27 July 2022

"Taboo Markets" and Family Law. Or,

Sean Williams vs. Louis Hensler and Adeline Allen.

Can we sell (parental rights with respect to) children? Don't we in effect do so even when we say we're not?  Do we really mean that the best interests of the child are paramount in the law? Or is it the best interests of children? And why do folks in driverless car simulations choose to run over an adult instead of a child? (And a cat instead of a dog?)

For these and more serious questions arising from the field of experimental jurisprudence listen to this episode of Kim Krawiec's Taboo Trades podcast. Along with Gregg Strauss, Kim interviews Sean Williams about his his new working paper, “Sacred Children and Taboo Tradeoffs."

There are many good questions, insightful observations, and even some suggestions in the podcast. Critical readings disclose a variety of antinomies that are worthy of analysis. For example, why does the best interests of the child predominate in family law but count for nothing in criminal law when it comes to sentencing? And why is the best interests test often satisfied by little more than ungrounded judicial handwaving?

Still, Williams and his interviewers give short shrift to the political and legal significance of moral norms, the notion of tradition as a source of authority, and teleology in general. Pretty much a personal-sovereignty approach with a dose of empirically demonstrable welfarism. Trapped in the immanent, one might say. 

But perhaps there are good immanent reasons for some of the biases of family law as typically understood, reasons the author and interviewers fail to take into account. It is to point to those considerations that I refer my readers to my previous posts where I comment on the work of former colleague Louis Hensler (The Legal Significance of the Natural Affection of Charlie Gard’s Parents hereand former student Adeline Allen (A Market in Gametes here).

I won't bore folks by summarizing my summaries of what Hensler and Allen have written. But I will suggest that, as useful as experimental jurisprudence can be, there's more to the picture of family relationships and family law than it discloses.

25 July 2022

A Short Introduction to Yoram Hazony's "Conservatism: A Rediscovery"

I posted about Yoram Hazony's earlier book on political theory, The Virtue of Nationalismhere. His latest one, Conservatism: A Rediscovery, came out in 2020.

I must again report that I haven't read either one but Hazony's most recent is the subject of a one-hour podcast at Mere Fidelity here. The three co-hosts interview Hazony. It would have helped if they had been more familiar with English constitutional and legal history as well as nineteenth-century American economic history. More precise (and concise) questions would also have helped. Hazony is a bit pugnacious and a dialectical format would have generated more light.

All of this should not deter folks from listening. I enjoyed the interview and learned what Hazony means by conservatism as distinguished from Enlightenment liberalism. Whether there are (or at least were) non-Enlightenment forms of liberalism went unresolved. I would like to know what Hazony thinks of Wilfred McClay's Land of Hope (my thoughts here) and East Coast Straussians generally as well as Charles Sellers's great work, The Market Revolution: Jacksonian America 1815-1846. In short, does Hazony really think conservatism in America ended with the Federalists? And does he believe that Abraham Lincoln was a conservative, an Enlightenment liberal, or something else? Perhaps Colin Redemer will take a shot at interviewing Hazony on the Ad Fontes podcast.

14 July 2022

"Private Rights and the Common Good"

A superb piece by James Gordley here. Gordley performs a great service by clarifying the notion of rights in the context of a traditional notion of the common good. From Aristotle until the nineteenth century, rights were legal powers by which persons could act individually for the good in the context of a community. In other words, rights had a telos. And that telos was the Good of both the individual and the community of which the individual was a member. The good of the community, in turn, was understood in terms of distributive, commutative, and general justice.

Beginning in the nineteenth century, on one account, rights were absolute powers of individuals that could be limited only to the extent that their exercise interfered with the rights of another. On another account, individual rights amounted only to a delegation of power from the state that could be created, circumscribed, or eliminated as the public interest required. Today we find it difficult to think outside either of these accounts even though neither would have occupied the social imaginary of, say, the Founding generation of an independent United States.

