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Abstract:
This essay examines some of comments made about religion and politics by three of the 2008 presidential candidates - Mike Huckabee, Barack Obama and Mitt Romney. I argue that, surprisingly, if one holds the three candidates to the standard of liberal politics, then Romney appears closest to the Rawlsian standard of public (or political) reason. The goal is not for the Mormon, or Baptist, or Church of Christ candidate to figure a secular way to lead others to his faith. That approach to politics undermines political stability and demonstrates disrespect for one's fellow citizens. Instead, politicians should employ political reason as the starting point for their decision-making on matters of law and politics.

politics, religion, liberalism, public reason

Abstract:
This article examines the influence of religious beliefs on the law of emergency contraception. That influence is evident in two areas of the law. The first is conscience clause legislation, which allows health care providers to refuse participation in abortion, sterilization, contraception, or other medical procedures for religious and moral reasons. The second is the substantive content of health law and policy. The article first describes recent claims of conscience by pharmacists who refuse to dispense emergency contraception. It then reviews state and federal attempts to regulate the availability of emergency contraception. It also discusses the implications of the debates about contraception for the Religion Clauses of the First Amendment, concluding that legislative over-reliance on conscience clauses may violate the Establishment Clause.

First Amendment, religion, health, contraception, conscience

Abstract:
In this article, which was part of a symposium on professionalism, I identify some elements of a clients' theory of professionalism. My starting point is the most common complaint of clients about lawyers: they neglect the matters entrusted to them. I first identify the standard, lawyers' account of professionalism, with its two principles of partisanship and nonaccountability. I then identify the two principles that many clients would prefer, namely competence and diligence. Lawyers have made at least three attempts to codify these clients' principles, in the Model Code of Professional Responsibility, the Model Rules of Professional Conduct, and a distinctive Texas Rule of Professional Conduct that combines competence and diligence into one standard. Because the Texas disciplinary rule adopts a standard that is more than negligent but less than intentional conduct, I analyze the difference between negligence and neglect. I conclude that clients would prefer a disciplinary system based on strict liability for neglect.

neglect, ethics, professionalism

Abstract:
Prosecutors need good judgment (not just caution or pragmatism) because a large part of their job is discretionary. Indeed, in recent years, the discretionary part of prosecution has expanded. The concepts of good judgment and discretion, however, remain ambiguous. Accordingly, in this paper I focus on the discretionary component of prosecutorial practice and ethics. Part I identifies the centrality of discretion to prosecution. Despite differences of opinion about the merits of discretion, prosecutorial discretion has expanded in recent years. After explaining why discretion is needed in criminal prosecution in Part IA, I identify in Part IB when it applies: in investigation, charging, plea bargaining and sentencing. I report in Part IC that prosecutorial discretion may be unfettered. Appropriate judicial, legislative or administrative review may not occur, leaving prosecutorial discretion unreviewed and unreviewable.

Because of the range of prosecutorial discretion and its unreviewable quality as described in Part I, numerous proposals for the reform of prosecutorial discretion have been advanced. Part II examines these reforms, which include calls for new, more specific standards; better enforcement of those standards through supervision, oversight and training; and improved judgment by individual prosecutors. These latter suggestions include recommendations for better moral as well as legal judgment by prosecutors.

The proposals and the uncertainty about discretion raise the question: Does one need good moral judgment in order to be a good prosecutor? In Part III, I explore what insights legal ethics offers on that question. Parts IIIA and IIIB distinguish substantive moral and substantive legal judgment. I argue that - like all human persons - individual prosecutors must make their own judgments about the morality of their jobs and the obligations they impose. In these circumstances, prosecutors appropriately rely on substantive theories of morality as they decide whether to be prosecutors or whether to enforce laws and policies that they conclude are unjust.

Such substantive moral judgment, however, is not the core of prosecutorial discretion. In Part IIIC I argue that prosecutorial discretion requires public moral judgment, a judgment rooted in prosecutorial practice and experience. Prosecutorial discretion is not the same as moral discretion; prosecutors should not become moral entrepreneurs who make discretionary decisions according to their own substantive theories of justice. Their legal role does not permit unfettered moral discretion.

I conclude that prosecutorial discretion requires attention to office policies and procedures. Prosecutorial offices should develop specific policies of discretion and mandate training, consultation, supervision and review of discretionary choices. Policies alone cannot promote good judgment, however. That is developed through training by more experienced prosecutors and through consultation with peers and supervisors. Moreover, meaningful control of discretion is impossible without at least some form of internal administrative review. Therefore, each prosecutorial office needs regular review of discretionary decisions.

