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.

Monday, February 18, 2008

Dear Tom, Elizabeth, Greg, Susan, and Rob,

I'm envious.

U. of St. Thomas, in Minnesota, Gets a Guest House by Frank Gehry

Gehry house
This house, designed by Frank Gehry, will be moved to a retreat center in southern Minnesota owned by the U. of St. Thomas.

A guest house designed by Frank Gehry, located in a western suburb of Minneapolis, is being donated to the University of St. Thomas, in Minnesota. The house, built in 1987 and known as the Winton Guest House, after the owners who commissioned it, is one of Mr. Gehry’s few residential works and is considered one of his best. It now sits on a property with a home by Philip Johnson, built in the 1950s.

Kirt Woodhouse, a Twin Cities real-estate developer who has an interest in architecture, said that he bought both homes in part to preserve them. “I really feel like I am just a steward,” Mr. Woodhouse told The Chronicle. “I didn’t want either home to meet the wrecking ball.” In 1997 another home in that area, by the notable Minnesota modernist Ralph Rapson, was demolished to make way for a McMansion. Mr. Woodhouse won’t say what he paid for the houses and property, but they were listed at more than $3-million, according to a Chicago Tribune article in 2001.

The Johnson house was sold and renovated. The Gehry house will be separated into its various distinct components, then moved to Owatonna, Minn., where the University of St. Thomas has a conference and retreat center built around a French Norman-style home designed by Edwin Lundie, another notable Minnesota architect. (The home was designed for Daniel C. Gainey, who owned Jostens, the class-ring company.)

Mr. Woodhouse will cover the cost of moving the Gehry house and reassembling it. According to an article in Architectural Record, the Walker Art Center, in Minneapolis, briefly considered taking the house, but the cost of moving it to the Walker and putting it in heated storage until a courtyard was ready was deemed too high. Asked why he decided to give the house to St. Thomas, Woodhouse said: “The short answer is, Dartmouth College is too far away.” Mr. Woodhouse is a devoted alumnus of Dartmouth, where he says his appreciation of the arts was cultivated. But he added: “I think St. Thomas is a great institution.”

Marlene Levine, the director of St. Thomas’s conference center, said the house will be used for small-group retreats — particularly with groups that want a place to do out-of-the-box thinking, given the architectural atmosphere the house will provide.

Ms. Levine noted that Mr. Gehry will be in Minneapolis now and then over the next couple of years, as he is designing an addition to his Weisman Art Museum at the University of Minnesota-Twin Cities. She hopes he will stop by Owatonna for a dedication of the relocated house. —Scott Carlson

Rick's (Persistent) Question Puzzles Me

Well, not so much the question as Rick's asking it:  "So, Michael . . . what about cap-and-trade regimes as a way of controlling and reducing pollution?"

Did I say something--or did the NYT article say something--against a federal cap-and-trade strategy?  Rick seems to think that one can't consistently support a federal cap-and-trade strategy and, at the same time, support leaving the states free to impose stricter controls on mercury pollution in their own neighborhoods--which, presumably, a state would want to do (even my own "red" state of Georgia) if there were an especially severe problem of mercury pollution in one or more of its neighborhoods.  After all, recall that

A neurotoxin linked to learning disabilities, mercury is most dangerous to fetuses, infants and small children, usually when pregnant women or children eat mercury contaminated fish. The National Academy of Sciences estimates that 60,000 newborns a year could be at risk of learning disabilities because of mercury their mothers absorbed during pregnancy.

But, in fact, we needn't choose.  We could have *both* a federal cap-and-trade strategy *and* freedom for the states to pursue a stricter strategy.  (Yea, federalism!  Yes, subsidiarity!)  Here's what my friend/colleague Bill Buzbee has to say, by way of explanation:

You could have both.  A cap and trade scheme merely caps the level of some pollutant, then allows trading among polluters so more cost-effective pollution controllers can sell unused pollution allowances allocated to them in some way.  Cost-effectiveness is the main argument for embrace of cap and trade schemes in the environmental regulation arsenal.