I won't take the time to quote from or further summarize Gordley's argument. It stretches across only 36 pages. As an added bonus, Gordley adds a ten-page appendix in which demonstrates that the libertarian account (the first in the preceding paragraph) cannot be drawn from John Locke. Gordley argues with demonstrable care that, while Locke moved from the historical Christian-Aristotelian account with respect to the origins of political society (from innate sociality to the social contract), the purposes of political society were congruent with the Western tradition exemplified in Aristotle, Aquinas, and Richard Hooker

In this account [An Essay Concerning Human Understanding], Locke spoke of the pursuit of “true happiness.” When Aristotle spoke of happiness (eudaemonia), he did not mean an agreeable state of mind which is the opposite of sadness.  He meant to live well and to flourish, pursuing what is worthwhile.  Hooker used the word “felicity” in the same way.  It is “the utmost good and greatest perfection whereof nature hath made [us] capable.” According to Locke, “a “steady prosecution of true felicity” requires that human beings choose those things that “lie in the way to their main end, and make a real part of that which is their greatest good.”  “[W]e should take pains to suit the relish of our minds to the true intrinsic good or ill that is in things....”  “[T]he highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness.” ...

[Thus,] “the necessity of pursuing true happiness is the foundation of liberty. As therefore the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness; so the care of ourselves, that we mistake not imaginary for real happiness, is the necessary foundation of our liberty.”

In short, Lockean liberty consists in the freedom to pursue the Good individually, socially, and as a political community. Locke was not libertarian; he was an Anglican Whig.

12 July 2022

"The Last King of America"

Subtitled "The Misunderstood Reign of George III" by Andrew Roberts (680 pp. plus 57 pp. endnotes and bibliography) was a Christmas gift from daughter Rachel. The length of time it took me to read this book is no reflection on its content or style. It is excellent. 

I have neither the time or qualifications to review this heavily-researched volume but will point out that Roberts was the beneficiary of the 2015 release of many of the papers of George III by the current Queen. Roberts gives evidence of having read everything written by or to the late King and (virtually?) everything in connection with him written by his contemporaries. And Roberts uses this wealth of original material to correct many misunderstandings about the man and his reign. Misunderstandings (libels?) from the American side can be more easily understood given the exigencies of fighting a protracted war for independence. The equal calumnies from the Whig oligarchs of George's day, and their repetition by Whig-leaning historians of much of the next two centuries, find less reason for leniency.

Americans know or care little for what George did following 1782 but Roberts brings to light the George's stalwart service to Britain as king during the long conflicts with France beginning with the French Revolution. Roberts also sets straight the record, insofar as it can be established at this date, with regard to the King's mental illness. It was not porphyria and the 1960 articles asserting that it was have been debunked by specialists in the field.

I won't say more here except to recommend this book to anyone interested in the British understanding of their "colonial problems" and the contributions of George III to the constitutional order that continues to prevail in the United Kingdom

21 June 2022

A Market in Gametes?

 Adeline Allen has recently published an excellent piece titled Sperm and Eggs in Consideration of Money: A Pound of Flesh for Three Thousand Ducats? in the Indiana Health Law Review. Cribbing from the abstract:

Donor conception is a practice in which a donor sperm or egg (or both) is used to conceive a child. Usually, the donor sperm or egg is procured in a financial transaction: gametes exchanging hands for money. The “donor” in donor conception is a bit of an oxymoron, for a donation it is not when money—and sometimes big money—is a feature of the practice, not a bug. This Article will show that donor conception is not proper to who human beings are given their nature as embodied beings, with particular attention to the children of donor conception and to the donors. The bargained-for exchange of sperm and eggs for money also does not satisfy the requirement of commutative justice, historically understood to be of paramount importance in the doctrine of consideration in contract law. ... This Article concludes that donor conception, being unjust and not oriented to human flourishing, ought not to be done. A re-orientation of the law toward a proper respect for each person’s embodied nature and toward fostering a posture of gratitude in receiving each child as a gift would be welcome.

