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.

Sunday, September 10, 2006

Krugman on income inequality

By Rick Garnett

Michael reprints here Paul Krugman's recent opinion piece on income inequality.  Underneath Krugman's usual partisan invective about "right-wing commentators", "whin[ing]" conservatives, and "inequality's apologists" comes the charge that "misleading" statistics about income inequality are flying around.  Indeed, they are -- in this map, for example, which has been flying around and hotly debated in the blogosphere of late.  It appears to be Krugman's view that to question the value to informed discourse of inaccurate claims about declining incomes is to "whine" or "apolog[ize]" for inequality.  This is too bad.  It seems fair to ask if Krugman -- obviously a very gifted and intelligent scholar -- has any objections to the use of "misleading" statistics when they serve his purpose.

Let's stipulate, as I did earlier, that it should be a matter of serious concern -- to Americans generally, and to Catholics committed to principles of solidarity and a preferential option for the poor -- if the economic growth during the Bush Administration has worked to the benefit of only a very few Americans or if, notwithstanding this growth, working-class and low-income people are worse off than they were before.  I wrote earlier:

[W]e might conclude that, even the full picture of the economy (i.e., one that factors in real compensation, [etc.]) is troubling, perhaps because of the disparity between those at the top and the bottom.  (See these old MOJ posts on income inequality.)  We might think that even real, total compensation is too low, and failing to keep pace with American workers' increased productivity.  And so on.

Now, we can all agree that the new Krugman piece, in Michael's post, raises a number of important and timely questions.  For example, let's assume it is true that the "effective federal tax rate on the richest 0.01 percent has fallen from about 60 percent in 1980 to about 34 percent today."  What should we make of this?  What would be the effect -- on the economy generally and, of course, on the most vulnerable among us, with whose welfare I take it Catholic Social Thought charges us to be most concerned -- of raising the effective rate back to, say, 60%?  Or, is it right-wing "whin[ing]," or "apologis[m]" for inequality, to ask such questions?

Bainbridge on the Bishops and enterprise liability

By Rick Garnett

In this post, our MOJ colleague Steve Bainbridge discusses his new paper, "The Bishop's Alter Ego:  Enterprise Liability and the Catholic Priest Sex Abuse Scandal."  Here is the abstract:

Since 1950, more than 11,500 sex abuse claims have been filed against priests and other agents of the Roman Catholic Church. The eventual direct costs to the Catholic Church of the priest abuse litigation are predicted to range from $2 to $3 billion.

The corporate structure of the Church under civil law can have a substantial impact on the ability of priest sex abuse claimants to recover on favorable judgments or settlements. In many U.S. dioceses, all Church assets are owned by a single corporation, typically a corporation sole, by virtue of which the local bishop becomes the legal titleholder of all Church-affiliated property in the diocese. The dominant view is that all assets of such dioceses, including those of individual parishes and other so-called juridic persons, are available to satisfy tort judgments against the diocese.

Some dioceses, however, long have separately incorporated at least some of their affiliated juridic persons. In response to the priest sex abuse liability crisis, there is a growing trend for diocesan assets to be divided among multiple incorporated entities. Although separate incorporation of diocesan assets implicates a number of legal doctrines, alter ego claims likely will play a central role in any litigation seeking to reach the assets of such corporations for the benefit of diocesan creditors.

There is no constitutional bar to a court using the alter ego doctrine to treat a diocese and its separately incorporated parishes as a single enterprise for liability purposes in the priest sex abuse scandal litigation (or any other dispute, for that matter). The analysis in this paper, however, suggests that appropriate cases for invoking the alter ego doctrine in this context will be few and far between.

Two entities will be treated as alter egos where (1) one entity exercises such a high degree of control that the other has effectively lost its separate existence and (2) the controlling entity has abused its power of control in an unjust or inequitable manner. As to the former prong, a diocesan bishop who comports himself in accordance with the requirements of canon law is unlikely to exercise the requisite degree of day to day control over a separately incorporated parish. As to the latter prong, the courts have discretion to consider the potentially severe deleterious impact of liability on the ability of innocent parties to exercise religious practices implicating constitutionally protected values. In other words, while the Free Exercise and Establishment clauses do not bar judicial application of the alter ego doctrine to churches, the values protected by those provisions appropriately may be weighed in the balance. Given the ready availability of alternative doctrines better suited to the problems at hand, particularly fraudulent transfer law, there case against invoking alter ego in this context thus becomes quite strong.