A cap and trade can victimize some and advantage the wealthy, but won’t invariably do so.   The literature is too voluminous to do justice to, but basically a trading scheme threatens to move pollution around, with high polluting clunkers most likely to buy pollution rights to avoid having to shut down or invest in costly pollution control.  If the pollutants in question, or the polluting activity itself (say, industrial operations, trucks, noise, etc) create localized effects, then “hot spots” of high pollution or nuisances can result.   Industry virtually always likes the possibility of cap and trade schemes, as often will environmentalists in settings where concentrated harm hot spots won’t result.  If EPA’s ill-fated mercury cap and trade scheme would have resulted in such hot spots of mercury or industry concentration w/attendant discomforts, then industry would avoid costly cleanup of their operations while the poor, who often live in lower value neighborhoods near factories, would be vulnerable to mercury harms or discomforts of adjacency to possibly expanded industrial operations.  In addition, a debate exists whether cap and trade schemes really encourage innovation as do performance standards that can push industry to ratchet back pollution.  A cap and trade scheme, if the cap is set too high, will not prompt innovation.  As Michael Wara’s job-market paper on greenhouse gas trading shows, a trading scheme can easily slow down the pace of innovation where the cap is too high or gains from trade are too easy and hence most polluters have no incentives to improve their performance.   GHG emissions, however, do not pose a hot spot risk.  In the mercury pollution setting, where much of harm is to health due to air deposition into waters and bioaccumulation in fish (look out eaters of bluefin tuna), a trading regime with an inadequate cap could result in many additional years of such mercury harms.  Whether that would harm the poor or wealthy sushi mavens, I don’t know.

A state could impose its own performance standard on a mercury emitter that is more stringent than would otherwise be allowed by a cap and trade scheme alone.  Early arguments for trading about 10-15 years ago often assumed some minimal level of pollution control, but advocated allowing those who could do better to sell their excess pollution reductions.   A state performance standard would serve to limit or constrain the market for trades, but could co-exist w/out any direct conflict.

The Bush Administration, the EPA, and Mercury

In response to Rick's most recent post in our to-and-fro, I decided to consult my colleague Bill Buzbee, who is an expert in administrative law and environmental law.  Here is what Bill told me:

The Clean Air Act has a savings clause and has long been construed to allow states to be more protective of their citizens.  It also has some explicitly preemptive provisions preventing states from adopting different standards for auto emissions, unless the alternative approach matches an approved different approach for California.  Thus, absent a direct “conflict” justifying an assertion of preemption, the Clean Air Act gives EPA little if any statutory authorization for imposing a “ceiling” on states, precluding more protective actions.  Iif the NYT’s article is accurate about EPA’s pressure, it is consistent w/a wide array of agency actions over the past couple of years seeking to preclude more protective state law, be it in statutes, regulations, or through common law.  If you want to see my discussion of CAA use of floors, not ceilings, and other description and analysis of these recent broad claims of preemptive power by an array of agencies, you might look at my new article “Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction,” 82 NYU L Rev. 1547 (2007).  Historically, federal assertions of “ceiling” preemption have been rare in the risk regulation setting.

To download/read the article to which Bill refers, Bill's own article, click here.

Here is the abstract to the article:

       
New York University Law Review, Vol. 82, 2007                  
Emory Public Law Research Paper No. 07-23                  
Emory Law and Economics Research Paper No. 07-20          
 

Abstract:    
If the federal government has constitutional power to address a social ill, and hence has power under the Supremacy Clause to preempt state, local, and common law regimes, is there a principled rationale for distinguishing federal standards that set a federal floor or ceiling? At first blush, the two appear to be mere flip sides of the same federal power: The choice of a floor reflects a goal of minimizing risk, while ceilings reflect concern with excessively stringent regulation.

