Tuesday, February 9, 2010
Fred Hiatt has an op-ed on the Washington Post's web site titled "Why is Obama killing off D.C.'s voucher program?" Here is the first paragraph:
The Obama administration said it was going to respect science and respond to evidence -- a contrast, many Democrats said, to the previous regime. So why is President Obama killing off the program that offers the best chance to find out if school vouchers work?
Monday, February 8, 2010
See the links for MOJ’s discussion of John Allen’s first, second, and third trends that are revolutionizing the Church. This post focuses on his fourth trend – the new demography.
In my dystopia, the kind and merciful policy makers of the future will give each person five years of retirement before sending them peacefully to the end or the next stage of the journey, depending on one’s theology. In this world, workers can retire at any age they want, health permitting, and then enjoy five years of social security and medicare before relinquishing their claim to a share of the earth’s (and the state’s) limited resources.
If the population trends and projections cited by John Allen are correct, we are in for a rocky future on many fronts. Allen (p. 144) says that “[a]fter leveling out at 9 billion sometime around 2050, the population of the planet will begin to fall, and will do so with increasing momentum throughout the rest of the century.” This will be a world-wide phenomenon as the global south’s fertility drop below the replacement level of 2.1, joining the 43% of the world’s population that already lives in countries with below replacement level fertility. Allen discusses the world-wide phenomenon, but I’ll restrict my opening remarks to the United States.
A few fast facts (or projections):
· Hispanic fertility rates in the U.S. are 2.3 compared to 1.8 for non-Hispanic whites.
· The median age in the U.S. will rise from 30 in 1950 to 41 in 2050.
· By 2050, there will be 16 million more Americans 65 and above than 14 and below.
· “In 1955, America had nine workers for every retiree. Today the ratio is 3.3 to 1, and it will fall to 2 to 1 by 2035” (p. 155)(About the time I’m ready to hang it up, if I remain healthy that long).
· “By 2020, 1.2 million Americans aged 65 and older will have no living children, siblings, or spouses.” (p.158).
Questions and comments about the law, lawyering, and legal education in light of the “new demography”:
· What role can and should lawyers, including Catholic lawyers, play in creatively responding to the fiscal and more broadly economic crisis that will result from the graying of America?
· How can law schools help current students to see and prepare for their roles in responding to the coming fiscal and more broadly economic crisis?
· Immigration will continue to be an issue although as Allen points out, as population growth in the global south slows and eventually reverses itself, there may be less potential immigrants to replace the current American workforce and thereby support our current retirees. Will and should we view Muslim immigration into Europe the same as Hispanic immigration into the U.S. or are there good reasons to distinguish the two cases?
· How will the changing racial or ethnic make-up of the United States effect our culture, including our legal culture?
· It is likely that we will need more lawyers doing pro bono work on behalf of the elderly poor who might have legal needs distinct from other impoverished populations.
· In light of globalization, lawyers will also be called to think about all these issues on a global as well as local scale.
· How should we deal with what I suspect will be an incredible loneliness of those who have no family? (Not really a legal question, but one on my mind).
Concluding thoughts. This chapter has been, for me, the most depressing so far, especially as I think about the future for my four children who are all in their 20’s. Social upheaval and dislocation are bound to occur as a result of the “new demography.” Our economic system requires growth and the opening of new markets. Declining and aging populations don’t bode well for a robust economic future. (I’m not an economist, so I’d appreciate any correction to my intuitions). Our welfare state (as small as it is compared to some other states) will be crushed, I would think, under the weight of an aging population. We will need bright, young creative minds, to help navigate these uncharted waters. Catholics, including Catholic lawyers, can play an instrumental role. At the quotidian level, I suspect that the loss of community contributed greatly to the current crisis, and I know that Catholics and others are working creatively in law and other disciplines to foster community, be it in the new urbanism or a revitalized agrarianism. Can and how might the law be used to encourage healthy communities where child bearing and child rearing are once again attractive choices?
Comments are open, and I would appreciate your thoughts.
