This spring, I'll be teaching a course on CST at Yale, where I'm visiting for the year. Having taught the course only once before at Fordham (where I was covering for Amy), I certaintly don't hold myself out as an expert on the subject (particularly because I don't write in the field). Nevertheless, the interest in the course has been remarkable. I capped enrollement at 15, because I run the class as a seminar that is heavy on class discussion, but I had almost 40 people pre-enroll. Someone in the office of graduate admissions even mentioned to me that she had seen some applications to the law school in which the applicant had listed Yale's offer of CST as a reason for their interest in the school. (There is some irony in this, since the course has, as far as I can tell, never been offered before and will not be offered again any time soon.) In contrast to Fordham, where my class consisted of a fairly even mixture of active Catholics, disaffected Catholics, secular and religious Jews, and protestants of various persuasions, the class at Yale appears to be dominated by active Catholics. As the term goes on, I plan to blog my observations about how it's going, as well as the similarities and differences I encounter between teaching the course at Fordham and at Yale.
Wednesday, January 18, 2006
CST at Yale
Property Outlaws
Thanks for the post, Rick. This paper is actually the first salvo in a larger project that we hope to turn into a book. It will focus on the role of lawbreaking in the evolution of both traditional property and intellectual property. Our focus in this paper is on traditional property. You raise very important questions that we try to address in the paper through our typology of lawbreaking. The sort of person you're referring to would fall within our "acquisitive" category. We contrast that sort of lawbreaking with "expressive" lawbreaking (such as the 1960 lunch counter sit-in protesters, who intentionally violated laws against criminal trespass) and "intersectional" lawbreaking (we use the example of the 1980s urban squatters), both of whom are seeking to express their desire for substantive legal change, rather than (or, in the case of intersectional outlaws, in addition to) reallocation of property entitlements.
We give the shortest leash to acquisitive outlaws because of (among other things) the problems you raise. By saying that the law should not overdeter, we mean that, at a minimum, the law should not aim at complete deterrence. That is, we think there is some value to some property law-breaking, even of the acquisitive sort. We point towards doctrines like necessity and adverse possession as evidence that the law already recognizes such value. Deterrence that aimed at zero property crime would sweep up valuable as well as value-less sorts of property lawbreaking.
The changes we suggest for existing law are fairly modest, I think. We talk about reducing the time period for adverse possession (in light of technological change making it easier to monitor and enforce property rights) and increasing the scope of the necessity defense to cover things like economic necessity (which is currently excluded in many jurisdictions), drawing on Aquinas and others for support. We expect a bigger doctrinal payoff in the IP area.
I tend to post things on SSRN fairly early in the revision process, because that seems to me to be the purpose of sharing unpublished work. So I apologize for the roughness in the paper, which we are continuing to rework on a daily basis. And comments are most welcome.
Tuesday, January 17, 2006
Penalver on Property Outlaws
MOJ-er Eduardo Penalver has a new paper (with Sonia Katyal) on SSRN, called "Property Outlaws." Here is the abstract:
Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution, modification, and transfer of property entitlements. We develop a typology of the property outlaw by introducing three particular kinds of property lawbreakers - the acquisitive outlaw, the expressive outlaw, and the intersectional outlaw. Descriptively, we show that each type of property outlaw has enabled the reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements. What emerges from this study of the property outlaw is an alternative vision of property law that focuses, not only on its capacity for fostering order and stability, but also on its dynamic function as a site for the resolution of conflict between owners and non-owners. We argue that, if property is to perform this dynamic function, the law should be careful not to over-deter those who conscientiously and nonviolently refuse to abide by existing property arrangements.
I need to read this paper. In the meantime, I'd welcome some blogged thoughts from Eduardo about what, exactly, he means when he says that "the law should be careful not to over-deter those who conscientiously and nonviolently refuse to abide by existing property arrangements." How, for example, should the law respond to those who steal cars from those who have more than one because they "conscientiously" believe that (a) people only need one car and (b) they could use a car themselves? Where is the line between "deterring" such persons and "over-deterring" them. (ed.: Read the paper, Rick).
The Oregon case
Like Rob, I'm a big fan of both subsidiarity and the culture of life. And, I agree that the Court's decision today in Gonzalez v. Oregon regarding federal regulation of drugs used for physician-assisted suicide provides an occasion for us to think about the two ideas. (It occurs to me, for instance, that subsidiarity is a principle that exists for the sake of the common good -- which must exclude, in my view, laws that exempt vulnerable people from the protection of otherwise-generally-applicable homicide laws -- and not a good-in-itself that we should balance against the obligation to protect human life from violence).
That said, I cannot forget that the case was supposed to be about a question of administrative law -- i.e., about the deference to be accorded to this agency's concededly reasonable interpretation of a regulation under the Controlled Substances Act. And, on this technical matter, it seems to me that Justice Scalia makes mincemeat of Justice Kennedy (who was, perhaps, a bit too eager to vindicate what he saw as subsidiarity values?).
