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.

Wednesday, October 15, 2008

Recent Scholarship on Preimplantation Genetic Diagnosis

I've discussed some of the issues underlying preimplantation genetic interventions on MOJ before.  Coincidentally, my SSRN e-mails this morning contained two new postings discussing different aspects of this kind of technology with some interesting perspectives.

"Making Mommies:   Law, Pre-Implantation Genetic Diagnosis, and the Complications of Pre-Motherhood" by Kimberly Mutcherson of Rutgers School of Law-Camden, is unfortunately only an abstract -- the whole article isn't posted yet.   Although I can't tell from the abstract exactly where her reasoning is leading her, this description of part of her article is intriguing:

The article begins by describing the medical landscape relevant to modern pregnancies in the United States. I then discuss the myriad ways in which existing law impacts procreative and parental decision-making and the ways in which the public nature of procreation and pregnancy make it a time ripe for regulation that is deeper and more intimate than is often the case when the law regulates non-pregnant bodies. The article describes motherhood, unlike fatherhood, as deeply contested territory in which many women struggle to conform to their own definitions of good motherhood and avoid the dreaded label of bad mother. It also describes how the law participates in a process of naming some women as bad mothers and questioning and at times denying their right to parent.

The second article, "Insult to Injury:  A Disability-Sensitive Response to Professor Smolensky's Call for Parental Tort Liability for Preimplantation Genetic Interventions", by Alicia R. Ouillette at Alabany Law School, is a response to another article discussed in her abstract: 

In her article Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, Professor Kirsten Rabe Smolensky argues that children who were subject to preimplantation genetic manipulation should have the ability to sue their parents for damages when the parents "directly intervene in the child's DNA and consequently cause that child to suffer a disability which limits the child's right to an open future." This paper addresses the implications for people with disabilities of that argument. Specifically, it argues that limiting damages to cases in which a child is born with a disability unnecessarily and inaccurately devalues life with disability and leaves unprotected children whose DNA is shaped for traits other than disability at the request of their parents. It then suggests a disability-sensitive approach for delineating cognizable injury under which genetic modifications for disability are treated like other genetic modifications that shape a future child for cultural, aesthetic, or social reasons.

I don't see explicit references to Catholic teachings in either article, nor am I sure either author's ultimate conclusions concur with Catholic teachings.  But it is encouraging to see little glimpses of arguments that must, surely, be written on all our hearts poking through in secular scholarship on some of these areas on the frontiers of bioethics.

Tuesday, October 14, 2008

Politics of Identification?

My former colleague, John Stinneford, had these thoughtful comments about my post on identity politics.  He suggests that there is a "connection between identity (or perhaps “identification”) and the genuinely social and political nature of the human person."

When we talk about “identity politics,” what we’re really often talking about is a kind of  “group selfishness.”  My group wants to get something at the expense of your group, and so my group defines your group as evil, worthless, inhuman.  The process is inherently polarizing, and it leads to much of what is sickening about politics – the McCain camp saying that Obama hates his country, for example; or Obama describing McCain as deranged and unstable. 

Your insight concerns an entirely different kind of “identity politics” from the one given to us by the political parties.  Maybe it could be better described as a “politics of identification.”  By identifying profoundly with the humanness of Sarah Palin, you also identify with the humanness of Barack Obama and of those who see their hopes and dreams and aspirations bound up with him.  Reading your essay made me feel hopeful in a way I haven’t felt hopeful in quite a long time.  If we can see the humanness in each other – even in our political enemies – then there’s some chance we may actually be able to live in community.

Monday, October 13, 2008

Identity Politics

One of the difficult issues explored in Amy and Michael S.'s extraordinary exchange on faithful citizenship at UST last week was how to address the emotional volatility of this election, so we can continue to work together after Election Day to address the serious challenges we are facing.  Whoever wins in November, the anger being generated by and displayed in some of today's debates (including even here on the pages of MOJ) is going to make continued cooperation difficult.     