Thinking about "The Common Good"

By Rick Garnett

Here is a very interesting post, by J. Peter Nixon, from the Commonweal blog.  He is discussing two relatively new "organizations of lay Catholics in the last year that both have the phrase 'common good' in their name."  He notes, among other things, that "if the example of Jesus is any guide, one of the things that Christians must do is trouble the consciences of those closest to us."

Saturday, September 9, 2006

The Iraq War

By Michael Perry

Given the prominence of Just War Doctrine in Roman Catholic thought, it's at least a little surprising that there hasn't been more discussion here of the Bush Administrtration's decision in March 2003 to commence war against Iraq.  I'm sure that some of us supported and others of us opposed that decision.  I doubt that those of us who opposed the decision now think that our opposition as mistaken, but I suspect that some of us who supported the decision now think that our support was mistaken.  NYT columnist Tom Friedman is a prominent political liberal who supported the decision--and, so far as I am aware, he has not said that his support was mistaken.  Listen to some of what Friedman said in his column yesterday (9/8/06):

We are stalled in Iraq not because of something some fringe antiwar critics said, or did, but because of how the Bush team, the center of U.S. policy, approached Iraq from the start. While it told the public — correctly, in my view — that building one example of a tolerant, pluralistic, democratizing society in the heart of the Arab-Muslim world was really important in the broader war of ideas against violent radical Islam, the administration acted as though this would be easy and sacrifice-free.

Bush-Cheney-Rumsfeld told us we are in the fight of our lives against a new Islamic fascism, and let’s have an unprecedented wartime tax cut and shrink our armed forces. They told us we are in the fight of our lives against a new Islamic fascism, but let’s send just enough troops to topple Saddam — and never control Iraq’s borders, its ammo dumps or its looters. They told us we are in the fight of our lives against a new Islamic fascism, but rather than bring Democrats and Republicans together in a national unity war coalition, let’s use the war as a wedge issue to embarrass Democrats, frighten voters and win elections. They told us we are in the fight of our lives against a new Islamic fascism — which is financed by our own oil purchases — but let’s not do one serious thing about ending our oil addiction.

Donald Rumsfeld demonizes war critics as “morally confused.” But it is the “moral confusion” at the heart of the Bush policy — a confusion between its important ends and insufficient means — that has hobbled us from the start. It truly, truly baffles me why a president who bet so much of his legacy on this project never gave it his best shot and tolerated so much incompetence. He summoned us to D-Day and gave us the moral equivalent of the invasion of Panama.
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More on Income Inequality

By Michael Perry

Yesterday I posted a link to David Brook's NYT column about the income inequality debate (here).  In his NYT column today, Princeton economist Paul Krugman responds to Brooks (without naming him) and others.  MOJ-readers who are not NYT subscribers won't be able to access the column, so here it is:

Whining Over Discontent

By PAUL KRUGMAN

We are, finally, having a national discussion about inequality, and right-wing commentators are in full panic mode. Statistics, most of them irrelevant or misleading, are flying; straw men are under furious attack. It’s all very confusing — deliberately so. So let me offer a few clarifying comments.

First, why are we suddenly talking so much about inequality? Not because a few economists decided to make inequality an issue. It’s the public — not progressive pundits — that has been telling pollsters the economy is “only fair” or “poor,” even though the overall growth rate is O.K. by historical standards.

Political analysts tried all sorts of explanations for popular discontent with the “Bush boom” — it’s the price of gasoline; no, people are in a bad mood because of Iraq — before finally acknowledging that most Americans think it’s a bad economy because for them, it is. The lion’s share of the benefits from recent economic growth has gone to a small, wealthy minority, while most Americans were worse off in 2005 than they were in 2000.

Some conservatives whine that people didn’t complain as much about rising inequality when Bill Clinton was president. But most people were happy with the state of the economy in the late 1990’s, even though the rich were getting much richer, because the middle class and the poor were also making substantial progress. Now the rich are getting richer, but most working Americans are losing ground.

