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, November 12, 2004

Disclosure Duties and the Sin of Omission

This paper, "Common Law Disclosure Duties and the Sin of Omission," looks interesting.  (Thanks to Larry Solum).  Here's the abstract:

Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of jurisdictions and covering over 200 years.

The results are mixed. In some cases it appears that conventional wisdom is correct. For example, our data support the claim that courts are more likely to require disclosure of latent, as opposed to patent, defects. In addition, courts are more likely to require full disclosure between parties in a fiduciary or confidential relationship. On the other hand, our results cast doubt on much of the conventional wisdom regarding the law of fraudulent silence. Indeed, our results challenge ten of the most prominent theories that have been asserted to explain when courts will require disclosure. We find that courts are no more likely to impose disclosure duties when the information is casually acquired as opposed to deliberately acquired and that unequal access to information by the contracting parties is not a significant factor that drives courts to require disclosure. We do find, however, that when these two factors are present simultaneously courts are significantly more likely to force disclosure. Perhaps most interestingly, although it is generally understood that courts have become more likely to impose disclosure duties over time, we find that courts actually have become less likely to require disclosure over time.

Rick

Conservative Christians and Social Justice

Blogger Stuart Buck has an interesting post, "Conservative Christians and Social Justice," reflecting on the observation that "[w]e are clearly in the middle of one of the great periods of Christian revival in American history, the third or fourth of the "Great Awakenings" in American Protestantism. . . .  [B]ut why it is that the current flourishing of religious faith has, for the first time ever, virtually no element of social justice? Why is its public phase so exclusively focused on issues of private and personal behavior?"

Rick

Buttiglione on Religion in Europe's Public Square

Here is an op-ed by Rocco Buttiglione, Italy's minister of European affairs (who has also written a book about the thought of Pope John Paul II), comparing and contrasting European and American approaches to the "religion in the public square" issue.

Relatedly, here is an article, from the conservative magazine The Weekly Standard, describing the recent, successful campaign to prevent Buttiglione from landing a position as the European Union's justice minister.  The article quotes an op-ed by Matthew Parris, a former aide to Margaret Thatcher, who wrote in the London Times:

I think Signor Buttiglione has indeed been the victim of anti-Christian discrimination, and that such discrimination is now in order. . . . Catholic, evangelical Christian, Orthodox Judaic and Muslim teaching on homosexuality and divorce; much Muslim practice as to the status of women; some Hindu teaching on caste; and Catholic teaching on contraception and abortion are unacceptable and insulting, not only to me but also to the majority of Europeans, and the overwhelming majority of educated Europeans.

Rick

Thursday, November 11, 2004

Bob Jones Questions Catholicism?

Bob Jones Sees Bush Win As 'Reprieve'

By THE ASSOCIATED PRESS

Published: November 11, 2004

GREENVILLE, S.C. (AP) -- Bob Jones III, president of the fundamentalist college that bears his name, has told President Bush he should use his electoral mandate to appoint conservative judges and approve legislation ``defined by biblical norm.''

``In your re-election, God has graciously granted America -- though she doesn't deserve it -- a reprieve from the agenda of paganism,'' Jones wrote Bush in a congratulatory letter posted on the university's Web site.

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``You have been given a mandate. ... Put your agenda on the front burner and let it boil. You owe the liberals nothing. They despise you because they despise your Christ,'' said the letter, dated Nov. 3.

A White House spokesman said he didn't know whether the president had seen the letter.

Jonathan Pait, a spokesman for the university, said the letter was placed on the school's Web site because Jones had read it to students in chapel and many told their parents about it. He said Thursday that Jones had not received a response from the White House.

Pait said it would be a misreading of the letter to think that ``everyone who voted for the Democrats is a pagan'' or that ``if you voted for John Kerry you are a despiser of Christ.''

``For example, there are those who voted for John Kerry because they opposed the war in Iraq,'' Pait said. ``Dr. Jones did not intend to paint everyone with that broad a brush.''

Jones wrote that Bush will ``have the opportunity to appoint many conservative judges and exercise forceful leadership with the Congress in passing legislation that is defined by biblical norm regarding the family, sexuality, sanctity of life, religious freedom, freedom of speech and limited government.''

In February 2000, Bush spoke at Bob Jones University when he was running for his first term in the White House. At the time, the school banned interracial dating and included anti-Roman Catholic material on its Web site.

The private Christian college has since dropped the dating ban but still maintains on its Internet site material questioning Catholicism.

Bush came under fire for the visit but defended it. He later wrote Cardinal John O'Connor of New York to apologize.

"Religious and Secular Voters"

Here is an interesting essay, at TechCentralStation, "Why Religious Voters May Be More Inclusive than Seculars."  Here is a taste:

[P]erhaps democracy is safer in the hands of those who believe both in a higher unity whose values are finally unknowable to us, and in the personal caring and love of that higher unity for us, that values our individual decisions and our freedom. Those who are best accustomed to the pain and tension of religious "doubleness" may be those who are best qualified to handle the two paradoxes of free societies: the contradiction between my valuations and the valuations of the free market's pricing system, and the contradiction between my necessary political opinions and the verdict of the election.

