Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, January 17, 2006

Penalver on Property Outlaws

MOJ-er Eduardo Penalver has a new paper (with Sonia Katyal) on SSRN, called "Property Outlaws."  Here is the abstract:

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution, modification, and transfer of property entitlements. We develop a typology of the property outlaw by introducing three particular kinds of property lawbreakers - the acquisitive outlaw, the expressive outlaw, and the intersectional outlaw. Descriptively, we show that each type of property outlaw has enabled the reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements. What emerges from this study of the property outlaw is an alternative vision of property law that focuses, not only on its capacity for fostering order and stability, but also on its dynamic function as a site for the resolution of conflict between owners and non-owners. We argue that, if property is to perform this dynamic function, the law should be careful not to over-deter those who conscientiously and nonviolently refuse to abide by existing property arrangements.

I need to read this paper.  In the meantime, I'd welcome some blogged thoughts from Eduardo about what, exactly, he means when he says that "the law should be careful not to over-deter those who conscientiously and nonviolently refuse to abide by existing property arrangements."  How, for example, should the law respond to those who steal cars from those who have more than one because they "conscientiously" believe that (a) people only need one car and (b) they could use a car themselves?  Where is the line between "deterring" such persons and "over-deterring" them.  (ed.:  Read the paper, Rick).

The Oregon case

Like Rob, I'm a big fan of both subsidiarity and the culture of life.  And, I agree that the Court's decision today in Gonzalez v. Oregon regarding federal regulation of drugs used for physician-assisted suicide provides an occasion for us to think about the two ideas.  (It occurs to me, for instance, that subsidiarity is a principle that exists for the sake of the common good -- which must exclude, in my view, laws that exempt vulnerable people from the protection of otherwise-generally-applicable homicide laws -- and not a good-in-itself that we should balance against the obligation to protect human life from violence).   

That said, I cannot forget that the case was supposed to be about a question of administrative law -- i.e., about the deference to be accorded to this agency's concededly reasonable interpretation of a regulation under the Controlled Substances Act.  And, on this technical matter, it seems to me that Justice Scalia makes mincemeat of Justice Kennedy (who was, perhaps, a bit too eager to vindicate what he saw as subsidiarity values?).

Putting aside the merits of the Court's resolution of the question actually presented, I was struck by the concluding passage of Justice Scalia's dissent:

The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality--for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U. S. 308, 321-323 (1913); Lottery Case, 188 U. S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.

Most of this seems right to me.  But, is so clear that the federal government lacks the power, under the Fourteenth Amendment, to prohibit assisted suicide, insofar as legal regime's like Oregon's in effect single out a vulnerable class of persons for reduced protection from homicide laws?  Constitutional Law teachers, what do you think?

Culture, Totalitarianism and Religion

In 1934, the prolific author and Catholic convert, Christopher Dawson, published an essay entitled “Religion and the Totalitarian State.” In it, he reached a positive conclusion that the Church “exists to be the light to the world.” Of the secularist culture, he said, “it is a prison in which the human spirit confines itself when it is shut out of the wider world of reality.” He continued by stating: where the “light” exists, the elaborate mechanisms for living in the dark become useless. It was clear that he was largely addressing the totalitarian regimes of fascism, communism, and the emerging national socialism of Germany. But he also issued concerns about tendencies that can appear in secular, democratic institutions. In all of these cases, he realized that the media—especially the film industry—can have an extraordinary influence over people. Of Hollywood’s power, he stated: “Has not Hollywood got a distinct ethic of its own which influences the minds of its audiences? Is this ethic in any sense Christian?” The same questions could be asked today. Their relevance to Catholic legal theory includes the formation of attitudes which, in turn, can influence the evolution of social norms and law.

