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, August 15, 2005

More on Human Endowment Taxation

By Rob Vischer

Villanova law prof James Maule reminds me that something akin to human endowment taxation (the subject of my earlier query) is seen in child support law, specifically the computation of child support contributions:

The purpose is to prevent parents from deliberately reducing income (which is used in the tables from which child support obligations are determined). Of course, the reasons for using "potential income" (weakly defined) in the child support context don't necessarily mean that using "potential income" (however defined) in a revenue collecting process is appropriate.

Although I can't find it on-line, I do remember a case from New York this year in which the judge effectively precluded a divorced dad from leaving law practice to pursue a seminary degree.  I guess I don't have that much of a problem with an earning capacity / human endowment approach when it comes to our pre-existing obligations (I'm not sure what feasible alternative there could be), but assigning a value to every individual for taxation purposes still seems a bit heavy-handed.  Catholic legal theory would, of course, support the idea that "to whom much is given, much is expected," (Luke 12:48) but that's a call to stewardship and self-directed responsibility, not a license to have the state figure out how "gifted" you are, then hand you a bill.

Rob

Friday, August 12, 2005

Hamilton Defends the "Public Good"

By Rob Vischer

Here's a curious piece by Cardozo law prof Marci Hamilton lambasting Senator Rick Santorum for "choosing a religious agenda over the public good."  Among her examples, she cites his support for abstinence-only education, "which is nothing but education in religious values, utterly divorced from social reality."  Whatever one thinks of its effectiveness, since when did a presumption that junior-highers and high-schoolers should not be having sex become "nothing but education in religious values?"  Another example is his co-sponsorship of the Workplace Religious Freedom Act (his co-sponsor, she does not mention, is that pawn of the bishops, John Kerry) "which gives workers the right, in their jobs, to refuse to sell products regarding which they have moral objections."  I don't think the Act is wise policy (for other reasons), but I hardly consider legislative respect for individual conscience to be an example of sacrificing "the public good" in service to a "religious agenda."  More broadly, I'm puzzled by the seemingly clear distinction being drawn between the public good and religious values.

Rob

Thursday, August 11, 2005

Bringing the Church to Heel

By Rob Vischer

Robert Araujo's misgivings about the legislative effort in Massachusetts to require financial disclosure by all nonprofit organizations, including churches, are underscored by the public hearing held yesterday on the issue.  The Boston archdiocese was widely criticized for not participating in the hearing, which seemed to function (judging by the news report) as a pep rally for efforts to assert greater lay control over the Church.  The sponsoring state senator explained that "[f]inancial transparency can better ensure moral transparency."  Little comfort is offered by Governor Romney, who has suggested that such legislation can allow the public "to make sure the money is being properly spent." 

Massachusetts legislators should try to remember that churches -- even the Catholic Church -- are at their most vital when they are given the space to carve out an identity distinct from the majority-driven norms reflected in the government.  I'm not sure why the "moral transparency" of a church or the propriety of its spending are proper objects of legislative concern.  If a church is going to function as a mediating structure, increased accountability to its members must come from within, not from the top-down imposition of norms by the very collective power against which the church is supposedly empowered to stand as a bulwark.  If a church is unresponsive to reform efforts from within, I'd rather members withhold their financial contributions than invoke state power to ensure that they are spent "properly."

Rob

Cheap Hope

By Rob Vischer

Here is a wonderful essay by Harvard law prof William Stuntz.  An excerpt won't do it justice.

Rob

Wednesday, August 10, 2005

Human Endowment Taxation

By Rob Vischer

Michigan law prof David Hasen has an intriguing new article, "The Illiberality of Human Endowment Taxation."  Right now, only the abstract appears to be available:

Recent tax scholarship has embraced the idea of human endowment taxation, or taxation of human capabilities, as an approach to ideal tax theory. Under endowment taxation, individuals are taxed according to their native ability to command resources, rather than according to any actual index of goods or expenditures, such as income, consumption or wealth, that might otherwise be thought relevant to imposing tax burdens. This article argues that endowment taxation is generally incompatible with political theories that might broadly be described as "liberal," whether or not these theories are thought to authorize redistribution. The article also suggests that under a wide array of assumptions, lump-sum taxes such as endowment taxes are not optimally efficient and that, even where they represent the most efficient available alternative, lump-sum taxes generate undesirable costs.

