Friday, September 4, 2015
"An authentic faith, which is never comfortable or completely personal, always involves a deep desire to change the world. To transmit values, to leave this earth somewhat better than we found it."
These are the words of Pope Francis that leapt off the page at me as I attended Catholic University's Mass of the Holy Spirit.
Like most Catholic institutions, CUA began its academic year with this mass to welcome new students and bless the undertakings of the upcoming year. There is, however, a special feeling around camps - and all of Washington for that matter – as we anticipate the arrival of Pope Francis) (for details see Pope at CUA). Through its #WalkwithFrancis program, the Archdiocese of Washington has done an excellent job of engaging the community to welcome Pope Francis and to transform his visit into more than a media event, but a life altering experience.
As I read the above quote, which is the lead caption for the #WalkwithFrancis movement, it reminded me of a speech I often give students regarding the vocation of the law.
I believe that many of us have the basic human need to do nothing less than, well, change the world. That is to say, we all want that "Saving Private Ryan" moment, where we look back on our lives and ask, was it worth it? Did I leave a mark on the world making it better than it would have been without me? That immodest goal may sound grandiose, but it is not. A wonderful parent can change the world for generations through her gifts. An outstanding teacher can alter the course of history by inspiring young men and women to serve others. Even a porter such as Alphonsus Rodriguez, S.J. can approach his simple work of answering the door as a sacrament, and become a saint.
For many, that ability to leave one's mark often occurs outside of their professional realm through family, community, or church related work. That is unfortunate given that the average American spends more time at work than any other activity. That is what makes the practice of law such a gift. This is a position through which our students can help people and change the world every day. Whether it is through direct services to the those in need, such a s a prosecutor working on behalf of the community, an immigration attorney representing desperate refugees, or through more indirect work, an attorney's basic role is to help people when they are in trouble. Phrased another way, every day an attorney reports to work, she has an opportunity affect people's lives and leave permanent mark on the earth.
This is where the Catholic law school is essential to the development of this reality. By teaching our students that this is not a "job" or even a "career," but rather a call or a vocation, we set them on a path of changing the world. Our lessons are not simply about black letter law, the advantages of winning over losing, or how to maximize power. They should also be about dignity of persons, service, and the command of Thomas Aquinas to share the gift of being a lawyer "without hesitation when others are in need."
We are fortunate to be able to welcome Francis in less than three weeks. Perhaps we can all take advantage of the Pope's arrival to heed his words, visit WalkwithFrancis.org, and pledge ourselves to "pray, serve, and act" to promote human dignity through our unique vocation. It is for that opportunity we are truly fortunate…long after the Pope's visit has concluded and we return to our daily labors.
University of Minnesota law professor Ruth Okediji presented on the protection of genetic resources and its Judeo-Christian justifications: dominion, stewardship, and reward. Other theories of IP have strengths but also shortcomings: utilitarianism (tends to ignore obligation to steward creative gifts), natural law/continental approaches (tend to ignore the source of creativity), user rights (tend to ignore accountability), and human rights (tend to marginalize command to exercise dominion and can de-value moral basis of reward). She believes that patent system is consistent with biblical precepts, but patent system is not a God-given institution; patents are a tool. Sovereign countries have the mandate and obligation to regulate, use, and steward natural resources.
An international legal framework to regulate access to and use of genetic resources is morally and ethically required. Historically, genetic resources were not patentable because they didn't involve human ingenuity and owe their source to no human. (But isn't this true of all innovation? At what level of abstraction do we draw the line between what is of man and what is of God?) The phenomenon of biopiracy -- i.e., patenting inventions derived from genetic resources and/or traditional knowledge without compensation to the country that is home to those resources/knowledge -- is creating additional pressure to protect these resources. We don't yet have answers given the multiplicity of stakeholders and interests. Given the stalemate on the international front, we may need to consider relying more on national law and encourage less developed countries to invest more in IP systems and institutions. We may need to reconsider the role of international institutions as the appropriate fora for the debate.
University of Virginia law professor Margo Bagley presented biblical insights on misappropriation in life science patenting. She discussed the passage from Leviticus that instructs landowners not to reap to the edges of the field, leaving some food for the poor. Any lessons for our law today? Our legal prohibition on "stealing" self-replicating inventions (e.g. landowners sued by patent-holder after neighbor's GMO plant seeds drift onto their land) can seem unjust because there is no de minimis exception. Stealing pharmaceutical products is also thorny -- Thailand exercised TRIPs rights and issued compulsory licenses on several drugs. Abbot responded that Thailand would not receive new drugs. Many countries didn't grant pharmaceutical products until relatively recently. Margo offered data on pharmaceutical companies' expenditures on research/development and sales/marketing --the latter being higher -- and profit margins (higher than other major industries). Question today is: who's stealing from whom?
Michael Kock, Global Head of IP at Syngenta, discussed the ethical use of patents in plant innovations. He noted that the world must produce more food in the next fifty years than it has in the last 10,000 years. Every second, the world loses on football field of farmland due to urbanization and erosion. Climate change is also affecting agricultural production in some regions. He pointed out that carrots are orange only because breeders created an orange carrot in the nineteenth century. Other than some mushrooms and berries, all crops have been changed by humans -- none are "natural." So how much genetic interference is acceptable? Plant variety protection through conventional breeding is generally accepted but plant variety protection does not protect specific attribute, just entire plant variety. We have an increasing need for innovation and increasing need for investment given technical complexity compared to traditional breeding. Can we minimize the problematic effects of a patent on life without losing the benefits? New international licensing platform shows promise -- "free access but not access for free." The platform is based on fair pricing, MFN principle, transparency, "pull-in effect" (if you want access, you have to grant access to your inventions). Voluntary efforts such as the licensing platform, though, may not be sufficient.
