate their judicial responsibilities¹⁴ to determine the applicability of the church autonomy doctrine. Religion Clauses scholars have already sounded the alarm about many employees at religious institutions potentially losing the protections of employment nondiscrimination laws.¹⁵ I, therefore, conclude in Part V with a discussion of recommendations for courts and religious institutions that wish to maintain a constitutionally required level of respect for religions to maintain their independent authority to preserve and transmit their faith, doctrine, and religious missions.

José E. Alvarez, Biden's International Law Restoration, 53 N.Y.U. J. Int'l L. & Pol. 523 (2021)

If the Biden administration approached the eight trends left over from the Trump presidency according to the values espoused in Fratelli Tutti, the world could see a more transformative U.S. approach to international law instead of the more likely tempered return to normalcy. Yet even the latter rightly generates sighs of relief among most international lawyers and within the U.S. foreign policy establishment. In the minds of many, Biden's restoration, even if modest, will be a massive improvement over the prior administration's manifold transgressions against national and international law. At the very least, Biden's election will forestall a fearsome slide towards greater international disorder and “global authoritarianism”²⁰¹ and return the United States to relatively stable relations with nations entitled to respect. Biden, like most prior U.S. presidents, will try to explain, sometimes implausibly, how his actions comport with international law. The Trump administration rarely bothered to do that much and often flaunted international law.²⁰² Even on his way out the door, Trump violated *586 internationally accepted norms governing free and fair elections.²⁰³ Biden's election will bring international lawyers back into “the room where it happens.”²⁰⁴ What they do when they get there remains a work in progress. The 2020 election demonstrates that U.S. politics continue to be defined by sharp divides between ‘values' voters who often identify as evangelical Christians and secular, largely urban elites on the east and west coasts. Ironically, the successful candidate most strongly backed by ‘coastal elites' turned out to be a practicing Catholic apt to pay heed to Pope Francis's call to defend common humanity (Fratelli Tutti) and protect the planet (Laudato si’). Fortunately for the United States and perhaps the world, President Biden seems to agree with those who still have faith that international law and its institutions can help achieve both of these goals.

Jonathan Cantarero, Liberation Theology and Political Process: A Case Study of New York City's Mayor, 10 Wake Forest L. Rev. Online 68 (2020)

Liberation theology as a religious movement focuses on the socioeconomic and political liberation of the oppressed through the disruption of governing structures.¹ On a conceptual level, this movement has been extensively considered and examined by legal scholars and theologians. On an empirical level, discussions regarding its actual impact on real world issues have largely been limited to Latin America, where the movement began.² This essay explores the application of liberation theology in United States politics through a case study of New York City Mayor Bill de Blasio. *69 As one of the few politicians who has voiced support for liberation theology,³ Mayor de Blasio has openly discussed the movement's influence on his work in the public sector. Thus, while Mayor de Blasio--a non-Christian white male--may not appear to be representative of the liberation movement as a whole, his actions as both Mayor and Public Advocate speak toward the impact this theological framework has exercised on his political ideology. Moreover, this impact can be considered and assessed through his work on, among other things, religious freedom.⁴ Notably, the influence that liberation theology has had on Mayor de Blasio in this area addresses a main critique of the movement, i.e., the potential for the hyper-politicization of theology at the expense of a pronounced diversion from the traditional, more spiritual, role of the Christian church.⁵ Despite this criticism, this Article suggests that through politicization of liberation theology, Mayor de Blasio has enabled people to draw nearer to God, not further away. 

Katherine Cook, Florida's Frivolous Flirtation with Shareholder Fiduciary Duty in Closely Held Corporations, 17 Ave Maria L. Rev. 61 (2019)

Therefore, Florida law has already shown there are various ways to solve the conundrum that closed corporations impose on their minority shareholders. In Florida, the Florida Business Corporation Act protects shareholders from many situations including ousting; thus, there is no need to create a new doctrine for minority shareholders when they already have multiple options to protect themselves.²⁰⁵ Imposing a shareholder-to-shareholder fiduciary duty is not only unnecessary but also outside the realm of corporate law and bad public policy. As demonstrated, the courts have other options to provide relief for the minority shareholder, which do not require judicial adventurism.

Jenita Gillespie, 4 Ways Legal Ops Can Advance Diversity, ACC Docket, (2021)

Jenita J. Gillespie, CP, MBA is the Director, Legal Operations for Bon Secours Mercy Health, Inc. Bon Secours Mercy Health, Inc. is the United States' fifth largest Catholic health care ministry and one of the nation's 20 largest health care systems. There has been a lot of focus on diversity, with the American Bar Association (ABA) introducing numerous resolutions, corporate requirements for working with diverse law firms, and goals to promote diversity in legal departments. Yet a tremendous struggle remains to exemplify a diverse legal landscape.