This Article argues, however, that these two regulatory choices are fundamentally different in their institutional implications. Floors embrace additional and more stringent state and common law action, while ceilings are better labeled a "unitary federal choice" due to how they preclude any other regulatory choice by state regulators and also eliminate the possibility of the different actors, incentives, and modalities of information elicitation and proof that common law settings provide. Advocates of free markets respond that this is precisely the idea - regulatory certainty is enhanced with a unitary federal choice, allowing manufacturers to plan with confident knowledge of the regulatory terrain, unbuffeted by an array of uncoordinated actors.

Debate over floors versus ceilings was, until recently, largely hypothetical, due to the rarity of federal imposition of ceilings. During the past year, however, in settings ranging from product approvals to regulation of risks posed by chemical plants to possible climate change legislation regarding greenhouse gases, legislators and regulators have embraced the broad, preemptive impact of unitary federal choice preemption. The federal action regarding such risks would be the final regulatory choice. But under what theory of regulation and legislation can one be confident that placing all decisionmaking power in one institution at one time will lead to appropriate standard setting? In fact, advocates of risk regulation, "experimentalist regulation" scholars, and skeptics about the likelihood of public-regarding regulation all call for attention to pervasive risks of regulatory failure. Agency and legislative inertia, information uncertainties and asymmetries, outdated information and actions, regulatory capture, and a host of other common regulatory risks create a substantial chance of poor or outdated regulatory choice.

Considering these pervasive risks of regulatory failure, the principled distinctions between floor and ceiling preemption become apparent. Vesting all decisionmaking power in one institution can freeze regulatory developments. Unitary federal choice preemption is an institutional arrangement that threatens to produce poorly tailored regulation and public choice distortions of the political process, whether it is before the legislature or a federal agency. Floor preemption, in contrast, constitutes a partial displacement of state choice in setting a minimum level of protection, but leaves room for other actors and additional regulatory action. Floors anticipate and benefit from the institutional diversity they permit. This Article closes by showing how the institutional diversity engendered by retaining multiple layers of law and regulatory actors creates conditions conducive to reassessment and adjustment of rigid or outdated regulation.

Interesting reading in this month's "Atlantic"

Sightings 2/18/08

Growth, Violence, and the Coming Religious Peace

-- Martin E. Marty

Decades ago an Atlantic editor suggested an idea for an article which I somehow failed to produce. I recall him saying that the magazine rarely covered religion, but when it did, as it had in a recent feature article, it quickened an enormous response.  Today, Atlantic editors, along with so many others, recognize the ever-growing power of religion in the world and treat it in depth, as in the commendable March issue. 

 

The cover banners the three major stories.  First is Walter Russell Mead's:  In sum, "America's evangelicals are growing more moderate—and more powerful."  His observations and thesis run counter to favored opinion of not long ago, pioneered by Dean Kelley in 1972 in Why Conservative Churches Are Growing, which contended that in order to grow and grow powerful, churches had to be strict, hardline, demanding, and counter-cultural. Mead notes that today, Adam Smith-ian enterprising competition to 'get butts in the pews" has turned this around. Yes, there are still some latter-day Fundamentalists, but the winners are churches that offer most, are most at home in pop culture, and are "flexible, user-friendly, and market-driven."  They are moderating, and thus growing more powerful.

 

Contrast this with the major and tragic story, "God's Country" (Nigeria) by Eliza Griswold. "Using militias and marketing strategies, Christianity and Islam are competing for believers by promising Nigerians prosperity in this world as well as salvation in the next."  There are mass conversions, defects, animosities, and massacres in this dire competition between the Muslims of the North and the Christians of the South.  Rene Girard's thesis about "the mimetic principle" is in effect:  The two sides imitate each other and escalate in both marketing efforts and militial action. The well-document killings by Muslims are truly abhorrent; Christian belligerency, reactive or initiatory, is apocalyptically fierce. Griswold tells, for example, how the Christian Association of Nigeria "militia" attacked a Muslim town, killing 660 Muslims, burning twelve mosques and three hundred homes.