The commodification of human persons, which is, after all, what is really going on (no one is simply buying eggs or sperm; they are buying the resulting child), is evident from the pricing of gametes:

Payment to sperm donors is about $75 per specimen and to egg donors ranging from $2,500 to $50,000, depending on the donor’s “qualifications.” (One ad promised payment of $100,000.) So-called “Ivy eggs,” eggs from a woman with an Ivy League college on the résumé, have commanded $50,000. Buyers, on their part, choose the sperm or egg with desired characteristics and qualifications out of the website catalogue: Clean family medical history? Height of at least 5’9”? Blond(e) hair? Jewish? Asian? Indian? White? SAT score of at least 1400? Plays the cello? Does modeling and calligraphy on the side? Or even . . . Nobel Prize winners and Olympic athletes?

So what's the problem? 

To be known, raised, and loved by their biological parents are owed to the children. This needed love and relationship, by their very nature grounded in their unique genetic relationship, are not replaceable by other people’s loves, however grand and deep those loves may be. That is to say, the will of those who brought the child into existence in the case of donor conception and are now raising him may very well be accompanied by a generous and genuine love for him, and yet the child’s embodiment, with all its needs and longings, testifies against our notions of bringing forth children as if they were “unencumbered selves,” free of any “unchosen obligations,” who would be alright if they were wanted and loved enough.

Does this make adoption problematic? No, because

Adoptive parents [are] stepping in, picking up, welcoming, and grafting into their families children, not theirs biologically, who come from (already-existing) broken situations. But it is a very different case in donor conception, when the parents who raise you participated in your separation from your biological parent(s). Here, the parents who raise you played a hand in creating that wound, as contrasted with adoptive parents, who care for children who already exist, whose circumstances are already less than ideal. Research supports this painful internalization. Empirical data show that donor-conceived children may suffer from greater psychological harm, and even physical harm, than adopted children. One might observe that whereas adoption serves the child, donor conception serves the parents, not the child.

All in all an excellent piece that I whole-heartedly commend to my readers. 

(For earlier posts on Professor Allen's published works go here and here.)

14 June 2022

More News from Campbell Law School. Or, The University of Illinois Gains at Campbell's Expense


Anthony Ghiotto named inaugural director of the Kimball R. and Karen Gatsis Anderson Center for Advocacy and Professionalism

IMAGES

18 May 2022

News From Campbell Law School. Or, Federal Judiciary Gains At Campbell's Expense

PRESS RELEASE
May 16, 2022

The Judges of the United States District Court for the Northern District of Florida are
pleased to announce that Zachary C. Bolitho has been selected to join our district as a
full-time magistrate judge in the Pensacola Division of the Court. Mr. Bolitho will begin
his service with our Court on May 23, 2022.

Mr. Bolitho’s experience includes government service, private practice, and academia.
He has served as a law clerk to the Honorable David W. McKeague of the U.S. Court of
Appeals for the Sixth Circuit; as an Assistant U.S. Attorney in the Eastern District of
Tennessee; as an ex officio member of the U.S. Sentencing Commission; and as an
Associate Deputy Attorney General and Chief of Staff to the Deputy Attorney General at
the U.S. Department of Justice. Additionally, Mr. Bolitho was a litigator at Jones Day and
Cranfill Sumner LLP and an Associate Professor of Law at Campbell University School
of Law where he was named “Professor of the Year” four times. He earned his Bachelor
of Arts degree, summa cum laude, from the University of Mount Union and his Juris
Doctorate, summa cum laude, from The Ohio State University, Moritz College of Law.

The Judges and staff of the United States District Court for the Northern District of Florida
offer Mr. Bolitho our warmest congratulations and look forward to serving with him for
many years to come.

09 May 2022

"The Internal Point of View in Private Law"

A superb piece close to the heart of my ongoing current project, Jeffrey Pojanowski and Paul Miller have co-authored The Internal Point of View in Private Law (download here). You can go to The Private Law podcast to listen to a discussion of the article if you'd like.