Daniel Griffith, Healing the Harm-the Effectiveness of Restorative Justice in Response to Clergy Abuse, 17 U. St. Thomas L.J. 18 (2020)

In this article, I describe the nature of restorative justice, its origins, and its many practical uses in response to harm, including the harm of clergy abuse. Restorative justice interfaces well with the discipline and practice of law, as both are oriented to classic justice--giving each their due. Restorative practices are also consistent with biblical justice in that they foster right relationship among those who have been harmed and broader society. The fall 2019 law symposium at the University of St. Thomas School of Law ably demonstrated the utility of restorative justice in healing harm, as manifested through its diverse and adaptable applications.¹ In teaching restorative justice to law students, my colleague Professor Hank Shea and I have discovered an openness to restorative practices and their power to bring personal healing to law students, where needed. In addition, restorative practices align well with important practical legal skills, consistent with emerging research that demonstrates that skills of listening, empathy, and teamwork are integral to successful lawyering.²

Tom Johnson, John Choi, Bernard Hebda, Tim O'Malley, and Stephanie Wiersma, Panel Transcript: The Role of Restorative Justice in Addressing Clergy Sexual Abuse and Helping its Survivors, 17 U. St. Thomas L. J. 133 (2020)

What we wanted to do with restorative justice sessions was set the stage for us to prove to each other--at least give the archdiocese the opportunity to prove to the county attorney and others, our sincerity and our efforts to correct some wrongs, but also to do it in a way that it was measurable somehow. We said, "Okay, we'll do this restorative justice thing," but rather than just saying, "Alright, we'll do it," I think it even says you'll do a certain number within a certain period of time. It was very specific.

Daniel T. Judge, Catholic Education and the Formation of Conscience, 96 Notre Dame L. Rev. Reflection 248 (2021)

Before all else, Catholic schools are “a place to encounter the living God who in Jesus Christ reveals his transforming love and truth. This relationship elicits a desire to grow in the knowledge and understanding of Christ and his teaching.”¹ Accordingly, Catholic schools are called to assist in the formation and development of their students' moral conscience. This, in turn, necessitates an inclusive environment; one that emphasizes human dignity in all its forms.

H. Justin Pace, Rogue Corporations: Unlawful Corporate Conduct and Fiduciary Duty, 85 Mo. L. Rev. 1 (2020)

This Article will consider various corporate lawbreaking scenarios in light of these frameworks. Particular attention will be paid to Dick's Sporting Goods' and Walmart's corporate decisions to stop selling firearms to eighteen- to twenty-year-olds, thus violating state law prohibitions on age discrimination in public accommodations. After considering and critiquing each moral theory in the context of examples of corporate lawbreaking, the Article will conclude with a recommendation for how fiduciary obligation law should regard “rogue” corporations.⁶ The second non-liberal (and non-utilitarian) model I will consider comes from Catholic Social Thought (“CST”). I include Catholic Social Thought for four reasons. First, there are well over 50 million Catholics in the United States,¹⁸⁶ and the hierarchical structure and long history of the Church allows for a central body to build a political theory over time.¹⁸⁷ Second, the Church *33 has long worked to position CST as an alternative to both liberalism and socialism.¹⁸⁸ Third, CST is persuasive as a matter of first principles. Fourth, CST is more concrete than other models, and thus more readily applied.¹⁸⁹ CST “focuse[s] more directly on social problems and concrete issues of justice” than the work of Rawls and Nozick.¹⁹⁰ CST also has a long history as an alternative to liberalism.¹⁹¹

Stefan J. Padfield, An Introduction to Viewpoint Diversity Shareholder Proposals, 22 Transactions: Tenn. J. Bus. L. 271 (2021)

In this Article, Part I provide a primer on viewpoint diversity shareholder proposals. Following the Introduction, the Article proceeds into Part II which provides a brief overview of shareholder proposals. Such proposals have been described as having “transformed the corporate landscape in the U.S.” over the last 30 years.¹ Part III explains the need for viewpoint diversity proposals. Part IV provides some examples of viewpoint diversity proposals, including proposals related to (1) protection of employees, (2) selection of board and related members, and (3) viewpoint discrimination in policymaking. Part V provides concluding remarks.