I have just finished reading about the Golden Globe awards presentation and found out who was successful and who was not. “The Chronicles of Narnia”—whose themes include the pitching of evil against good, self-sacrifice for others, and redemption—received no awards; however, it was nominated for two of the music categories. Other themes (love is a force of nature; life is more than the sum of its parts; a member of the jet set going to the heartland to write a story) were far more successful in winning the various film categories. I have also just read how the films which won can be a strong influence on the yet-to-be-announced Academy Awards nominations. It is fair to state that the winners of the Academy Awards, like the Golden Globe champions, can have another strong influence on the culture—a culture that extends beyond one country into the world. Ultimately, Dawson’s concern was how the totalitarian mind—be it situated in the mechanisms of the State or the media—can crush the presence of religion from modern life through the “sheer weight” of public opinion that is molded by the State and the thriving culture. I recall a few years ago how this was demonstrated during the Academy Awards presentation when “The Cider House Rules” received elaborate commentary, immense applause, and (I believe) a standing ovation for the political message it conveyed.

Indeed, the cinema can have an enormous impact on how our lives in common is regulated, but it may be some time before the cultural effect, if any, of last evening’s Golden Globe event can be determined.  In the meantime, we might consider what Dawson said at the end of the essay to which I referred: totalitarianism (like a theatre) is a place of darkness, but the knowledge of God that is the gift of the Church is one of light.   RJA sj

Gonzales v. Oregon

The Supreme Court has upheld Oregon's physician-assisted suicide law against the federal government's attempt to assert regulatory authority over the participating physicians.  I haven't found the opinion online yet, but the case posture seemed to pit the culture of life against subsidiarity.  This is a bit too simplistic, of course, as subsidiarity's localizing impetus must be read through the lens offered by the culture of life.  But if the perception is accurate that our citizenry's common moral convictions are becoming fewer and farther between, then should we favor a more morally neutral subsidiarity in which states and subcommunities are given space to function as moral laboratories, at least within certain boundaries, given that an authentic moral anthropology may also benefit from having its own space made available within a generally hostile culture?  In other words, would the doctrine of double effect render support for the Gonzales outcome supportable under Catholic legal theory?

Rob

UPDATE: Here is the opinion.  Justice Scalia's dissent engages the underlying clash of values most directly, as he questions whether intentionally assisted suicide can be a "legitimate medical purpose," and whether "the Attorney General must defer to state-law judgments about what constitutes legitimate medicine, on the ground that Congress must speak clearly to impose such a uniform federal standard upon the States."

Family-friendly outsourcing

On the topic of a family wage, Matt Festa alerts me to an outsourcing trend that may actually be empowering families to realize, at least partially, the child-friendly promise of a stay-at-home parent.  The Wall Street Journal (subscription only) reported last week that:

[W]orking at home is taking a leap forward -- in the customer-service arena. Instead of sending call-center work to India or the Philippines, a growing number of consumer-products and -services companies, from Office Depot and J. Crew to Wyndham Hotels and Sears Holdings, are outsourcing work to people in their homes here.

The development, driven by expanded broadband access to the Web, cheaper computer technology and improved call-routing systems, has opened the door to an entirely new group of at-home workers. Home-based call-center agents have tripled since 2000, estimates Art Schoeller, a senior analyst for research concern Yankee Group. A survey last August of 350 U.S. and Canadian call centers by Yankee Group found that 24% of agents, or 672,000 workers, are now based in their homes. IDC, a Framingham, Mass., research concern, sees the growth continuing, with home agents increasing at a rate of 24% each year from 2006 through 2010.

The pay for home agents is limited, and most jobs come through outsourcing firms and lack benefits. Also, the work -- such as taking telephone orders for things ranging from airline reservations to workout gear -- can be wearying, repetitive and stressful.

Nevertheless, such jobs are a potential boon for people who care for children or elderly family members at home. There's so much pent-up demand for home-based work that people who would never dream of taking a job in a brick-and-mortar call center are flocking to become home agents. Research firm Gartner Inc. says 70% to 80% of home-based agents have college degrees, compared with 30% to 40% of workers in call centers. Most are in their 30s or 40s, older than the average call-center employee, and they often have management experience, say outsourcing firms. Mark Frei, a senior vice president of West Corp., Omaha, Neb., which operates both home- and office-based call centers, says home-agent turnover is only about half the 40% to 100% attrition in traditional call centers.

