The Torts and Compensation Systems Section of the AALS had a terrific panel on Friday afternoon, the topic of which was the 100th anniversary of MacPherson v. Buick Motor Co. and included presentations by the most interesting (in my view) contemporary scholars in tort law, John Goldberg and Ben Zipursky.
The highlight of the session for me, though, was the presentation of the Prosser Award for outstanding achievement in the field to Aaron Twerski of Brooklyn Law. I've long admired Twerski's work and his central role in drafting the Third Restatement on Products Liability. What I did not know--and was recounted by Twerski in his short acceptance speech on Friday--was that he almost did not become a law professor were it not for some good fortune in 1967. Twerski was at the time a teaching fellow at Harvard Law School, which provided an automatic path into a law teaching position. But Twerski (a Hasidic Jew) alone among his colleagues that year did not get a teaching position because, as he put it (and I am quoting here from memory), "I looked like this," pointing to his skullcap and his long beard, and "people were more straightforward about such things back then than they are now." Late in the year, however, he received a call from John Murray (then the acting dean at Duquesne) inviting him to fill a teaching position vacated on account of an unexpected retirement.
As Twerski recounted the story, were it not for that offer some 50 years ago, he would have returned to practice and never set out on his academic career. He concluded, "I would like to think such discrimination is a thing of the past, but I fear it is not." I was especially moved to learn that John Murray (a Catholic and later dean at Villanova Law and president of Duquesne, who died last year) and a Catholic university played such an important role in launching Twerski's distinguished career.
There's a fascinating op ed in today's NYT by Judith Shulevitz, misleadingly (I think) titled "It's Payback Time for Women." She presents a number of arguments for the "U.B.I." proposals being considered in countries like Finland, Switzerland, and Holland. She does begin with the "feminist" argument, and succinctly describing the politics of the feminist arguments for and against proposals for offering wages for care work. She describes how "mainstream feminism" (at least in the U.S.) rejected this idea, buying into the prevalent assumption about motherhood:
It’s a lifestyle choice, not a wage-worthy job, and no one other than parents should pay for it. Wages for child rearing and housework? When one feminist collective took up that cry in the 1970s, it was more or less drummed out of the second-wave feminist movement, which aimed to get women into the work force, not pay them to stay out of it.
If mothers are glorified hobbyists who produce less value than nonmothers, it follows that they’re getting a free ride on everyone else’s labor. This can lead to tensions between colleagues, and also colors relations between breadwinning husbands and stay-at-home wives, who notoriously have less bargaining power in their households.
She argues, though, that
this view of motherhood gets it exactly backward. Actually, it’s society that’s getting a free ride on women’s unrewarded contributions to the perpetuation of the human race. As Marx might have said had he deemed women’s work worth including in his labor theory of value (he didn’t), “reproductive labor” (as feminists call the creation and upkeep of families and homes) is the basis of the accumulation of human capital. I say it’s time for something like reparations.
(Citing very different authorities, and not using the language of 'reparations', I've made similar arguments (see here and here).
But Shulevitz then goes on to address many other arguments for a U.B.I., coming from many different directions: that's it's increasingly becoming a necessary condition for a just society, in light of the growing gap between the rich and the poor in America, and the likelihood of more jobs being lost to computers in in the near future, including many skilled service jobs typically associated with women. She offers data to counter arguments that U.B.I. represents a moral hazard, that it actually permits people to manage their careers more prudently, rather than disincentivizes them from working at all. She discusses experiments and research suggesting that basic income policies have been effective in mitigating poverty, particularly specifically female kinds of poverty.
Shulevitz suggests that U.B.I. proposals are springing up from the right as well as the left. Honestly, I do not know much about these arguments, but I would love to hear what some of the other MOJ'ers think.
