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.

Friday, May 12, 2006

Bainbridge on Enterprise Liability and the abuse scandal

By Rick Garnett

Check out Steve Bainbridge's latest:

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.

More on the Religion-in-prisons proposal

By Rick Garnett

Marty Lederman has this post (I mean, this post) discussing analysis provided by Chip Lupu and Bob Tuttle of the religion-in-prisons issue (blogged here on MOJ a few days ago).

A win for "church autonomy"

By Rick Garnett

A welcome decision out of Washington (thanks to Prof. Friedman):

The Yakima (Washington) Herald Republic reports that yesterday a Washington state trial court judge dismissed a suit accusing the Catholic Diocese of Yakima of forcing Robert Fontana, Diocesan Director of Evangelism, to resign after he questioned the Diocese's application of a new national policy on clergy sexual misconduct. Fontana claimed that he was reprimanded for complaining that Bishop Carlos Sevilla permitted a priest to continue his religious duties even though the priest was being investigated for downloading photographs of nude boys from the Internet. The court held that it lacked jurisdiction over Fontana's claim because of the "ministerial exception". Holding that Fontana's duties should be considered "ministerial", the court said that "a church's right to be unfettered by the state in its choice and control of ministers cannot abide state intervention where the heart of the issue depends on religious justification."

Proof That the Mirror of Justice Actually Has Readers! And Shared Thoughts About Diversity and Liberation in Our Catholic Church

By Greg Sisk

I’m posting below an interesting, encouraging, and just downright amusing and uplifting message from our friend, David Gregory, at St. John’s University law school in Queens. This message also reports the wide readership of our Mirror of Justice blog.

Let me provide a little background for readers to set the stage for his message to me, which I’m posting with his permission. About a month ago, in the course of a posting on responses to the situation in Darfur, which emphasized the faithful and loving actions of those in the Catholic Worker movement, I included the following side comment:

[Side Note: Perhaps to the bemused surprise of my friends on the Mirror of Justice and elsewhere in the Catholic academic community, where my deserved reputation is rather conservative, I have to say that these Catholic Worker folks are growing on me. Not only have I found myself writing now on this blog for a second time about their efforts to promote human rights in the Sudan, but others have reported on this blog about the group that followed up the John Paul II conference at St. John’s last month by attending an anti-war poetry reading at the Catholic Worker house. While no one has yet “outed” me, I’ll go ahead and admit here that, yes, I was one of that small band that was shepherded by David Gregory from Queens to the East Village to spend a Friday night with the Catholic Workers. No, I’m not ready to join up, but I am pleased to find common ground on many things. And for us as Catholic legal thinkers to be a contradiction to our society, refusing to adhere to general ideological categories and reaching across arbitrary lines to each other, is an essential part of our mission here at the Mirror of Justice.]

And now here are excerpts from David Gregory's message:

"Yesterday morning, at the Communion Breakfast following the First Friday Catholic Lawyers Guild Mass, Archdiocese of NY (at Our Savior Church, Msgr. George Rutler, Park Ave and East 38th Street; Msgr. GR writes for Crisis magazine, and hosted Pres. Bush for Mass during the GOP 2004 convention here in NYC), several fellow attendees told me that you both had very nice compliments for our evening at the Catholic Worker on March 24, at the close of the JP!! Conference.

I am not a blogger, and, for all practical purposes, do not use the Internet (I admit to the undeniable efficiency of email, however; witness this letter, for example!).

I have never read your Mirror of Justice blog, or virtually any other yet, for that matter.

But, anyhow, that is where the good news was reportedly read.

On behalf of St. John's, thanks for whatever the kind words were/are/will be…..

Some reportees were bemused by Greg's apparent GOP confessional.

Greg, if it is some small comfort to you……

All are always welcome at the Worker, and, any time that you and yours are in town, you are always most welcome.

My father was a non-Christian Cherokee animist, for all practical purposes, in his own faith tradition. Impressed with Catholic priests and nuns and their charity to the desperately poor coal mining labor union families during the Appalachian coal mining wars (he and his brothers were union guns, and killed a lot of Pinkertons before he took a bullet in the neck and then went into moonshining before joining on of the last active units of the U.S. cavalary in the early thirties. He admired Catholic charity/corporal works of mercy so much that he worked two jobs as a butcher in Detroit after WWII to come up with the tuition for yours truly to 12 years of Catholic grade and high school. During four years of college seminary, I was trained for the Vatican diplomatic service (but, that is another story). I got my JD from a Jesuit law school (Detroit). My only child is about to graduate from the best Jesuit high school in the U.S. (Regis) and will be a pre-med double major (philosophy and bio-chemistry, so he tells me) at Georgetown this fall. And, here I am, about to start my 25th year of teaching at this Catholic law school.