Rob

Monday, January 16, 2006

Rob Vischer's New Essay

MOJ readers will be interested in this essay by MOJ blogger Rob Vischer:

Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace

ROBERT K. VISCHER
University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

Abstract:

Our society has long esteemed the sanctity of conscience, and our legal system has reflected that esteem, effectively shielding the individual from state encroachment, especially in matters of religion. A rapidly expanding range of disputes, however, is not readily settled under the individual-versus-state paradigm; rather, the new battle lines are forming between consumer and provider, with both driven to live out the dictates of conscience in the marketplace. The legal community has been slow to adjust to this trend, presuming reflexively that resolutions are best reached by harnessing state power to defend some conception of individual conscience, as exemplified by pharmacists' well-publicized entry onto the center stage of our nation's ongoing culture war drama. One side invokes conscience to justify legislation that would empower pharmacists to refuse to fill prescriptions on moral grounds without the possibility of negative consequences; the other side invokes conscience on behalf of the consumer to justify legislation that would require all pharmacies to fill all valid prescriptions. Congress and the dozens of state legislatures to take up the issue have embraced the winner-take-all terms in which the combatants have framed the contest. This article asks us to step back from these two-dimensional terms of engagement and to contextualize the public relevance of conscience by outlining the contours of a marketplace where moral claims can operate and compete without invoking the trump of state power. Instead of making all pharmacies morally fungible via state edict, the market allows individual consciences to thrive through overlapping webs of morality-driven associations and allegiances, even while diametrically opposed consciences similarly thrive. The zero-sum contest over the reins of state power is replaced by a reinvigorated civil society, allowing the commercial sphere to reflect our moral pluralism.

To download/print/read, click here.
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Conference on Womanhood at Notre Dame

From the Edith Stein Project webpage: 

A group of Notre Dame students is hosting a two-day, inter-collegiate conference in the spring of 2006 entitled: “The Edith Stein Project: Redefining Feminism.” Harvard Law professor Mary Anne Glendon writes in her introduction to Gloria Conde’s New Woman, “Before a woman can form society, she must know who she is and what she has to offer society. A new and better feminism offers just that, a greater understanding of the specific role and contribution of the woman, frame-worked by what promotes the true dignity and highest aspirations of every person: women and men.”

The conference to be held at Notre Dame Feb. 10 and 11 features such speakers as Laura Garcia, Pia do Solenni, and Alasdair MacIntyre.

To find our more and to register, visit the conferences website.

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Michael S.

Living Wage-Earlier Thoughts

For anyone who doubts the difficulty (or impossibility) of living on minimum wage, see Barbara Ehrenreich's Nickel and Dimed. But the question of whether we should raise the minimum wage by law is a complex one, and implicates the mandate primum non nocere. Steve Bainbridge and I had an interesting exchange on proposed living wage legislation in Santa Monica CA a couple of years ago, particularly with respect to the concept's status in Catholic social teaching. I recall that we agreed that the central question is whether minimum wage legislation does more harm than good, by actually making lower paying jobs scarcer, or turning them into black market jobs. This strikes me as essentially an empirical question. There is also a question about the desirability of municipal or other locality-based higher minimum legislation: does that not give some (many?) employers too easy an an incentive to shift locale? Wouldn't it be preferable to enact such legislation on a national or at least statewide basis to prevent that? Unfortunately,I don't have links to our much fuller discussion of all this. Perhaps Steve has them -- there were also some interesting comments by his readers.

--Mark

Thoughts on the Living Wage Movement

I have a couple of thoughts on the Times' living wage article.  First, it should be assigned reading for law students (and perhaps certain members of the judiciary?) who have grown increasingly cynical about the relevance of moral and religious convictions to law.  Consider this description of the turning point in the battle to bring living wage legislation to Santa Fe:

It was then that the living-wage proponents hit on a scorched-earth, tactical approach. "What really got the other side was when we said, 'It's just immoral to pay people $5.15, they can't live on that,'" [an organizer] recalls. "It made the businesspeople furious. And we realized then that we had something there, so we said it over and over again. Forget the economic argument. This was a moral one. It made them crazy. And we knew that was our issue."

