John P. Beal, There Are More Things in Heaven and Earth than Are Dealt with in Your Code: The Relevance of Social Science for Canon Law, 77 Jurist 25 (2021)
Diocesan structures have been much in the spotlight during the past year as Catholics and non-Catholics alike have tried to make sense of the breakdown in ecclesiastical discipline evident in the report of sexual abuse of minors and its alleged cover-up from a Pennsylvania grand jury and in the rise and fall of Theodore McCarrick. These and other related revelations have prompted scholars and ordinary faithful to want to understand "more about how the institution works, not how it's supposed to work, but how it is and how it has worked in history." Perhaps a look at the history of the evolution of diocesan structures in the United States and the social dynamics of hierarchically organized organizations can be helpful.
Maria Cahill, Subsidiarity As the Preference for Proximity, 66 Am. J. Juris. 129 (2021)
This article reflects on subsidiarity as the preference for proximity. In doing so, it focuses both on the idea of the preference for proximity and the preference for proximity. The impetus for doing so is Nick Barber's book The Principles of Constitutionalism, which counts subsidiarity as one of six principles that a constitution should embrace, and which theorizes subsidiarity as a commitment to democracy. This article considers, in Part II, the implications of considering subsidiarity as a preference, and in particular the challenges that creates for the project of adopting subsidiarity as a constitutional principle. It goes on, in Part III, to explore the constitutional principle of subsidiarity proposed by Barber, highlighting unique features of this theory of subsidiarity and evaluating the extent to which, by focusing on subsidiarity as democratic commitment, Barber's theory provides a viable account of the preference for proximity.
Luciano Eusebi, Build and Restore Good Human Relationships. Overcoming the Retributive Paradigm As A Key Issue for the Theory of Justice, 84 IUS Gentium 213 (2020)
The paper assumes as a central ethical necessity of our time the farewell to a model of justice based on mutual behaviours correspondence: according to which it's just that the negative judgment towards the other is followed by the action against him, that is to say in order to overwhelming him. This, in fact, has led to theorize the logic of conflict as natural in human affairs: for which every duality implies an opposition. Now, however, this logic entails the risk of total destruction. The aim of the paper is, therefore, to highlight how different sectors of human relationships (between people, parties or States) remain largely marked out by a retributive model of justice. It's proposed a vision of justice intended as building and restoring the good in the face of evil, which can give rise to good life conditions and relationships between all involved subjects.
Alexander Hamilton, The Path Less Traveled: A Natural Law Critique of Justice Holmes' Path of the Law, 69 Cath. U. L. Rev. 741 (2020)
There are many paths one can follow in the law. These paths can either be made or followed. Here only two are examined: natural law jurisprudence, which is followed, and that of Justice Oliver Wendell Holmes, Jr., which was created. Justice Holmes was a pioneer of American law, clearing the forest for generations of legal scholars, lawyers, and judges to come. He is often heralded as the greatest American legal scholar, and he heavily influenced the legal realism movement and the course of American law. Needless to say, Holmes' influence could be felt throughout the twentieth century and is still felt even today.
Stefanus Hendrianto,The Last Testament of Justice Scalia: On Aquinas and 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.
John Paul Kimes, Reclaiming "Pastoral": Pascite Gregem Dei and Its Vision of Penal Law, 77 Jurist 269 (2021)
Rather than examine in detail the changes promulgated on the solemnity of Pentecost in 2021, this article will treat some of the themes found in the apostolic constitution Pascite gregem Dei, and point to some linguistic modifications in the new Liber VI that can be traced directly to the vision of the munus pastorale Episcopi of Pope Francis.
Andrew J. Koehler, "No Right Is More Precious": Common Good Solutions to Ballot Access Jurisprudence, 20 Ave Maria L. Rev. 260 (2022)
The Supreme Court attempted to address ballot access issues against the backdrop of the volatile socio-political environment of the 1968 presidential election.307 And now, for the last thirty years, the Supreme Court has denied every certiorari petition filed by a minor or independent candidate.308 The Court has not just the authority but an emphatic duty to say what the law is.309 *295 Our modern socio-political climate of confusion and division demonstrates that it is time that the Supreme Court went back to the table to again say what the law is. This time, it ought to do so with common good principles, in favor of independent and minor party candidates for public office.
Michael Plaxton, Subsidiarity and the Criminal Jury, 67 Am. J. Juris. 33 (2022)
The institution of trial-by-jury is a puzzle in the modern criminal justice system. It has dubious merits as a mechanism for applying facts to law. If anything, it represents a challenge to the very idea that decision-making should be consistent and transparent. Yet the emphasis on the relative ineffectiveness and inefficiency of the jury as a trier of fact may miss the point. The jury does not function merely as a verdict-generating machine, or as a procedural safeguard for individual defendants. It ensures that the local community, with its customs, norms, and ways of life, is not simply trampled upon by a remote federal legislature. The legitimizing significance of the jury, in other words, arguably lies in its role as a kind of law-finder. With this in mind, we may do better to view it, not principally as a liberal institution, but as a manifestation of the principle of subsidiarity.
