It doesn't get any more interesting than an issue that combines morality, federalism, the budget crisis, and a thorny set of questions about statutory interpretation, administrative law, and prosecutorial discretion. All that is in play in this story about several states looking into permitting (and taxing) Internet gambling on lotteries (which some already permit) or more serious games such as online poker. I don't think one needs to be an abolitionist about gambling to wonder whether using widespread online gambling as a revenue tool is a great idea. But one argument is that people are gambling online anyway, so the states might as well try to capture some of the revenue stream from that harmless hobby--or does lifting the legal sanction from online gambling amount to a regressive tax increase on gambling addicts? As the NY Times story notes, there's also the difficult question of the interplay between the 2006 Unlawful Internet Gambling Enforcement Act (which goes after the payment systems for online gambling and was the subject of elaborate regulations on credit card banks at the very end of the Bush Administration) and the Wire Act, with DOJ taking the position that the Wire Act permits prosecution of all online gambling ventures. (As I recall the runup to passage of UIGEA, the savings clause in the statute was intended to steer clear of intrastate gambling and wagering on horse racing, but some states are now pushing a much harder non-preemptive argument.) And the political interests are all over the map--roughly speaking, opposition to online gambling comes from religious conservatives, the professional sports leagues, and the Nevada gaming industry (as the story notes, Senators Reid and Kyl have written to DOJ asking it to crackdown on the states), while banking interests (one of the lead sponsors of legislation to curtail UIGEA is Barney Frank), libertarians, and budget hawks are inclined to permit more online gambling and tax it.
Tuesday, August 16, 2011
Federalism, Morality, and Online Gambling
Monday, August 15, 2011
Subsidiarity and Health Care
No concept in Catholic social teaching is more used and abused than the principle of subsidiarity (now frequently conjoined, as in this address by Benedict XVI to the Pontifical Academy of Social Sciences, with solidarity). A significant part of the problem, I think, is the high level of abstraction and inattention to public policy detail that often mark arguments from subsidiarity and/or solidarity. And so Rick Hills's argument over at PrawfsBlawg that we should focus on functional considerations when deciding at what level of government we should regulate health care seems to me exactly the kind of fine-grained public finance analysis that those who take subsidiarity seriously should undertake, even if one might come to different conclusions than Rick does on this or that. After dispensing with "the normatively vacuous precedent slalom that is the PACA litigation," Rick writes that "sensible functional federalism (a) would devolve the regulation of medical practice to the states but (b) would give the national government substantial power to finance health care." As he explains:
First, why give subnational jurisdictions a lead role in the regulation of medical practice? Professional standards for the practice of medicine raise religiously and culturally sensitive issues of life and death, physical privacy, and acceptable risk-taking. National legislation on such matters invites unnecessarily divisive struggles for the commanding heights of federal power. Devolution of such issues reduces the acrimony of pitting Red State folks (who dislike med mal liability but hate avaunt-garde ethical innovations like physician-assisted suicide) against Blue State folks (who have opposite instincts). Given that the choice-of-law rules for medical malpractice and professional discipline predictably assign legislative jurisdiction to the state where medical services are performed, states can easily internalize the costs of their regulatory regimes in terms of inflated or reduced insurance premiums. (This latter point distinguishes standards of professional care from standards for the design of highly mobile pharmaceuticals -- hence, the need for the Food, Drug, & Cosmetic Act).
Second, why give the feds the lead role in healthcare finance? The reason is the familiar point, set forth by Paul Peterson long ago, that the subnational governments cannot redistribute wealth effectively in a federal system characterized by mobility of labor and capital. Any health insurance scheme will involve massive redistribution of wealth from the young to the old, from the rich to the poor, and from the sick to the healthy. The notion that subnational jurisdictions can take the lead in performing these financing functions strikes me as untenable.
"Minnesota Nice" and "Republican Geographic Path Dependency"
I suggested a few weeks ago (with tongue half in cheek) that Minnesota politicians are too nice to win the presidency and marshalled some historical evidence for the view. That quarter-baked "anecdotal theory" (our friends at St. Thomas can weigh in more authoritatively) is borne out in this Washington Post story about former Governor Tim Pawlenty's withdrawal from the Republican presidential race. By current lights, the Republican nominee will likely be either former Massachusetts Governor Mitt Romney or Texas Governor Rick Perry, which gives rise to "Republican Geographic Path Dependency." With one exception, every Republican elected to the presidency since 1920 was either a Texan (Eisenhower,* Bush, Bush) or a Californian (Hoover, Nixon, Reagan). The exception was Calvin Coolidge, who was governor of Massachusetts.
