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.

Monday, February 18, 2008

Usury Law and the Christian Right

I haven't read this yet, but it sure sounds interesting!

"Usury Law and the Christian Right: Faith Based Political Power and the Geography of the American Payday Loan Regulation"

By Christopher Lewis Peterson, University of Florida -- Levin College of Law & Steven M. Graves, California State University, Northridge

The culture war has become a national moniker describing a variety of policy debates between social conservatives and secular liberal Americans. Hotly contested battle grounds in this metaphorical war have included abortion policy, affirmative action, the right to bear arms, and gay marriage. Frequently these debates have divided secular Americans from people of faith. This article explores this cultural divide in the context of consumer financial services. In the past fifteen to twenty years America has witnessed a stunning transformation in financial services offered to lower and lower-middle classes. A new breed of fringe creditors charging prices far in excess of the old mafia loan sharking syndicates have spread throughout much of the country. The archetype of fringe creditors commonly referred to as payday lenders, charges average simple nominal annual interest rates of around 450 percent. This Article presents empirical research based on the largest, most comprehensive database of payday loan locations yet created. Payday lender locations are compared to an index measuring the political power of conservative Christian Americans in all fifty states. We conclude that there is a strong correlation between the density of payday lending industry and the political power of conservative Christians, suggesting that conservative Christians have become a prime demographic target of payday lenders. These findings are further discussed in light of Biblical injunctions against usury.

The Bush Administration, the EPA, and Mercury

In response to Rick's most recent post in our to-and-fro, I decided to consult my colleague Bill Buzbee, who is an expert in administrative law and environmental law.  Here is what Bill told me:

The Clean Air Act has a savings clause and has long been construed to allow states to be more protective of their citizens.  It also has some explicitly preemptive provisions preventing states from adopting different standards for auto emissions, unless the alternative approach matches an approved different approach for California.  Thus, absent a direct “conflict” justifying an assertion of preemption, the Clean Air Act gives EPA little if any statutory authorization for imposing a “ceiling” on states, precluding more protective actions.  Iif the NYT’s article is accurate about EPA’s pressure, it is consistent w/a wide array of agency actions over the past couple of years seeking to preclude more protective state law, be it in statutes, regulations, or through common law.  If you want to see my discussion of CAA use of floors, not ceilings, and other description and analysis of these recent broad claims of preemptive power by an array of agencies, you might look at my new article “Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction,” 82 NYU L Rev. 1547 (2007).  Historically, federal assertions of “ceiling” preemption have been rare in the risk regulation setting.

To download/read the article to which Bill refers, Bill's own article, click here.

Here is the abstract to the article:

       
New York University Law Review, Vol. 82, 2007                  
Emory Public Law Research Paper No. 07-23                  
Emory Law and Economics Research Paper No. 07-20          
 

Abstract:    
If the federal government has constitutional power to address a social ill, and hence has power under the Supremacy Clause to preempt state, local, and common law regimes, is there a principled rationale for distinguishing federal standards that set a federal floor or ceiling? At first blush, the two appear to be mere flip sides of the same federal power: The choice of a floor reflects a goal of minimizing risk, while ceilings reflect concern with excessively stringent regulation.

This Article argues, however, that these two regulatory choices are fundamentally different in their institutional implications. Floors embrace additional and more stringent state and common law action, while ceilings are better labeled a "unitary federal choice" due to how they preclude any other regulatory choice by state regulators and also eliminate the possibility of the different actors, incentives, and modalities of information elicitation and proof that common law settings provide. Advocates of free markets respond that this is precisely the idea - regulatory certainty is enhanced with a unitary federal choice, allowing manufacturers to plan with confident knowledge of the regulatory terrain, unbuffeted by an array of uncoordinated actors.

Debate over floors versus ceilings was, until recently, largely hypothetical, due to the rarity of federal imposition of ceilings. During the past year, however, in settings ranging from product approvals to regulation of risks posed by chemical plants to possible climate change legislation regarding greenhouse gases, legislators and regulators have embraced the broad, preemptive impact of unitary federal choice preemption. The federal action regarding such risks would be the final regulatory choice. But under what theory of regulation and legislation can one be confident that placing all decisionmaking power in one institution at one time will lead to appropriate standard setting? In fact, advocates of risk regulation, "experimentalist regulation" scholars, and skeptics about the likelihood of public-regarding regulation all call for attention to pervasive risks of regulatory failure. Agency and legislative inertia, information uncertainties and asymmetries, outdated information and actions, regulatory capture, and a host of other common regulatory risks create a substantial chance of poor or outdated regulatory choice.