For one thing, I do wonder if some of the "just wage" and "family wage" arguments might, if re-examined from a more feminist perspective, support these proposals as well. As Schulevitz argues,
The U.B.I. would also edge us toward a more gender-equal world. The extra cash would make it easier for a dad to become the primary caregiver if he wanted to. A mom with a job could write checks for child care and keep her earnings, too. Stay-at-home parents would have money in the bank, more clout in the family, and the respect that comes from undertaking an enterprise with measurable value. And we’d have established the principle that the work of love is not priceless at all, but worth paying for.
I just finished the audiobook version of Robert Putnam's highly praised book, Our Kids: The American Dream in Crisis. In his concluding chapter, in which he offers myriad rationale for 'why we should care about any of this' and policy suggestions admirably borrowed from both the political right and the left, Putnam offers an enthusiastic nod to the moral leadership of Pope Francis:
The most important service that Pope Francis has rendered to men and women of all faiths and of no faith at all is to remind us of our deep moral obligation to care for our neighbors and especially for poor kids. 'Almost without being aware of it,' [Pope Francis] said in 2013, 'we end up being incapable of feeling compassion at the outcry of the poor, weeping for other people's pain, and feeling a need to help them, as though all this were someone else's responsibility and not our own. when we isolate young people, we do them an injustice: young people belong to a family, a country, a culture, a faith. They really are the future of a people.'
There is much we could read to help us live out this Year of Mercy well. I'd highly suggest Our Kids, for Putnam's (mostly) non-ideological cast on a central issue of our time, presenting evidence both for 'family structure'/'cultural' causes of poverty in American and economic ones too. But I'd mostly suggest it to experience the gripping stories of 'our kids.'
My father and step-mother both spent their careers working in schools for the most disadvantaged. They've been a remarkable example to me--and I pray I can adequately witness to the responsibility we have for the 'least among us' to my own children. But as many great minds from Putnam, to Charles Murray, to Arthur Brooks, have revealed these last few years, the growing socioeconomic divide in our country today is notably distinct from other eras of American history. Our Lord told us, 'The poor will always be among us," but these days, the poor are scarcely among 'us' (for Putnam, all college educated are considered, for simplicity, 'upper-middle class'). We live in different worlds: different family circumstances and different schools and communities. This, in itself, is troublesome. Putnam is right, and we Catholics know this quite well: we have a deep moral obligation to care for the poor, but today, they may not be in our kid's schools, our neighborhoods, our parishes. This makes the exercise of our obligation much more difficult for us than it was in the past, difficult to seek out ways to serve, but also difficult to bring our own children into community with the more disadvantaged; recognizing this, in itself, may be just the grace we need to act.
Today, January 8, 2016, is the seventh anniversary of the death of Fr. Richard John Neuhaus. Six months earlier, in an address to the annual convention of the National Right To Life Committee, he gave a charge to his pro-life fellow citizens that must remain our charge:
"We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along way of life, bearing witness in word and deed to the dignity of the human person of every human person. "
Viewers of Downton Abbey may have noticed in the recently aired first episode of Season Six that Carson the Butler articulated, in a delicate but firm and unmistakable way, the truth that marriage is a conjugal union. Mrs. Patmore, the cook, is sent as an emmisary of Carson's fiance, Mrs. Hughes, the housekeeper, to inquire whether Carson expects their marriage to include "more" than "deep friendship" and "close companionship." What "wifely duties" would be expected? Might the couple live "as brother and sister"? Or was a "full marriage" expected?
Carson (brilliantly acted by Jim Carter) does not take offense at the question or at Mrs. Hughes' (via Mrs. Patmore) asking it. As an Englishman of the Edwardian era might say, he is "not unsympathetic" to why a woman, especially one of Mrs. Hughes' age, might prefer to "live as brother and sister." But his answer, given from the heart but plainly informed by an *understanding* of what marriage actually is and what true goods it embodies and makes available, is that he does indeed desire and expect a "true marriage"--one in which, as he explains "two persons become as close as two persons can possibly be." It is not lust that prompts Carson's firm insistence on a consummated bond, but rather a desire for genuine marital communion--"a true marriage, not a lie," as he finally sums up his position.
