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.

Thursday, November 29, 2007

More on Rep. Hyde

For a few reflections -- including one by me -- on Rep. Hyde's service and legacy, click here.

Wednesday, November 28, 2007

MOJ in "Top 100" law blogs

Or, so says the ABA Journal:  "Where Pope Benedict XVI is the most-cited legal authority. Canon law is interpreted, and Catholic law school news is covered in detail."  Does this blurb really describe what goes on here?  No, probably not.  But hey, they spelled our name right.

Two new blogs of interest

America magazine -- joining First Things and Commonweal -- now has a blog, "In All Things", to which the editors contribute.  Here's Fr. James Martin on the latest in cinematic Church-loathing, "The Golden Compass."  Also, the publication-formerly-known-as-Crisis -- now "InsideCatholic" -- has a blog, "The Inside Blog."  (Obviously, one should check out these blogs only after carefully and regularly immersing oneself in Mirror of Justice.)

Tuesday, November 27, 2007

"Family-friendly cities"

Joel Kotkin, author of "The City" (a great read) has an op-ed in today's Wall Street Journal called "The Rise of Family Friendly Cities."  To set the stage, here's a bit from that book:

"Cities are humanity's greatest creation," Kotkin writes.  And, "[t]o be successful today, urban areas must resonate with the ancient fundamentals -- they must be sacred, safe, and busy."  Kotkin suggests that one of the new "urban renewal" strategies -- i.e., fading cities re-inventing themselves as hip, edgy congregating points for so-called "young creatives" -- is not likely to succeed because it departs so markedly from these "ancient fundamentals" in failing to appreciate the role that the sacred, and the religious, long played in the developing and sustaining of cities:  "Almost everywhere, the great classical city was suffused with religion and instructed by it.  'Cities did not ask if the institutions which they adopted were useful . . . .  These institutions were adopted because religion had wished it thus.'  In contemporary discussions of the urban condition [including, I'm afraid, many "new urbanist" discussions], this sacred role has too often been ignored."

And, here is an essay by Kotkin on the importance of religion, and of the "sacred", to the city. 

Kotkin has become known for, among other things, deflating the recently-big-buzz idea that the way for cities to thrive is to attract young "creative class" types to hip, coffee-shop-populated urban fun-zones.  (See, e.g., Richard Florida's "Rise of the Creative Class."  In today's essay, Kotkin returns to this theme:

For much of the past decade, business recruiters, cities and urban developers have focused on the "young and restless," the "creative class," and the so-called "yuspie"--the young urban single professional. Cities, they've said, should capture this so-called "dream demographic" if they wish to inhabit the top tiers of the economic food chain and enjoy the fastest and most sustained growth. . . .

There is a basic truth about the geography of young, educated people. They may first migrate to cities like New York, Los Angeles, Boston or San Francisco. But they tend to flee when they enter their child-rearing years. Family-friendly metropolitan regions have seen the biggest net gains of professionals, largely because they not only attract workers, but they also retain them through their 30s and 40s. . . .

The evidence thus suggests that the obsession with luring singles to cities is misplaced. Instead, suggests Paul Levy, president of Philadelphia's Center City district association, the emphasis should be on retaining young people as they grow up, marry, start families and continue to raise them. . . .

Only 14% of Center City residents have children, Mr. Levy says, and roughly half its young people depart once they enter their mid-30s. "If you want to sustain the revival you have to deal with the fact that people with six year olds keep moving to the suburbs," Mr. Levy suggests. "Empty nesters and singles are not enough."

. . . Boosters such as Mr. Levy look increasing towards reviving the traditional family neighborhoods which surround Center City. His organization has worked closely with local public and private schools, church and civic organizations to build up the support structures that might convince today's youthful inner city urbanites to remain as they start families. "Our agenda," Mr. Levy says, "has to change. We have to look at the parks, the playgrounds and the schools."

Such a shift in emphasis could mark a new beginning for many long-neglected urban neighborhoods across the country. It's time to recognize that today, as has been the case for millennia, families provide the most reliable foundation for successful economies.

Monday, November 26, 2007

Response to Prof. Wertheimer

Thanks to Prof. Wertheimer for reading, and for writing in to Michael.  In her message to Michael P., she writes, "I am at a loss to explain, much less justify, any position that creates a greater risk of more unwanted pregnancies and, a fortiori, more abortions, no matter what other issues may be lurking under the surface."  Really?  No matter what?  I yield to no one in my conviction that, as she observes, abortion is a "great[] evil".  That said, it remains unclear to me why one would think that this observation renders inexplicable or unjustifiable the position that perhaps not every measure that holds out the prospect of contributing to a reduction in the "risk of more unwanted pregnancies" is, therefore, a measure that must, or even ought to, be supported by those who oppose abortion.

She also writes, "[i]ncreasing the cost of contraception thus contributes to the divide between the rich and the poor in our society, surely not a goal devoutly
to be wished."  We all agree that increasing this divide is not the goal.  I wonder, though -- I do not have the figures -- how much of the proposed subsidy would go to the poor and how much would simply involve a transfer from some middle-class taxpayers to some middle-class or well-off students?  Does this matter?