 

Griswold's father had been primate of the Episcopal Church in the U.S.A at the time of the massacre, and a colleague of Archbishop Peter Akinola, who was then the president of the Christian Association of Nigeria.  Akinola is now the head of the eighteen-million-member Anglican Church in Nigeria, and the spiritual and ecclesiastical host to many dissident American Anglicans who have accepted him as their bishop. To put it politely, Akinola, stiffing Griswold, launched into an attack linking Islam and liberal Protestantism while defending what Americans call "the prosperity gospel."  "I've said before: let no Muslim think they have the monopoly on violence."  Both sides in the Muslim-Christian conflict cite their Scriptures; one pastor legitimated rape by Christians on the basis of Matthew 24:19:  "But woe to those who are pregnant and to those who are nursing babies in those days."

 

Those who think Atlantic is interested in religion only when there is conflict in its name can find a match for Mead's piece in a third article by Alan Wolfe, a regular commentator on religious trends in the U.S.  He writes on "the coming religious peace" in an article called "And the Winner Is…" The price of peace, says Professor Wolfe, is an American version of "secularism," which pervades market- and success-minded churches.  I think his definition is a bit too neat and he is too sure about its victory, but he has a strong point overall.  Given the cost in lives—on both sides—of Nigerian religious self-assurance, the American compromise looks attractive. Archbishop Akinola would call that confession a sell-out, typically "satanic," and would cite biblical texts to back himself up.

----------

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

Sunday, February 17, 2008

Back to Rick

Did the federal court get it wrong?  Wasn't it legally wrong for the Bush Admin to have tried to prevent the states from being more strict against mercury than are the feds?  Doesn't every Admin, Democratic too, make morally indefensible choices?  Credit where credit is due:  e.g., the Bush Admin's aid to African countries to help our sisters and brothers there deal with HIV/AIDS.  But discredit where discredit is due, Rick:  Protecting the interests of the economically powerful rather than protecting the public's health is indefensible.

I just re-read the NYT article.  Rick, we seem to be reading different articles.  MOJ readers, if you haven't read the article yet, do so now, here.

Saturday, February 16, 2008

A Question for MOJ Republicans

Is there a way to understand this story such that what the the Bush Administration has done seems genuinely defensible?

New York Times
February 16, 2008

Feds Nip State Efforts to Slash Mercury

WASHINGTON (AP) -- While arguing in court that states are free to enact tougher mercury controls from power plants, the Bush administration pressured dozens of states to accept a scheme that would let some plants evade cleaning up their pollution, government documents show.

A week ago, a federal appeals court struck down that industry-friendly approach for mercury reduction. It allowed plants with excessive smokestack emissions to buy pollution rights from other plants that foul the air less.

Internal Environmental Protection Agency documents and e-mails, obtained by the advocacy group Environmental Defense, show attempts over the past two years to blunt state efforts to make their plants drastically reduce mercury pollution instead of trading for credits that would let them continue it.

An EPA official said the agency's job ''is not to pressure states.''

The federal plan capped overall mercury releases from power plants nationwide. But it allowed plants to avoid reductions by purchasing emission credits. Critics have said that creates ''hot spots'' of mercury releases harmful to communities.

Many states did not want their power plants to be able to buy their way out of having to reduce mercury pollution.

A neurotoxin linked to learning disabilities, mercury is most dangerous to fetuses, infants and small children, usually when pregnant women or children eat mercury contaminated fish. The National Academy of Sciences estimates that 60,000 newborns a year could be at risk of learning disabilities because of mercury their mothers absorbed during pregnancy.

''There was an extraordinary degree of aggressiveness by EPA in pressing states to abandon a more protective mercury program. EPA devoted enormous effort to preventing states from doing more,'' said Vickie Patton, a lawyer for Environmental Defense. The group obtained the documents through a Freedom of Information Act filing.

