Elizabeth Schiltz

Feminist Legal Theory, Disability Rights and Consumer-Credit Regulation

Picture me in the early 1980’s, a philosophy major at Yale University: born and raised in Germany and France, just returned from a Junior Term in Lublin, Poland. Extracurricular activities: serving on the student advisory group for the Catholic church on campus; engaging in mock United Nations sessions at colleges across the country, as treasurer of Yale International Relations, Inc.; and helping organize a volunteer tutor program at a local, inner-city elementary school, where I gravitated especially to the kids who seemed to have special needs, because they reminded me of my mentally retarded older brother. Picture me again in 2012, a law professor at the University of St. Thomas, whose recent scholarship includes an article in the Journal of Law and Religion applying the papal encyclical Caritas in Veritate to a comparative analysis of consumer credit regulation in the United States and the European Union; an article in the Duke Journal of Law and Contemporary Problems applying the insights of the theologian Stanley Hauerwas to the contradictions inherent in the current state of disability law in the United States; and co-editing a book to be published next year by Ashgate Press called Feminism, Law, and Religion, which collects perspectives from women of different faiths and nationalities. It almost looks as though I had it all carefully planned from the beginning, doesn’t it? Nothing could be further from the truth! My journey from then to now was anything but a linear one. But the further I progress in my scholarship, the more convinced I become that there was some plan behind it, even though it may not have been mine.

By my senior year of college, I knew I was going to Columbia Law School to prepare myself for a life as an international diplomat, preferably working for some U.N. agency on refugee issues. After three years at Columbia Law School, though, I was just as certain that I was destined for a career at a corporate law firm in Washington, D.C. I was quickly drawn into the fascinating world of the regulation of banks – writing testimony for Visa and MasterCard in congressional hearings on the regulation of interest rates, helping banks figure out how to securitize credit-card loans and even helping Target Corp. set up its very own credit-card bank. Though my journey toward partnership in a corporate law firm was slowed by a couple of significant life events – moving from D.C. to Minneapolis when I fell in love with a guy from Duluth and having a couple of kids – the path itself never changed. Until, of course, it did.

Around the time I got pregnant with my third child, my husband decided to pursue a long-time dream of his, leaving his law firm job to teach at a law school. The most attractive offer he got was from Notre Dame Law School. Right around the time that he got that offer, we learned that the child I was carrying had Down syndrome. Though I had never seriously considered teaching as a career before then, knowing that my world was going to be turned topsy-turvy by my new child somehow opened me up to whatever else I might find in that upside-down world. What I found was a part-time, tenure-track offer to teach at one of the country’s greatest law schools. And that offer opened the door to the most satisfying and rewarding career I could possibly imagine – teaching law and doing scholarship in two extraordinary

Catholic law schools – first Notre Dame, and then St. Thomas. I entered the world of scholarship rather timidly, writing about the world I had left, the world of banking regulation. As an academic, I found that the more I was able to take an objective perspective, the more I was able to more fully appreciate the tensions between the very real pressures felt by lenders forced to compete in increasingly larger national and international markets, and the very real costs paid by vulnerable consumers when those markets fail. My ongoing work on consumer credit regulation explores these tensions. After three articles on consumer credit in America, my most recent article finds some global insights in the recent encyclical Caritas in Veritate, which I relate to the schemes of consumer-credit regulation in the United States and the European Union.

While I was developing this body of scholarship on consumer-credit regulation, my experiences in raising a son with Down syndrome and (we later discovered) autism, also was exposing me to the world of disability rights. When I mentioned to a colleague at Notre Dame that I would like to explore some of these issues in my scholarship, she recommended that I read the book Dependent, Rational Animals: Why Human Beings, by Alisdair MacIntyre. MacIntyre’s book explores the question of how moral philosophy would be affected "if we were to treat the facts of vulnerability and affliction and the related facts of dependence as central to the human condition." In his introduction, MacIntyre acknowledges his debt to the work of a group of feminist scholars who have been critiquing the traditional liberal theory of justice, based on the ideal of autonomous, independent actors. Known as "care feminists," "cultural feminists" or "relational feminists," these scholars argue that what all humans share, most fundamentally, is not some elusive (and largely mythical) state of autonomy and independence but rather a state of dependency – at the beginning and often at the end of life, and at various stages in between.