Zachary B. Pohlman, Catholic Social Teaching and the Role of the Prosecutor, 54 Creighton L. Rev 269 (2021)
Is being a prosecutor consistent with the tenets of Catholic Social Teaching? In this Article, I argue that the answer is a resounding "yes." The body of Catholic Social Teaching and its accompanying commentaries have long recognized the State's legitimate power to punish criminal offenders to promote the common good. But yet to be explored in the literature is the specific role that prosecutors play in effectuating that end. This Article takes a step in advancing that discussion. Based on two primary principles of Catholic Social Teaching-the dignity of the human person and the common good-I hope to show that being a prosecutor is not only consistent with Catholic Social Teaching but can also be a career and vocation that furthers it. This Article concludes by offering some modest suggestions to prosecutors to ensure that their day-to-day decision making is inspired by the principles of Catholic Social Teaching.
Jeffrey A. Pojanowski, Teaching Jurisprudence in a Catholic Law School, 58 Jrn of Cath. L. Studies (2019)
Robert Cover was only being slightly dramatic when he said, “Legal interpretation takes place on a field of pain and death.” Legal rules and their application do result in death sentences, prison terms, fines, injunctions, and the forcible taking of property. They can also enforce important promises, protect the weak from the strong, and secure our peace, property, and selfdirection. Given the gravity of law, any legal education seems incomplete without some space for critical reflection on what law is, what it is for, how this powerful social institution connects to morality and the common good, and how you, as a lawyer, play a role in that.
David A. Shaneyfelt, Confessions of a Catholic Litigator, 17 U. St. Thomas L.J. 111 (2020)
For more than thirty years, I have tried to answer these questions. Try is the operative word, and my reflections may not accord with the reflections of others. As the old saying goes, put two attorneys in one room and you get three opinions. But as Chesterton says, "[i]f a thing is worth doing, it is worth doing badly," and so I am content to try to answer these questions, because they are important questions, even if I may answer them badly according to others. My focus is simple. I first look to the external effects I have on others. Second, I think of the internal risks to me. Combat soldiers certainly do. Allow me, then, to look through the lens of my faith and reflect on the external and internal effects of my life as a Catholic litigator.
Maria Antonia Tigre, Exploring the Bedrock for Earth Jurisprudence, 22 Rutgers J. Law & Relig. 223 (2021)
Pope Francis specifically addressed the link between human rights and the environment, urging greater attention to international human rights law as a way of ensuring that basic human dignity is respected in the face of environmental burdens. 133
The Catholic Church's message to adopt a new, sustainable development model is timely. It explicitly calls for ensuring that future generations - expressed as "intergenerational solidarity' - also enjoy the right to a healthy environment. This renewed message calls, both directly and indirectly, for increased environmental protection by reinforcing human rights. As articulated by several legal scholars, human rights and the environment are intrinsically connected. This relationship is reciprocal: "to protect certain basic human rights, protection of the natural world is essential," since fundamental human rights rely on a healthy environment.
Dancer argues that we need deep legal pluralist approaches that decenter anthropocentric thinking on the environment and decenter the state in the development of Earth-law, which places responsibility for the environment and the equitable sharing of power at the heart of legal frameworks on human-Earth relations and recognizes the diversity of ontologies that shape these relationships in law and practice. 502This article shows how Earth-centered discourses have existed in human societies and civilizations for millennia. Different religious and philosophical underpinnings all share a view of humanity as an integral part of an organic whole, revering all living things. While the recent developments in jurisprudence may appear novel, they are somewhat latent and emergent. 503Theories of land ethics, rights of nature, Earth-centered environmental ethics, wild law, and Earth jurisprudence all build on these philosophical crescendos and have proved influential at the international level through the HwN Programme. It is time to find new approaches to the law that rely on the value of nature. This article tells us the why and the how.
Christopher Tollefsen, Acknowledging the Body: The Challenge for Public Bioethics, 66 Am. J. Juris. 163 (2021)
At the outset of his illuminating and challenging book What It Means to be Human: The Case for the Body in Public Bioethics, O. Carter Snead identifies the nature of “public bioethics:” it is the domain of ethics concerned with “the governance of science, medicine, and biotechnology in the name of ethical goods.”1 Put slightly differently a page later, public bioethics seeks the “normative foundation for law and policy” in science, medicine, and biotechnology. Snead is especially concerned here with what he calls areas of “vital conflict,” namely abortion, assisted reproductive technology, and end of life care. How is the law to be brought to bear on the dilemmas that emerge at the intersection of the beginning and ending of life, modern technology, and human relationships, aspirations, and desires?