The push to rein in uncooperative states continued until the eve of the Feb. 8 appeals court decision that struck down the EPA's program. The U.S. Court of Appeals for the District of Columbia Circuit said the agency did not adequately address the health impact of its plan.

The administration was poised to take even tougher measures against maverick states. A day before the ruling, the White House Office of Management and Budget approved a draft regulation to impose a ''federal implementation plan'' for mercury reduction in states whose mercury control measures did not meet EPA approval.

It would have required power plants to comply with the national cap-and-trade provisions, even it that meant ignoring state restrictions.

Both the emissions trading approach and any further requirement on states have been put on hold after the court ruling, EPA spokesman Jonathan Shradar.

[Read the rest, here.]

Thursday, February 14, 2008

Time Out for Some (Political) Humor

[From The Borowitz Report for February 14, 2008:]

Conversation with a Superdelegate

Actual Transcript

-- Hello?
-- Doug, my man, is that you? Glad I caught you, buddy! You’ve had your voicemail on the past few days. Hillary and I have been worried sick.
-- I told you to stop calling me.
-- What? That’s a fairy tale.
-- The last time we talked, right before I hung up on you, I said, “Stop calling me here.”
-- Doug, when you said that, you were in your bedroom, weren’t you?
-- Yes, I was in my bedroom. You called me at two A.M. But I don’t --
-- and you’re not in your bedroom now, are you? I hear a coffee maker. You’re in your kitchen now, aren’t you, Doug? So when you said, “Stop calling me here,” I naturally assumed you meant, “Don’t call me in my bedroom, but the other rooms in my house are fine.” It depends on the meaning of “here” I hear.
-- I’m changing my phone number.
-- Hillary can do that for you.
-- What?
-- Hillary can change your number. She’s been making change for thirty-five years. Now, when it comes to calling Verizon customer service and getting your number changed, who do you trust, someone who’s been a change agent for thirty-five years or someone who’s been making viral videos with the Black Eyed Peas?
-- I don’t --
-- Now, I’ve got nothing against the Black Eyed Peas. I like the girl, what do they call her, Fergie? She’s hot. I like that song that she does about her humps, and what she’s gonna do with that junk, all that junk inside her trunk. Her humps, her humps, her humps, her lovely lady bumps. But she’s not even in the video Barack made, and when you make a video with the Black Eyed Peas I think you owe it to the American people to let them know right up front that the hot girl with the lovely lady bumps isn’t going to be in it, so that people won’t waste their time freeze-framing it.
-- I…
-- Let’s say you, Hillary, and Barack are on a life raft in the middle of shark-infested waters. And Hillary offers you a life preserver and Barack offers you a line of blow. Who would you vote for?
-- I have to take my kids to school.
-- Hillary will take them.
-- What?
-- She’ll be over there in ten minutes.
-- She doesn’t know where I live.
-- Sure, she does. We drove by your house last night.
-- You drove by my house?
-- We were hoping to chat with you. By the way, the drainpipe in the back needs fixing. It kind of separates from the house when you try to shimmy up it.
-- I’m getting a restraining order.
-- No, you’re not, Doug. Hillary’s going to drive your kids to school, and then you and I are going to sit down and have ourselves a nice little talk. Let’s say you were stranded on a desert island. Who would you choose to help you survive: someone who had thirty-five years of experience making real change on Day One, or someone who spent his high school years surfing and sucking on a giant bong?
-- [click].

"Reaganites for Obama?"

[Sit down, Rick.  Are you ready for this?}

Doug Kmiec--of Pepperdine Law; formerly dean of the Catholic University School of Law--was a Romney supporter... but now he is supporting Obama.   According to Kmiec,

"Barack Obama is a natural for the Catholic vote."

Why?  Read Kmiec's posting yesterday in Slate, here. 