For the first time in my life, during this campaign, I feel as though I really understand what some of this anger is about.  I think I finally "get" both the pull and the danger of identity politics.   Governor Palin's nomination has evoked in me the strongest emotional reaction I have ever felt in connection with a presidential campaign.  Of course, I identify strongly with her as the mother of a child with Down Syndrome.  But even more powerful is my identification with her as a working mother of small children.  When I see her up on that huge stage interacting with her husband and her children, I think about things like the time I went to a meeting in New Orleans with a bunch of my banking clients, shortly after the birth of one of my children, and my husband came along to take care of the infant and bring him to me during breaks so I could nurse him.  I think about the hidden secret of big families -- that older siblings are wonderful sources of help and support -- and how I could not have gotten tenure without the help of my older children.  When I saw her clutching Trig, patting him furiously on the back right after the debate with Biden, I understood exactly what she was feeling -- the desperate need to be holding your baby, even when you know the adrenaline-fueled rush of your "job"-related performance is preventing you from really focusing on him.  I know one thought that MUST have flashed through her brain right before she grabbed him: I don't care if he spits up on my suit now -- I'm DONE with the debate!!!! 

I have never felt this before with respect to any politician.  I understand now how many other women must feel about Hilary Clinton.  I understand now how many African Americans must feel about Barak Obama.  It is intoxicating to allow yourself to imagine how much better the world might be if someone who was “just like you” in some very fundamental way, like motherhood, gender, or race, were really in charge.   It’s especially intoxicating if you don’t think that those currently in charge are doing a particularly good job at the things most important to you.

One of the things that has surprised me is that this close identification with a person under such intense media scrutiny can also be very alienating.  The very images that cause me to identify so closely with Governor Palin on a very fundamental level are having exactly the opposite effect on many people, including friends and family.  To many people, those images represent choices in life that have been rejected or are simply incomprehensible.  To many people, those images make Palin something to be despised – or even feared.

And this close identification does make you sensitive to aspects of the debate that might escape others who do not share that identification.  In the days after Governor Palin’s nomination, I heard an analysis on Minnesota Public Radio of the types of internet searches being conducted about her.  The overwhelming majority were searches like “Sarah Palin hot pictures.”  On mainstream internet news sites like CNN and Foxnews, I’ve seen articles supposedly about the media coverage of Palin, in which the “analysis” in the text was patently an excuse to run a photo-shopped picture of “Governor Palin” in a bikini toting a gun, or a photograph of Governor Palin making a speech at a campaign rally, in which the camera was focusing on a young male in the audience looking at her, framed by the bottoms of her legs in high heels.  When I see and hear these things, I feel exposed and violated myself.  When I hear people criticizing her for lack of intellectual substance, I can’t help wonder if their criticism is colored by the filter of images like that, instead of a sincere analysis of her intellect.  I know that women who identified closely with Hillary Clinton felt the same about her; I know there’s an analogue for the filter of race that people who identify closely with Barak Obama must feel in criticisms of him.

I do not know yet what I will do with this emotion when it comes time to vote.  But I do understand now how this emotion underlies so much of what people will decide and so many of the arguments people are making in the current campaign and that it will dictate much of the reaction to the results of the vote, whatever they are.

I find myself wondering if maybe this highly-charged emotionality is a phase that our nation has to go to on the road to a government that more truly represents the diversity of its citizens.  Maybe it is something like the hormonal surges of adolescence.  When we’re parenting teens, there’s nothing we can do to suppress overly emotional hormonal reactions, we can only wait for maturity to diminish their pull.   Similarly, when we feel ourselves and our fellow citizens reacting emotionally to the power of the image of – finally - seeing “someone like them” in charge, maybe there isn’t anything we can do to suppress that emotion.  We can only wait (and hope) for a time when our government does more truly represent the diversity of its citizens, when women and people of color are not novelties on the stages of presidential nominating platforms. 

Sunday, October 5, 2008

Who Says Catholics Don't Read the Bible?

