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.
Friday, August 12, 2011
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.
Thursday, August 11, 2011
John Henry Newman
John Henry Newman died on this day in 1890. He was, of course, one of the great English prose stylists of the nineteenth century and exerted a major influence on Victorian intellectural culture, but--to paraphrase something Alasdair MacIntyre once said about Edith Stein--his impending canonization and declaration to be a doctor of the Church all but ensure his eventual marginalization. As many of us prepare for a new academic year amid much political and economic turmoil, here's a passage from Newman's The Idea of a University to ponder:
And so in the intellectual, moral, social, and political world. Man, with his motives and works, his languages, his propagation, his diffusion, is from Him. Agriculture, medicine, and the arts of life, are His gifts. Society, laws, government, He is their sanction. The pageant of earthly royalty has the semblance and the benediction of the Eternal King. Peace and civilization, commerce and adventure, wars when just, conquest when humane and necessary, have His cooperation, and His blessing upon them. The course of events, the revolution of empires, the rise and fall of states, the periods and eras, the progresses and the retrogressions of the world's history, not indeed the incidental sin, over-abundant as it is, but the great outlines and the results of human affairs, are from His disposition. The elements and types and seminal principles and constructive powers of the moral world, in ruins though it be, are to be referred to Him. He "enlighteneth every man that cometh into this world." His are the dictates of the moral sense, and the retributive reproaches of conscience. To Him must be ascribed the rich endowments of the intellect, the irradiation of genius, the imagination of the poet, the sagacity of the politician, the wisdom (as Scripture calls it), which now rears and decorates the Temple, now manifests itself in proverb or in parable. The old saws of nations, the majestic precepts of philosophy, the luminous maxims of law, the oracles of individual wisdom, the traditionary rules of truth, justice, and religion, even though imbedded in the corruption, or alloyed with the pride, of the world, betoken His original agency, and His long-suffering presence. Even where there is habitual rebellion against Him, or profound far-spreading social depravity, still the undercurrent, or the heroic outburst, of natural virtue, as well as the yearnings of the heart after what it has not, and its presentiment of its true remedies, are to be ascribed to the Author of all good. Anticipations or reminiscences of His glory haunt the mind of the self-sufficient sage, and of the pagan devotee; His writing is upon the wall, whether of the Indian fane, or of the porticoes of Greece. He introduces Himself, He all but concurs, according to His good pleasure, and in His selected season, in the issues of unbelief, superstition, and false worship, and He changes the character of acts by His overruling operation. He condescends, though He gives no sanction, to the altars and shrines of imposture, and He makes His own fiat the substitute for its sorceries. He speaks amid the incantations of Balaam, raises Samuel's spirit in the witch's cavern, prophesies of the Messias by the tongue of the Sibyl, forces Python to recognize His ministers, and baptizes by the hand of the misbeliever. He is with the heathen dramatist in his denunciations of injustice and tyranny, and his auguries of divine vengeance upon crime. Even on the unseemly legends of a popular mythology He casts His shadow, and is dimly discerned in the ode or the epic, as in troubled water or in fantastic dreams. All that is good, all that is true, all that is beautiful, all that is beneficent, be it great or small, be it perfect or fragmentary, natural as well as supernatural, moral as well as material, comes from Him. ("Bearing of Theology on other Branches of Knowledge")
Wednesday, August 3, 2011
Joyner v. Forsyth County
My friend and former colleague Kevin Walsh (Richmond) has an interesting post on Joyner v. Forsyth County, a recent Fourth Circuit case holding unconstitutional (because unduly sectarian) the practice of legislative prayer at the meetings of the Forsyth County (North Carolina) Board of Commissioners. As Kevin notes, the Fourth Circuit's opinion has an unusual disagreement between Judge J. Harvie Wilkinson and Judge Paul Niemeyer (son, by the way, of the great political theorist Gerhart Niemeyer). In addition to the usual Establishment Clause issues surrounding legislative prayer, the case poses a set of issues about religious pluralism and civil religion (as Kevin suggests, is the ghost of Thomas Jefferson haunting the Fourth Circuit?). Go read the opinion and Kevin's post, but here's the conclusion to Judge Wilkinson's opinion:
George Washington once observed that "[r]eligious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause." Letter from George Washington to Edward Newenham (June 22, 1792). As our nation becomes more diverse, so also will our faiths. To plant sectarian prayers at the heart of local government is a prescription for religious discord. In churches, homes, and private settings beyond number, citizens practice diverse faiths that lift and nurture both personal and civic life. But in their public pursuits, Americans respect the manifold beliefs of fellow citizens by abjuring sectarianism andembracing more inclusive themes. That the Board and religious leaders in Forsyth County hold steadfast to their faith is certainly no cause for condemnation. But where prayer in public fora is concerned, the deep beliefs of the speaker afford only more reason to respect the profound convictions of the listener. Free religious exercise posits broad religious tolerance. The policy here, as implemented, upsets the careful balance the First Amendment seeks to bring about.
