I returned yesterday from New Orleans, where I heard several challenging and provocative papers that should be of interest to anyone involved in the Catholic legal theory project (I'm thinking of presentations by Zachary Calo and Eric Claeys in particular), but those can be poked and prodded at a later date. The highlight of the trip for me was an afternoon spent driving through various neighborhoods with an old college friend who's a New Orleans native. This was my first trip back to the city since Katrina, and it was amazing to see firsthand the immense scope of destruction that remains. I've tried -- with limited success, I'm afraid -- to apply CST principles, particularly subsidiarity, to the Katrina recovery in the past, and my visit has underscored how complicated the situations is, and how difficult a "bottom up" or grass-roots recovery can be with destruction occurring on such a wide scale. In city block after city block, you see two or three rebuilt homes surrounded by a sea of empty shells or, in many cases, cement slabs where a house used to stand. A handful of residents have returned to their neighborhood, but since it's only a handful, it's not really a neighborhood. A city with half the population needs to shrink its footprint or face enormous problems with infrastructure, city services, and (I think) a sense of community. The footprint of New Orleans is apparently not going to shrink, but the population has dramatically shrunk. (My visit also reminded me of how much aesthetics matter to our daily experience. The neighborhood around my alma mater used to be filled with trees. Most of the trees are gone now after standing in salt water.) Individual property rights are a hallmark of Western law (as well they should be), and localized empowerment is a hallmark of CST (as well it should be). Katrina has presented a challenge for both.
Monday, January 11, 2010
New Orleans
Thursday, January 7, 2010
Faith and Corporate Law
As part of the day long program of the Section on Socio-Economics at the AALS Annual Meeting in New Orleans today, I participated on a panel titled The Relationship of Faith and Law: The Example of Corporate Law. The panel was organized and moderated by my colleague Lyman Johnson and included presentations my Sarah Duggin, David Opderbeck, Gordon Smith and myself.
In my talk, I contrasted the vision of the human person underlying Catholic social thought with the vision underlying the classical law and economics model that has dominated corporate law scholarship and also talked about some of the difficulties of moving from a discussion of general principles of Catholic thought to specific prescriptions for corporate law and corporate behavior. Gordon Smith identified a different difficulty operating from a Mormon perspective – the lack of a developed set of principles of Mormon social thought, in contrast to the developed set of Catholic principles.
Gordon also raised the important question of who is the audience for our discussions in this area. When we talk about questions of faith and corporate law, to whom are we speaking? This is a question relevent not just to the subject of today’s panel, but one that can be asked more broadly about our project of attempting to articulate a Catholic legal theory. It has long been my view that if there is value in this enterprise, we must find ways to be heard outside of our own group and not be merely talking among ourselves. Sarah Duggin provided one answer to the audience question in the corporate area, focusing on our role as law professors in teaching our students that there is a viable alternative to the shareholder primacy norm that they seem to take for granted.
MOJ Book Discussion: John Allen's "The Future Church"
We'd like to have a focused discussion of John Allen's
new book, "The Future Church."
As the book is organized according to 10 "Trends," we'll focus
on one trend per week. On the Monday of
the designated week, one of us will provide an opener, hopefully with some
thoughts on the implications for the Catholic legal theory project, and then to
the extent that it is helpful to keep the discussion focused, also serve as a
thread coordinator for that week.
Discussion from the previous thread could also continue, but this way
we'll be sure to cover the wide ground that Allen sets out. For MOJ readers who would like to read along and participate, here is our schedule with the coordinators:
Week of 1/18 - A World Church - Amy Uelmen & Rick Garnett
1/25 - Evangelical Catholicism - Rob Vischer
2/1 - Islam - Russ Powell
2/8 - The New Demography - Michael Scaperlanda
2/15 - Expanding Lay Roles - Lisa Schiltz
2/22 - The Biotech Revolution - Robert George
3/1 - Globalization - Kevin Lee
3/8 - Ecology – Bob Hockett
3/15 - Pentecostalism - Greg Sisk
3/22 - Multipolarism – Tom Berg
ERISA Exemption of Church Plans
It was reported earlier this week that Augsburg Fortress, the publishing ministry of the Evangelical Lutheran Church in America (ELCA), has terminated its defined benefit pension plan. The plan is severely underfunded, meaning that plan participants will only receive a fraction of the benefits to which they are entitled under the plan.
ERISA regulates the pension plans of most private employers. Among other things, it imposes mimimum funding standards on defined benefit plans designed to prevent serious underfunding problems. ERISA also put in place an insurance system that guarantees some portion of plan benefits in the event a plan terminates with insufficient assets to pay all vested benefits that have accrued under the plan. Because ERISA contains an exemption for "church plans," the regulations and protections of ERISA don't apply to the Augsburg Fortress plan.
Although I confess that I have not ever given the church plan exemption a whole lot of thought, I think it is probably correct that such plans should be exempt from ERISA regulations. (Whether that conclusion is better grounded in Establishment Clause or Free Exercise concerns is something I'll leave to the First Amendment scholars.) But the exemption does contribute to some unfortunate consequences. Employees of entities such as Augsburg Fortress are in need of as much protection as employees of private employers and the exemption leaves such employees far worse off when a plan such as this one is terminated.