Second, notice the amount of time that inequality’s apologists spend attacking a claim nobody is making: that there has been a clear long-term decline in middle-class living standards. Yes, real median family income has risen since the late 1970’s (with the most convincing gains taking place during the Clinton years). But the rise was very small — small enough that other considerations, like increasing economic insecurity, make it unclear whether families are better or worse off. And that’s the point: the United States as a whole has grown a lot richer over the past generation, but the typical American family hasn’t.

Third, notice the desperate effort to find some number, any number, to support claims that increasing inequality is just a matter of a rising payoff to education and skill. Conservative commentators tell us about wage gains for one-eyed bearded men with 2.5 years of college, or whatever — and conveniently forget to adjust for inflation. In fact, the data refute any suggestion that education is a guarantee of income gains: once you adjust for inflation, you find that the income of a typical household headed by a college graduate was lower in 2005 than in 2000.

More broadly, right-wing commentators would like you to believe that the economy’s winners are a large group, like college graduates or people with agreeable personalities. But the winners’ circle is actually very small. Even households at the 95th percentile — that is, households richer than 19 out of 20 Americans — have seen their real income rise less than 1 percent a year since the late 1970’s. But the income of the richest 1 percent has roughly doubled, and the income of the top 0.01 percent — people with incomes of more than $5 million in 2004 — has risen by a factor of 5.

Finally, while we can have an interesting discussion about questions like the role of unions in wage inequality, or the role of lax regulation in exploding C.E.O. pay, there is no question that the policies of the current majority party — a party that has held a much-needed increase in the minimum wage hostage to large tax cuts for giant estates — have relentlessly favored the interests of a tiny, wealthy minority against everyone else.

According to new estimates by Thomas Piketty and Emmanuel Saez, the leading experts on long-term trends in inequality, the effective federal tax rate on the richest 0.01 percent has fallen from about 60 percent in 1980 to about 34 percent today. Meanwhile, the U.S. government — unlike any other government in the advanced world — does nothing as more and more working families find themselves unable to obtain health insurance.

The good news is that these concerns are finally breaking through into our political discourse. I’m sure that the usual suspects will come up with further efforts to confuse the issue. I say, bring ’em on: we’ve got the arguments, and the facts, to win this debate.
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Friday, September 8, 2006

Catholics and Public Life

By Robert John Araujo, SJ

Over the past several days, a number of MOJ contributors have offered important, challenging, and even provacative thoughts on a variety of issues including slavery, marriage, and abortion. Earlier this summer, a number of us addressed another pressing issue of the day dealing with embryonic stem cell research and related matters. The questions dealing with abortion and stem cell science are very much a part of current domestic debate. We tend to forget that the question of slavery is still very much a part of life in other places around the world, and we should not forget that this malignancy still plagues many souls today.

In the next few weeks, we, as members of local, state, and national communities, will be listening to candidates seeking election to a wide variety of public offices. Those running for elective office (and those who will be appointed by those who are elected) are or will be making promises about their positions on the issues of the day, both great and small. Some of the recent MOJ postings have offered a variety of views about what Catholics, be they voters or seekers or holders of office, should do regarding these issues. I would like to add a further perspective to these discussions and presentations.

One way of becoming familiar with the duty of a Catholic who has a role in public life as office holder/seeker or as elector is to be educated on what the Church has to say and teaches on specific issues. A Catholic's self education on what the Church teaches can begin with an examination of the Catechism along with the text references that richly footnote many of its entries. Some guidance on what Catholics in public life need to think about concerning hot-topic issues like stem cell research, marriage, and abortion, can be gleaned from John Paul II's Evangelium Vitae and Veritatis Splendor. There are also some extremely useful instructions from the Congregation for the Doctrine of the Faith (CDF) and the Pontifical Academy for Life, and the Pontifical Councils for Justice and Peace and for the Family. These texts are easily accessed from the Vatican website (www.vatican.va) under the menu headings Papal Archive and Roman Curia.