Benedict XVI Launches Bible-Reading Marathon

Calls It "Fitting Accompaniment" to Scripture Synod

VATICAN CITY, OCT. 5, 2008 (Zenit.org).- Benedict XVI kicked off a Bible-reading marathon on Italian television, which he called a "fitting accompaniment" to the world Synod of Bishops on the Word of God.

The Pope read from Genesis on "Bibbia Giorno e Notte" (Bible Day and Night), a program broadcast by RAI where the Bible will be read from beginning to end in various languages by nearly 1,200 readers.

The Pontiff's secretary of state, Cardinal Tarcisio Bertone, will conclude the marathon Saturday, reading the last chapter of Revelation.

Readers will include, among others, participants in the 12th Ordinary General Assembly of the Synod of Bishops on "The Word of God in the Life and Mission of the Church," which the Holy Father inaugurated today. The synod will end Oct. 26.

The site of the reading will be the Basilica of Santa Croce in Gerusaleme in Rome. Organizers received 180,000 requests to participate in the event.

Benedict XVI spoke about the event after reciting the Angelus with thousands of pilgrims gathered in St. Peter’s Square in the Vatican today. He said, “This event is a fitting accompaniment to the Synod of Bishops on the Word of God.

“The Word of God can thus enter into homes to accompany the lives of families and single persons: a seed that, if properly welcomed, will not fail to bear abundant fruit."

Report on DC's Mulieris Dignitatem Conference

The two days of the "Conference Commemorating the 20th Anniversary of Mulieris Dignitatem:  On the Dignity and Vocation of Women," proved to be one of the most powerful demonstrations I've ever seen about the importance of Catholic law schools, the power of Catholic legal thought, and the importance of interdisciplinary cooperation.  The conference was a joint effort of two Catholic law schools -- Ave Maria School of Law and The Catholic Unversity of America's Columbus School of Law.  The two organizers were Jane Adolphe of Ave Maria, and Helen Alvere, formerly at Catholic, now at George Mason Law School.  Jane and Helen did an absolutely magnificant job of pulling together an international, indisciplinary gathering of scholars exploring the theological, philosophical, moral, AND legal dimensions of Pope John Paul II's challenge to apply the "dignity and vocation of women" to today's pressing social problems.

The presentations were all of exceptionally high quality, and the ways in which the different disciplines represented at the conference reinforced each other and illuminated different aspects of the topics addressed was extraordinary.  It's truly impossible me to even identify "highlights", because of the uniformly high quality of the presentations.  Among the legal scholars applying Catholic thought on women and men, filtered through the insights and challenges of Mulieris Dignitatem, were Helen Alvare (George Mason), Katherine Spaht (Louisiana State Law Center), Howard Bromberg (University of Michigan), and Fr. John Coughlin (Notre Dame) all dealing with different aspects of family law;  Gerald Bradley (Notre Dame) discussing the concept of equality under Constitutional jurisprudence; me (with some general reflections on what Mary's role in the Incarnation and the founding of the Church reveals about the specific vocation of women in the law), Mary Leary (Catholic Law School) talking about the regulation of pornography and the dignity of the soul, Fr. Joseph Isanga (Ave Maria) addressing domestic violence, and Jane Adolphe (Ave Maria) on Amnesty International's abortion policies. 

For a broader perspective, we heard Keynote Addresses from Maguerite Peeters, Director of the Institute for Intercultural Dialogue Dynamics, providing a sobering view of the international dimension of the situation of women, and Monsignor Grzegorz Kaszak, the Secretary of the Pontifical Council for the Family, with the view from the Vatican.   We also heard from economists (Maria Sophia Aguirre, Catholic U.), sociologists (W. Bradford Wilcox, U of Virginia), philosophers (including one of my personal heroines, Sr. Prudence Allen), and theologians.  Unfortunately, I had to leave before the very end, to catch my plane, so I had to miss how Helen Alvare and Teresa Collett (UST) were going to give us all our marching orders on future scholarship and other plans of action.....