Taking issue with law-and-economics, law-as-sociology, and, implicitly, critical approaches to law, Pojanowski and Miller pick up where H.L.A Hart, Joseph Raz, John Gardner, and others have begun. In short, legal theory must take into account the internal perspectives of participants in a legal system (law makers/judges, lawyers, and parties). Legal actors do not understand themselves from the external point of view; they understand themselves as actors within a system of law, and it is explication of the law in which exponents of the internal point of view engage.

Pojanowski and Miller have their criticisms of the foregoing "internalists" as well. Legal actors have agency; their worldviews are not cabined by the law. They believe in the law and that they are engaged in a legal project oriented toward some goal. Legal actors are oriented toward a variety of ends through the law. Law has it own integrity but legal actors also have ends that transcend it.

But what ends?

Drawing on the the work of John Finnis, they fault Hart for his unwillingness to admit any purposeful aspect to an internal account of law. More recent theorists like Raz, who also focus on the internal perspective, recognize that law fits within a larger social imaginary that includes purpose but that the depth of law's purpose is little more than personal sovereignty. John Gardiner also argued that law has a telos but identified it with legal remedies and largely skipped over the larger ends of private law within which remediation for wrongs takes place.

Let me stop summarizing and let them speak for themselves:

Many leading private law theorists claim to analyze private law from an internal point of view; a vantage point within which private law doctrine, institutions and procedure enjoy pride of place. Private law theory of a generation ago distinguished the internal from external points of view, valorizing the former and criticizing the latter for ignoring the normativity of private law or for mistaking private law for public law or regulation. The New Private Law, by contrast, asserts the complementarity of internal and external points of view, partly by emphasizing the value of functionalist analyses of legal form. In this article, we canvas leading accounts of the internal point of view in private law ... and identify their shortcomings: notably, their inability to ground assertions about the normative and explanatory priority of the internal point of view, and about its relationship (whether of exclusivity or complementarity) to external points of view.

What solution do Pojanowski and Miller suggest?

We offer an alternative, and we think better, rendering of the internal point of view, drawing on the work of John Finnis. Amongst other things, our account vindicates the New Private Law’s alluring but elusive promise of perspectival integration, showing how private law may be understood as an interlocking set of practices of public practical deliberation equally concerned with reasoned compliance and behavioral conformity with practically reasonable laws.

Some might be concerned by analysis that draws on the new natural law of John Finnis. Many today are suspicious of anything that smacks of "natural ends" apart from maximizing personal sovereignty. Perhaps my draft of Person-Centered Pluralism for Contract Theory might be less off-putting.

In brief, The Internal Point of View in Private Law is a fine piece and deserves thoughtful reflection.

04 May 2022

"Christianity and Constitutional Law"

 You can go here to read a fine article by my friend Nicholas Aroney. Cribbing from the abstract:

This paper ... explores the influence of Christianity on constitutional law. The paper begins by pointing out that modern constitutional law is the product of several important historical influences. These include elements of Greek philosophy, Roman law, Christian theology, and Enlightenment principles. Greek philosophy proposed a classification of the basic types of constitution and introduced the idea of the rule of law. Roman law contributed the legal concept of jurisdiction, which is an essential feature of contemporary constitutional law. Christian theology offered a conceptual framework in which the authority of civil government was effectively qualified by a higher natural or divine law, and in which the spiritual authority of the church posed a practical limit on the temporal powers of the civil authority. Christian theology also provided the context in which the powers of civil and ecclesiastical rulers were tempered through various means, including the administration of oaths of office and the issuing of charters guaranteeing the rights of religious, social, economic, and civil associations of many kinds. The principle of the separation of powers and the establishment of written constitutions enforced by judicial review, although associated with the Enlightenment, also owed a great deal to these earlier principles and practices. The paper surveys the contribution of each of these influences and argues that although the Greek, Roman, and Enlightenment contributions have been important, constitutional law would not be what it is today if it were not for the influence of Christianity.