Wednesday, February 13, 2008

Religion and Child Custody

Interesting story in this morning's New York Times, here.

Monday, February 11, 2008

Civility in Politics

If you would like to be a signatory to this statement on civility in poliitcs, please e-mail Professor Ed Gaffney at Valparaiso Univeresity School of Law:  Edward.Gaffney@valpo.edu

If you would like to see a list of the current signatories, click here.

Statement

A Catholic Call to Observe Civility in Political Debate


Civility
– should be a guiding principle in our public life. Civility and its potential impact on the fabric of the Catholic Church should be of concern to all faithful Catholics, both clergy and lay people.

It is apparent that the political debate in the United States is becoming divisively partisan. The political debate preparing all American citizens for the 2008 Presidential elections is increasingly filled with attacks on private conduct and recriminations.

As Americans we acknowledge deep divisions over some policy issues; and recognize that some, who are active in political life and who differ with the Church’s teachings on certain issues, such as, abortion, stem cell research, the death penalty, and the justification for war, air their differences in public and criticize the Church for these teachings. Others, for political and even ecclesiastical reasons, seek the public embarrassment of politicians whose public positions differ with Church teachings through
the public refusal of the sacrament of Holy Communion or public admonition by the Bishops.

To right this wrong, we should observe the following principles.

  • As Catholics we should not enlist the Church’s moral endorsement for our political preferences. We should do this out of respect for our fellow Catholics of equally good will but differing political convictions and our interest in protecting the clergy from being drawn into partisan politics to the detriment of the Church’s integrity and objectivity.
  • As lay Catholics we should not exhort the Church to condemn our political opponents by publicly denying them Holy Communion based on public dissent from Church teachings. An individual’s fitness to receive communion is his or her personal responsibility. And it is a bishop’s responsibility to set for his diocese the guidelines for administering communion.
  • Catholic politicians who advertise their Catholicism as part of their political appeal, but ignore the Church’s moral teachings in their political life confuse non-Catholics by giving the appearance of hypocrisy.
  • Bishops, and all involved in the leadership of The Church, should not permit The Church to be used, or appear to be used, as a partisan, political tool.
  • As Catholics we must learn to disagree respectfully and without judgment to avoid rudeness in expressing our opinions to those whom we suspect will disagree with us, or in reacting to others’ expressions of opinion.
  • As Catholics we need to keep in mind the common humanity that we share with those with whom we disagree. We must avoid seeing them as “the enemy” in a life-or-death, winner-take-all political contest.
  • As Catholics we should never lose faith in the power of reason – a unique gift from God to mankind – and we should always keep ourselves open to a reasoned argument. In this spirit we should defend our views and positions with conviction and patience, but without being obnoxious or bullying.
  • As lay Catholics we should not pass judgment, and should avoid public statements that undermine the authority of the Church’s leaders. American Catholics know who their Church leaders are: their Bishops, Archbishops, and Cardinals.

Aggressive personal attacks may help reach a desired political goal, but these actions will burden one’s personal conscience and endanger the peace of Christ’s Church. By observing the principle of civility in all our political actions we will protect our conscience and protect our Church against harm. Civility for Catholics, as for all Believers, is grounded in the teachings of the Lord, who demands we love one another as we love ourselves, that we be kind, and that we forgive. From this teaching flows the command to respect even a bitter opponent, to exercise restraint in political combat, and to not use the Church for one’s political purposes.

These guidelines may assist the Catholic community to maintain the spirit of civility and to protect our beloved Church from being stained by the appearance of partisan political involvement.  With God’s help we can participate in our elections, discuss the issues, and practice civility as we make our decision on who should be the next President of the United States

Co-Organizers

Amb. Thomas P. Melady
Former U.S. Ambassador
to the Holy See
President Emeritus
Sacred Heart University

Timothy J. May
Senior Partner Executive Committee
Patton Boggs LLP, and
Trustee Emeritus,
The Catholic University of America