Carson, having been nurtured in a culture shaped by traditional Christianity of the sort the Church of England in his day still represented, understands that persons are not minds or spirits merely inhabiting bodies, and that therefore a truly comprehensive union of persons---i.e., marriage--cannot merely be at the affective or emotional level. Although he would not be able to articulate the point in these formal philosophical terms, he understands that the body is part of the personal reality of the human being, not a subpersonal instrument. He "gets it" that for persons fully--"truly," to use the word he insists on in the discussion---to unite in the marital way (i.e., comprehensively, meaning at every level of their being) they must unite not only at the affective level ("deep friendship") but at the bodily level too. In other words, they consummate the marriage---completing and sealing it---and they actualize, embody, and renew the marriage each time they unite as "one flesh."
Carson, of course, doesn't go any more deeply into the matter, but we might note that the necessary background premise to the understanding he holds (one that, though not invented by Christianity or unique to it, was integrated into Christian teaching, including the Anglican teaching of his day) is that true bodily union is made possible by the sexual-reproductive complementarity of the spouses. It is thus by consummation that a man and woman become a true biological unit, their biological unity being an integral aspect of the comprehensive sharing of life that their marriage uniquely is. Thus, in *true* marriage, as Carson says, "two persons become as close as two persons can possibly be." Marriage, the real thing, is not mere companionship, nor is it companionship-plus-mutually-agreeable-sex-play-if-the-partners-happen-to-go-in-for-that-sort-of-thing (which they may or may not do---Mrs. Hughes, for example, would rather not); it is, rather, truly a comprehensive sharing of life, a sharing at every level of being, a one-flesh union, a conjugal relationship.
We would do well to recover the wisdom of Carson the Butler.
Wheaton College's provost is recommending that Professor Larycia Hawkins be removed from her tenured position for having stated (as part of an expression of civil solidarity with Muslims) that Muslims and Christians worship "the same God." The matter now goes to a faculty advisory committee for its recommendation, and then to the college president.
Wheaton's website contains a set of responses to FAQs concerning the situation. They don't address what I think is the most serious challenge to Wheaton: Do the asserted reasons for saying Islam worships a different God (i.e. Islam rejects the Trinity and Christ's place in salvation) also apply to Judaism? Professor Hawkins seems to affirm (according to the Christianity Today link above) that Muslims and Christians understand God very differently. But the Jewish-Christian differences in understanding of God--many of them similar to the Muslim-Christian differences--do not stop most Christians, I think, from saying that Christians and Jews both worship the God of Abraham.
On the other hand, Wheaton also says (in its FAQ responses) that "[o]n the part of the College, further theological clarification is necessary before [a] reconciliation [with her] can take place, and unfortunately Dr. Hawkins has stated clearly her unwillingness to participate in such further clarifying conversations," which created an "impasse." So perhaps she hasn't allayed concerns that, for example, her "same God" statement might be taken to reflect a more general religious universalism, or a minimizing of the deity and central importance of Jesus, both of which would of course be inconsistent with Wheaton's evangelical commitment.
But that doesn't deal with the more specific claim that "Muslims worship the God of Abraham, albeit with very different understandings than Christians." And I can't help but think that if one is willing to apply that to Judaism but not to Islam, the reason is cultural and political distrust rather than theological distinctiveness. Thus it would be good to know what Wheaton says in this context about Christianity and Judaism.
Thanks very much to Mike for quoting the Catholic Church's position on this from Nostra Aetate. Perhaps the Catholic teaching can give evangelicals some food for thought as they grapple with this issue.
UPDATE: Here is Professor Hawkins's fuller description of her position, in a December 17 letter to Wheaton's administration. HT: Frank Beckwith (he gives his own take on the issue here, and a catalog of others' perspectives here)
I explore a few important and underappreciated aspects of the case. General-interest readers are likely to find the first two points (about Kermit Gosnell and Planned Parenthood) more interesting, while those curious about details of legal analysis should find the severability discussion worth perusing.