Compliments of one of the free dailies, “Metro,” here in New York City we are being subjected to full back page ads for a pro-adultery website (which I will not mention in order not to further publicize their business; nor will I link to the ad in order not to further publicize the paper). Here’s a link on the Toronto Transit system’s rejection of a bid for the website’s ads (bravo!). I have decided to boycott “Metro” – and encourage all of my friends to do the same – for their lack of good judgment in running the ad. In our current information superhighway world, any thoughts about how to spread the word about a boycott without too much collateral effect of providing additional publicity for the slimy product?
Sunday, February 7, 2010
Folks probably feel a little bit silly getting all worked up about that Tim Tebow ad before they had even seen it, right? Maybe the protesting groups would issue a statement saying something like, "While this ad is unobjectionable, it is important to remain steadfast in our defense of a woman's right to choose." Save some face, stand up for the cause, move on. Right? Wrong:
The 30-second "Celebrate family, celebrate life" ad starring Heisman winner Tim Tebow ended with a surprise -- Tim Tebow tackling his mother after she says she nearly lost him during her pregnancy. The pair jokes that they have to be "tough" with all the family has been through. . . .
The Women's Media Center, which had objected to Focus on the Family advertising in the Super Bowl, said it was expecting a "benign" ad but not the humor. But the group's president, Jehmu Greene, said the tackle showed an undercurrent of violence against women.
[MOJ friend Pasquale Annicchino send this our way:]
HOW
BRAVE WILL THE ECtHR BE?
As Professor Lee rightly reported in his post just below, the Italian government has submitted its appeal to the Grand Chamber of the European Court of Human Rights. The appeal--14 pages in all--offer a rebuttal of the judgment of the second section that in November held that the compulsory display of the crucifix in public schools represents a violation of the Convention. Important issues will be at stake: will the court definitively abandon the doctrine of the margin of appreciation that allows the court to grant a degree of deference towards the different solution adopted in the member states? Will the court continue to endorse a conception on “strong secularism”? Will be court ban only compulsory display of religious symbols or a total ban will be imposed? The stakes are high, not only for Italy. This judgment will have important consequences all over Europe.
Few days ago more than 100 NGOs wrote a letter
to the Court (in English, here):
“Our country suffers more and more the
political influence of the hierarchy of the Catholic church. The fewer people
follow their directives the more they demand.” The letter highlights what
will be the next grounds of legal battles in Europe: religious teachings, legal
protection for same sex couples, freedom of marriage, divorce, medically
assisted procreation and so on. Americans have been debating these issues for
longer time,. Perhaps he time has come for a Transatlantic conversation to
begin.
On the very specific issue surrounding the
Lautsi case I’m tempted to argue, that the holding
of the case, according to which the compulsory display of the crucifix
represents a violation of the Convention, is right. Nevertheless, some
criticism to the decision may be raised. The general concept of neutrality
adopted in a dictum of the judgment (par. 56) by the ECtHR has the paradoxical
effect of neglecting the very same value of pluralism, which according to the
interpretation of the court, is an important element of the democratic regime
envisioned by the Convention. To this extent I argue, contrary to the court’s
stand, that parents’should be free to require the display of the different
religious symbols. This is consistent with the pluralistic democratic principle
as envisioned by the ECHR and with the principle of the “best interest of the
child”.
But
this is far from being uncontroversial.
The
court will not smash the edifice of Italian church-state relations with a
single judicial blow. But the edifice is crumbling.
Saturday, February 6, 2010
In an interview posted on the Italian Ministry of Foreign Affairs website, Minister Franco Frattini explains, "We have to ask whether the simple presence of the Crucifix upsets non-believers or whether the demand that it be removed itself demonstrates intolerance of the religious dimension." He continues, "To the extent that it does not engage in conduct that clearly undermines the right to believe or not believe, each state is free to regulate the relationship between public spaces and the sacred dimension as it sees fit, in light of its historic, cultural and social identity."
It seem likely that the case will have an effect on the still-developing jurisprudence of religious liberty in the European court.
Friday, February 5, 2010
(Did that National-Enquiresque headline grab you?)