Aroney reinforces the point that animates much of my law school seminar, Christian Perspectives on Legal Thought: the Western political-legal tradition cannot be comprehended without understanding the theological substance, religious practices, and particular form(s) of the Western Christian Church. While some overestimate the role of the Bible and the Christianity in the development of the West, many more--including most academics--are simply unaware of it.

21 April 2022

The End of "The Rise and Triumph of the Modern Self"

I've posted upwards of a dozen times on Carl Trueman's book, The Rise and Triumph of the Modern Self: Cultural Amnesia, Expressive Individualism, and the Road to Sexual Revolution. While I've made a few observations on what Trueman should have included, his book is a fine piece of cultural history. In his "Concluding Unscientific Prologue," Trueman summarizes his argument and then gives his readers a few thoughts on potential ways forward, at least for those who find themselves increasingly on the outs with the contemporary social imaginary and its increasingly coercive implications.

Trueman focuses his summary comments on three points. I will address two: the secularity of the contemporary liberal order and its focus on sexual expressivism. The liberalism that began to take hold in the second half of the seventeenth century turned its back on the long-held belief in the West that a largely unified Christian faith was crucial to a stable political order. At least in retrospect, the Continental Wars of Religion and the English Civil War were attributed to religious zealots who sought to impose a totalizing version of Christianity on a people and a polity. That this argument was incomplete was unimportant to the efforts to re-form the political order on the authority and consent of the governed. The will of the people gradually supplanted reason and revelation. And it is the triumph of the will that came successively to characterize the political, the economic, and the social orders. And now, Trueman concludes, the "culture of expressive individualism and of choice of identity is ours too." (386) In short, if the State and the market must recognize the unfettered individual will, then so must the rest of us. And nowhere is the duty of recognition of the other more acute than with respect to sexual identity.

Trueman acknowledges that this demotic turn has brought some goods, e.g., the emphasis that modern culture "places on the inherent dignity of the individual." (386) Yet,

The break with the past that modernity represents ... cuts us off from any agreed-on transcendent metaphysical order by which our culture might justify itself... We both are isolated from the past, where ends transcending the individual were assumed, and are left free floating in the present.* [In other words,] the reason why ethical and political discussions are so acrimonious  and futile today is that there is no commonly accepted foundation on which such discussions might constructively take place. (388)

Even for his largely traditional audience, Trueman tamps down expectations for a return to a Christian-dominant social order. And he is quick to point a finger at complicit Protestant in the United States that have for many decades "failed to reflect the historical concerns of the church in its liturgy and practice ... and [in] the manner in which it has frequently adopted the aesthetics of the present moment in its worship." (389) So, gay marriage is here to stay.

Otherwise for the future, Trueman raises several antinomies that remain in play: that the social costs of the sexual revolution remain inordinately borne by women, the difficulty of defining consent where there are disparities of power (for a fascinating discussion of the multiple notions of consent that are in play in different fields of the law, listen to an episode of The Private Law Podcast here), and transgenderism. None of these as-yet unresolved issues, however, bode well for the future of religious freedom. The scope for religious practices that are felt to transgress another's expressed identity is destined to shrink.

Finally, on a modestly more helpful note, Trueman concludes with three recommendations for churches in America that wish to hold to some form of essentialism and to reject the plasticity of the human self. First, such a church "should reflect long and and hard on the connection between aesthetics and her core beliefs and practices." (402) (By aesthetics Trueman means subordination of reason and truth to sympathy and empathy. In other words, subordinating stories to the Story. And to head off any misunderstanding, Trueman fully agrees that personal relationships must be compassionate but that compassion must appropriately be oriented to the good of the other.)

Second, the church must also be a community because community is crucial:

Each of us, in a sense, is the sum total of the network of relationships we have with others and with our environment. Yes, we possess a common human nature but hat nature has expressed--and does express--itself differently in different eras and cultures. (404, emphasis added)

Third, "Protestants need to recover both natural law and a high view of the body." (405) Hear, hear.