I've never participated in a conference before where I have so urgently wanted to see all of the finished papers.  They'll be published in Ave Maria Law Review.  This is going to be a truly ground breaking collection of articles.  Such scholarship simply would not exist if we didn't have Catholic law schools with the commitment to putting on conferences like this, Catholic scholars willing to dedicate the time and effort to applying their faith to their scholarship, and energetic and capable people like Jane Adolphe and Helen Alvare with the vision and energy to bring them all together! 

Thursday, October 2, 2008

20th Anniversary of Mulieris Dignitatem

I'm heading to D.C. this afternoon, not to help Congress resolve the financial crisis, but to spend a couple of days considering aspects of the "Palin effect" through a Catholic lens.  I'm participating in this conference organized by Catholic Law School & Ave Maria Law School Commemorating the 20th Anniversary of Mulieris Dignitatem:  On the Dignity and Vocation of Women.  If you'll be in the are on Friday and Saturday, stop by.  They have gathered a truly incredible collection of speakers.

Wednesday, October 1, 2008

Fractional Reserve Policy, Roman Law, and the Financial Crisis

I agree with Greg that the blame for the current financial crisis is shared equally by members of both parties, and I agree that the proper response is not a knee-jerk reaction toward MORE regulation, but rather a careful, deliberate, consideration of BETTER regulation.  But I disagree with his characterization of the belief that "our current credit crisis was caused by lax regulation generally of financial markets" as "historical revisionism."  Blaming the Republicans for that lax regulation might be historical revisionism, but I do not think there is any doubt that lack of regulation contributed significantly to the current situation.

Here's what another reader who knows much more about monetary policy (and about Roman law's position on fractional reserve banking) than I do has to add to this discussion.  He also raises a subsidiarity concern.

I think you are correct in your assessment that "the market's hunger for speculative instruments (and the profits they were seeming to generate) fueled the push to make unwise loans..." No pun intended here, but what fed the market's hunger?

If we look at money supply figures, we see that there has been a general steepening of the M3 growth curve since the Y2K fear and the 2001 terrorist attacks. While money aggregates have been shunned from the general economic discourse, I think it is a mistake to assume that they do not have a substantial economic effect.

http://www.nowandfutures.com/key_stats.html

(scroll down to "M3 plus credit, longer-term chart").

Without the massive money and credit expansion of the last 10 years, market participants would not have been able to feed their hunger for speculative instruments in the manner they have. Under Fed policy, when interest rates are lowered and money is injected into the system, the banks are the first recipients who then lend out that money throughout the economy. From there, banks in the last 10 or so years have exhibited a herd like mentality moving from tech-internet bubble in the late 90's, to the Enron-energy bubble, to the Housing bubble, ending with the Derivatives bubble. A look at Chase-Manhattan's (now JPM) financial reports over that tenor will illustrate how banks have moved within these bubbles. What we have had lately with Fed policy is a monetary permissiveness which has allowed the banking system to continue in putting off the inevitable banking corrections necessary to clean out the system and let more prudent market participants manage the assets.

Catholic Social Thought needs to look closer at the larger issues surrounding the Anglo-American method of fractional reserve central banking. If somebody has promised in trust to hold a deposit, which can be immediately demanded, are there moral-ethical issues with lending that money out? The Roman law tradition did not allow for lending to occur with a floating demand for principal (callable loans), but it did allow for lending under fixed contracts like in a CD, it seems the policy behind such a banking regime was that it led to greater stability than one of reserves fractional to demand deposits. See Jesus Huerta de Soto, Money, Bank Credit, and Economic Cycles. Also from a subsidiarity standpoint, is national central banking the best way to order banking? What about smaller central banking regimes? What about alternative methods of banking that are currently foreclosed by the US banking system (100% reserve banking)? Such questions, I think, are not being considered today in our economic discourse, but should be.

Responses on Financial Crisis

I have a couple of responses to the reader's comments posted by Rick in response to Russ's and my posts on the financial crisis.