Rick

Media and Moral Responsibility

In the October 22 Chronicle of Higher Education, George Marsden notes the high proportion of "seriously religious Americans," but points out that:

"our culture is also strikingly secular, even profane.  Part of the paradox is explained by the many essential activities in a technological capitalist society like ours that allow little room for religious groups to exercise substantive control.  Our government is officially separated from religions and depends on coalitions that can bring people with different beliefs together.  Businesses serve diverse markets and focus on what will turn a profit.  The media's commitments to freedom, diversity, and profit foster mass entertainments that would have shocked older religious sensibilities."

In today's New York Times, Frank Rich has a (not suprisingly) less nuanced take:

"There's . . . one problem with the storyline proclaiming that the country swung to the right on cultural issues in 2004. Like so many other narratives that immediately calcify into our 24/7 media's conventional wisdom, it is fiction. Everything about the election results - and about American culture itself - confirms an inescapable reality: John Kerry's defeat notwithstanding, it's blue America, not red, that is inexorably winning the culture war, and by a landslide. . . .

The blue ascendancy is nearly as strong among Republicans as it is among Democrats. Those whose "moral values" are invested in cultural heroes like the accused loofah fetishist Bill O'Reilly and the self-gratifying drug consumer Rush Limbaugh are surely joking when they turn apoplectic over MTV. William Bennett's name is now as synonymous with Las Vegas as silicone. The Democrats' Ashton Kutcher is trumped by the Republicans' Britney Spears. Excess and vulgarity, as always, enjoy a vast, bipartisan constituency, and in a democracy no political party will ever stamp them out.

If anyone is laughing all the way to the bank this election year, it must be the undisputed king of the red cultural elite, Rupert Murdoch. Fox News is a rising profit center within his News Corporation, and each red-state dollar that it makes can be plowed back into the rest of Fox's very blue entertainment portfolio. The Murdoch cultural stable includes recent books like Jenna Jameson's "How to Make Love Like a Porn Star" and the Vivid Girls' "How to Have a XXX Sex Life," which have both been synergistically, even joyously, promoted on Fox News by willing hosts like Rita Cosby and, needless to say, Mr. O'Reilly. There are "real fun parts and exciting parts," said Ms. Cosby to Ms. Jameson on Fox News's "Big Story Weekend," an encounter broadcast on Saturday at 9 p.m., assuring its maximum exposure to unsupervised kids.

Almost unnoticed in the final weeks of the campaign was the record government indecency fine levied against another prime-time Fox television product, "Married by America." The $1.2 million bill, a mere bagatelle to Murdoch stockholders, was more than twice the punishment inflicted on Viacom for Janet Jackson's "wardrobe malfunction."

None of this has prompted an uprising from the red-state Fox News loyalists supposedly so preoccupied with "moral values." They all gladly contribute fungible dollars to Fox culture by boosting their fair-and-balanced channel's rise in the ratings. . . .

Mr. Murdoch and his fellow cultural barons - from Sumner Redstone, the Bush-endorsing C.E.O. of Viacom, to Richard Parsons, the Republican C.E.O. of Time Warner, to Jeffrey Immelt, the Bush-contributing C.E.O. of G.E. (NBC Universal) - are about to be rewarded not just with more tax breaks but also with deregulatory goodies increasing their power to market salacious entertainment. It's they, not Susan Sarandon and Bruce Springsteen, who actually set the cultural agenda Gary Bauer and company say they despise."

Rich raises some good points, but voting based on media culture seems a fairly tricky business, especially given both parties' failures in this area.  And while government certainly has a role to play, get-tough government measures are not necessarily the perfect remedy, as they bring their own unfortunate and often unintended consequences (see, e.g., stations pulling "Saving Private Ryan" for fear of FCC penalties).  Even grass-roots protests seem ineffective, serving only to bring free publicity to the disfavored project (see, e.g., the outrage over the new film about Alfred Kinsey, sure to boost its box office).  Perhaps this is another area where cultural change begins at home, with engaged parents who not only monitor their children's viewing habits and teach discerning media consumption, but also practice what they preach.  (As Mister Rogers said, "The television may be the only electrical applicane that's more useful after it's been turned off.")  A seemingly hopeless cause, I admit, but maybe part of building a culture of life is reversing the culture of coarseness, one family at a time.

Rob

Interesting Reflections from a Kenyan Evangelical

[The author of the reflections below is Patrick J. Nugent, a recorded minister in the Society of Friends (Quakers).  Rev. Nugent is principal of Friends Theological College, Kaimosi, Kenya.  He holds a doctorate in the History of Christianity from the University of Chicago.]

