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Religious Lawyering's Second Wave*

Published online by Cambridge University Press:  24 April 2015

Russell G. Pearce  and
Amelia J. Uelmen
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Extract

The recent three-hour program on “Professional Responsibility and the Religious Traditions” at the annual meeting of the American Association of Law Schools (“AALS”), sponsored by the Section on Professional Responsibility and co-sponsored by the Section on Law and Religion, represents a milepost in the history of the religious lawyering movement and offers a valuable opportunity to reflect on that history. In 1998, only eight years ago, one of us defined the religious lawyering movement as “an emerging force” in legal ethics. In that short time, the movement has expanded dramatically and has received greater attention within the academy and the bar. It has developed the first institutional vehicles for disseminating and promoting conversations about religious lawyering, both among lawyers of the same faith and among lawyers of different faith traditions. Now the religious lawyering movement is increasingly confronting more complex and more difficult religious, legal and ethical issues; and is extending the religious lawyering conversation internationally.

Type
AALS Presentations
Information
Journal of Law and Religion , Volume 21 , Issue 2 , 2006 , pp. 269 - 281
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2005

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Footnotes

*

We adopt the phrase “second wave” from our friend and teacher Howard Lesnick. See Howard Lesnick, Riding the Second Wave of the So-Called Religious Lawyering Movement, 75 St. John's L. Rev. 283, 284 (2001) (characterizing “second wave” questions as “what is it that God is asking of you in your practice” and “what does it mean to be called out by the church?”).

References

1. Assn. of Am. L. Schools, Association of American Law Schools Annual Meeting, Wednesday, January 4, 2006 Program, Section on Professional Responsibility, http://www.aals.org/am2006/program/wednesday.html (accessed June 11, 2006).

2. Pearce, Russell G., Foreword: The Religious Lawyering Movement: An Emerging Force in Legal Ethics and Professionalism, 66 Fordham L. Rev. 1075 (1998)Google Scholar.

3. Pearce, Russell G. & Uelmen, Amelia J., Religious Lawyering in a Liberal Democracy: A Challenge and an Invitation, 55 Case W. Res. L. Rev. 127, 138 (2004)Google Scholar.

4. Id.

5. Pike, James A., Beyond the Law: The Religious and Ethical Meaning of the Lawyer's Vocation (Doubleday 1963)Google Scholar.

6. See Stringfellow, William, The Christian Lawyer as a Churchman 10 Vand. L. Rev. 939, 939 (1957)Google Scholar (“Worship is not isolated from the rest of the Christian life; it is the integration of the whole of the Christian life in history. Worship is not peripheral, but decisive in the relationships of Christian faith and secular law.”). See also Pearce, Russell G., Learning from the Unpleasant Truths of Interfaith Conversation: William Stringfellow's Lessons for the Jewish Lawyer, 38 Cath. L. 255 (1998)Google Scholar (building on Stringfellow's work to contrast the religious concept of vocation with professionalism); McThenia, Andrew W. Jr., Introduction: How This Celebration Began, in Radical Christian and Exemplary Lawyer: Honoring William Stringfellow 1, 5 (McThenia, Andrew W. Jr. ed., William B. Eerdmans Publg. 1995)Google Scholar (collecting essays honoring William Stringfellow by a number of lawyers influenced by his work). For a bibliography of the literature from a Christian perspective published by 1957, see A Bibliography of Christian Faith and the Law, 10 Vand. L. Rev. 967 (1957)Google Scholar.

7. Assn. of Am. L. Schools, Selected Readings on the Legal Profession (West 1962). See also Pearce, supra n. 2, at 1075.

8. Pearce, supra n. 2, at 1075.

9. Id. at 1076; Pearce & Uelmen, supra n. 3, at 129. See e.g. Shaffer, Thomas L., On Being a Christian and a Lawyer: Law for the Innocent (BYU Press 1981)Google Scholar; Shaffer, Thomas L. & Redmount, Robert S., Lawyers, Law Students and People (Shepard's 1977)Google Scholar; Porter, Thomas W. Jr., The Editorial Board of the Journal of Law and Religion Presents this Award to Thomas L. Shaffer, 10 J. L. & Relig. 277 (1993-1994)Google Scholar (symposium).

10. Pearce, supra n. 2, at 1076; Pearce & Uelmen, supra n. 3 at 130. See Allegretti, Joseph G., Christ and the Code: The Dilemma of the Christian Attorney, 34 Cath. L. 131 (1991)Google Scholar. A few years later, Allegretti further fleshed out the argument in his book, Allegretti, Joseph G., The Lawyer's Calling: Christian Faith and Legal Practice (Paulist Press 1996)Google Scholar [hereinafter Allegretti, Calling].