I know nothing about tax law (I've even forgotten anything I learned about it in law school), but endowment taxation seems fairly provocative from the standpoint of Catholic legal theory.  The Church instructs that, "In the redistribution of resources, public spending must observe the principles of solidarity, equality, and making use of talents." (Compend. of Soc. Doctrine 355)  I'm not sure that "making use of talents" means that the state should ascribe a taxable value to those innate talents regardless of an individual's initiative, but I'd welcome the input of someone who has followed this debate in the literature.

(HT: Solum)

Rob

UPDATE: William & Mary tax law prof Eric Chason offers this helpful explanation:

The idea is that everyone is taxed according to their ability to earn income, rather than their actual income. Taxing actual income distorts the decisions one makes about work versus leisure. Knowing that the government takes a cut from the returns on your work efforts makes you less likely to work. Contrast this with a poll tax, where everyone pays the same amount. The poll tax does not distort your work decision, because you keep everything from your work efforts. But most people think that a poll tax is intolerable because of the burdens it would place on the poor.  An endowment tax is essentially a progressive poll tax. The amount you pay is calibrated to the amount you could earn--whether or not you could actually earn it.

"Extraordinary Rendition"

By Susan Stabile

Re Rob's reference to the Lederman post on "extraordinary rendition," see the article in this morning's NY Times linked here regarding the government's defense of its practices.  The article concerns a lawsuit brought by a naturalized Canadian citizen who charged that he was "plucked" from Kennedy airport while on the way home to Canada, and after being held in a Brooklyn detenion center (during which he was deprived of food, sleep and access to either his family, a lawyer or the Cahadian consul), shipped to Syria to be interrogated under torture.  This appears to be the first suit challenging the practice of transfering suspects to countries known for torture.  I'll let readers  follow the link to read the government's position; it is not uplifting.

Susan

Tuesday, August 9, 2005

Pharmacists, Conscience, and Civil Society

By Rob Vischer

Thanks to Rick for drawing my attention to a post by Elizabeth Anderson over at Left2Right regarding the controversy over pharmacists and conscience.  It's a very thoughtful analysis, but Anderson leaves scant space for the operation of subsidiarity.  Here's an excerpt:

Imagine that you lived in a place where you had to ask someone else's permission to leave your property.  Even if the other person always gave permission, you wouldn't be free.  You'd be under conditional house arrest, with the other person your discretionary jailor.  The case wouldn't be much better if you had a choice of 5 people to ask, any one of whose permission would let you leave your property.  Then those 5 would be your joint jailors.  You'd have somewhat wider opportunities, assuming their decisions were not coordinated.  But you'd still be dominated by them. . . .

[T]he "tender religious conscience" against filling birth control prescriptions is inseparable from a religious world-view that regards women as properly confined to a mothering caste (with their sexuality limited to reproductive purposes).  The Christian pharmacist who refuses to fill birth control prescriptions differs only in degree and not in kind from the Talibanesque taxi driver who refuses to serve women who are unaccompanied by their male relatives.

The potential availability of competing pharmacists who assert no conscience exemptions is no argument in favor of allowing them in some cases.  For there may be no such providers. . . . Even if there are some in the same county, this is like the person who has five independent jailors rather than just one.  If women in many towns and counties are not to be turned into a subordinate, unfree caste, limited to the opportunity package [motherhood, celibacy] by the dominion of others, then pharmacists must not have a right to deny them access to birth control.  The freedom to use one's pharmacy as an instrument for promoting one's religious beliefs is nothing compared to the freedom of escape from subordinate caste status-- and even to the freedom of being branded with the badges of subordinate caste status (in the case where women have other easily accessible pharmacies willing to serve them, but still may be snubbed by this or that pharmacist).