Sightings  11/11/04

Values Judgement
-- Patrick J. Nugent

My exposure to American media is a bit limited these days.  Living in rural Kenya, I have no television. I listen to National Public Radio by satellite and the BBC on the FM.  I also read the Nation, the major national newspaper of Kenya.  But even from this distance, I am sighting aspects of the media's treatment of religion that I find disturbing.

Alex Chadwick of NPR's Day to Day exemplified a growing trend in his coverage of President Bush's post-election press conference.  He asked guest William Bennett, conservative activist and cultural watchdog, whether Bush's re-election indicates that Americans are now more concerned about "moral values" or "ethics," equating such concern with support for Bush.  Bennett took his cue and played along.

The media's increasing use of "ethics" and "moral values" to refer specifically to "conservative moral values" and "conservative ethics" is troubling.  This turn of speech suggests that those who do not hold conservative opinions on issues such as homosexuality, abortion, or the war in Iraq are not interested in morality, that conservative positions are the only moral ones, or that those who do not share conservative values have no values at all.

Quite to the contrary, the beliefs that gays should marry, the Iraq war is wrong, or women's reproductive choices should be protected are moral positions. By this I do not mean that these are necessarily morally right, but that they are positions that individuals hold on ethical grounds, and upon which they may legitimately disagree.

Those who opposed the president's re-election employed their own ethical arguments, based on clearly articulated values, about which conservatives were silent or in opposition.  For instance, accusations that the president misled the American people about the causes for invading Iraq were based on moral concerns about truthfulness and the human costs of war. 

My intention in this column is not to argue that liberal viewpoints on the issues debated in this election are more moral, but that they are, indeed, moral positions.  (I am speaking as an evangelical Christian, a missionary training pastors in a burgeoning Pentecostal environment -- and a voting Democrat.)  My point, rather, is to raise an alarm that the currency of language about ethics is being dangerously devalued.  The Rev. Robert Edgar, general secretary of the National Council of Churches expresses the stakes: "We need to work really hard at reclaiming some language.  The religious right has successfully gotten out there shaping personal piety issues -- civil unions, abortion -- as almost the total content of 'moral values."

Indeed, when Americans take opposing positions on marriage, warfare, presidential truth-telling, campaign finance, the politicizing of the judiciary, or options in healthcare policy, we are reflecting and propounding opposing values, ethics, and moral positions -- whether they be conservative, liberal, radical, or flaky.  The term "values" is not a synonym for "my values" or "conservative values." 

If the careless diction of an increasingly inarticulate media abets political and religious conservatives to monopolize the vocabulary of ethics, then we risk losing our moral tongues entirely. 

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

"How the Embryo Became Political"

Today at Notre Dame (Room 119, O'Shaughnessy, 12:30 p.m.), Georgetown's Professor (and bioethicist) Tom Banchoff is giving a paper, "How the Embryo Became Political" (no link, yet, to the paper).  This looks like it would fit in nicely with our recent conversations about stem-cell research.  Here's a link for more information about the event, sponsored by Notre Dame's Nanovic Institute for European Studies and by the Center for Ethics and Culture.

Rick

Wednesday, November 10, 2004

More on "Christian Jurisprudence"

Michael asks me to say more about the "case against the possibility of jurisprudence being Christian and the possibility that Christianity contains a jurisprudence."  I'm afraid I am reluctant to say much more, if only to avoid being unfair to the "case" by getting it wrong.  That said, my sense is that the case is built on concerns about the radical separateness of Christian agape from the workings and structure of the "law", the latter being, in the end, the exercise of power by the state.  (The "case" sounds, in other words, in the work of people like Stanley Hauerwas).  But see, e.g., Thomas Shaffer, "The Christian Jurisprudence of Robert E. Rodes, Jr.," 73 Notre Dame Law Review 737 (1998).  I will see if I can get Milner Ball to enlighten me on the matter.

Rick   

The Catholic Vote

As was made obvious by the conversations on Mirror of Justice, the moral issues implicated by this presidential election prompted a lot of soul-searching among many thoughtful Catholics.  The outcome of this soul-searching may have determined the President, as reflected in this Beliefnet analysis:

"Bush’s strong performance among Catholics, it turns out, was crucial to his victory. Bush won Catholics 52%-47% this time, while Al Gore carried them 50%-46% in 2000. If Kerry had done as well as Gore, he would have had about a million more votes nationwide. According to Gallup Polls, only one Democrat since 1952 (Walter Mondale in 1984) lost the Catholic vote by this large a margin.

The Catholic impact was starker in key states. In Ohio, Bush got 55% of the Catholic vote in 2004 compared to just under 50% of them in 2000. That means a shift of 172,000 votes into the Republican column. Bush won the state by just 136,000 votes this year.

In Florida, Catholics made up 26% of the electorate in 2000. This year, they made up 28%. In 2000, 54% of Catholics went for Bush; in 2004, 57% of them voted for him. The combination of those two factors meant a gain of 400,000 voters in the Sunshine State—about Bush's margin of victory."

Rob