Abstract:
The article examines the traditional question about role morality and the legal profession, namely, whether lawyers can be moral. It first identifies different answers to the role morality question that have been popular in legal ethics. The article then argues against a separate morality for lawyers. It concludes that religious ethics is as valuable as philosophy and sociology in reminding the profession that a separate morality for lawyers is dangerous.

ethics, professionalism

Abstract:
In this essay, my focus is on the interdisciplinary question of whether religious studies and theology contribute anything to legal ethics. I argue that both theological and religious ethics are important contributors to legal ethics, but that law requires theology's role to be different from that of the related discipline of religious studies. We do not want a theological legal ethics; theology is best debated and resolved among members of the same tradition. Instead, we depend on lawyers to employ the language of public reason. Theology motivates individual lawyers and may inspire them to conscientiously object to the norms of the profession. Religious studies assists them in translating their theological convictions into norms of public reason. Religion and theology also have a place in the daily life of the profession. Religious as well as philosophical comprehensive doctrines that encourage people to be good lawyers are an important part of legal ethics. Such comprehensive doctrines need not be privatized.

legal ethics, religion, public reason

Abstract:
This essay was part of a symposium on the place of fundamentalism and tolerance in a liberal society. I first define fundamentalism and argue that the discussion must focus on all forms of fundamentalism, not just Islamic fundamentalism. Next the essay explores the implications of John Rawls' theory of political liberalism for fundamentalism, explaining that according to political liberalism fundamentalists are unreasonable. The essay then explains that justice does not require the toleration of the intolerant or unreasonable if they threaten security and public order. But if they are not dangerous, then the intolerant should be tolerated, not suppressed. The essay also rebuts the claim that liberals are lay fundamentalists.

liberalism, Rawls, tolerance, religion, fundamentalism

Abstract:
This article defends John Rawls' Political Liberalism against charges that it is too secular and not sufficiently inclusive of religious opinions and commitments. Rawls's position, and the criticisms of it, is reminiscent of the complaints made about John Courtney Murray's writings in the 1940s and 1950s. Murray was the American Jesuit whose arguments justified American Catholic support of the First Amendment. I first examine Rawls's account of religion and identify the features of Rawlsian religion that appear objectionable to adherents of religion. I then examine Murray's thought and note the similarities between Rawls's and Murray's attempts to resolve the problem of pluralism. There are continuities, e.g., between Murray's "natural law" theory and Rawls's account of "public reason." In addition, both Murray and Rawls recognize the independence of law and politics from certain religious arguments. After examining the dissatisfaction among some Catholic writers with Murray's public philosophy framework, I conclude that politics and law are better served by the autonomy of law and politics from religion that Rawls and Murray propose.

Rawls, religion, liberalism, public reason, John Courtney Murray

Abstract:
The essay, part of the Ethical Health Lawyer Series, reminds the ethical health lawyer to be prepared for whistleblowers. State and federal law's treatment of health care whistleblowers is comprehensive and complex. The essay explains how wise health lawyers can anticipate the whistleblowers in their midst and establish appropriate programs and procedures to prevent both misconduct and retaliation long before the whistleblower's story appears on CNN.

health law, whistleblower, ethics, reporting

Abstract:
This essay reviews 13 recent books about religion and politics and concludes that 2008 and 2009 were bad years for religion, politics and law.

religion, politics, First Amendment

Abstract:
This article examines the interaction of academic and constitutional arguments about teaching religion. It begins by describing the early perception that teaching religion in public universities is unconstitutional. I then explain that the academics, responding in 1963 to Supreme Court dicta in Schempp that teaching about but not of religion is constitutional, chose a subject matter standard according to which the teaching of religious studies, but not theology, is constitutional in state universities. About/of was never the Court's standard, however. Unlike the scholars, the justices often promoted an institutional principle that ignored the content of the courses and focused on the religious or public nature of the schools. Although recent Supreme Court decisions suggest that the Court does not accept the about/of line, the religion professors have not yet revisited their constitutional or academic standards. I conclude that the religion professors misinterpreted Schempp; teaching theology, but not evangelism, is constitutional.

First Amendment, Establishment Clause, theology, religious studies

Abstract:
The legal and political environment now mistakenly favors religion instead of religious liberty and fosters wars of religion instead of peaceful tolerance. To reinvigorate the ideal of religious liberty, this essay advocates a return to the roots of the First Amendment in the principle of religious tolerance or toleration. The principle of toleration has normative bite. In this essay, I identify three claims about toleration that are missing from current First Amendment law and politics. First, because toleration is a political and legal principle, toleration is skeptical about religious truth-claims and accordingly denies the state the power to enforce religious truth through force or law. Second, tolerance protects the individual against the power of both church and state. Third, toleration must extend beyond the diversity among Christian sects of old Europe and the young United States and stretch in directions not anticipated by the Framers. Following these standards modifies current law and politics. Under the principle of tolerance, contentious issues like gay marriage are resolved according to constitutional principles of liberty and equality rather than religious norms of Christian love. Churches and religious organizations are held to neutral laws of general applicability and not allowed special privileges to harm their members. Government funding of religion is not permitted. Public Christian displays are supplemented with the signs and symbols of other religions and philosophies. The end result is less intolerant religion and more religious liberty.

religion, First Amendment, jurisprudence, constitutional law