The Extraordinary Synod on the Family that just concluded has prompted me to reread Judge John T. Noonan's wonderful book A Church That Can and Cannot Change. Here's the gist, as summarized by Amazon:
Using concrete examples, John T. Noonan, Jr., demonstrates that the moral teaching of the Catholic Church has changed and continues to change without abandoning its foundational commitment to the Gospel of Jesus Christ.
Specifically, Noonan looks at the profound changes that have occurred over the centuries in Catholic moral teaching on freedom of conscience, lending for a profit, and slavery. He also offers a close examination of the change now in progress concerning divorce.
In these changes, Noonan perceives the Catholic Church to be a vigorous, living organism, answering new questions with new answers, and enlarging the capacity of believers to learn through experience and empathy what love demands. He contends that the impetus to change comes from a variety of sources, including prayer, meditation on Scripture, new theological insights and analyses, the evolution of human institutions, and the examples and instruction given by persons of good will.
Noonan also states that the Church cannot change its commitment to preaching the Gospel of Jesus Christ. Given this absolute, how can the moral teaching of the Church change? Noonan finds this question unanswerable when asked in the abstract. But in the context of the specific facts and events he discusses in this book, an answer becomes clear. As our capacity to grasp the Gospel grows, so too, our understanding and compassion, which give life to the Gospel commandments of love, grow.
Noonan is a brilliant judge and lawyer and deploys his considerable skills as an advocate to great effect here. But he's not neutral. He has an axe to grind and does so at length. So while I recommend it very highly, I also recommend reading some of his critics. Avery Cardinal Dulle's review at First Things would be a good place to start. After reviewing each of the doctrines Noonan claims have evolved, Dulles concludes that:
Noonan has written a stimulating book dealing with questions of great importance. He shows himself to be knowledgeable about the history of the four problems here treated. He brings to bear many of the skills of a historian, a civil lawyer, a canon lawyer, and to some degree those of a theologian. Anyone who wishes to question Noonan’s conclusions must at least take account of the facts he has unearthed. He renders no small service in presenting the most powerful objections against continuity that can be raised.
The reader should be warned, however, that Noonan manipulates the evidence to make it seem to favor his own preconceived conclusions. For some reason, he is intent on finding discontinuity” but he fails to establish that the Church has reversed her teaching in any of the four areas he examines.
Arthur Hippler's review would also reward study.
Lastly, one might ponder Cardinal Dolan's recent observation that:
A synod by its nature can hardly change the Church’s teaching. We Catholics pledge allegiance to what is called a “revealed religion” (so do Jews, other Christians, and Moslems). That simply means that we believe that God has told us (“revealed”) certain things about Himself and ourselves through the Bible, through our own nature, especially through His Son, all celebrated and taught by His Church. ...
Anyone who thought this synod could change that has not read Catholicism for Dummies. The Church does not change God’s revelation, but attempts to change us so we can live it.
Does Church teaching evolve? Adapt? It's an important and fascinating debate. Noonan and his critics provide plenty of food for thought.
I like Temple law prof Tom Lin's work a lot. He's an imaginative and creative scholar. So I read with great interest his new essay National Pastime(s) (September 29, 2014). Boston College Law Review, Vol. 55, No. 1197, 2014. Available at SSRN: http://ssrn.com/abstract=2502950. Here's the abstract:
In his new book, Baseball as a Road to God, New York University President and Professor of Law John Sexton submits that baseball can serve as a vehicle for living a more conscious life that elevates the human experience for lawyers and non-lawyers. This Essay examines the credibility of the book’s thesis in a world where human intelligence, human deliberation, and human action is being replaced by artificial intelligence, mathematical models, and mechanical automation. It uses the preeminent national pastime of baseball, and the less eminent pastimes of law and finance as case studies for the book’s thesis. It concludes that a more conscious and meaningful life is much harder to foster, but also much more important to cultivate in light of modern advances. This Essay ultimately offers a different narrative for lawyers and non-lawyers to think anew about modern law and society in light of ongoing changes in baseball, law, finance, and beyond.