In sum, to thrive in the contemporary age of expressive individualism, churches must "exist as a close-knit, doctrinally-bounded community that requires her members to act consistently with their faith and to be good citizens of the earthly city so far as good citizenship is compatible with faithfulness to Christ." (407) Amen.

________________________

* For my thoughts from over a decade ago on the risks of an ungrounded foundation for human rights see Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (here or here).

 For my observations on the theological legitimacy of natural law see God's Bridle: John Calvin's Application of Natural Law (here or here).

06 April 2022

"The Rise and Triumph of the Modern Self" 4.3

Chapter 10 of Carl Trueman's book, "The Triumph of the T," does an excellent job of situating the programmatic basis of the unity of the LGBTQ+ movement. Trueman demonstrates familiarity with the academic and mid-level popular texts that have framed the movements for legal and social recognition of the legitimacy of gays and lesbians.


Originally rooted in the sexed differences of male and female coupled with same-sex attraction, male and female homosexuals had little in common. Drawing on the work of Adrienne Rich (and later Germaine Greer), Trueman observes that "[male] homosexuality and lesbianism are not simply the male and female versions of a single broader phenomenon (erotic attraction to the same sex). [They] are actually two different phenomena because of how they stand in relation to the broader power structures of society ..." (342) Traditional social organization often privileges males. Thus, "lumping together lesbians and male homosexuals in a common category is an act of male domination."

If Trueman is correct, that when lesbians and gays come together politically, "bodily differences must be sideline or attenuated," (343) then what accounts for a united movement for legal and social acceptance? In short, "their shared victimhood as marginalized sexual minorities." (345) "Virtuous victimhood is a powerful catalyst for political coalitions in the modern world" (350) that for several centuries has identified the sovereign, psychological self as the "nature" of human nature. "Reality is inward and psychological, not outward and natural," and this is true of "all twenty-first century Westerners ..." (340). We have met the enemy, and he [sic] is us.

The transgendered movement compounds the elision of gendered sex seen first in the political unity of gays and lesbians. Sexed human nature may have been downplayed by gays and lesbians in the interests of political expediency but it was not denied. Transgendered individuals, however, deny any "biologically shaped approach in favor of a much more psychological and free-floating notion of gender." (353) Even so, the political virtue of victimhood permitted the addition of T to LGBTQ+.

Demands for legal recognition is one thing. The social demands of transgendered females is another: "resentment of transgender people, particularly men claiming to be women, [is] rife within the lesbian community," (354) or so Trueman reports. Why would feminists and lesbians feel resentment against their transgendered fellows? Drawing on the work of Janice Raymond, it is because

Transgenderism essentially depoliticizes the matter of being a woman. Being a woman is now something that can be produced by a technique ... The pain, the struggle, and the history of oppression that shape what it means to be a woman in society are thus trivialized and rendered irrelevant. (360)

Trueman then turns to Germain Greer who similarly argues that "sex-change surgery simply removes the most distinctive elements of male sexual anatomy; it does not add the critical components of womb and ovary." (361) Why are these components of female anatomy important? Because they "provide the experiences that constitute womanhood: menstruation and pregnancy." To ignore these essential [sic] features of biological femaleness is "to engage in a self-deception."

By making common cause first with gays and then with the transgendered, feminists generally and lesbians particularly have written their own epitaph. It is unlikely that, as The Economist recently suggested, future Olympics will divide competitors into two groups, open and female. Transgendered females will come ever more to dominate sport and, one wonders, the boardroom, at the expense of those born XX. Women, those blessed with the biology associated with XX chromosomes, will find themselves more marginalized as the decades wear on. The current TERF wars (here and here) are only a harbinger of things to come.

17 March 2022

"The Rise and Triumph of the Modern Self" 4.2.2

I've chosen to comment on Chapter 9 of Carl Trueman's book, "The Triumph of the 
Therapeutic," in two parts. 