Right around the time that MacIntyre’s book introduced me to this line of feminist thought, I received an invitation from another Catholic law school to speak at a conference on the identity and mission of Catholic law schools. Because it was fairly clear that I had been asked to participate, in part, because of concerns about the under-representation of women at the conference, I decided to provide an unabashedly female perspective. In preparing this talk, I read, for the first time, the writings of Pope John Paul II on women, such as his 1988 Apostolic Letter, "On the Dignity and Vocation of Women," and his 1995 "Letter to Women." I was immediately struck by the dramatic convergence between the arguments of these Catholic teachings and the arguments of relational feminists. I have explored these convergences in a series of articles that focus primarily on the workplace restructuring necessary to support the effective witness of women in the public sphere that both the Church and most feminists advocate: Should Bearing the Child Mean Bearing All the Cost? A Catholic Perspective on the Sacrifice of Motherhood and the Common Good (2007), Motherhood and the Mission: What Catholic Law Schools Could Learn From Harvard About Women, and West, MacIntyre and Wojtyła: Pope John Paul II’s Contribution to the Development of a Dependency-Based Theory of Justice.

Engaging the work of secular feminist legal theory from any faith perspective, let alone the perspective of a Catholic woman, has been a challenge. But one of the most unexpected rewards of this engagement has been the professional and personal relationships I have forged with feminist scholars of all sorts. These friendships led to my current book project, co-editing a collection of essays by feminists of different faiths to be published in the next year by Ashgate Press, Feminism, Law, and Religion. My own contribution to this collection is an exploration of the contemporary Catholic feminist interpretation of the theory of gender identity known as complementarity, which posits that men and women are fundamentally different yet fundamentally equal. This theory has its roots in a Thomistic affirmation of the unity of body and soul; it was developed by a group of predominantly Catholic philosophers who rejected the Cartesian dualism underlying most post-Enlightenment philosophy – phenomenologists such as Dietrich and Alice von Hildebrand and St. Edith Stein, and personalists such as Jacques and Raissa Maritain, Emmanuel Mounier and Gabriel Marcel.

As my work on feminist legal theory drew me more deeply into the Catholic intellectual tradition, I began to feel the need to learn more about that tradition. During a sabbatical, I began to take courses toward a master’s degree in Catholic studies, earning that degree in the spring of 2010. The interdisciplinary nature of that degree program exposed me to the breadth of the history, philosophy, theology and literature of the Catholic tradition. In almost every class I took, though, I found myself focusing on questions of dependency and vulnerability, particularly as manifested in the disabled. My master’s thesis, "Jesus Wept: A Theological Reflection on Disabilities," explored the contributions of a series of theologians and philosophers to making sense

of the lives of our most vulnerable fellow-citizens, the mentally disabled. This led to an invitation this past fall to participate in a symposium at Duke Law School on "Theological Argument in Law: Engaging Stanley Hauerwas." My contribution to that symposium was an argument that Hauerwas’ critique of modern humanism (which parallels in many ways the relational feminists’ critique of modern liberal theories of justice) was consistent with the non theologically-based arguments of a prominent disability rights scholar critiquing inconsistencies in the current state of disability rights theory. Such convergences in thought, I argue, may point the way to fruitful alliances in advocating for fairer inclusion of those with disabilities in our society. This article will be published this year in Duke Law School’s Journal of Law & Contemporary Problems as "Exposing the Cracks in the Foundations of Disability Law."

My scholarship in three different areas seems to lead me again and again to the discovery of convergences between Catholic thought and secular legal theory. I found this in feminist legal theory, in disability rights theory and even in consumer-credit regulation. I consider this an encouraging discovery, particularly in our increasingly polarized political climate, characterized it seems by ever-escalating tensions between institutional witnesses of faith and increasing pressures toward secularization. It suggests to me that the challenge at the heart of the mission of the University of St. Thomas School of Law – our dedication to "integrating faith and reason in the search for truth" – is not, in fact, an unrealistic one.

Elizabeth Schiltz is professor at the School of Law, a Thomas J. Abood Research Scholar, and co-director, Terrence J. Murphy Institute for Catholic Thought, Law and Public Policy.

From Exemplars, a publication of the Grants and Research Office.