I'm not a fan of the writing style Lin uses in this essay. Consider for example, these phrases:
You can prove you're smart without being impenetrable. It's one reason I have always preferred Ronald Coase--who wrote with what one critic calls "the beautiful simple prose of the accomplished English essayist--to Oliver Williamson, whose writing style is jargon-filled and difficult to penetrate. In too many places, Lin's essay is closer to Williamson than Coase in style.
Having said that, there are some very interesting insights here. The treatment of parallels--but, more important, differences--between how technology and quantitative analytical methods have influenced baseball, finance, and law is very well done. And the conclusion he draws from them makes sense (albeit that some of us may need to read it with a dictionary in hand):
As science and technology reduce more of our lives into bits and bytes of data and code, the ineffable and irreducible components of the human experience have been made much harder to sustain, but also much more important to living a meaningful, spiritual, and balanced life for lawyers and non-lawyers.
Rather than surrender our doubts, our curiosities, and our humanity in whole or in part, we should leverage modern conveniences in ways that permit us to rededicate more of ourselves to experiencing the timeless, ineffable joys and wonders of learning and living.
In sum, recommended. But I also recommend some books likely to help a searcher find God (or, at least, the God in whom I believe).
Larry Cunningham has posted an excerpt from his new book Berkshire Beyond Buffett: The Enduring Value of Values:
The following is an excerpt from Chapter 8, Autonomy, from Berkshire Beyond Buffett: The Enduring Value of Values the full text of the chapter, which considers the case for Berkshire’s distinctive trust-based model of corporate governance, can be downloaded free from SSRN here.
Or you could just buy the book and support this blog at the same time:
The agency chapter of the Business Associations casebook I co-author with Bill Klein and Mark Ramseyer relies heavily on cases involving franchise relationships. Is the franchisee an agent of the franchisor? If the franchisee a servant or independent contractor of the franchisor? And so on.
The franchise cases can be problematic, because franchising is such a unique form of business relationship. As of this morning, however, I can't help wondering if the NLRB ruling that McDonald's and its franchisees can be treated as joint employers will affect the way we teach these cases?
McDonald's Corp. could be treated as a joint employer with its franchisees in labor complaints, according to a National Labor Relations Board legal determination that could have far-reaching implications for how restaurant companies deal with their workers.
The decision by the NLRB's general counsel, announced on Tuesday, came in response to complaints alleging that McDonald's and its franchisees violated the rights of employees involved in protests against the company.
McDonald's vowed to fight the decision, which business and labor groups both said could set a precedent for restaurants and retailers that rely on franchising. ...
Allowing companies to be treated as joint employers with their franchisees could crimp their ability to claim that they aren't responsible for the labor actions of those franchise partners, making companies like McDonald's more vulnerable to campaigns by labor groups for higher wages and improved conditions for restaurant and retail workers.
"This legal opinion would upend years of federal and state legal precedent and threaten the sanctity of hundreds of thousands of contracts between franchisees and franchisors," said Steve Caldeira, chief executive of the International Franchise Association, who called the decision "wrong and unjustified."
At the moment, the decision probably doesn't require Business Organization teachers to do anything. It may not hold up to court challenge. If it does hold up, it will initially be just a factor in NLRB cases. But might it not bleed over into employment law, especially employment discrimination? And might it eventually bleed into agency law?
Few people have done a better job of chronicling Warren Buffett's illustrious career than Law Professor Lawrence Cunningham. Larry's forthcoming book Berkshire Beyond Buffett: The Enduring Value of Values tackles a critical question; namely, what happens after Warren goes to his eternal home. Cunningham argues that Berkshire Hathaway can not just survive but even thrive once Warren is off the scene:
In a comprehensive portrait of the distinct corporate culture that unites and sustains Berkshire's fifty direct subsidiaries, Lawrence A. Cunningham unearths the traits that assure the conglomerate's perpetual prosperity. Riveting stories recount each subsidiary's origins, triumphs, and journey to Berkshire and reveal the strategies managers use to generate economic value from intangible values, such as thrift, integrity, entrepreneurship, autonomy, and a sense of permanence.