Putting aside the merits of the Court's resolution of the question actually presented, I was struck by the concluding passage of Justice Scalia's dissent:
The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality--for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U. S. 308, 321-323 (1913); Lottery Case, 188 U. S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.
Most of this seems right to me. But, is so clear that the federal government lacks the power, under the Fourteenth Amendment, to prohibit assisted suicide, insofar as legal regime's like Oregon's in effect single out a vulnerable class of persons for reduced protection from homicide laws? Constitutional Law teachers, what do you think?
Culture, Totalitarianism and Religion
In 1934, the prolific author and Catholic convert, Christopher Dawson, published an essay entitled “Religion and the Totalitarian State.” In it, he reached a positive conclusion that the Church “exists to be the light to the world.” Of the secularist culture, he said, “it is a prison in which the human spirit confines itself when it is shut out of the wider world of reality.” He continued by stating: where the “light” exists, the elaborate mechanisms for living in the dark become useless. It was clear that he was largely addressing the totalitarian regimes of fascism, communism, and the emerging national socialism of Germany. But he also issued concerns about tendencies that can appear in secular, democratic institutions. In all of these cases, he realized that the media—especially the film industry—can have an extraordinary influence over people. Of Hollywood’s power, he stated: “Has not Hollywood got a distinct ethic of its own which influences the minds of its audiences? Is this ethic in any sense Christian?” The same questions could be asked today. Their relevance to Catholic legal theory includes the formation of attitudes which, in turn, can influence the evolution of social norms and law.
I have just finished reading about the Golden Globe awards presentation and found out who was successful and who was not. “The Chronicles of Narnia”—whose themes include the pitching of evil against good, self-sacrifice for others, and redemption—received no awards; however, it was nominated for two of the music categories. Other themes (love is a force of nature; life is more than the sum of its parts; a member of the jet set going to the heartland to write a story) were far more successful in winning the various film categories. I have also just read how the films which won can be a strong influence on the yet-to-be-announced Academy Awards nominations. It is fair to state that the winners of the Academy Awards, like the Golden Globe champions, can have another strong influence on the culture—a culture that extends beyond one country into the world. Ultimately, Dawson’s concern was how the totalitarian mind—be it situated in the mechanisms of the State or the media—can crush the presence of religion from modern life through the “sheer weight” of public opinion that is molded by the State and the thriving culture. I recall a few years ago how this was demonstrated during the Academy Awards presentation when “The Cider House Rules” received elaborate commentary, immense applause, and (I believe) a standing ovation for the political message it conveyed.
Indeed, the cinema can have an enormous impact on how our lives in common is regulated, but it may be some time before the cultural effect, if any, of last evening’s Golden Globe event can be determined. In the meantime, we might consider what Dawson said at the end of the essay to which I referred: totalitarianism (like a theatre) is a place of darkness, but the knowledge of God that is the gift of the Church is one of light. RJA sj
Gonzales v. Oregon
The Supreme Court has upheld Oregon's physician-assisted suicide law against the federal government's attempt to assert regulatory authority over the participating physicians. I haven't found the opinion online yet, but the case posture seemed to pit the culture of life against subsidiarity. This is a bit too simplistic, of course, as subsidiarity's localizing impetus must be read through the lens offered by the culture of life. But if the perception is accurate that our citizenry's common moral convictions are becoming fewer and farther between, then should we favor a more morally neutral subsidiarity in which states and subcommunities are given space to function as moral laboratories, at least within certain boundaries, given that an authentic moral anthropology may also benefit from having its own space made available within a generally hostile culture? In other words, would the doctrine of double effect render support for the Gonzales outcome supportable under Catholic legal theory?
Rob
UPDATE: Here is the opinion. Justice Scalia's dissent engages the underlying clash of values most directly, as he questions whether intentionally assisted suicide can be a "legitimate medical purpose," and whether "the Attorney General must defer to state-law judgments about what constitutes legitimate medicine, on the ground that Congress must speak clearly to impose such a uniform federal standard upon the States."