Considering these pervasive risks of regulatory failure, the principled distinctions between floor and ceiling preemption become apparent. Vesting all decisionmaking power in one institution can freeze regulatory developments. Unitary federal choice preemption is an institutional arrangement that threatens to produce poorly tailored regulation and public choice distortions of the political process, whether it is before the legislature or a federal agency. Floor preemption, in contrast, constitutes a partial displacement of state choice in setting a minimum level of protection, but leaves room for other actors and additional regulatory action. Floors anticipate and benefit from the institutional diversity they permit. This Article closes by showing how the institutional diversity engendered by retaining multiple layers of law and regulatory actors creates conditions conducive to reassessment and adjustment of rigid or outdated regulation.

Catholic Blog Awards

The polls are open!  Vote early, vote often . . ..

Interesting reading in this month's "Atlantic"

Sightings 2/18/08

Growth, Violence, and the Coming Religious Peace

-- Martin E. Marty

Decades ago an Atlantic editor suggested an idea for an article which I somehow failed to produce. I recall him saying that the magazine rarely covered religion, but when it did, as it had in a recent feature article, it quickened an enormous response.  Today, Atlantic editors, along with so many others, recognize the ever-growing power of religion in the world and treat it in depth, as in the commendable March issue. 

 

The cover banners the three major stories.  First is Walter Russell Mead's:  In sum, "America's evangelicals are growing more moderate—and more powerful."  His observations and thesis run counter to favored opinion of not long ago, pioneered by Dean Kelley in 1972 in Why Conservative Churches Are Growing, which contended that in order to grow and grow powerful, churches had to be strict, hardline, demanding, and counter-cultural. Mead notes that today, Adam Smith-ian enterprising competition to 'get butts in the pews" has turned this around. Yes, there are still some latter-day Fundamentalists, but the winners are churches that offer most, are most at home in pop culture, and are "flexible, user-friendly, and market-driven."  They are moderating, and thus growing more powerful.

 

Contrast this with the major and tragic story, "God's Country" (Nigeria) by Eliza Griswold. "Using militias and marketing strategies, Christianity and Islam are competing for believers by promising Nigerians prosperity in this world as well as salvation in the next."  There are mass conversions, defects, animosities, and massacres in this dire competition between the Muslims of the North and the Christians of the South.  Rene Girard's thesis about "the mimetic principle" is in effect:  The two sides imitate each other and escalate in both marketing efforts and militial action. The well-document killings by Muslims are truly abhorrent; Christian belligerency, reactive or initiatory, is apocalyptically fierce. Griswold tells, for example, how the Christian Association of Nigeria "militia" attacked a Muslim town, killing 660 Muslims, burning twelve mosques and three hundred homes.

 

Griswold's father had been primate of the Episcopal Church in the U.S.A at the time of the massacre, and a colleague of Archbishop Peter Akinola, who was then the president of the Christian Association of Nigeria.  Akinola is now the head of the eighteen-million-member Anglican Church in Nigeria, and the spiritual and ecclesiastical host to many dissident American Anglicans who have accepted him as their bishop. To put it politely, Akinola, stiffing Griswold, launched into an attack linking Islam and liberal Protestantism while defending what Americans call "the prosperity gospel."  "I've said before: let no Muslim think they have the monopoly on violence."  Both sides in the Muslim-Christian conflict cite their Scriptures; one pastor legitimated rape by Christians on the basis of Matthew 24:19:  "But woe to those who are pregnant and to those who are nursing babies in those days."

 

Those who think Atlantic is interested in religion only when there is conflict in its name can find a match for Mead's piece in a third article by Alan Wolfe, a regular commentator on religious trends in the U.S.  He writes on "the coming religious peace" in an article called "And the Winner Is…" The price of peace, says Professor Wolfe, is an American version of "secularism," which pervades market- and success-minded churches.  I think his definition is a bit too neat and he is too sure about its victory, but he has a strong point overall.  Given the cost in lives—on both sides—of Nigerian religious self-assurance, the American compromise looks attractive. Archbishop Akinola would call that confession a sell-out, typically "satanic," and would cite biblical texts to back himself up.

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Immigration in 21st Century America

On Feb.1, 2008 in Napa, California, Archbishop Gomez of San Antonio addressed a special meeting of Latin American bishops on immigration. 