Lent begins Feb. 17, and Pope Benedict is inviting us spend some time during Lent to reflect on "the great theme of justice." His message for Lent on that theme is available here. An excerpt:
Fascinating new evidence of significant brain activity in patients thought to be in a persistent vegetative state, coming from the University of Liege, reported in the New England Journal of Medicine. Brain scans of some patients thought to be in that state showed that the patients were, when questioned by the researchers, able to imagine themselves playing tennis, walking through rooms in their own homes, and even answer detailed yes-or-no questions about his life before the accident that put him in that state. The NYT report of it quotes Dr. Joseph J. Fins, chief of the medical ethics division at Weill Cornell Medical College in NY, discussing new ethical challenges raised by this possibility of communicating with people in this state: "If you ask a patient whether he or she wants to live or die, and the answer is die, would you be convinced that that that answer is sufficient?"
Another commentator, Dr. Allan Ropper, worries: "It will now be difficult for physicians to tell families confidently that their unresponsive loved ones are not 'in there somewhere.'"
It seems to me that the Church has been suggesting this very thing all along -- it SHOULD be difficult for physicians to say this confidently to anyone.
Christian Legal Society v. Martinez, now before the Supreme Court, is a very important case about freedom of association, free exercise of religion, and the definition of viewpoint neutrality. It concerns whether a CLS chapter can be excluded from a limited public forum for student organizations at a public university because it asks leaders and voting members to affirm a statement of faith and refrain from extramarital sexual conduct. CLS's petitioner's brief is here.
Among the amicus briefs filed in support of CLS today is this brief for (among others) various former CLS student-chapter officers, on which Rick Garnett and I are both counsel. The brief emphasizes two points: (1) When the government forbids a religious organization to engage in religion-based selection of leaders, members, etc. (i.e. "discrimination"), the government itself commits discrimination against religious viewpoints, because those viewpoints are singled out as the only animating beliefs that an organization cannot ask that its leaders and members affirm (no law prohibits the Sierra Club, a homeless-advocacy group, or any other idea-based group from enforcing its beliefs). (2) The right to refuse to choose leaders and members who depart from a group's tenets, recognized in the Boy Scouts v. Dale case among others, protects an organization not only from civil liability but from being excluded from a public forum where the government encourages a range of private speech. Among other things, the brief responds to some previous writing by Eugene Volokh arguing against any constitutional right of these student groups to select leaders and members.
Tom
Thursday, February 4, 2010
Today, my distinguished colleague in Theology, Jean Porter, had this letter published in the South Bend Tribune:
As a member of the faculty of the University of Notre Dame, I was dismayed to learn that the university sponsored faculty and student participation in the annual March for Life in Washington, D.C., and is considering the adoption of a policy statement committing the institution to a pro-life agenda.
Whatever the merits of this agenda may be, I do not see how we as a university can take an official, public stand on such a difficult set of moral and political issues, while at the same time maintaining an atmosphere of free and open inquiry and debate.
We do respect academic freedom at Notre Dame, and I don't expect that anyone here would be penalized for expressing the view that abortion is sometimes morally permissible, or defending a pro-choice political agenda. But when the university takes an official, public stance on these very controversial matters, what kind of signals are we sending to our students and colleagues about the limits of acceptable discourse on campus? How can we educate our students to think for themselves, while at the same time telling them so clearly what they should be thinking, as members of the Notre Dame community?
We worry a great deal here about our character as a Catholic university. Perhaps the time has come to worry a bit more about what it means to sustain our character as a university — as such.
In response, I wrote -- I don't know whether or not it will be published -- this:
My Notre Dame colleague, Jean Porter, is an accomplished scholar, but she is mistaken in thinking that there need be any conflict between Notre Dame's "official, public stand" in support of a "pro-life agenda", on the one hand, and its commitment to academic freedom, on the other.Universities, including Notre Dame, take official, public stands on all kinds of things, all the time -- decent working conditions, the desirability of peaceful resolutions of nations' disagreements, environmental sustainability, etc. Right or wrong, these stands are not inconsistent with a commitment to students' and faculty members' freedom to disagree, or to follow their studies where they lead.Notre Dame's Catholic character is what makes the University interesting, distinctive, and important. The University's pro-life stance reflects and honors that character. And that character, in turn, enriches and broadens the conversations among faculty and students, and makes Notre Dame a better university than it could otherwise be.
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