The moral argument soon trumped all others. The possibility that a rise in the minimum wage, even a very substantial one, would create unemployment or compromise the health of the city's small businesses was not necessarily irrelevant. Yet for many in Santa Fe, that came to be seen as an ancillary issue, one that inevitably led to fruitless discussions in which opposing sides cited conflicting studies or anecdotal evidence. Maybe all of that was beside the point, anyway. Does it - or should it - even matter what a wage increase does to a local economy, barring some kind of catastrophic change? Should an employer be allowed to pay a full-time employee $5.15 an hour, this argument went, if that's no longer enough to live on? Is it just under our system of government? Or in the eyes of God?

The Rev. Jerome Martinez, the city's influential monsignor, began to throw his support behind the living-wage ordinance. When I met with him in his parish, in a tidy, paneled office near the imposing 18th-century church that looks over the city plaza, Martinez traced for me the moral justification for a living wage back to the encyclicals of Popes Leo XIII and Pius XI and John Paul II, in which the pontiffs warned against the excesses of capitalism. "The church's position on social justice is long established," Father Jerome said. "I think unfortunately it's one of our best-kept secrets."

I asked if it had been a difficult decision to support the wage law. He smiled slightly. "It was a no-brainer," he said. "You know, I am not by nature a political person. I have gotten a lot of grief from some people, business owners, who say, 'Father, why don't you stick to religion?' Well, pardon me - this is religion. The scripture is full of matters of justice. How can you worship a God that you do not see and then oppress the workers that you do see?"

Second, as Rick suggests, this is a fascinating movement to view through subsidiarity's lens.  For the most part, I think using cities and states as laboratories in this area is a good thing, and that wage laws can and should reflect local circumstances, priorities and concerns regarding the trade-off between higher wages on one side and employer viability and job creation on the other.  But subsidiarity, of course, does not call for blanket deference to local approaches.  A federal baseline is needed in order to ensure that workers everywhere are able to realize working lives of authentic human dignity, regardless of the dominant political culture in their city or state.  Subsidiarity can only be implemented with an eye toward solidarity, the preferential option for the poor, and the common good.  And even under subsidiarity itself, in order to empower the lowest bodies (e.g., the family) the higher body (e.g, the federal government) may need to trump the wage-setting autonomy of the intermediate body (e.g., the employer, city, or state). 

As for Rick's questions about the relevance or political prospects of the "family wage," I would love to get more information and insight from others who have thought or read about this more than I have.  Are there ways to promote a gender-neutral family wage that could meaningfully contribute to the moral debate about the living wage?  Is it a non-starter politically because in a single-income married household in today's society, the wage-earner almost invariably will be male?

Rob

Sunday, January 15, 2006

"Living Wage," cont'd

Michael beat me to the punch:  Like him, I appreciated the story in today's Times about the "living wage."  Notice that the essay raises interesting questions about subsidiarity and locally-based reform (Rob?):

Just as the voters of states and cities have sorted themselves politically into red and blue, and into pro- and anti-gay marriage, in other words, they are increasingly sorting their wage floors and (perhaps soon) their health-care coverage. This trend may produce not progressive national policies but instead a level of local self-determination as yet unseen. Or as Freeman puts it, "Let Santa Fe do what it wants, but let's not impose that on Gadsden, Ala."

Also, the piece got me thinking (again) about what strikes me as an important, but often overlooked, aspect of the living-wage debate.

Obviously, there is a long tradition in Catholic Social Thought of proposing a living wage.  As I understand it, the case for a living wage is built in part on the dignity of the worker and of work itself.  It also reflects, though -- doesn't it? -- the idea that a wage should be sufficient for a worker to provide for a family.  I seem to recall, in some "conservative" circles, the "living wage" being referred to as a "family wage".  Here's an essay, for example, by Allan Carlson, in Touchstone Magazine, that talks about the "family wage."  (Carlson might be described as a Catholic agrarian, or perhaps even -- and I do not mean this as an insult -- "paleoconservative.")  Carlson writes:

[Consider] this peculiar story:

Jack was sitting before the hearth fire, darning his working’s wife’s sock. A tear lay in his eye. ‘No,’ the wretched man said in a thick Yorkshire accent, ‘there is plenty of Wark for Wemen and Bairns [children] in this quarter but very Little for men—thou may as well go try to finde a hondred pounds, as go to find wark abouts heare—but I hed not ment neather thee nor eneyone els to have seen me manding t’wife’s stockings, for it’s a poar job.’