For the past several years, I have been the general counsel to the Catholic League, Bill D, et. al. Bill is registered Independent, and I may be the only life-long Democrat on the masthead. Hmmm, now what will Tom Hanks and Ron Howard do re: the Code? (We are working for a simple disclaimer, "this is a work of fiction") (but, that is another story, eh?)

I spend as much time at/with Opus Dei (the Work) as I do at the Catholic Worker (and, hey, the Work)! (P.S. And, when next in town, in addition to the CW Friday eve of reflection for the clarification of thought, I also highly recommend the Opus Dei first Monday of the month 5:45--8 PM eve of reflection (at the ODHQ, 139 Lexington Ave. and East 34th St., and superb spiritual directors, but that is another story) (St. Jose Maria was, by the Way (so to speak) a huge fan of St. Ignatius Loyola).

I am an exquisitely disaffected, stalwart pro-life Democrat (and democrat). I am a huge fan of Ex corde, now consigned to the dead letter file, although, as you heard him say, John A of NCR opines that Archbishop Miller, et. al., will perhaps be giving it another go. Through my mother's side of the family, I was/am closer to JPII than all but a few could ever begin to imagine. (My Jewish distinctly better half wept from the first moment she saw him at her first Papal audience in Rome many years ago; she keeps his cards on her windshield visor, and prayed to JPII as our son was taking the SAT----hmmm, ergo, Georgetown? (another story) (Her cousin supplied all of JPII's medical mechanical material, etc., and is the first Jewish person since Bob Hope to be a papal Knight of St. Gregory (Greg, this is the top of the papal knighthoods, if you are into that sort of thing, trumping easily the Ks of Malta, Holy Sepulchre, K of Columbus). (But, my wife's cousin is not my closest tie to JPII…..)

The point, gents, is that with my bizarro, eclectic background, I feel completely liberated and instantly at home in our Church's many, many settings, and, Greg, you should, too!!

David Gregory"

"Law's Limited Domain Confronts Morality's Universal Empire"

By Thomas Berg

On SSRN, Professors Alexander and Schauer post this article on "the ongoing debate in contemporary jurisprudence over whether law, properly conceived, is capable of incorporating morality," for example whether interpretations of the Equal Protection Clause or Free Exercise Clause should follow the best moral/philosophical understanding of equality or religious freedom.  They question whether

law can retain its lawness and retain its ability to perform law's essential functions while still being open to the full universe of moral considerations. In a word, we do not believe that this is possible, and thus we believe, and shall argue here, that even when law incorporates morality it can only serve law's primary and essential functions if it has a considerable degree of resistance to the pressure of at least some morally correct moral claims. In other words, we strive here to make the moral argument for law's ignoring of at least some moral arguments in legal decision-making.

Tom

"What's Right and Wrong with the 'No Endorsment of Religion' Test"

By Thomas Berg

I've posted on SSRN this paper about the Establishment Clause.  Abstract:

This paper, from a symposium at Washington University (St. Louis) Law School on the Rehnquist Court and the First Amendment, responds to a paper by Professor Jay Wexler on the Court’s endorsement test for the Establishment Clause. The central section of my paper defends a limited version of the endorsement test. I argue that unless the endorsement test is properly understood and limited, it has the critical flaw of putting the Establishment Clause at war with the other religion guarantee of the First Amendment, the Free Exercise Clause. If the Establishment Clause forbade government endorsement of religion in all contexts, it would undermine the government’s ability to give special accommodation to religious practice and thus would severely impair free exercise values. “No endorsement of religion” thus must operate, not as the general requirement of the Establishment Clause, but only as a rule for the particular class of establishment cases involving government-sponsored religious symbols and expression. The no-endorsement test is legitimate for that category of cases, I argue, but only because in those cases it serves the more fundamental goal of protecting a voluntary religious sector independent of government.

Tom

Does Failing to Grant Clemency Constitute Formal Cooperation with Evil?

By Steve Bainbridge

A regular reader of my personal blog emailed me this question:

Our governor (Michael Easley, North Carolina) is Catholic, although I don't know if he's devout.  Either way, he's a conservative Democrat, and he hasn't issued many pardons or commuted many death row sentences.  Since there's another execution scheduled this week, he's been petitioned again to commute a death sentence to life imprisonment.