With respect to her first paragraph, I agree that a feeling of stewardship for depositor's funds no longer provides "much of a psychological check on banks."  Indeed, that's precisely my point.  Over the past decades, as depositor's funds became less of an important source of the money that banks used in lending, I think that sense of stewardship has lessened.   I disagree with the reader's argument that there's no distinction between money given to a bank as a federally-insured deposit, and money give to a bank as an uninsured investment.  My first projects out of law school, working in the banking regulatory group of a D.C. law firm in 1986, involved helping work through the regulatory obstacles to securitizing credit card and car loans.    Banks had been doing this with mortgages for decades, and were now trying to work out how to do it for assets with irregular payments and cash flows.  This was just the beginning of doing really (for lack of a more technical term) "fancy" stuff with derivatives, leading to the kinds of instruments that we're now considering essentially insuring now that they've gone south.  I can't prove or quantify the weakening of the sense of stewardship that I'm suggesting as a result of the switch in funding sources for banks, but I do believe there was a real change in how the banking industry (from lawyers, to bankers, to regulators) seemed to perceive the need for and the purpose of government regulation between 1986 and when I left practice in 1995.  And this makes sense, if the business of banking shifted from sort of a joint project of banks and the government to provide a safe place for people's savings that was federally-subsidized in order to support lending, to a speculative enterprise based on risk and reward.  (I'm obviously over-simplifying here, but I think the general point is valid.)

One of the most shocking illustrations of how dramatically the role of federal deposit insurance has changed, I think, is last week's approval by the Fed, on an emergency basis, of Goldman Sachs and Morgan Stanley to become bank holding companies.  It used to be that an enterprise couldn't qualify for what was considered a "privilege" of owning federally-insured banks unless they could prove financial stability to support those operations.  Last week's approvals were granted to keep these firms from failing.

On the reader's second point, while I agree with much of what she says, I think the market's hunger for speculative instruments (and the profits they were seeming to generate) fueled the push to make unwise loans, rather than the other way around.   I received the following comments from my colleague Elizabeth Brown (currently visiting at Indiana University School of Law -- Bloomington)  on this point:

The CRA has been around for 30 years and applies to banks and thrifts.  Most of the sub-prime mortgages were originated by mortgage brokers who preyed on the unsophisticated and the poor in order to earn higher commissions.  The more loans that they originated, the more commissions that they made.  They were not pressured to make these loans by the CRA.  Mortgage brokers are not subject to the CRA.  For a good article explaining in more detail why the CRA is not responsible for this crisis, see The American Prospect, Did Liberals Cause the Sub-Prime Crisis? at http://www.prospect.org/cs/articles?article=did_liberals_cause_the_subprime_crisis

We are in this crisis because of lax regulations on a range of institutions (credit rating agencies, financial conglomerates, mortgage brokers, Fannie Mae, Freddie Mac, etc.) and new, unregulated hybrid financial products that have existed only for the past decade.  There is no magic bullet that will solve the problems that led to this crisis.  It will require a new regulatory structure to better handle systemic risks and tighter regulations in a number of areas.
Elizabeth has written extensively about the need for more comprehensive regulation of the new finanical conglomerates:  see "E Pluribus Unum -- Out of Many, One:  Why the United States Needs a Single Financial Services Agency" and "A Preliminary Look at Regulatory Structures for Financial Services." 

Tuesday, September 30, 2008

General Thoughts on Catholic Response to Financial Crisis

Russ Powell asks great questions about the "authentically Catholic approach" to the current financial crisis.  I'd love to hear more responses to these questions, too. 

Unfortunately, I don't think the Cathechism or any encyclical gives us a formula for the "proper approach to government intervention" in this crisis.  But there are two general concepts of Catholic Social Thought that I'm not hearing much about in any of the discussion of this mess, through the din of all the finger-pointing and politicking.   