Andrea Pin & Luca P. Vanoni, Catholicism, Liberalism, and Populism, 46 B.Y.U. L. Rev. 1301 (2021)

Recent developments in constitutional and international law have drawn Catholicism into a formidable controversy. A clash of values that are pitting legal and political thinkers against each other on momentous issues has not triggered an unequivocal, unambiguous response from the Catholic world. Quite the contrary--a plurality of voices has surfaced. Such voices do not simply differ but often conflict with each other.

Russell Powell, Spirit of the Corporation, 44 Seattle U. L. Rev. 371, (2021)

There are strong theological arguments from a variety of traditions attributing a spiritual character to human institutions if not an individual spirit. A purely secular approach could conclude that such institutions have identifiable characteristics and cultures which, though created by human persons and other structures, take on an identity separate from those shaping them that may persist. I assert that both views may be identified as something we may understand as "spirit."

Spirits can be oriented more or less toward the common good and human flourishing or bare self-interest and domination. This orientation is shaped by the relationships the entity has with those who provide inputs (stakeholders) and those who create external incentives (markets and regulators). Changes to legal rules alone are unlikely to result in the transformation of corporate spirit. Enron may serve as an example of a corporation corrupted in its essence as a result of progressively more selfinterested and corrupt acts by managers combined with the willful blindness of regulators and observers. Some corporations have transformed as an apparent result of the epiphany of key managers (such as the case of Ray C. Anderson and Interface), but most of the corporations routinely identified as model citizens get to that place as a result of consistent or gradual commitments by investors, managers, and employees--sometimes supported by regulatory frameworks holding corporations to higher standards (such as the variety of benefit corporation entity options and certifications). Legal rules cannot prompt conversion in the hearts of corporate leaders, but they may be able to frame a paradigm that minimizes corruption and appropriately incentivizes pursuit of the common good as was imagined by Berle in Corporate Capitalism and "The City of God." 288

Joshua H. Shields, Of Serendipity and Rubik's Cubes: How Jeannie Frey Is Bringing an in-House Perspective to the ABA's Business Law Section, ACC Docket, June 2020, at 66 (2020)

Frey joined CHRISTUS after 14 years in-house, having left private practice to become the first general counsel office for a client Chicago-based healthcare system. She made use of organizations like the Illinois Association of Healthcare Attorneys and the Illinois Hospital Association, and networking opportunities with other GCs, to figure out the in-house role. “It turned out to be one of the greatest growth opportunities of my career because I had to determine how to best meet the organization's wide range of legal needs, and react to new legal issues as they arose,” she says.  At CHRISTUS, she is continuing a tradition of healthcare that begin with three Catholic Sisters from Lyons, France, who arrived in Galveston, Texas, to start Charity Hospital, the first Catholic hospital in the state. As GC, she feels responsible for protecting this legacy by ensuring the legal department is staffed with the best people to support the entire organization. “The importance and responsibility of continuing these institutions, and providing needed healthcare services to their communities, is pretty strong,” Frey emphasizes. “It's a challenge--but a very motivating one.” She also enjoys developing and working with a team of attorneys and other professionals to serve the organization's legal needs and create a leadership pipeline for the future.

Roel Staes, The General (Communications) Counsel, ACC Docket, (2021)

Roel Staes presents four rules for good communications counsel. He is the senior vice president legal and general counsel for FedEx Express in Europe. Over the course of his career at FedEx, he's managed the legal and security function for the company's operations outside of the United States from its international headquarters in Amsterdam. He obtained an MBA from Henley Management College after studying law at the Catholic University of Leuven (Belgium) specializing in aviation law.

Joshua Wright & Aurelien Portuese, Antitrust Populism: Towards A Taxonomy, 25 Stan. J.L. Bus. & Fin. 131 (2020)

Antitrust populism--or the populist use of competition policies--is currently on the rise again. This is mainly due to the challenges brought about by the digital economy to traditional competition tools. From a normative perspective, the economics of competition law should avoid embarking into the outdated populist reasoning of the early days of antitrust policy. From a positive perspective, there is a need to conceptualize such modern antitrust populism because its rampant influence requires further scrutiny. This is the main objective of the Article: it offers a taxonomy of antitrust populism, distinguishing between conceptual antitrust populism and political antitrust populism. It is argued in this Article that both facets of antitrust populism bolster and reinvigorate one another. This taxonomy of antitrust populism enables us to better understand (and subsequently tackle) the unprincipled use of antitrust laws for populist reasons. After having introduced the notion of antitrust populism (I), we shall decipher what we call political antitrust populism (II) before delving into the intellectual roots of conceptual antitrust populism (III). We shall conclude upon the implications of the taxonomy of antitrust populism henceforth proposed (IV).