As educators and adherents of CLT, we might consider how we can contribute to the public Catholic discourse (and education) on the issues that many in our nation will be discussing over the next several months by keeping in mind these texts. I suspect that some of us may offer interpretations of these texts that are at odds with the understanding given to them by other Catholics. Although I wish it were otherwise, I would also expect that some Catholics may offer interpretations that are not shared by others including those holding Church office. But, for the time being, I think it is a useful and important project to be well versed in what the Church is teaching on the public policy issues of the day that are beginning to appear in our discourse in MOJ forum. RJA sj

Novak on the great issue of the day

By Rick Garnett

No, don't worry Mark, this is not a post about neoliberal economics.  Check out Michael Novak's on-line essay about . . . Notre Dame football.

Abortion and Slavery: John Breen Responds

By Michael Scaperlanda

MOJ friend and alum, John Breen, responds to Eduardo’s post on abortion and slavery:

“When slavery was in full swing in this country, people were in fact talking precisely about the sorts of prudential judgments that Eduardo finds extreme today (e.g. whether slavery should or could be confined to the South or whether it could or should be extended to the territories, the Fugative Slave Act, etc).  And so the analogy isn't "intended to rule out as unreasonable any discussion of possibility that the legality of abortion might be tolerable on prudential grounds."  On the contrary, it invites such a conversation in the present day.

But recognize that the prudential conversation about the "peculiar institution" took place when slavery was in full swing, just like today is the hay day for the culture of death.  Today, no one would consider reasonable an argument that tolerated a little bit of slavery, just like some day, we can all hope and pray, no one will consider reasonable an argument that would tolerate a little abortion.  What is reasonable is obviously in part a function of where the culture is.  Just as the culture of today is a far cry from what it was in the antebellum South, so too we can pray that the culture in our country as a whole will one day reflect a culture of life.”

Abortion and Slavery: A Response to Eduardo

By Michael Scaperlanda

A quick response to Eduardo’s post on abortion and slavery.

Slavery was a great moral evil that plagued our nation from the founding until the conclusion of the Civil War.  Thomas Jefferson, among others, “shuddered to think God just” (Notes on virginia) because he knew God would not be pleased with a nation that supported the slave license.  Yet, the founding generation allowed slavery, dealing in the art of possible.  In doing so, they set up a system of government that was basically just and good but which was infected by a dangerous cancer.  How to respond to this cancer that threatened the whole body?  Some, as mentioned in earlier posts, chose aggressive methods, preferring to meet the cancer with violence.  Others preferred less aggressive methods, preferring to isolate and quarantine the cancer in the belief that it would eventually shrivel up and die.  This was Lincoln’s approach until the cancer went into its own aggressive stage threatening to immediately kill the body (the u.s.). 

Abortion (the intentional killing of innocent and helpless human beings) is a great moral evil today.  Although not quite as candid as jefferson, even pro-choicers recognize this to some extent when they say that abortion ought to be safe, legal, and rare.  Why rare if the act of abortion is morally good or morally neutral?  We continue to have a system of government that is basically just and good but a new form of cancer started growing within the body in the 1960’s.  In 1973, in a moment of judicial malpractice (and again in 1992 (Casey) and 2001 (Carhart)), the Court declared that this growth was benign, even beneficial to the body, and forbid other agents of government, state or federal, from treating the growth as cancerous. 

How should those who see the truth – that a culture of abortion like a culture of slavery is a dangerous cancer threatening the body – react?  Eduardo seems to suggest that the only possibilities for a true pro-lifer are to kill the patient (such a government would be “unworthy of obedience”) or, at the very least, to attack the cancer with the most aggressive and even violent means possible.  Are these the only legitimate possible treatments?  Like the abolitionists in the 19th century, pro-lifers can, consistent with their positions, reasonably believe that less violent means of treating the cancer provide the best chance of bringing it into remission (until it rears its ugly head in some new form 75 or 100 years from now).  As with slavery in the 19th century, one of the problems is that a large part of the body does not see the growth as cancerous so we have to treat a patient who is suffering from denial.  The growth of the cancer must be slowed and reversed while trying to convince the patient that he has cancer.  A difficult and delicate task that requires much patience. 

Pax, Michael S.