University of Illinois law professor Paul Heald presented a sociological history of religious objections to patenting life, asking: why is there no significant religious objection to patenting life in the U.S.? One major reason is the rise of Christian libertarianism and Christian materialism. Business interests succeeded in convincing Americans that business interests and Christian interests overlap. Because patent rights are property rights, criticizing patent rights is akin to criticizing property rights. There have been a few statements made, but they failed to gain traction. There are high information costs in developing an educated position, and this is a relatively low-priority issue for American Christians compared to abortion, the death penalty, etc. Even within the world of corporate agricultural practices, this may not be the most pressing issue; what's more of a problem: seed patents or the seed company's corruption of lending practices in developing countries (forcing local farmers to buy expensive patented seeds by persuading banks not to lend to farmers unless they use the advanced seed technology)?
Dr. Kathleen Liddell, director of the Centre for Law, Medicine and Life Sciences at Cambridge University, addressed the exclusion of "immoral" inventions from patent law. In addition to discussing potential levers for improving current law, she raised questions that must be resolved. When we're proposing morality-based exclusions, are we focusing on the morality of performing the technology itself (e.g. letter bombs), the morality of granting patent rights (e.g. life-saving drugs), the morality of patenting an invention based on unethical research (e.g. embryo-based technologies), or all three? And is morality determined by a harm-benefit calculation, the fact that granting of the patent would be universally regarded as outrageous, or more modestly, that granting a patent would be contrary to a particular country's norms?
She asked theologians to develop a more nuanced understanding of IP law and realistic opportunities and constraints for ethical/religious touchstones within IP law, and she encouraged IP lawyers to develop a better understanding of epistemologies other than law.
St. Thomas Law School's Murphy Institute, directed by MoJ's Lisa Schiltz, and the Von Hugel Institute are co-sponsoring a two-day conference at Cambridge University exploring "Patents on Life: Through the Lenses of Law, Religious Faith and Social Justice." The opening panel featured several insightful exchanges. Archbishop Silvano Tomasi, Apostolic Nuncio and Permanent Observer of the Holy See to the United Nations in Geneva and the World Trade Organization, presented an overview of the Church's social teaching as it pertains to intellectual property, including the idea of a social mortgage on all private property and the need to balance incentives for innovation and the sharing of benefits that result from innovation. When asked whether this emphasis simply reflects the state of the current public debate or contributes a distinctly Catholic insight, he rejected the suggestion that the Church must contribute a unique perspective. What is important, he explained, is that there is a convergence of wills to do what is necessary to achieve a prudent balance between innovation incentives and benefit sharing. His directness in answering the question is a helpful reminder that, as scholars and advocates mining the Catholic intellectual tradition, we need to be careful not to be distracted by a perceived need to articulate (or create) unique insights rather than support and facilitate "a convergence of wills," including wills forged by different traditions and worldviews.
Wednesday, September 2, 2015
A Pew Research Center survey indicates that almost half of all Americans are either Catholic or in some way "connected to Catholicism." The poll headlines the openness of Catholics in name (and in the pews) to non-traditional families (no shock there), but of great interest--and hope--to me was this finding: "among cultural Catholics who were raised in the church, roughly four-in-ten say they could imagine returning to the faith someday." Yes, many have left the pews over the last decades, but almost half are open to returning. The papal visit is a BIG opportunity for the Holy Father--and each of us--to call these Catholics home.
Monday, August 31, 2015
Back in March of 2014, I blogged about the Establishment Clause challenge brought by the Freedom From Religion Foundation against "Big Mountain Jesus." Here's a picture I took, during my own trip to enjoy the great Montana snow:
Just as a reminder: The statue was put up in 1953, by the Knights of Columbus as a memorial for members of the 10th Mountain Division. As this news story reports:
The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.
The FFRF lost in the District Court. Judge Dana Christensen wrote:
"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."
He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."
Well, the Ninth Circuit's ruling is just in, and Big Mountain Jesus is safe again. (The opinion is here: Download SANFRAN-#160648-v1-Ninth_Circuit_Affirmance.) Among the several factors that prompted the Court to conclude that the "endorsement test" did not require the statue's removal was this: "the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures[.]"
Judge Pregerson dissented.
Saints weren't born saints, and anyone who has become a saint has done so with lots of help. There is a regrettable tendency in our political culture and its institutions to limit the help as a normative matter to what goes on in private, if at all.
In the Catholic tradition, however, the entire socio-political order, including the state, was -- and should be -- understood to have its service to perform in helping to bring people to the natural and the supernatural common goods. Getting to heaven should not be despite humanity's best efforts at building impeding social barricades -- quite the opposite! The state and the Church should cooperate with each other, without confusing one with the other, for the sake of the salvation of souls.
One of the principal arguments for withdrawing the socio-political structure from a role in helping people to realize the supernatural common good is the assertion, popularized by Fr. Murray, that the state is a "know nothing" when it comes to the supernatural. The state need not, however, be a know-nothing.
In the paper linked here, "An Essay in Christian Constitutionalism: Building in the Divine Style, for the Common Good(s)," I answer the question "What would a Christian constitution, in a predominantly nation, look like?" The paper was prepared for a conference at Rutgers University School of Law, at which Islamic and Jewish answers to the same question, mutatis mutandis, were discussed.
My paper argues that true Christian constitutionalism, that is, Catholic constitutionalism, is a project of building in the divine style, to which there is no real alternative over the long arc of history.