He began by reminding his audience that the Holy Family and their flight into Egypt has provided a powerful symbol of migrants.  "For many decades, the Popes have held up the Holy Family in exile as a sign of Christ’s solidarity with all refugees, displaced persons, and immigrants—in every time and in every place. In his exile in Egypt, the infant Jesus shares in the fears and worries of all who are forced by violence and need to rise and flee their homelands seeking a better life in a new land that is not their own.

"Our Holy Father, Pope Benedict XVI has said: “In this misfortune experienced by the family of Nazareth . . . we can catch a glimpse of the painful condition in which all migrants live . . . . the hardships and humiliations, the deprivation and fragility of millions and millions of migrants” (Message for World Day of Migrants and Refugees 2007, para. 1)."

After assessing the current political situation, Archbishop Gomez offered his reflections on the root causes of immigration, the church's teaching on the contours of a just immigration law and policy, and practical concrete steps for resolving the current crisis.  The full text of his insightful, prophetic, and nuanced remarks can be found here.

At the end of his remarks, Archbishop Gomez spoke to a critical issue that, IMHO, transcends the immigration debates.

"But before I leave you, I want to talk about one more area that deeply concerns me. In the bitter debates of recent years, I have been alarmed by the indifference of so many of our people to Catholic teaching and to the concrete demands of Christian charity.

It is not only the racism, xenophobia, and scapegoating. These are signs of a more troubling reality. Many of our Catholic people no longer see the foreigners sojourning among them as brothers and sisters.

In some ways we are back to the debates of the first evangelization. Then the Church, in the person of brave pastors like Bartolomé de las Casas, had to fight to establish that the indigenous peoples of the New Worldwere truly and fully human, worthy of rights.

To listen to the rhetoric in the U.S.and elsewhere it is as if the immigrant is not a person, but only a thief or a terrorist or a simple work-animal.

Throughout the lands of America, we need repentance and conversion to the Gospel. We need to restore the truth that the love of God and the love of neighbor have been forever joined in the teaching—and in the person—of Jesus Christ.

“As you did it to one of the least of these my brethren, you did it to me” (Matt. 25:40).

Pope Benedict said in Deus Caritas Est that with Christ: “Love of God and love of neighbor have become one. In the least of the brethren we find Jesus himself, and in Jesus we find God” (no. 16)."

Isn't this problem - a problem that has been evident in the immigration debates in Oklahoma and elsewhere - part of a larger problem in our society where we so often fail to see the other as another "I"?

HT:  David Scott

"Get Some"

One Sunday morning in Manhattan a few years ago, I was with my daughters and was confronted with a particularly lewd billboard.  I had never done so before, but I decided to call the city's 311 information number to complain.  I spoke to the operator for more than ten minutes, as he tried to find any suitable category for recording the complaint -- there were countless categories, but nothing remotely relevant for a billboard depicting two nearly naked models engaged in an obvious sexual act.  No "public indency" category, no "inappropriate advertising" category, nothing.  In the end, the operator told me to call the police if it was really a problem.  The not-so-subtle message was that I was Ward Cleaver, and this was no longer the 1950s.

I'm no longer a New York City resident, but I thought of that 311 operator when I read about the new government-sponsored ad campaign launched in the city on Valentine's Day.  That operator won't lodge a complaint about indecent billboards, but he will gladly take my order for free condoms!  For the record, I do not reflexively dismiss every attempt by a government to facilitate safer sex among its residents.  Indeed, I still struggle mightily to understand the Church's opposition to the distribution of condoms among high-risk populations in Africa, for example.  But the Church's hardline position may become significantly more compelling if the New York model becomes the alternative: i.e., does a "safe sex" government initiative mean having tax dollars implore every resident, young and old, to "get some?"

Sunday, February 17, 2008

"Religion and the Death Penalty"

This article, by Walter Berns, is interesting.  Here is the opening of "Religion and the Death Penalty":

The best case for the death penalty--or, at least, the best explanation of it--was made, paradoxically, by one of the most famous of its opponents, Albert Camus, the French novelist. . . .

. . .  The death penalty, he said, "can be legitimized only by a truth or a principle that is superior to man," or, as he then made clearer, it may rightly be imposed only by a religious society or community; specifically, one that believes in "eternal life." Only in such a place can it be said that the death sentence provides the guilty person with the opportunity (and reminds him of the reason) to make amends, thus to prepare himself for the final judgment which will be made in the world to come. For this reason, he said, the Catholic church "has always accepted the necessity of the death penalty." This may no longer be the case. And it may no longer be the case that death is, as Camus said it has always been, a religious penalty.  But it can be said the death penalty is more likely to be imposed by a religious people.

The reasons for this are not obvious. . . .  Whatever the reason, there is surely a connection between the death penalty and religious belief.