One is "stewardship."  Clearly, one of the reasons for this crisis is a lack of any sense of responsibility for the financial resources that were being entrusted to the institutions generating all of these enormous profits over the past few decades.  In the world of real-old fashioned banks (the ones who were, to a large extent, making the home mortgage loans), some small degree of stewardship was traditionally been imposed by law, through the federal deposit insurance system.  Every institution that takes federally-insured deposits has to pay high regulatory costs in return for the "privilege" of keeping its depositors funds safe with the extra security of federal insurance deposits.  Traditionally, this operated as both a check on the bank's lending activities and, I think, in some measure a psychological check.  In my experience, banks were on some level keenly aware of their responsibilities to depositors -- it was the reason and justification for extensive regulation, regulation that was considered to be worth the cost.  I think that this sense of "stewardship", as attenuated as it was, disappeared, though, with the advent of securitization.  Through securitization, the primary source of funding for banks' lending became Wall Street, the stock market.  I think it's difficult to retain a sense of responsibility for "stewardship" of funding that is coming from a source that's based on speculation and risk-taking.

The other party (or parties) that I think failed to take seriously their responsibility as stewards is Congress.  In 1999, they enacted the Gramm-Leach-Bliley Act, breaking down the barriers between traditional banking, investment banking, and insurance.  I certainly don't know enough about economics to know whether it was that change in the markets that caused this crisis.  (I know that most historians of the Great Depression now refute the "common wisdom" of many years that suggested that it was the intermingling of banking & investment banking that caused that Depression.)  I do know, however, that Gramm-Leach-Bliley was NOT passed by Congress because of reasoned deliberation about what would be good for the economy.  It was passed because the banking world (which is one of, if not the, largest source of campaign contributions for ALL of Congress, regardless of party affiliation) forced its hand -- most dramatically through the acquisition by Citicorp (then a bank holding company) of Travellers Group (an insurance conglomorate).  (Yes, the same Citicorp that is taking advantage of the current crisis to buy Wachovia, with FDIC assistance.)  And I also know that that landmark legislation did NOT include any thoughtful measures to structure a regulatory scheme that actually made sense for the conglomerates of banks (regulated largely through federal laws), investment banks (largely unregulated, except through the device of market transparency), and insurance companies (regulated largely through state laws).   And I do believe that the lack of thoughtful regulation facilitated the activities of the market leading to our current crisis.  I attribute this to a lack sense of "stewardship" by Congress, in this case, stewardship over our laws.   Congress back in 1999 simply lacked the will to do the truly difficult work of setting up a responsible regulatory structure to accommodate the changes made by Gramm-Leach-Bliley.  What I'm hearing and seeing about this current debate does not give me any confidence that things have changed much.  Again, we're seeing Congress responding in a rush to deal with a crisis created by market behavior, and we're seeing almost no serious discussion about creating a rational, responsible regulatory structure to accommodate the changes that are being made.

The second concept from Catholic Social Thought that I'm not hearing much about in the current debate is "solidarity."  Specifically (to borrow a phrase I've heard before in the context of environmental stewardship), intergenerational solidarity.  Russ Powell alluded to this already -- we simply cannot ignore the impact of the massive amounts of public debt being considered in the context of this bailout on future generations.  It's more than just an irresponsible putting off of the consequences to some future date to deal with a short-term crisis.  It's a lack of solidarity with those who come after us -- both future generations, and future administrations, for the sake of looking like we're "doing something" dramatic. 

Of course, I have absolutely no idea whether Paulson's right -- that failing to act now would have disastrous consequences.  I do think, though, that acting without taking seriously the responsibilities of stewardship and solidarity cannot serve the "common good" in the long run.

Monday, September 15, 2008

"Marian Cool"

John Allen has some interesting things to say about Pope Benedict's visit to Lourdes.  In a very interesting piece describing the evolution of the Pope's thinking about Marian devotion, Allen concludes:

To sum all this up in a sound-bite: In contrast to both cold skepticism and hot devotion, Benedict XVI embodies what one might call “Marian cool.” Neither cynical nor credulous, he harbors deep feeling for Mary and a keen sense of her theological importance, combined with reserve about the signs and wonders that surround eruptions of new Marian enthusiasm.

Whether “Marian cool” will sweep the Catholic world remains to be seen, but it may well be the most original feature of Benedict’s two and a half days in Lourdes.