Mulieris Dignitatem and Pornography
Mary Leary at Catholic Law School has posted an article based on an excellent presentation I heard her give at a symposium on the 20th anniversary of Mulieris Dignitatem: "Mulieris Dignitatem: Pornography and the Dignity of the Soul: An Exploration of Dignity in a Protected Speech Paradigm." The abstract:
More important than the legal solution (criminalization), Leary argues, is a change in the social norms governing pornography today in the U.S. She describes how the law "followed the dictates of the societal shift" in attitudes toward smoking, driving under the influence, and dangerous sexual practices. She argues for increased public education about findings of researchers who have identified online pornography as 'a hidden public health hazard'. She also argues for greater efforts to combat "the normalization of the sexualization of girls."
As a mother of a nine-year old girl who watches far too much Nickelodeon and Disney Channel, I say, AMEN, Mary!
UK and Sharia Law
One MOJ reader had this comment in response to Carissa Mulder's thoughts on the UK case that I posted last evening:
Carissa Mulder towards the end of her comments states that "The UK has
never recognized sharia law." and later she states: "I would be happy
if sharia law were the equivalent of courts of canon law."
I think the accuracy of her first statement depends on what she means
by "recognize" because the UK government has allowed sharia courts to
operate in limited circumstances and has approved sharia-compliant
financial institutions to be formed and operate within the UK.
Sharia courts, like the Jewish Beth Din courts, are treated as
arbitration tribunals under the UK Arbitration Act 1996. The parties
have to voluntarily consent to have the courts hear their case and
abide by its decision. In cases for change of status, like divorce,
they may adjudicate the religious case but the parties still must seek
a civil divorce in order for their marriage to be legally ended under
the laws of England and Wales. So in the case of divorce, sharia
courts and Jewish Beth Din courts are acting in ways that are somewhat
similar to the Office of the Tribunal of a particular Catholic diocese
which decides whether to issue declarations of nullity for Catholics
who wish their marriage to be annulled.
Analysis of SSM/Religious Liberty Conflicts in New Jersey
In December, Rick posted a copy of the letter from religious-liberty scholars analyzing potential conflicts between same-sex-marriage and religious liberty in New Jersey and proposing a statute accommodating religious objectors when SSM is recognized. Since MOJ has served as an online source for those wanting to read those letters for various states and cite them in articles, briefs, etc., and since the NJ-letter file is now blocked by a security firewall, I am reposting it here. Rick's original post explains the context.
There is a reasonably complete and updated collection of these letters for various states, at this post, which originated last August.
Wednesday, January 6, 2010
More Thoughts on the U.K. Case
Carissa Mulder, an MOJ reader who is a former student of Rick Garnett, adds this reaction to our conversation about the UK case holding that a Jewish school could not apply Orthodox rabbinical standards as to who is Jew in its admissions policies:
I thought it was interesting that you questioned whether permitting the establishment of sharia law and permitting a religious school to define its own admissions policy should be treated differently. I think the two cases should be treated differently.
There are a few reasons why sharia law should not be permitted in Britain, but religious-based school admissions should be. As a preliminary matter, I think we have to realize that the state has a proper sphere. In this case, the state has veered outside of its proper sphere. However, (I think) some form of government is always necessary, and as a result the government has its own role to play. Basically, the state should ensure law and order. The state should defend its people against outside attackers and regulate relationships between citizens. There must be laws to regulate these relationships.The first point builds on one made by RG's former student. Rather than simply assuming that sharia law is comparable to admission to a religious school, it's necessary to look at the substance of the two things.
One take on "Property Outlaws"
Congratulations Eduardo!
Eduardo Penalver and Sonia Katyal have a new book with Yale University Press entitled Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership. See www.propertyoutlaws.com
Here are blurbs about the book:
Praise for Property Outlaws
Property Outlaws offers a sparkling account of the ways in which lawbreaking can both strengthen and reshape the law. Peñalver and Katyal remind us that virtue can be found both in provocation and enforcement -- and that a society wins when neither has carte blanche.
--Jonathan Zittrain, Professor of Law, Harvard Law School, and Co-Founder, Berkman Center for Internet & Society
A powerful thesis, gracefully articulated.
--Tim Wu, Columbia Law School
We have needed this book for a long time. For the first time, two legal scholars have woven the history of civil disobedience with the development of property law in both tangible and intangible forms. This book will be essential to understanding the complex relationship between norms and laws, and the ways that media events influence both. It's written in a lively and accessible manner. My students will benefit greatly from it.
--Siva Vaidhyanathan, The University of Virginia
From the illegal occupation of tribal and federal lands by white squatters to the Indian occupation of Alcatraz Island, from the lunch counter sit-ins to the online posting of a major civil rights film without consent of the filmmaker, Peñalver and Katyal show how those excluded from property have shaped property law and ultimately social life by intentionally infringing on the rights of owners. A major achievement.
--Joseph William Singer, Bussey Professor of Law, Harvard Law School
Eduardo Peñalver and Sonia Katyal offer a challenging and insightful account of disobedience and boundary-skirting in property law. Linking real and intellectual property law, Property Outlaws shows how such resistance can and should affect our concepts of law, as well as justice.
--Rebecca Tushnet, Georgetown Law School
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