The poor man “wiped away the tear,” the story continues.

‘I do not [k]now what is to become of us,’ he whimpered, ‘for she as been t’man now for a long time, and me t’woman—it is hard wark.’ When he had married, Jack said, he held a fine job and the couple ‘gat on very well—we got a firnished Home. . . . I could wark for us boath. But now t’world is turned upside down. Mary has to turn out to wark and I have to stop at home to mind Bairns—and to Wash and Clean—Bake and mend.’ At that point, Jack lost control and wept violently declaring over and again his wish that he had never been born.

Who wrote this lament about sex roles turned upside down? Was it some early version of Beverly LaHaye? Or perhaps an ancestor of Phyllis Schlafly? No, it was the proto-Communist Friedrich Engels, in his 1844 book, The Condition of the Working Class in England, a powerful indictment of industrial capitalism’s social effects.

Indeed, we can see the non-Marxist labor movement of the nineteenth and early twentieth centuries as seeking, in large part, to rebuild traditional family life within a world torn asunder by the industrial principle, a principle that dictated the radical separation of work and home. The labor movement’s central strategy was to secure a “family wage.” This meant that the industrial sector could have one, but only one, family member: the father.

Pope Leo XIII’s Rerum Novarum in 1891 implied the necessity of a “family wage.” A more forceful articulation came from an American priest, Father John Ryan, in 1916 in a book called Distributive Justice: “The laborer has a right to a family Living Wage because this is the only way in which he can exercise his right to the means of maintaining a family, and he has a right to these means because they are an essential condition of normal life.”

Pope Pius XI directly endorsed the family wage idea in 1931 in Quadragesimo Anno. In a long commentary on this document, the Jesuit author Oswald von Nell-Brenning emphasized the radical consequences of the “family wage”:

It will be absolutely necessary to see to it that female labor is kept from the labor market, something that will have to be attained by prudent and clear-sighted measures. Everyone knows that this cannot be accomplished by decree but requires a far-reaching reconstruction of the entire economic system.

In the United States, at least, a somewhat less rigorous version of this “family wage” economy did exist between 1900 and 1965. It rested in part on public policy (more on that later) and in part on a culturally enforced form of conscious, open job discrimination: the phenomena of so-called men’s jobs (marked by higher wages and salaries and long-term tenure) and women’s jobs (oriented to lower pay and short-term tenure).

However, the revolutionary principle of pure sexual equality, embodied in Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, shattered this system. The real wages of men fell, and the flow of young mothers into the workforce resumed.

Today, no one in America really talks about the “family wage,” except equity feminist historians who still, with great ritual, regularly dance on its grave. And yet the underlying problems posed by families living in an industrial milieu are still very much with us. There are, for example, muddled campaigns in our day for a “living wage,” although they are marked by intentionally ambiguous normative goals. Does a modern “living wage” assume one or two earners per household? Never a clear answer.

But a true “family wage” would solve, or at least sharply reduce, many of the problems so often complained about today—and so often “solved” by simultaneously accepting the effects of the Industrial Revolution upon family life and asking government to reduce its effects. Contemporary complaints over a lack of quality day care, mounting talk of a “care giving deficit,” the growing “elder care” crisis, so-called work/family conflicts: all derive from the disorders created by the separation of work and home.

Now, to be very (very, very, very) clear and explicit, I am not endorsing the claims and prescriptions in the Carlson excerpt.  I do think it is worth thinking about, though, whether achieving a "living wage" is made more difficult by the expectation (in many circles, anyway) that everyone does and should -- not only to secure an income, but in order to find fulfillment and to contribute to society -- work outside the home.  (In practice, I imagine that many of those who do or would earn the "living wage" are, in fact, sole wage-earners).  I didn't come across any discussion in the Times piece -- even when it quoted a Catholic priest talking about CST -- about whether the "living wage" argument might be even more radical than its proponents realize.  Any thoughts?