* I'm cheating a little with Eisenhower, but he was born in Texas.
Amicus Briefs in Hosanna-Tabor v. EEOC
The briefs for both sides in the upcoming Supreme Court term's ministerial exception case, Hosanna-Tabor v. EEOC, have now been filed and are available at SCOTUSblog. Now, I happen to believe that the First Amendment and the last 900 years of political theory in the West require a robust form of the ministerial exception, but I could be wrong. The parties have filed a set of briefs from Doug Laycock (counsel for the petitioner), O'Melveny & Myers (for the employee), and the Solicitor General. The highlights among the amicus briefs (and here I'm picking and choosing from, by my count, 29 briefs--20 for petitioner and nine for the respondent) include a brief from our own Tom Berg and Rick Garnett; a brief for the US Conference of Catholic Bishops, the Episcopal Church, the LDS Church, and the Union of Orthodox Jewish Congregations from my former colleagues at Williams & Connolly; a brief for the Lutheran Church-Missouri Synod from Christopher Lund (who also has a forthcoming article on the ministerial exception); a brief from Michael McConnell for a consortium of Protestant churches; and a brief against the ministerial exception from Leslie Griffin and Caroline Corbin. Happy reading.
London Riots: A Protest Against the Super-Rich or Welfare-State Mobs
Kevin Lee's post, quoting another blog, attributes the recent London riots to the disparity in wealth between the rich and poor in capitalist societies, warning that the same could occur here.
Others see the London riots as teaching rather a different message. Herewith a couple examples:
First, from the Land Down Under, this excerpt from an editorial in The Australian:
What we have on the streets of London and elsewhere are welfare-state mobs. The youth who are shattering their own communities represent a generation that has been suckled by the state more than any generation before it. They live in urban territories where the sharp-elbowed intrusion of the welfare state during the past 30 years has pushed aside older ideals of self-reliance and community spirit. The march of the welfare state into every aspect of urban, less well-off people's existences, from their financial wellbeing to their child-rearing habits and even into their emotional lives, with the rise of therapeutic welfarism designed to ensure that the poor remain "mentally fit", has undermined individual resourcefulness and social bonding. The antisocial youthful rioters are the end-product of this antisocial system of state intervention. * * *
Nurtured in large part by the welfare state, financially, physically and educationally, socialised more by the agents of welfarism than by their own neighbours or local representatives, these youth have little moral or emotional attachment to their communities. Their rioting reveals not that Britain is in a time warp in 1981 or 1985 with politically motivated riots against the police, but that the tentacle-like spread of the welfare state into every area of people's lives has utterly zapped old social bonds, the relationship of sharing and solidarity that once existed in working-class communities.
Second, from Theodore Dalrymple writing in the City Journal of the Manhattan Institute:
The riots are the apotheosis of the welfare state and popular culture in their British form. A population thinks (because it has often been told so by intellectuals and the political class) that it is entitled to a high standard of consumption, irrespective of its personal efforts; and therefore it regards the fact that it does not receive that high standard, by comparison with the rest of society, as a sign of injustice. It believes itself deprived (because it has often been told so by intellectuals and the political class), even though each member of it has received an education costing $80,000, toward which neither he nor—quite likely—any member of his family has made much of a contribution; indeed, he may well have lived his entire life at others’ expense, such that every mouthful of food he has ever eaten, every shirt he has ever worn, every television he has ever watched, has been provided by others. Even if he were to recognize this, he would not be grateful, for dependency does not promote gratitude.
Third, from Shaun Bailey writing in the Guardian:
The biggest problem our country has faced over the last two decades is that everyone thinks the government should do everything. Personal responsibility and community responsibility have been replaced by state responsibility. If the riots have shown us anything, it is that this approach does not work.
While Catholic social thinkers traditionally have been drawn to class warfare themes, tending to see antisocial behavior as rooted in economic injustice, is that really likely to have played a meaningful role in the opportunistic thievery and wanton destruction of their own neighborhoods exhibited by the London rioters? Or might it be the case that at least some of the fault may be placed with the overly government-centric approach of liberal social experiments, which has bequeathed European welfare states with multiple generations of welfare dependency and the ever-expanding state, with the inevitable withering away of personal responsibility, neighborhood solidarity, and community (including faith-based) charity?
Greg Sisk
Saturday, August 13, 2011
On Charles Taylor
This is a very interesting and thoughtful piece by Mark Oppenheimer on the great Charles Taylor (h/t Paul H.). Of particular interest to me was the way in which the historians discussed at the end of the piece describe Taylor's uses of history for prescriptively optimistic theoretical motives of his own -- "it is history for argument about modernity, the cause of the modern condition, and its possible cure. It is a history of lament and failure intended to propel readers toward a history of meaning and fulfillment." This particular criticism of the strategic uses of history resonated with me not so much because I agree with the historian cited (I don't know enough to agree or disagree), but because it's something I've been thinking about recently in legal scholarship.