Family-friendly outsourcing
On the topic of a family wage, Matt Festa alerts me to an outsourcing trend that may actually be empowering families to realize, at least partially, the child-friendly promise of a stay-at-home parent. The Wall Street Journal (subscription only) reported last week that:
[W]orking at home is taking a leap forward -- in the customer-service arena. Instead of sending call-center work to India or the Philippines, a growing number of consumer-products and -services companies, from Office Depot and J. Crew to Wyndham Hotels and Sears Holdings, are outsourcing work to people in their homes here. The development, driven by expanded broadband access to the Web, cheaper computer technology and improved call-routing systems, has opened the door to an entirely new group of at-home workers. Home-based call-center agents have tripled since 2000, estimates Art Schoeller, a senior analyst for research concern Yankee Group. A survey last August of 350 U.S. and Canadian call centers by Yankee Group found that 24% of agents, or 672,000 workers, are now based in their homes. IDC, a Framingham, Mass., research concern, sees the growth continuing, with home agents increasing at a rate of 24% each year from 2006 through 2010. The pay for home agents is limited, and most jobs come through outsourcing firms and lack benefits. Also, the work -- such as taking telephone orders for things ranging from airline reservations to workout gear -- can be wearying, repetitive and stressful. Nevertheless, such jobs are a potential boon for people who care for children or elderly family members at home. There's so much pent-up demand for home-based work that people who would never dream of taking a job in a brick-and-mortar call center are flocking to become home agents. Research firm Gartner Inc. says 70% to 80% of home-based agents have college degrees, compared with 30% to 40% of workers in call centers. Most are in their 30s or 40s, older than the average call-center employee, and they often have management experience, say outsourcing firms. Mark Frei, a senior vice president of West Corp., Omaha, Neb., which operates both home- and office-based call centers, says home-agent turnover is only about half the 40% to 100% attrition in traditional call centers. Rob
Monday, January 16, 2006
Rob Vischer's New Essay
MOJ readers will be interested in this essay by MOJ blogger Rob Vischer:
Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace
University of St. Thomas, St. Paul/Minneapolis, MN - School of Law
Abstract:
Our society has long esteemed the sanctity of conscience, and our legal
system has reflected that esteem, effectively shielding the individual
from state encroachment, especially in matters of religion. A rapidly
expanding range of disputes, however, is not readily settled under the
individual-versus-state paradigm; rather, the new battle lines are
forming between consumer and provider, with both driven to live out the
dictates of conscience in the marketplace. The legal community has been
slow to adjust to this trend, presuming reflexively that resolutions
are best reached by harnessing state power to defend some conception of
individual conscience, as exemplified by pharmacists' well-publicized
entry onto the center stage of our nation's ongoing culture war drama.
One side invokes conscience to justify legislation that would empower
pharmacists to refuse to fill prescriptions on moral grounds without
the possibility of negative consequences; the other side invokes
conscience on behalf of the consumer to justify legislation that would
require all pharmacies to fill all valid prescriptions. Congress and
the dozens of state legislatures to take up the issue have embraced the
winner-take-all terms in which the combatants have framed the contest.
This article asks us to step back from these two-dimensional terms of
engagement and to contextualize the public relevance of conscience by
outlining the contours of a marketplace where moral claims can operate
and compete without invoking the trump of state power. Instead of
making all pharmacies morally fungible via state edict, the market
allows individual consciences to thrive through overlapping webs of
morality-driven associations and allegiances, even while diametrically
opposed consciences similarly thrive. The zero-sum contest over the
reins of state power is replaced by a reinvigorated civil society,
allowing the commercial sphere to reflect our moral pluralism.
To download/print/read, click here.
_______________
mp
Conference on Womanhood at Notre Dame
From the Edith Stein Project webpage:
A group of Notre Dame students is hosting a two-day, inter-collegiate conference in the spring of 2006 entitled: “The Edith Stein Project: Redefining Feminism.” Harvard Law professor Mary Anne Glendon writes in her introduction to Gloria Conde’s New Woman, “Before a woman can form society, she must know who she is and what she has to offer society. A new and better feminism offers just that, a greater understanding of the specific role and contribution of the woman, frame-worked by what promotes the true dignity and highest aspirations of every person: women and men.”
The conference to be held at Notre Dame Feb. 10 and 11 features such speakers as Laura Garcia, Pia do Solenni, and Alasdair MacIntyre.
To find our more and to register, visit the conferences website.
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Michael S.
Living Wage-Earlier Thoughts
For anyone who doubts the difficulty (or impossibility) of living on minimum wage, see Barbara Ehrenreich's Nickel and Dimed. But the question of whether we should raise the minimum wage by law is a complex one, and implicates the mandate primum non nocere. Steve Bainbridge and I had an interesting exchange on proposed living wage legislation in Santa Monica CA a couple of years ago, particularly with respect to the concept's status in Catholic social teaching. I recall that we agreed that the central question is whether minimum wage legislation does more harm than good, by actually making lower paying jobs scarcer, or turning them into black market jobs. This strikes me as essentially an empirical question. There is also a question about the desirability of municipal or other locality-based higher minimum legislation: does that not give some (many?) employers too easy an an incentive to shift locale? Wouldn't it be preferable to enact such legislation on a national or at least statewide basis to prevent that? Unfortunately,I don't have links to our much fuller discussion of all this. Perhaps Steve has them -- there were also some interesting comments by his readers.
--Mark
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