In addition, Prof. Wertheimer notes that "[i] is also perhaps worth pointing out that many of those who will suffer by reason of the price increase are not themselves Catholic."  Why does it matter -- given that the subsidy-reduction does not involve coercion or burden non-Catholics' freedom-of-conscience -- that non-Catholics, and not just Catholics, are affected by a reduction in the subsidy?

Finally, and all this being said, it seems that the divide on Michael's initial question -- i.e., "How would *you* vote" -- is inevitably going to reflect, in the end, different views about the tricky connections between law, policy, culture, and conduct.  Questions about these connections are, of course, really tough; they are also, it seems to me, really important and interesting.  For example:  Prof. Wertheimer suggested that "any position that creates a greater risk of more unwanted pregnancies" is, for that reason, difficult to justify.  It seems to me, though, that the failure to communicate to unmarried college students that they ought not to be sexually active, and the failure to attend to the messages and values transmitted in law and through culture to unmarried college students with respect to sexual activity, "create[] a . . . risk of . . . unwanted pregnancies" (and therefore of more abortions).  How can these failures be justified?  How could they be -- should they be?  may they be? -- remedied?

"Taking Marriage Private"

With respect to Michael's recent post, "Taking Marriage Private?":

First, MOJ readers interested in the subject matter of, and questions raised in, the post might also be interested in this paper, by Joel Nichols, on "multi-tiered marriage."  Interesting stuff.

Second, it seems to me -- and, certainly, I invite correction by experts -- that if Professor Coontz is suggesting (and perhaps she is not) that, "for most of Western history", marriage was a matter of merely "private" concern, a matter with which the relevant public authorities were not concerned, then her suggestion is not supported by the historical record.  It has, it seems to me, "for [all] of Western history", been the case that communities have regarded marriage -- its formation, incidents, nature, dissolution, etc. -- as (among other things) a matter of community concern.  The fact that the Church recognized as "licit" marriages contracted in a haystack does not, it seems to me, indicate otherwise.

Finally, it seems to me that an argument against (what I take to be) the "let's privatize marriage" suggestion might go something like this:  Because marriage is at the heart of family -- which is the first and vital cell of society and about whose health the public authority will, as part of its obligation to attend to the common good, care -- the public authority ought not to (completely) privatize marriage.

Other thoughts?

Sunday, November 25, 2007

Response to Michael

In his most recent post regarding the contraception-subsidy question, Michael says that "[t]he question [he] meant to ask[] is whether one who neither opposes nor is (inordinately) skeptical about the use of contraceptives generally should vote 'Yes' or 'No'."  Putting aside the question where the line is between appropriate and "inordinate[]" skepticism about contraception, it appears that I misunderstood Michael's original post ("How Would *You* Vote?").  I took him to be asking the reader to assume only that he or she "want[s] to minimize the number of abortions in the United States."

Michael also writes that I "endorse[]" Fr. Araujo's third and fourth reasons for opposing the proposal.  What I meant to say, when I wrote that my own reason for opposition was "consonant" with Fr. Araujo's third and fourth reasons, was that my reason -- like, I thought, Fr. Araujo's third and fourth reasons -- proceeds from the view that "law has not only a direct, social-control function but also 'expressive' and 'pedagogical' functions (and effects)."  I actually do not know -- at least, I'm not sure -- whether subsidized contraception for college students would encourage more sex by college students, or would (simply) encourage those college students who would have sex anyway to use contraception when they do.  But, as I tried to make clear, I am assuming for the sake of this discussion precisely what Michael apparently believes, namely, that college students are going to have sex, no matter what, and that subsidized contraception for college students would likely result in fewer unplanned pregnancies.

Finally, with respect to my statement that "[t]he contraception-subsidy proposal involves, among other things, the expression-through-law of a position that, it seems to me, we might want to avoid expressing-through-law", Michael asks me to be more explicit about the "position" to which I am referring.  In my initial post, I indicated that the position I'm worried about is one that denies, or seems to deny, "that a young college man ought not to pressure his pregnant girlfriend to get an abortion, and a young college woman ought not to procure an abortion, even if their inability to shoulder the burden of paying full-price for contraceptives is one of the reasons they face the decision." 

It seems to me that the the proposal does express-through-law the denial of this position.  Instead, it seems to me, the proposal "says" something like the following:  "It is an understandable, and even an appropriate, decision for college students facing unplanned pregnancies to have abortions; and it is (therefore) appropriate for the public authority to allocate scarce resources in order to make it less expensive for college students to avoid confronting the scenario -- i.e., an unplanned pregnancy -- in which it is understandable, and even appropriate, for them to choose abortion."

So, does the proposal, in effect, "say" this?  Maybe not.  If not, though, what does it "say"?  If so, should we care?  Michael?  Robert?  Others?

Christ the King

Today is the Solemnity of Christ the KingHere is a little Solemnity-appropriate reading:  Pope Pius XI's Quas Primas.  Great stuff.  "Viva Cristo Rey!"

