Loyola University Chicago, School of Law: LAW eCommons
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Restorative Justice in Illinois: A Holistic Approach to Reformation and Juveniles in Conflict with the Law
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Prophesy, Public Theology, and Questions of Justice: Some Modest Reflections
No full textI must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Council-er or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice . . . . Lukewarm acceptance is much more bewildering than outright rejection.1
[T]he Church has always had the duty of scrutinizing the signs of the times and of interpreting them in the light of the Gospel. Thus, in language intelligible to each generation, she can respond to the perennial questions which men ask about this present life and the life to come, and about the relationship of the one to the other. We must therefore recognize and understand the world in which we live, its explanations, its longings, and its often dramatic characteristics.
The Right to Religious Freedom—A Theological Comment
No full textReligious freedom is too important a right to be politicized. Religions have an important role to play in the public sphere and are an indispensable voice in ethical conflicts of different kinds. Therefore, religions are necessarily political. But this does not mean that they should follow a political theology which claims that only those laws are valid that concord with the natural and, ultimately, divine law. I analyze the theological context of the religious freedom debate in the twentieth century, adding a theological-ethical analysis to the legal interpretations. I argue that the moral principle of dignity and the right to freedom is not only a legal right that creates privileges but a moral right that comes with responsibilities. Theologically speaking, the legally granted right to religious freedom must be interpreted in view of one’s religious tradition, and Christianity, among several other religions, prioritizes those who are most discriminated against and morally injured in their societies. Christian ethics entails the responsibility to respect and protect the needs and rights of others. Its morality is not rooted in an objective order but in the gift of human freedom, which calls moral agents to respect the moral freedom and moral agency of others as one’s own moral freedom
Religious Freedom and the Common Good
No full textAs fights over religious liberty in culture war contexts contribute to the polarization straining our political institutions and public values, few topics are more important to consider than the relationship between religious freedom and the common good. This relationship is complex and multifaceted, and the failure on all sides to explore this relationship deeply enough has exacerbated our current divisions. This essay, which was delivered as a talk at a conference on The Question of Religious Freedom at Loyola University Chicago, seeks to carefully consider this relationship and focuses, in particular, on four of its facets. First, strong protections for religious liberty, including robust accommodations when laws and regulations burden religious practice, are essential to the common good. Religious freedom does not come at the expense of the common good, and they are not in opposition. Second, religious freedom must be formulated in light of the common good. The common good is the good of all of us, and the right to follow one’s religious conscience in society cannot be unlimited. Third, religious liberty must be pursued with the common good in mind. When religious believers seek protections for religious practice, they should consider the effects of their demands on others, and where conflicts arise, all sides should work together to develop solutions that minimize burdens on one another to the greatest extent possible.
Compromises are especially difficult to achieve in culture war contexts because the opposing sides start with different understandings of the human goods of marriage, family, and sexuality, and both believe that getting these understandings right and having them reflected in law and social practice are essential to the well-being of society. As a result, many proponents of same-sex marriage and reproductive freedom have resisted religious accommodations with significant public effects, and many religious
traditionalists have been unwilling to grant concessions to progressive agendas in exchange for religious protections. However, this dynamic rests on too narrow an understanding of the common good. Human dignity requires room for the exercise of human freedom, and room for freedom will mean space for competing views. For religious believers in today’s culture wars, their faith requires even more; they must exercise their rights in ways that witness to the divine love they are called to imitate and model. Listening, engagement, and dialogue are necessary to such a witness, and they are also essential democratic values. Finally, rethinking the relationship between religious freedom and the common good holds the potential for advancing the common good more broadly, and this is a fourth facet of their relationship. If we can move from fights about religious liberty to dialogue and compromise grounded in mutual understanding, this de-escalation can serve as a model and sign of hope for reducing our political polarization more broadly and for charting a new path focused on the common good
The False Allure of Settlement Pressure
No full textThe threat of “blackmail” or “in terrorem” settlements have shaped the law, leading courts to conclude that if the plaintiff does not appear likely to win the case, then the litigation should be halted at an early stage. This Article questions the established logic of settlement pressure. After clarifying the concept and presenting the strongest case for it, I show that it cannot serve as the basis for wide-ranging civil procedure doctrines. Doing so has perverse results, such as privileging the defendant’s idiosyncratic tastes and helping corporate managers hide important facts from their shareholders. In addition, settlement pressure is not the serious problem that it has been characterized as: rather than being blackmail, it is more analogous to litigation insurance or hiring expensive attorneys. The doctrines based on settlement pressure, therefore, lack a sound justification, and settlement pressure is not a dire threat that the law must step in to counteract. Even in the context of class actions, the most favorable circumstances for settlement pressure arguments, a case where the plaintiffs seem unlikely to prevail should be allowed to proceed, provided it sets out a coherent, bona fide class claim. A number of prominent decisions, such as Wal-Mart Stores, Inc. v. Dukes, ultimately depend on settlement pressure, and therefore ought to be reconsidered