11. Pearce, supra n. 2, at 1076.

12. Levinson, Sanford, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577 (1993)Google Scholar.

13. Hornblass, Jerome, The Jewish Lawyer, 14 Cardozo L. Rev. 1639, 1647 (1993)Google Scholar (tracing images and examples of Jewish lawyers throughout history, and lamenting the failure of some who rose to prominence to draw on their Jewish legal heritage).

14. Pearce, Russell G., Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 Cardozo L. Rev. 1613 (1993)Google Scholar.

15. Baker, Thomas E. & Floyd, Timothy W., A Symposium Précis, 27 Tex. Tech L. Rev. 911, 911 (1996)Google Scholar (inviting close to fifty lawyers, judges and law professors to reflect on “how they have reconciled their professional life with their faith life.”).

16. See Pearce, supra n. 2.

17. See Feerick, John D., Pearce, Russell G. & Schorsch, Ismar, Rediscovering the Role of Religion in the Lives of Lawyers and Those They Represent: Welcome and Introductory Remarks, 26 Fordham Urb. L.J. 821, 823 (1999)Google Scholar. See also Brozan, Nadine, At Legal Conclave, Clinton's Pastor Reflects on Morality, N.Y. Times B7 (Dec. 8, 1998)Google Scholar (discussing issues presented at Fordham conference). See generally Pearce & Uelmen, supra n. 3 at 131-134.

18. Pearce & Uelmen, supra n. 3 at 137; Uelmen, Amelia J., An Explicit Connection Between Faith and Justice in Catholic Legal Education: Why Rock the Boat?, 81 U. Det. Mercy L. Rev. 921, 937–938 (2004)Google Scholar; Lefevere, Patricia, Lawyers Seek “Spirituality for the Long Haul,” Natl. Cath. Rptr. (Kansas City, Mo.) 4a (Oct. 28, 2005)Google Scholar; Kent, Rose, What's Faith Got to Do With It?, Fordham Law 10 (Summer 2001)Google Scholar.

19. Pepperdine University, Pepperdine University School of Law, The Institute of Law, Religion, and Ethics, The Past, http://law.pepperdine.edu/ilre/past.htm (accessed Mar. 15, 2006)Google Scholar. See also Pearce & Uelmen, supra n. 3, at 141 n. 55 (distinguishing religious lawyering programs from previously established inter-disciplinary programs in law and religion).

20. See e.g. Lefevere, Patricia, Catholicism and Teaching Law: Catholic Law Schools Grapple with Faith's Influence, Natl. Cath. Rptr. (Kansas City, Mo.) 1a, 5a (Oct. 28, 2005) special insert on colleges and universities) (quoting Thomas Mengler, Dean of the University of St. Thomas School of Law in Minneapolis: “We're integrating faith and reason throughout the curriculum”)Google Scholar; id. (quoting Bernard Dobranski, Dean of Ave Maria School of Law: “You don't come to Ave Maria unless you want to see the whole range of how Catholic moral and intellectual tradition affects the law.”); Hagerty, Barbara Bradley, Religious Schools Train Lawyers for Culture Wars, Web Extra Q&A: Exploring the Rise of Religious Universities, http://www.npr.org/templates/story/story.php?storyld=4632072 (May 6, 2005)Google Scholar (interviewing Naomi Schaefer Riley about a “missionary generation” that defines itself by religious more than political identity); id. at At A Glance: Conservative Christian Law Schools (with links to Regent University School of Law, Liberty University School of Law, and Ave Maria School of Law); Liptak, Adam, Giving the Law a Religious Perspective, N.Y. Times A16 (Nov. 22, 2004)Google Scholar, (new religiously affiliated law schools “share an opposition to what they see as the moral relativism of the standard law school education and the moral peril of much law practice.”); Hamilton, Neil & Brabbit, Lisa Montpetit, Fostering Professionalism Through Mentoring 35–36 & n. 160b, U. St. Thomas Legal Studies Research Paper No. 06-17, (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=899405) (accessed June 11, 2006)Google Scholar (identifying faith as a topic in mentoring program).

21. See e.g. Loyola Law School, Loyola Law School Alumni Events, Religious Lawyering: A Challenge and A Responsibility, http://alumni.lls.edu/events/060215-ReligiousLawyering.htm (accessed May 22, 2006); Villanova University School of Law, Villanova Journal of Catholic Social Thought: Symposium: Catholic Social Thought and the Law, http://heritage.villanova.edu/LAW/CST&LAW.htm (accessed May 22, 2006); Sargent, Mark A., What's Law Got to Do With It? Introduction to the Symposium on Catholic Social Thought and the Law, 1 J. Cath. Soc. Thought 201 (2004)CrossRefGoogle Scholar. See generally Villanova University, J. Cath. Soc. Thought, http://www3.villanova.edu/mission/journal (last modified Jan. 19, 2006).