I would be strange, wouldn't it -- but I wonder if it is nonetheless the case -- that the best arguments against the death penalty were religious, as well as the best arguments for it?  Anyway, check out the piece.  Any reactions?

The Olympics

So, I am getting depressed about the fact that the 2008 Summer Olympics are going to be held in China.  And, even more depressing are the stories I have been reading in recent weeks about weak-kneed corporate-sponsore types who are terrified of anything that might embarass the regime, and Olympic teams that are demanding that athletes refrain from any expressions of disapproval of China's human-rights policies.

I have blogged more than a few times here at MOJ about religious freedom, and the Freedom of the Church, in China.  What I'm thinking about now -- and I'd really welcome readers' and other bloggers' thoughts -- is:  what should I be thinking, and what should "we" be thinking, about the facts that the Olympics are being held in China; are being used there as an occasion for, I gather, more, rather than less, repression (see "Swifter, Higher, Crueler," by Joshua Kurlantzick, in the current New Republic); and will serve as a non-trivial propaganda weapon (taking the torch to Mt. Everest, in Tibet!) for a regime that, I think, is morally problematic.

Back to Michael

I am not sure that my friend Michael's post responds to my question.  So, a recap:  Michael posted a link to a piece from the New York Times and asked "MOJ Republicans" -- I guess that's me! -- "is there a way to understand this story such that what the the Bush Administration has done seems genuinely defensible?"  The Times piece stated, among other things, "the Bush administration pressured dozens of states to accept a scheme that would let some plants evade cleaning up their pollution[.]"  This "scheme", which would have let some plants "evade" cleaning up, was a cap-and-trade plan. 

So, rather than offer any opinions about whether or not what the Bush Administration was done was defensible, I simply asked Michael for the basis of (what I gathered from his post was) his opposition to such a plan.  (If I misunderstood, and he has no objections to cap-and-trade policies, then I'm sorry.)

Michael asks, "[d]id the federal court [that struck down the cap-and-trade plan] get it wrong?"  I have no idea; I am not an environmental- or administrative-law expert, and have not read the decision.  Did the court get it right?

Michael asks, "[w]asn't it legally wrong for the Bush Admin to have tried to prevent the states from being more strict against mercury than are the feds?"  I don't know.  Maybe, maybe not.  Sometimes the law invites state experimentation, sometimes it doesn't.  Sometimes a uniform solution is more efficient and beneficial, sometimes a thousand flowers should bloom.  Here, we are talking about "power plants", which -- I'm pretty sure -- serve customers in states beyond the ones in which they are situated.  Does that matter?  What's the relevant "legal[]" rule here?  I don't know, and didn't purport to know.  I just asked for the basis for what I understood to be Michael's objection to cap-and-trade programs.

Michael asks, "[d]oesn't every Admin, Democratic too, make morally indefensible choices?"  Of course.  I did not suggest, and never have suggested, otherwise.  Michael says, "[p]rotecting the interests of the economically powerful rather than protecting the public's health is indefensible."  Agreed!  And, one reason why I asked the question I did -- I did not, obviously, say that it was cool to protect "the interests of the economically powerful rather than protecting the public's health" -- was to gather information that might help me and others decide whether, in fact, pressuring states to stick with a nationwide "cap-and-trade" program really involves "protecting the interests of the economically powerful rather than protecting the public's health."  I will admit that it is not as obvious to me as, apparently, it is to Michael that for the administration to pressure states to stick with a nationwide program that -- as the Times reports -- "capped overall mercury releases from power plants nationwide" is best characterized as one that protects the powerful rather than the public's health.

Of course, for all I know, the plan was entirely foolish, and the relevant officials' motives entirely contemptible.  I don't know.  I am pretty sure I need more information than the Times story provided.  I do know, though, that it is not "indefensible" to think that cap-and-trade-type programs might be a good solution to many pollution problems.  Do you disagree, Michael?

Back to Rick

Did the federal court get it wrong?  Wasn't it legally wrong for the Bush Admin to have tried to prevent the states from being more strict against mercury than are the feds?  Doesn't every Admin, Democratic too, make morally indefensible choices?  Credit where credit is due:  e.g., the Bush Admin's aid to African countries to help our sisters and brothers there deal with HIV/AIDS.  But discredit where discredit is due, Rick:  Protecting the interests of the economically powerful rather than protecting the public's health is indefensible.

I just re-read the NYT article.  Rick, we seem to be reading different articles.  MOJ readers, if you haven't read the article yet, do so now, here.