In part 1, I addressed Trueman's skillful summary in The Supreme Court and Gay Marriage. I'm skipping his argument titled Ivy League Ethics where he devotes nearly ten pages to ethicist Peter Singer and his support of abortion and infanticide. I did not find this part of Chapter 9 as persuasive as the first. Trueman's effort to infuse Singer's Nietzschean ethics with expressive individualism seemed forced.

The third part of Chapter 9, Campus Anticulture, is solid. Recalling his discussion of Rousseau (in my words: "Rousseau identifies the cause of his 'sins' not in the sinful will but in the amour propre--the distorted desire for recognition created by society"), Trueman argues that the purpose of education has gradually changed from learning how to live well in the natural and social (dis)orders in which we find ourselves to learning that all social orders are the result of oppression and that so-called natural orders are merely awaiting the power of technology to reorder them to our likings. The triumph of the therapeutic self.

With respect to education, it is the case that "the changing understanding of selfhood brings with it a changed understanding of what does and does not constitute an assault on the self." (325-26) In other words, freedom of inquiry is no longer ordered to the ends of discovering the true or the good but may instead be seen to be a means of assault on the self. The notion of assault is no longer limited to injury to the body or property (or good name) but becomes "psychologi[zed], something that damages the inner self." 

For example, anyone who disagrees with an aspect of LGBTQ+ rights project is deemed bigoted as displayed in the furor around Middlebury College's 2017 invitation to Charles Murray. The psychologization of harm is foregrounded in this context by labeling of those who disagree in terms of phobia. Being tarred with the brush of phobia rules "out from the very start any notion that objecting to the fluidity that marks current notions of sex and identity could be based on any kind of rational reflection." (330) To paraphrase Martin Gurri, any challenge to the tenet of identity is blasphemy.

These brief observations lead to some even briefer comments on the recent revisions to the ABA Standards and Rules of Procedure for Approval of Law Schools. Even though it is a private entity in which membership is voluntary, the American Bar Association is the primary accrediting body for law schools in the United States. The power to accredit is important because many states require graduation from an accredited law school to take their bar exam. And without ABA accreditation, law students do not have access to federally-subsidized student loans. Thus, the private ABA exercises enormous public power.

In February 2022 the ABA House of Delegates approved changes to its accreditation standards 205 and 303. As revised, Standard 205 adds gender identity and expression, ethnicity, and military status to the list of grounds on which a law school may not discriminate in admissions and equality of opportunity. These changes will have little practical effect at most law schools. Revised Standard 205 exempts law schools with a religious affiliation from all its nondiscrimination provisions but "only to the extent" that the United States Constitution provides. In other words, the ABA recognizes that its accreditation standards amount to State action. But in any event, most religiously affiliated law schools will happily acquiesce to the revised non-discrimination rule.

Revised Standard 303 adds a new subsection (c). This should prove more interesting. 

(c) A law school shall provide education to law students on bias, cross-cultural competency, and racism:

(1) at the start of the program of legal education, and

(2) at least once again before graduation.

While the Standard does not prescribe the content of such education, official Interpretation 303-6 states that it is the "obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law ..." One presumes that representation of persons or businesses conscientiously resisting application of expanding anti-discrimination rules will not be deemed "unprofessional," with all the negative ramifications such a conclusion would entail.

In light of The Triumph of the Therapeutic, the risk is great that Standard 303(c) education will be cabined by the sensibilities of selfhood. For example, will all questions addressing normative and professional questions about same-sex relationships be entertained? Or will a student (or teacher) who addresses the legitimacy of a lawyer's choice, say, to decline to represent a same-sex couple with regard to estate planning or adoption, be foreclosed because it risks assaulting the identity of another student?

Most incoming law students have been sufficiently conditioned by their experiences in secondary and undergraduate education to know better than to risk the patronizing of teachers or the ire of classmates. More's the pity. One wonders how well law graduates acutely sensitized to issue of identity can function in a realworld in which many clients and other professionals have not fully internalized the cult of the inviolability of the psychologized self.