I've read all of Larry's other Buffett books and have found each to be highly entertaining and informative. So I confidently recommend this one sight unseen.
Update: There is an interesting interview of Cunningham by Joan Heminway over at Business Law Prof Blawg. Highlight:
Q: Care to give us a thumbnail sketch of the book’s outline?
A: Sure. The opening chapters cover Berkshire’s origins and foundations, with surprises even for those most familiar with this terrain, including rich connections between Berkshire’s early acquisitions and the conglomerate today. While Berkshire appears vast, diverse, and sprawling, this synthesis of corporate culture shows instead a close-knit organization linked by discrete values.
The middle chapters, the heart of the book, take a series of deep dives into fifty Berkshire subsidiaries to illuminate each of the traits and how they give Berkshire its identity and destiny. I was delighted that, when circulating the manuscript for comment among Berkshire devotees, even the most avid readers found new facts, fresh insights, and a whole new way of thinking not only about Berkshire but about Buffett.
The closing chapters reflect on what Berkshire’s corporate culture means for Buffett’s legacy. They explore the elaborate succession plan at Berkshire, which most people misunderstand, and identify challenges Berkshire will face. I also draw specific lessons for investors, managers, and entrepreneurs who can benefit from Berkshire’s distinctive approach—lessons that business lawyers and policymakers will want to learn as well.
As regular readers know, I have always been fascinated by military history. The First World War has always been of special interest: Such an amazing and tragic holocaust that was so unnecessary. The paradigmatic march of folly. Here are some books I've found especially valuable to understanding this tragedy:
I am huge fan of Charles Stross' Laundry Files SF series (well, in fairness, given my physique I'm a huge fan of anything of which I'm a fan, but let's not go there). Only July 1, The Rhesus Chart (Laundry Files), the latest installment will be published. I've already pre-ordered my copy. Given the very positive starred review it just got from Kirkus Reviews, it looks like you should too:
Laundry regulars by now will be familiar with Stross' trademark sardonic, provocative, disturbing, allusion-filled narrative. And, here, with a structure strongly reminiscent of Len Deighton's early spy novels, the tone grows markedly grimmer, with several significant casualties and tragedies, perhaps in preparation for Angleton's feared CASE NIGHTMARE GREEN.
Stross at the top of his game--which is to say, few do it better. Pounce!
I've just started reading Wharton professor Eric Orts' new book, Business Persons: A Legal Theory of the Firm, which Amazon describes as follows:
Business firms are ubiquitous in modern society, but an appreciation of how they are formed and for what purposes requires an understanding of their legal foundations. Intended for general readers, as well as students and policy markets, Business Persons provides a scholarly and yet accessible introduction to the legal framework of modern business enterprises.
It explains the legal ideas that allow for the recognition of firms as organizational "persons" having social rights and responsibilities. Other foundational ideas include an overview of how the laws of agency, contracts, and property fit together to compose the organized "persons" known as business firms. The institutional legal theory of the firm developed embraces both a "bottom-up" perspective of business participants and a "top-down" rule-setting perspective of government.
Other chapters in the book discuss the features of limited liability and the boundaries of firms. A typology of different kinds of firms is presented ranging from entrepreneurial one-person start-ups to complex corporations, as well as new forms of hybrid social enterprises. Practical applications include contribution to the debates surrounding corporate executive compensation and political free-speech rights of corporations.
Thus far it is shaping up as an interesting and important work. (One minor complaint: the typeface is pretty small for us old guys.)