More on Rauch, abortion, and "extreme" claims

By Rick Garnett

First, I want to thank Eduardo, Steve, Michael S. and others for this conversation.  Conversations like this -- i.e., about abortion, slavery, faithful citizenship, law, prudence, etc. -- are difficult, and can easily be or become unedifying.  One of the things we -- all of us -- have tried to do, for several years now, here at MOJ, is to model -- for our students, colleagues, fellow Catholics, and fellow citizens -- what a conversation between and among people with shared basic commitments who disagree about non-trivial things can and should look like.  I hope it is clear, both to my fellow bloggers and to MOJ readers, that strong, and even strongly worded, disagreements are consistent with friendship and respect.

Now, Eduardo writes that "the comparison of abortion to slavery seems to me to be extreme in its implications and, consequently, to open those who espouse it to Rauch's criticism that they do not seem willing to follow their own principles to their logical conclusions, just as does the comparison of abortion to murder."  It still seems to me, though, that the Rauch criticism is misplaced.  As I wrote earlier:

I do not see why those who believe -- as I do, and as Ponnuru does, and as Eduardo does -- that abortion generally involves wrongful homicide, and that our Nation's tolerance (let alone constitutionalization and celebration) of private violence against unborn children is shameful, are therefore required, for consistency's sake, to believe that women who have abortions, or doctors who perform them, should be punished in the same way and with the same severity as are persons who "murder" adults.  Nor do I see why those who believe that abortion generally involves wrongful homicide are therefore required, for consistency's sake, to "fire-bomb[] . . . abortion clinics" or take to the streets.

As for comparisons between abortion and slavery, that the asserted similarities between the constitutionalization of a legal right to abortion and the constitutionalization of a legal right to own slaves might weigh against -- though perhaps not necessarily "rule out" -- the "possibility that the legality of abortion might be tolerable on prudential grounds" does not, in my view, make the comparison "extreme."  I take it that we all agree that slavery is an assault on human dignity, and that a legal regime that tolerates (let alone constitutionally celebrates) it, is -- to the extent that it tolerates it -- unjust.  Abortion is an assault on human dignity and, to the extent our legal regime insulates almost entirely this lethal private violence from regulation, let alone prohibition, that legal regime is unjust.  Making or accepting this comparison, though, does not -- it seems to me -- require one to rise up in armed resistance to that legal regime.

On a related matter, responding to this post of mine, Steve S. wrote:

If I read [him] correctly, Rick is saying that the state-of-mind is different because the perpetrators do not recognize the humanity of the victim. I am wondering whether and how the criminal law ordinarily would take this into account. I would think that at most it would be a mitigating defense, if at all. I am wondering whether Rick is trading on the premise that a fetus is not a human being in the same sense as an adult or baby, and, if so, what that difference is. In other words, I am having trouble determining why first degree murder would not be appropriate (other than for prudential reasons) if the fetus were considered to be a human being in the same sense as a baby or an adult. Of course, one would not have to think that a fetus was the same as an adult or a baby to believe that abortion is a moral tragedy.

I could be wrong, but I do not think my suggestion -- i.e., that the law might, without exposing itself to Rauch-ian charges of hypocrisy, treat abortion and "murder" differently because the mens rea of the actor is likely to be different in the two situations -- trades on the premise that the victim of an abortion is not, in fact, a human being.  (The statement that a human fetus is a human being does not, I think, require "resort to Vatican authority.").  The suggestion does presume, though, that the law might reasonably, and justly, take into account the fact (I agree with Steve that it is fact) that most of those who perform or procures an abortion, like the rest of us (including, I admit, me), do not or cannot really see or think about an unborn child in precisely the same way we think about an infant or an adult.  Perhaps this inability is related to or results from the fact that our constitutional law has, in a sense, "taught" us all that abortion is a basic right.  I do not want to say -- that is, I don't think -- that those who have internalized this teaching, to some extent, are culpable for having done so.  Maybe this is one reason why I can understand why we do not regard a woman who has an abortion the way we regard someone kills his 5-year old son.  (Returning to slavery, maybe we do not regard, say, George Washington as a monster -- far from it -- even though he owned slaves, is because we recognized that he internalized the false moral messages that the law and culture were transmitting.)

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