Let's put to the side Anderson's assertion that objections to the morning-after pill necessarily flow from a desire to confine women to "a mothering caste."  I'm more interested in the status of civil society under her analysis.  Essentially, she seems to be granting a trump to consumers when it comes to the provision of morally objectionable but publicly vital goods and services.  I agree that calls for conscience clauses by pharmacists are misplaced and are themselves harmful to civil society, as the elevation of individual rights erodes the space in which unique associational identities can be fostered -- i.e., the pharmacist can trump the pharmacy.  I also agree that, when a certain pharmaceutical is not available within a reasonably defined geographic area, the state is justified in mandating that drug's provision as a condition of licensing.  But in most areas, this will not be an issue.  Where there is no discernible access problem, the state should step back and let the market operate.

The common inclination when we're dealing with unresolvable moral controversies is to invoke state power to end the debate on behalf of one side or the other.  This tendency leads to alienation and isolation, short-circuiting any opportunity for contesting values to co-exist in the marketplace and reducing fundamental debates regarding the good to simplistic terms of individual rights and state action.  In allowing all sides in the pharmacist controversy to live out their convictions in the market, the state can maintain a forum in which pharmacies craft their own particular conscience policies in response to the demands of employees and customers.  Instead of making all pharmacies morally fungible via state edict, the market allows individual consciences to thrive through overlapping webs of morality-driven associations and allegiances, even while diametrically opposed consciences similarly thrive.  The zero-sum contest over the reins of state power is replaced by a reinvigorated civil society, allowing the commercial sphere to reflect our moral pluralism. 

To be clear, I support the Civil Rights Act of 1964, which was a prudent means to securing full participation by racial minorities in the economic life of society.  A similar argument could be made by women in the pharmacy context, but only if they face no reasonable means of securing birth control in their community; if that is the case, then I favor state action.  But actions like those by Illinois Governor Blagojevich, in which he ordered all pharmacies serving the public to carry all contraceptives based on two reported customer denials in downtown Chicago (where the customers could have filled their prescriptions by walking several hundred feet) unnecessarily shuts down any space for divergent practices on a hotly contested moral issue.  It is one thing for a pharmacy to wither in the marketplace due to its unpopular stance on the provision of contraceptives; it's quite another for the state to foreclose the pharmacy from that stance in the first place.

Rob

Monday, August 8, 2005

Why Catholicism is Different

By Rob Vischer

Forgive my tardiness as I've been milking the last ten days of vacation out of summer, but I wanted to offer a response to Rick's post last week in which he wonders why folks like Christopher Hitchens single out Catholicism as a threat to a judge's impartiality. Rick asks "why the possibility of exclusion from the Catholic Church and its sacraments is treated so differently by Hitchens, in terms of its possible corrupting influence on a judge's deliberations, than would be the possibility of exclusion from any other association, institution, or relationship?"

There are two reasons, in my view, why Catholicism is seen as more threatening to impartial judging than other associational ties, even religious ties. Take Catholicism versus Protestantism. First, the vast majority of Protestant denominations are congregational with nothing approaching the hierarchical authority found in the Catholic Church (for better or worse).  Many years ago one of my family members engaged in some outrageously un-Christian behavior and was removed from the membership of our evangelical congregation (by a majority vote of members). This act had no impact on his ability to attend or participate in worship at the church, nor did it hinder his ability to join another church -- even another church within the same denomination. Bill Clinton's public positions or private conduct could get him kicked out of his local congregation, but there's no mechanism (as far as I know) by which the Southern Baptist Convention could have him excluded from all member churches. In other words, the threat of exclusion is much broader for Catholics than for Protestants.

Second, for Protestants, exclusion from the church has little or no impact on their salvation. There is nothing akin to the Catechism's statement that "they could not be saved who, knowing that the Catholic Church was founded as necessary by God through Christ, would refuse either to enter it or remain in it." For Protestants, belief on the Lord Jesus Christ (John 3:16) is the whole ball of wax; whether or not an individual is in or out of a church's fellowship is important, but has no eternal ramifications. In other words, the threat of exclusion is much more serious for Catholics than for Protestants. (And obviously, of a wholly different nature than is an exclusion from the Boy Scouts, the 4-H Club, etc.)

To be clear, I agree with Rick and others that Hitchens is wrong, chiefly because it's difficult even to imagine situations where the Church would consider excluding a judge for fulfilling her public duties. But I don't think we can equate Catholicism with other associational ties in terms of the pressure they could bring to bear on an individual member.