I was very interested in your different posts on Catholic social though regarding judges, and whether following enshrined case law would constitute formal cooperation with evil.  Listening to coverage for this execution, I started wondering whether denying clemency would be considered formal cooperation with evil -- seeing as on the one hand Easley would be failing to act, not acting as judge and jury; but on the other hand, Easley has much more lattitude than a judge in these matters.

My initial reaction is that the governor doesn't have a problem here. In the first place, of course, it's not clear that involvement with the death penalty is cooperation with evil, given that the Church has not definitively ruled it out. Second, failing to exercise clemency seems more remote than some other ways in which one might be involved. Comments?

Law School Tuition and Fairness

By Rob Vischer

Over at Balkinization, Brian Tamanaha highlights an issue that should get more attention, especially at Catholic law schools:

One has to wonder . . . how long [these skyrocketing tuition rates] can continue, as we collectively sprint past $30,000 per year (not counting expenses) and beyond. The economic value of a law degree for graduates from elite law schools, and for top students from non-elite law schools, would seem to handily justify the price. . . . But what about the overwhelming majority of law graduates (all those not in the favored categories above) for whom a law degree offers a far lower earning potential? . . .

This brings me to the fairness issue. A peculiar system has developed in many non-elite institutions, in which the students most likely to make the least money end up subsidizing the legal education of the students most likely to make the most money.  The way "merit" scholarships work, students with high LSAT scores--which law schools covet in the effort to shape their profile for the purposes of U.S. News rankings--get large discounts (with some paying no tuition at all). It is not the case, of course, that high LSAT students always rank at the top of the first year class, or that the lower LSAT students end up at the bottom half of the class. But when it does happen (often enough), the result is that the lowest ranked students pay full price, while the highest ranked students pay much less. And the lowest ranked students get the worst paying jobs (and sometimes no job), while the highest ranked students get the best paying jobs.

This system is understandable--and one can come up with an argument that the lower students benefit from the system as well because maximizing the LSAT profile of the law school enhances the value of their degree (though that does not mean they will make any more money)--but it is also, well, perverse.

Rob

Krauthammer on Moussaoui and the Death Penalty

By Thomas Berg

He writes:

Had I been on the jury, I, too, would have voted for life in the Colorado Supermax. But not for the reasons most of the jury cited.

In the Moussaoui case, there were three plausible grounds for mitigation: insignificance, lunacy or deprivation. Insignificance would have been my choice.

He criticizes the "childhood deprivation" ground.  He doesn't mention one prudential argument (to which the judge adverted in imposing the jury's sentence): avoiding giving Moussaoui his wish to be a martyr whose fate would inspire other terrorists. Admittedly, that seems not a legally recognized reason for jurors to vote life, but a policy argument for prosecutors not to have sought death in the first place.

Tom

More on CST Down Under

By Rob Vischer

My colleague Lisa Schiltz notes that even with its impressive social safety net, Australia is one of only two industrialized nations (along with the US, of course) that have no laws requiring employers to provide any paid maternity leave.  So there remains a crucial role for non-state actors in realizing CST's promise, and that's where the Australian Catholic University stepped in a few years ago.  From Lisa's recent paper, Motherhood and the Mission: What Catholic Law Schools Could Learn from Harvard about Women:

In August 2001, ACU announced that it was implementing a new maternity leave policy for all of its staff.  Every staff member who had been employed for at least two years was entitled to a full year’s paid maternity leave – the first 12 weeks at full pay, and an additional 40 weeks at 60% pay.    A few months later, this same policy was extended to faculty. . . . ACU did not adopt this policy in response to any union pressure, any law suit, or any threat of more stringent regulation. . . . The chief motivation given by the administration for taking this radical step was to support families and to openly acknowledge parenting as a significant aspect of the life of its employees.   As one ACU administrator stated,  “[W]e can’t treat our employees as if parenting doesn’t matter.  We believe it does and are committed to that value.”  This generous support of families was characterized as being “in line with a progressive tradition of social justice and equity . . . consistent with our ethos as a Catholic institution.”  While ACU hoped that its generous policies would have the incidental effect of attracting and retaining good women staff, the University stressed that the decision was made “because it was right: parents, women, and men, should not be disadvantaged in the workplace because they have children.”

Rob

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