22. University of Houston Law Center, Yale L. Rosenberg Memorial Lecture: The Prosecutor's Duty to “Do Justice”: A Jewish Law Perspective, http://www.law.uh.edu/alumni/ebriefcase/04january/Rosenberg.pdf (accessed May 22, 2006); Case Western Reserve University, Case School of Law, William A. Brahms Lecture on Law & Religion, “Religious Lawyering in a Liberal Democracy: A Challenge and an Invitation,” http://law.case.edu/lectures/index.asp?lec_id=46 (accessed May 22, 2006).

23. See Pearce & Uelmen, supra n. 3 at 134; Failinger, Marieet al., Panel Discussion: Models of Successful “Religion and Lawyering” Programs, 26 Fordham Urb. L.J. 917, 935–940 (1999)Google Scholar (Robert Reber's remarks describing topics discussed and reactions to the program developed through the collaboration of Fordham, Auburn Theological Seminary and the Finkelstein Institute at Jewish Theological Seminary that brings together Catholic, Protestant, Jewish and Muslim lawyers for a religious lawyering speaker series, which meets three-times per year).

24. Pearce & Uelmen, supra n. 3, at 134.

25. Forum for Faith in the Workplace, Faith and the Law Program, http://www.faithintheworkplace.org/9569.cfm (collaborative effort of the Forum, the Ohio State Bar Association, The Methodist Theological School in Ohio, the Trinity Lutheran Seminary and the Columbus Jewish Federation to offer each fall a seminar on the relationship between religion, personal faith and the practice of law). See e.g. Faith and the Law (Nov. 2004); Faith and the Law: The Ten Commandments as a Conversation Starter for Interfaith Dialogue on Religion and the Law (Nov. 2005) (materials on file with the authors).

26. Uelmen, supra n. 18, at 937 (describing Fordham's two “tracks” for programming, interfaith and faith-specific).

27. See e.g. Christian Legal Society 2005 National Conference and Workshop Schedule, http://www.clsnet.org/mmPages/events/natConfs/2005AVorkshops.php (workshops include themes such as What Would Jesus Say: Conversations with Jesus and His Clients; Christian Lawyering With Excellence: Use and Presentation of Evidence at Trial; Family Law and the Christian Lawyer; Estate Planning and Drafting for the Faithful).

28. Levinson, supra n. 12, at 1578 (professionalism posits that the lawyer's role requires lawyers to “bleach[] out” the “merely contingent aspects of the self, including the residue of particularistic socialization that we refer to as our ‘conscience.’”). See also Matasar, Richard A., The Pain of Moral Lawyering, 75 Iowa L. Rev. 975, 981 (1990)Google Scholar (concluding that a lawyer faced with the conflict between ignoring the client's needs or the lawyer's own need to salve his or her conscience should concede to the wisdom of the profession: “Do what the profession demands. That is the price of being a lawyer and that is the end of the story.”).

29. Shaffer, Thomas L., Faith Tends to Subvert Legal Order, 66 Fordham L. Rev. 1089 (1998)Google Scholar.

30. See e.g. Floyd, Timothy W., The Practice of Law as a Vocation or Calling, 66 Fordham L. Rev. 1405 (1998)Google Scholar; Allegretti, Calling, supra n. 10, at 24-36; Pearce & Uelmen, supra n. 3, at 151. The 2004 Inaugural Conference of Pepperdine's Institute on Law, Religion & Ethics was dedicated to this topic. See Cochran, Robert F., Jr., Introduction: Can the Ordinary Practice of Law be a Religious Calling?, 32 Pepp. L. Rev. 373 (2005)Google Scholar; Hardy, Lee, A Larger Calling Still, 32 Pepp. L. Rev. 383 (2005)Google Scholar; Allegretti, Joseph, Clients, Courts and Calling: Rethinking the Practice of Law, 32 Pepp. L. Rev. 395 (2005)Google Scholar; Levine, Samuel J., Reflections on the Practice of Law as a Religious Calling, From a Perspective of Jewish Law and Ethics, 32 Pepp. L. Rev. 411 (2005)Google Scholar.

31. See e.g. Bamberger, Phylis et al., Panel Discussion: Does Professionalism Leave Room for Religious Commitment?, 26 Fordham Urb. L.J. 875, 880–881Google Scholar (comments of Professor Jack Sammons).

32. Green, Bruce A., The Religious Lawyering Critique, 21 J. L. & Relig. 283–297 (2005-06)CrossRefGoogle Scholar.

33. Model R. Prof. Conduct 2.1 (ABA 2005). See e.g. Uelmen, Amelia J., Can a Religious Person Be a Big Firm Litigator?, 26 Fordham Urb. L.J. 1069, 1080–1083 (1999)Google Scholar (discussing how application of Model Rule 2.1 leaves room for lawyers to bring religious values to bear in advising clients).