Rob

Friday, July 29, 2005

Civil Disobedience and Judicial Power

By Rob Vischer

Immigration lawyer Chuck Roth offers the following reflections on my earlier query regarding civil disobedience and the Catholic judge:

In our legal system, it is the role of judges to say "what the law is." In our judicial system, to rule that the law says X when in fact you know that it says Y is, in effect, a lie.  One cannot do evil that good should come of it.  Lies are immoral.  So at the level of legal analysis, you cannot willfully misstate the law, even to achieve a good end like saving a life.

I think the Judge Sprizzo example is inapposite.  Juries find not only facts, but (implicitly) decide that their sense of justice does not preclude conviction.  I see jury nullification as a crucial part of the jury's raison d'etre, as a democratic check on the political branches.  Thus, I don't view jury nullification as a lie.  Because Judge Sprizzo was acting as judge and jury, he assumed the powers of jury nullification as well.  As such, it was no lie for him to decline to convict, precisely because he was acting as jury, not judge.  So I support what he did; but that tells us about the role of a jury, not the role of a judge.

Here is an example of civil disobedience for a Judge.  A Court of Appeals judge is on a three-judge panel, and dissents, admitting that settled law calls for the conclusion reached by the majority, but refusing to consent to it.  This would not be a lie, because it acknowledges the reigning law.  But it would be a conscientious refusal to conform to that law. 

But what if two judges on the panel felt morally obligated to dissent?  This is the same circumstance as a District Court judge, on remand from the Court of Appeals, required by law to order, e.g., the destruction of fertilized eggs.  It seems to me that power changes the equation.  It is part of the nature of civil disobedience that one must be in a position of submitting to power, not wielding it.  In being civilly disobedient, one respects the law, recognizes its authority, and submits to punishment.  But where disobedience becomes so powerful as to overmaster the law, it is not susceptible to punishment, and thus cannot recognize the law's authority by submitting to legal penalties.

If it is correct to conclude that civil disobedience requires a situation of relative powerlessness, it follows that Judges can only be civilly disobedient when in the dissent.
 
All that being said, civil disobedience is not the only option in the face of injustice endorsed by authority.  As your citation of Garrison suggests, revolution is another alternative.  And I would see the act of a judge wielding power in disobedience to higher appellate authority (either as a Dist Ct judge, or in a majority) as revolution.  There may be circumstances - e.g., Bonhoeffer and Hitler - where one is morally permitted, perhaps even obligated, to rebel.  But in starting a revolution, as with any just war, one would have to carefully and prudently consider the likely effects as well as the causus belli.  So the question becomes: is the legal system so far gone as to require revolution?  Fr. Neuhaus seems (seemed?) to think so.  I am dubious, as, it sounds, are you.

Wednesday, July 27, 2005

Tamanaha on Civil Disobedience by Judges

By Rob Vischer

As a follow-up to my earlier post, my friend and former colleague Brian Tamanaha, one of today's leading voices on the rule of law, agrees that civil disobedience by judges is an option, but probably not the best one:

I see no conceptual reason why judges cannot commit civil disobedience. They can be conscientious objectors to the law like anyone else, though they must be prepared to be fired as a result, because they have taken an oath to abide by the law which they will have violated.

As you indicate, it perhaps makes a stronger point than the alternatives. I would only add that, with respect to integrity of conduct and belief, it seems to me that the resignation alternative has more to commend it. By resigning they do not violate their oath to law and they do not commit the moral wrong. By civil disobedience, they act consistent with the moral view but violate their oath to the law. You should remember that the party before the court has legal rights as well, which the judge will be knowingly trampling (however well meaning), and the idea that the appellate court can step in is not a complete solution, especially when time is of the essence.

Perhaps you also underestimate the signal given by resignation. Quitting one’s job is a protest to the system that exacts a high personal cost; in contrast, civil disobedience imposes the immediate cost on the party before the court, and will likely result in a sanction to the judge that is less than being out of a job. Which of these two positions raises a more dramatic protest as a matter of personal conscience?

Rob

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