In related news, this forthcoming book by Taylor and Jocelyn Maclure, Secularism and Freedom of Conscience (examining in specific the situation of the Quebecois, which the piece in The Nation talks about as well) looks well worth reading.
Snow
I am greatly enjoying the book, Snow, by Orhan Pamuk. He writes beautifully and the descriptions of life in a bleak Turkish outpost are superb, as are the internal meditations of the flawed but admirable protagonist, Ka. At one point, Ka witnesses the murder of a school administrator by a radical for the administrator's decision to bar women from attending school with their headscarves. The transcript of the extended exchange (the administrator had been wearing a tape recorder) between killer and victim is memorable -- beginning very politely but gradually and inexorably becoming absolutely terrifying. My colleague and friend, Mark Movsesian, has a nice review of the book here. I highly recommend the book.
Friday, August 12, 2011
Call for Papers/Save the Date
“The Competing Claims of Law & Religion: Who Should Influence Whom?”
Pepperdine University School of Law, Malibu, California
February 23-25, 2012
On February 23-25, Pepperdine will host the third Religious Legal Theory conference. We will deal with: “The Competing Claims of Law & Religion: Who Influences Whom?” Some speakers will address the topic as a matter of constitutional law, some as a matter of “good citizenship,” some as a matter of religious faith. The speakers who have already agreed to speak at the conference include:
Abdullahi Ahmed An-Na‛im (Emory)
Caroline Corbin (Miami)
Marc DeGirolami (St. John’s)
Richard Garnett (Notre Dame)
Mohammad Fadel (Toronto)
Marie Failinger (Hamline)
Paul Horwitz (Alabama)
James Davison Hunter (Virginia)
Andrew Koppelman (Northwestern)
Samuel Levine (Touro)
Michael Moreland (Villanova)
David Opderbeck (Seton Hall)
Michael Paulsen (St. Thomas)
Lisa Shaw Roy (Mississippi)
Ayelet Shachar (Toronto) (tentative)
Steven Smith (San Diego)
Eugene Volokh (UCLA)
Please join us. Details will appear at: http://law.pepperdine.edu/nootbaar/
If you would like to speak at the conference or organize a panel, we welcome paper and panel proposals on any law and religion topic. Please submit proposals by September 15, 2011 to: [email protected]
The conference will be the basis of a spring 2012 Pepperdine Law Review symposium edition. Papers submitted by January 7, 2012 will be considered by the law review for publication. Submission of presentations is optional and publication is not guaranteed.
This conference is sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and co-sponsored by Pepperdine’s Glazer Institute for Jewish Studies. If you have questions about the substance of the conference, contact [email protected] or [email protected] If you have questions about the details of the conference, contact [email protected]
Mayor Nutter's Call to Responsibility
Rick Garnett is often calling our attention to the benefits of Catholic schools, particularly in underserved urban areas. I thought of that as I read a speech by Mayor Michael Nutter of Philadelphia--graduate of Transfiguration of Our Lord Elementary School and St. Joseph's Prep--delivered last week at Mount Carmel Baptist Church in West Philly that Rich Lowry writes "must rank among the most brutally forthright calls for personal responsibility and adult authority that an elected official has ever delivered in these United States" (text below the jump):
Mary Ann Glendon's The Forum and the Tower
The Wall Street Journal has a review of Mary Ann Glendon's new book, The Forum and the Tower: How Scholars and Politicians Have Imagined the World, from Plato to Eleanor Roosevelt. The book is a study of figures who sought to reconcile the scholarly life with politics: Plato, Cicero, Justinian, Machiavelli, Hobbes and Coke, Locke, Rousseau, Burke, Tocqueville, Weber, Holmes, and, finally, Eleanor Roosevelt and other framers of the Universal Declaration of Human Rights. As the reviewer (Brian Anderson, editor of City Journal) notes:
The Forum and the Tower benefits from Ms. Glendon's own divided calling. Her experience as the U.S. ambassador to the Vatican, in 2008-09, clearly informs her sympathetic treatment of the frustrated political ambitions of Alexis de Tocqueville and Max Weber, whose achievements proved to be almost entirely intellectual; her scholarly mastery of the law makes her chapters on Oliver Wendell Holmes and the United Nations Universal Declaration of Human Rights particularly luminous.