34. We offer an introduction to some of these issues at Pearce & Uelmen, supra n. 3 at 153-156. See also Vischer, Robert K., Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement, 19 J. L. & Relig. 427 (2003-2004)CrossRefGoogle Scholar (exploring how the communal and religious dimensions of the religious lawyering movement are in tension with the liberal project).

35. We begin to wrestle with some of these questions at Pearce & Uelmen, supra n. 3 at 156-159.

36. See Levinson, supra n. 12 at 1578-1579 (describing the “triumph” of the “standard version of the professional project” as “the creation, by virtue of professional education, of almost purely fungible members of the respective professional community. Such apparent aspects of the self as one's race, gender, religion, or ethnic background would become irrelevant to defining one' capacities as a lawyer.”). See also Pearce, Russell G., White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L. Rev. 2081 (2005)Google Scholar (arguing that the profession would be better served by openly acknowledged and managed racial identity).

37. More information about the Focolare Movement's origins and diffusion can also be found on the international website: www.focolare.org. See also Uelmen, Amelia J., Chiara Lubich: A Life for Unity, 8 Logos 52 (Winter 2005)CrossRefGoogle Scholar (discussing work in inter-religious dialogue).

38. Focolare Movement, “Relationships in Law: Is There a Place for Fraternity?”, http://www.focolare.org/en/sif/2005/en20051112a.html (accessed Nov. 12, 2005) (conference press release); Focolare Movement, “Relationships in Law: Is There a Place for Fraternity?”, Report on the Conference, http://www.focolare.org/eN/sif/2005/en20051129b.html (accessed Nov. 21, 2005). See generally Uelmen, Amy, Relationships in Law, Living City 14 (03 2006)Google Scholar (report on the conference in the Focolare's North American monthly magazine). Portions of this discussion were previously published in this article and are included with permission.

39. See Chiara Lubich, Liberty, Equality… What Happened to Fraternity?, ¶ 9, http://www.focolare.org.uk/ArcLiberty.htm (accessed May 23, 2006).

Liberty and equality have become juridical principles and are applied every day as real and true political categories.

But if only liberty is emphasised [sic], as we know well, it can become the privilege of the strongest. If only equality then, as history confirms, it can result in a mass collectivism. In reality, many peoples still do not benefit from the true meaning of liberty and equality….

How can these be acquired and brought to fruition? How can the history of our countries and all humankind continue the journey towards its true destiny? We believe that the key lies in universal fraternity, in giving this its proper place among fundamental political categories.

40. Interestingly, some aspects of the work of John Rawls might help to form a foundation for fraternity as a juridical category. In A Theory of Justice he aimed to set out an overarching theory of justice which hinges not on utilitarian principles, but on deeper notions of justice as fairness. For example, in contrast to the classical utilitarian theory of “the greatest happiness for the greatest number” he proposes a “difference principle,” in which, as he puts it, “the social order is not to establish and secure the more attractive prospects of those better off unless doing so is to the advantage of those less fortunate.” Rawls, John, A Theory of Justice 65 (rev. ed., Harv. U. Press 1999)Google Scholar. Acknowledging fraternity's “lesser place” in democratic theory thus far, he suggests that such might be because “fraternity is sometimes thought to involve ties of sentiment and feeling which it is unrealistic to expect between members of the wider society.” Id. at 90. But he sees the “difference principle” as one way to move beyond mere sentiment so as to give fraternity a more universal and robust place in juridical analysis and theory. As he explains: “The family, in its ideal conception and often in practice, is one place where the principle of maximizing the sum of advantages is rejected. Members of a family commonly do not wish to gain unless they can do so in ways that further the interests of the rest.” Id.

41. Uelmen, supra n. 38, at 15.

42. Id. at 15-16.

43. Id. at 16.

44. SeeGerald F. Uelmen, Treating Drug Offenders: Measuring Success One Life at a Time, Living City 18 (Mar. 2006) (“Acceptance of ‘defendants’ as brothers and sisters who need our love and encouragement, rather than ‘refuse’ to be dumped into our prisons with no hope of rehabilitation or redemption, can truly change lives.”); Gerald F. Uelmen, Focus on the Individual: An Interview with Superior Court Judge David Shaheed, Living City 19 (Apr. 2006) (“The love of neighbor is a part of all the Scriptures and the Holy Qur'an. But once you see it demonstrated, once you are involved in it, and are the recipient of it, it makes it very easy to take it and apply it to other aspects of your life.”).

45. Uelmen, supra n. 38, at 16-17. See also Amy Uelmen, The Georgia Justice Project, Living City 6 (Aug./Sept. 2004) (available at http://www.livingcitymagazine.com/livingcity/PDFs/04_08.pdf); Georgia Justice Project, Georgia Justice Project, http://www.gjp.org (accessed May 22, 2006).

46. Uelmen, supra n. 38, at 17.