UPDATE:  More, on Miguel Pro, S.J., here.

Saturday, November 24, 2007

Explaining my "no"

Michael P. has raised (in e-mail) a question about my "no" vote on the contraception-subsidy proposal about which he blogged the other day.  Regarding this passage from my post:

"[A] young college man ought not to pressure his pregnant girlfriend to get an abortion, and a young college woman ought not to procure an abortion, even if their inability to shoulder the burden of paying full-price for contraceptives is one of the reasons they face the decision.  And, it seems to me that policymakers may and should take very seriously the possible negative consequences of a law whose expressive function might be to suggest otherwise."

Michael has pressed me:  "I don't understand how does this passage counts as a reason to vote no.  Can you elaborate a bit for me?"

The contraception-subsidy proposal reflects, it seems to me, this thinking:  We all know that college students are going to have sex -- even if we tell them (assuming they are unmarried) that they shouldn't.  And, we all know that some of these students are going to get pregnant.  Finally, we all know that some of these students will choose abortion, even if we try to teach them that they should not.  So, those of us who want there to be fewer abortions should support the contraception-subsidy proposal because -- by making contraception cheaper -- it would reduce the number of unwanted pregnancies and, therefore, the number of abortions. 

In my post, I assumed for the sake of argument that fewer abortions among college students would, in fact, be a result -- a good result -- of adopting the proposal.  But, are there reasons why even those of us who regard "fewer abortions" as a "good result" might still oppose the policy?  It seems to me that there are.  Fr. Araujo has discussed (with more care and eloquence than I did) some of these reasons.  The reason I was trying to articulate in my earlier post is consonant, I think, with Fr. Araujo's third and fourth reasons.  I start with the view that law has not only a direct, social-control function but also "expressive" and "pedagogical" functions (and effects).  The contraception-subsidy proposal involves, among other things, the expression-through-law of a position that, it seems to me, we might want to avoid expressing-through-law.  Joined with the reasons discussed by Fr. Araujo, this fact (assuming it is a fact) seems to provide a reasonable basis for someone who opposes abortion to nonetheless vote "no" on the proposal.

Thursday, November 22, 2007

I'd vote "no"

"How would *you* vote," Michael asks, on a proposal to re-instate previous subsidization levels of birth-control pills for college students.  I'd vote "no", I think.  (Michael:  How would *you* vote?) 

For starters, I am inclined to agree with "some people":

Not everyone is troubled by the price increases. Some people said they wondered why college students, many of whom manage to afford daily doses of coffee from Starbucks and downloads from iTunes, should have been given such discounted birth control to begin with, and why drug companies should be granted such a captive audience of students. Others said low-priced, easy-to-attain contraception might encourage a false sense of security about sex.

More seriously, though:  Michael prefaces his question by asking us to "assume that [we] want to minimize the number of abortions in the United States."  The preface implies, it seems to me, two other premises:  (a) cheaper contraceptives for college students will result in fewer unplanned pregnancies, and therefore fewer abortions and (b) that policies which are likely to result in fewer abortions are, presumptively, policies worthy of support.

Let's go ahead and assume -- for the sake of argument -- (a).  And, we can all concede that there is something to (b).  If abortion is -- and, it is -- the killing of an unborn child, then it would seem that any policy -- which is not itself morally objectionable -- which is expected to result in fewer such killings is, for this reason, at least presumptively worth supporting.  But, we do not think -- do we? -- that the fact a particular proposed policy could result in fewer abortions removes the need to consider other facts about the proposed policy.  It is easily to imagine all kinds of horrible policies -- e.g., mandatory sterilizations, involuntary commitment, etc. -- that would result in fewer abortions.  It would -- assuming (a) -- also result in fewer abortions if government were to confiscate summarily all of the wealth of the "top 5%" and use this money to set up a fund that would provide contraception free, to everyone.  But, this policy would be both stupid and unjust; that it might result in fewer abortions would not make it smart or just.   

Abortions are not just "bad things that happen" or sub-optimal occurrences -- like mudslides or sewer-line breaks -- whose incidence we want to reduce to the extent it is cost-effective to reduce them.  (It would save lives to reduce the speed limit to 30 miles-per-hour.  But we don't, and no one thinks the fact that it would save lives requires us to.)  Abortions are chosen wrongs, they are acts that harm others.  Certainly, we cannot deny that many people chose this wrong, and do this act, in contexts and under influences (e.g., poverty, domestic violence, child abuse) that diminish -- even dramatically -- their personal culpability.  Certainly, there are policies that we may and should enact to alleviate the impact of such influences.  But, it seems to me that we should remember -- and that policy-makers are entitled to insist -- that a young college man ought not to pressure his pregnant girlfriend to get an abortion, and a young college woman ought not to procure an abortion, even if their inability to shoulder the burden of paying full-price for contraceptives is one of the reasons they face the decision.  And, it seems to me that policymakers may and should take very seriously the possible negative consequences of a law whose expressive function might be to suggest otherwise.

But again:  Michael, how would *you* vote, and why?  (And, happy Thanksgiving!).