This recent piece, by Michelle Boorstein, might be of interest. Prof. Doug Laycock (among others) is quoted as saying:
“For the Church, they are employing this guy who flouts their teachings. His presence on the payroll undermines what the school is trying to teach the kids and what the Church is trying to preserve among the adults,” Doug Laycock, a University of Virginia law professor who specializes in religious freedom, wrote in an email. “These battles over religious doctrine should be fought out within churches, not in the secular courts.”
Unfortunately, the piece consistently frames the issue as involving a conflict between "conservative" religious groups and the antidiscrimination norm. This framing is common, and rhetorically powerful, even if not entirely accurate.
Michael Sean Winters has a long blog post about the article, and the larger issue, here. And, he provides a link to Cardinal Wuerl's statement, which is here. Among other things, Cardinal Wuerl says that "the Church . . . enjoys freedom of religion to decide who will carry out Catholic ministry. This includes the right to determine when conduct is otherwise adverse to the Church’s ability to fully pursue its mission and interests." He's right.
I agree with Winters that the Church should not "go looking for a fight" with respect to these matters. However, I think it needs to be said that (a) others are "looking for a fight" -- that is, there are highly motivated litigants and well-funded activists for whom it is important to use litigation and administrative complaints precisely in order to undercut the religious freedom of the Church's institutions -- and it is naive and hazardous to imagine otherwise and (b) it is not such a bad idea as Winters suggests for Church leaders to listen to the lawyers when it comes to writing contracts, manuals, policies, etc., that will help to protect not merely the Church's legal rights (as Winters suggests, the Church can and should do better than simply standing on her rights) but the Church's religious freedom. The "case-by-case" approach that Winters endorses has a lot to commend it but, at the same time, it can create legal difficulties in those cases where the Church has to insist on hiring-for-mission.
Samantha Godwin has posted on SSRN this article, "Against Parental Rights":
This article advances an interpretive account of parental rights and builds a normative case against them. This normative account considers how parental rights function in existing constitutional and family law, and assesses theoretical arguments that seek to justify them.
This article begins by describing the most common, child-centered justification for parental rights: that parents are empowered in order to protect children’s best interests. I argue that these child-centered accounts do not justify the current legal regime governing parental rights. Instead, current parental rights are better understood as quasi-property interests, residual from historical traditions where children were more explicitly regarded as their parents’ property.
The middle part of this article advances the thesis that the quasi-property functioning of parental rights is not a contingent feature of American law of parents and children. It is instead characteristic of granting parents separate autonomy interests in determining the path of their children’s lives. Parental autonomy rights displace and diminish consideration for children’s interests and objectify children. This article introduces the concept of “desire-contingent goods” and argues that parental autonomy rights are paradigmatically the right to choose desire contingent goods for children regardless of whether they are desired or not. This denies the equal importance of children’s desires, subjective experiences and perspectives on their own lives. As a consequence, basic doctrines in constitutional and family law cannot be reconciled with liberal and egalitarian commitments.
The second half of this article evaluates alternative theoretical justifications for parental rights. These include constitutional and philosophical arguments based on personal liberty and family privacy, as well as philosophical arguments based on relational rights, ethics of care, and the Lockean labor theory of value. These arguments all fall short and, in crucial ways, rely on denying children equal moral consideration. The article concludes with recommendations for legal reform.
If only to "stay sharp" and clear-eyed, read this piece -- especially the "recommendations for legal reform." Here's a bit from the conclusion:
An essential part of long-term reform of American family law should include eroding and ultimately overruling existing case law holding that parents have a constitutionally protected substantive due process right to the custody and control of their children.
For some different views, check out our own Michael Scaperlanda's "Producing Trousered Apes" (here) or my own "Taking Pierce Seriously" (here).