And here's the conclusion to Judge Niemeyer's dissent:
I respectfully submit that we must maintain a sacred respect of each religion, and when a group of citizens comes together, as does the Forsyth County Board of Commissioners, and manifests that sacred respect—allowing the prayers of each to be spoken in the religion’s own voice—we must be glad to let it be. The ruling today intermeddles most subjectively without a religiously sensitive or constitutionally compelled standard. This surely cannot be a law for mutual accommodation, and it surely is not required by the Establishment Clause.
Wednesday, July 27, 2011
Summer 2011 Journal of Catholic Social Thought
You'll want to run to your local newsstand to purchase the Summer 2011 issue of the Journal of Catholic Social Thought, which is published by Villanova University (the journal is available at the Philosophy Documentation Center for those with access to it). The issue is comprised of papers delivered at a symposium last fall at Villanova Law on Ministers of the Law: A Natural Law Theory of Legal Authority (Eerdmans, 2010) by Jean Porter, the John A. O'Brien Professor of Theology and Concurrent Professor of Law at Notre Dame. There is much to admire and much to disagree with in the book--as Russell Hittinger says in his blurb on the back of it, Porter "illuminates and at the same time renders subtle in every hue and shade a most difficult set of questions on natural law. I could not stop reading, and in some places disagreeing with, this splendid work." The symposium papers include appreciations and also respectful but tough disagreements from Kevin Flannery, SJ (Pontifical Gregorian University), Nicholas Wolterstorff (Yale), Brad Lewis (Catholic University of America), Jay Mootz (UNLV), Maris Köpcke Tinturé (a very promising young philosopher of law at Oxford and student of John Finnis's), and our own Patrick Brennan, as well as a keynote address from Jean Porter.
Tuesday, July 26, 2011
Marshall McLuhan
I should think lawyers would be especially interested in the way that technology and media shape culture, so it's worthwhile noting the centenary of Marshall McLuhan's birthday on July 21. It's produced a series of good articles about the odd but interesting McLuhan, often remembered now (if at all) for his cameo appearance in Woody Allen's "Annie Hall" when McLuhan is produced by Allen in line at a movie theater to upbraid a pompous professor for misinterpreting McLuhan's work. Many of the recent pieces, including an article in yesterday's New York Times, have noted the importance of McLuhan's conversion to Catholicism to his work. See also Alan Jacobs at The New Atlantis (who is more circumspect about the extent of McLuhan's lasting contribution, while tracing out the scope of his influence on Neil Postman and two of McLuhan's students, the Jesuit Walter Ong and Hugh Kenner) and Father Raymond De Souza.
Nicholas Carr, in an essay adapted from The New Republic, summarizes the case:
Neither his fans nor his foes saw him clearly. The central fact of McLuhan's life was his conversion, at the age of twenty-five, to Catholicism, and his subsequent devotion to the religion’s rituals and tenets. He became a daily Mass-goer. Though he never discussed it, his faith forms the moral and intellectual backdrop to all his mature work. What lay in store, McLuhan believed, was the timelessness of eternity. The earthly conceptions of past, present, and future were by comparison of little consequence. His role as a thinker was not to celebrate or denigrate the world but simply to understand it, to recognize the patterns that would unlock history’s secrets and thus provide hints of God’s design. His job was not dissimilar, as he saw it, from that of the artist.
And that is echoed in this nice bit by Jeet Heer:
Indeed, [McLuhan's] faith made him a more ambitious and far-reaching thinker. Belonging to a Church that gloried in cathedrals and stained glass windows made him responsive to the visual environment, and liberated him from the textual prison inhabited by most intellectuals of his era. The global reach and ancient lineage of the Church encouraged him to frame his theories as broadly as possible, to encompass the whole of human history and the fate of the planet. The Church had suffered a grievous blow in the Gutenberg era, with the rise of printed Bibles leading to the Protestant Reformation. This perhaps explains McLuhan’s interest in technology as a shaper of history. More deeply, the security he felt in the promise of redemption allowed him to look unflinchingly at trends others were too timid to notice.
(Purely as an aside, it strikes me that although Canada has become more secularized than the US over the past few decades, Canadian Christianity has produced an outsized number of significant figures over that period--in addition to McLuhan, Charles Taylor, Bernard Lonergan, Robertson Davies, the unduly neglected George Parkin Grant, and, of course, Natalie MacMaster, the best Celtic fiddler in the world today and a native of Cape Breton Island.)
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