Orts' core premise is especially interesting in light of the recent discussion I started about "law and [fill in the blank]." Orts asserts that economic theories of the firm are inherently incomplete, in large part because "law is needed to explain the social origins and foundations of firms." (x) The strong claim is that "Without law, business firms cannot exist." (x)
I'll be interested to see how that claim plays out, especially because I've always agreed with Larry Ribstein's argument in The Important Role of Non-Organization Law, 40 Wake Forest L. Rev. 751 (2005) that:
In a federal system with an internal affairs choice of law rule, firms can avoid organization law simply by choosing their state of organization. It follows that, in such a system, organization law has less influence in shaping firms than underlying economic constraints on organizational form.
This observation is consistent with Bernard Black's thesis that even apparently mandatory business organization rules are “trivial” because parties would have adopted them anyway, they can be avoided by advanced planning, the political forces that shape corporate law can change them, or the rules cover rare or otherwise unimportant matters.
In other words, while it is true that you (probably*) need law to create complex firms, it's not clear that organization law is non-trivial once you get past the basic question of creation.
*: Imagine a world in which there is contract law but no corporate or partnership law. In theory, parties wishing to form a firm could simply draft a contract to govern their interactions. In practice, of course, the twin problems of uncertainty and complexity mean that any such contract inevitably would be costly to negotiate and even so would doubtless remain incomplete. Corporate and partnership law step forward to provide the parties with a standard form contract, which reduces their bargaining costs, while still allowing (to varying degrees) individual specification by agreement. Does this make organization law "essential" or merely very useful? Your answer to that question may ultimately depend on whether you think asset partitioning (especially affirmative asset partitioning) could be effected via contract. I concur with Larry that "state business entity laws [are necessary to] give firms protection [i.e., affirmative asset partitioning] they cannot obtain under other law."
Updates will follow as I progess through the text.
In his homily today my parish priest, Fr. Tom Welbers, gave a fascinating discourse on the history of the Eucharist and the doctrine of transubstantiation. Like Father Tom, I enjoy reading about church history and thought I'd pass along some recommendations of books that I found especially useful and informative:
I'm giving a talk at the National Business Law Scholars Conference today, The CEO Pay “Problem”: It’s All Marjorie Margolies’ Fault, which reviews Michael Dorff's new book on executive compensation.
Here's the text:
The CEO Pay “Problem”: It’s All Marjorie Margolies’ Fault
It is rare that an issue as complex as executive compensation can be traced to a specific decision by a single person at a precise moment in time, but I nevertheless want to offer up a candidate.
The date was May 27, 1993. The place was the floor of the House of Representatives in Washington D.C. The person was Marjorie Margolies.
Newly elected President Bill Clinton’s first budget was in deep trouble. Every Republican in the House had voted against it, as had a number of Blue Dog Democrats (remember them?).
Congresswoman Margolies had opposed the bill, but changed her mind at the last minute after extended personal lobbying by President Clinton himself.
As Margolies walked down the aisle of the House to cast what became the deciding vote on the 1993 budget, numerous Republican Congressmen jeered "Goodbye Marjorie!,” waving handkerchiefs as though saying farewell to a ship sailing out to sea.
It is a moment that does not appear in Michael Dorff’s estimable new book Indispensable and Other Myths (2014), but probably should have.
Foundation Press announced that the 2014 supplement to our Business Associations casebook is now available. The Fall 2014 supplement contains Chancellor Strine’s decision in In re MFW Shareholders Litigation. After the supplement went to the press, the Delaware Supreme Court affirmed that decision in Kahn v. M & F Worldwide Corp. We have prepared an edited version of the Supreme Court opinion and accompanying teacher’s notes, which Foundation will be sending to adopters.
These will piss some people off, but that was the intent, so no apologies:
It would be really nice if @amazon made it easier to separate real books from real publishers from the self-published e-dreck slush pile.— Stephen Bainbridge (@ProfBainbridge) May 27, 2014
It also would be really nice if @amazon separated the paranormal romance dreck from real science fiction and fantasy.— Stephen Bainbridge (@ProfBainbridge) May 27, 2014