I am saddened to learn that Michael Novak has passed away. The American Enterprise Institute, where he was a resident scholar for many years, reports that:
Michael was an AEI scholar for three decades until his retirement in 2010, and remained a close friend of the Institute.
Michael arrived at AEI in 1978. ... And once here, he built a hugely distinguished career as our George Frederick Jewett Scholar in Religion, Philosophy, and Public Policy.
The Spirit of Democratic Capitalism (1982), likely Michael’s most important book, advanced a bold and important thesis: America’s system of democratic capitalism represents a fusion of our political, economic, and moral-cultural systems. No facet can exist apart from the others. This thread ran through Michael’s whole career, including his most recent book, a co-authored work entitled Social JusticeIsn’t What You Think It Is (2015).
Michael Novak loved the Catholic Church and the United States passionately. And with his death at 83, both Church and nation have lost one of their most imaginative and accomplished sons: a groundbreaking theorist in philosophy, social ethics, religious studies, ethnic studies, and economics; a brilliant teacher; a winsome journalist and apologist; a great defender of freedom, as both ambassador and polemicist; a man of striking energy and creativity, some of whose books will be read for a very long time to come, and in multiple languages.
Over a long life Michael Novak traveled from writing speeches for George McGovern to serving as Ronald Reagan’s ambassador to the U.N. Commission on Human Rights, reflecting an intellectual journey from socialism to capitalism. He died Friday at age 83, but in many ways he remained the boy forged in Johnstown, Pennsylvania: a working-class town of steel mills, coal mines and immigrant Slovak families trying to find their way in this new land called America.
Raised as a Roman Catholic, Novak believed as a young man that socialism was the ideal economic arrangement. But he began to notice a flaw: While socialism sounded good in theory, in practice it didn’t work—and non-elites fared the worst.
Capitalism had little high-minded theory, but in practice it literally provided the goods. If ordinary folks did so much better under capitalism, maybe the caricatures—e.g., that it is all based on greed—were wrong. Maybe free markets had their own virtues and were defensible, and even superior to other economic systems on moral grounds.
From this recognition sprang his most important work, “The Spirit of Democratic Capitalism,” which changed America’s public debate when it was published in 1982. “Democratic capitalism,” he wrote, is “neither the Kingdom of God nor without sin. Yet all other known systems of political economy are worse. Such hope as we have for alleviating poverty and for removing oppressive tyranny—perhaps our last, best hope—lies in this much despised system.”
I only had the privilege of meeting Novak on one occasion, but he had a huge impact on my life. It was reading his work on Catholic social thought as it relates to the corporation that provided the normative foundation for my own work but also provided the impetus and interest in Catholicism that eventually led to my conversion. Indeed, if one had to single out one person who pushed me across the Tiber, it was Novak.
I'll be posting more later about the conference about Delaware corporate law we had here at UCLA this weekend, but as a matter of personal privilege I wanted to note that numerous speakers referred to the failure of North Dakota's effort to attract incorporations away from Delaware.
I'd like to point out that I predicted precisely that outcome:
In this short essay for a forthcoming symposium, I comment on the North Dakota Publicly Traded Corporations Act. North Dakota hopes that the Act will empower it to compete with Delaware in the market for corporate charters. In my view, North Dakota is doomed to failure. If state chartering competition is a race to the bottom, managers will prefer Delaware to North Dakota because the former facilitates the extraction of private rents. If state competition is a race to the top, investors will prefer the director primacy approach taken by Delaware to the shareholder primacy one adopted by North Dakota. Either way, North Dakota loses.
Bainbridge, Stephen M., Why the North Dakota Publicly Traded Corporations Act Will Fail (March, 18 2009). UCLA School of Law, Law-Econ Research Paper No. 09-07. Available at SSRN: https://ssrn.com/abstract=1364402 or http://dx.doi.org/10.2139/ssrn.1364402
To quote the great Will Sonnett, no brag, just fact.
As previously noted, I'm enrolled in Notre Dame's STEP program and currently taking the Core Course: Introduction to the Catholic Faith. This week's class focused on the Liturgy. This week's assignment question is:
What is meant by the term, "Real Presence," with respect to the Eucharist?
As always I am limited to the stated maximum of 200 words.
The doctrine of the Real Presence asserts that in the Eucharist, while the bread and wine appear to be bread and wine, Jesus is literally and wholly present—body and blood, soul and divinity—in them. This is a stumbling block for many non-Catholics, who look at the bread and wine and see a rather tasteless cracker and a (usually) bad tasting glass of wine.
But Jesus himself (Luke 22) declared that “This is my body, which will be given for you; do this in memory of me.” And, again, “This cup is the new covenant in my blood, which will be shed for you."
That Jesus was not merely speaking of the Last Supper as a unique event is confirmed in 1 Corinthians 11, where Paul wrote: "Therefore whoever eats the bread or drinks the cup of the Lord unworthily will have to answer for the body and blood of the Lord."
If Jesus were not truly present in the bread and wine, why should it matter whether we are free of grave sin when we partake of it? It would be a mere symbol. But because it is not just a symbol, but rather the literal body and blood of Christ, those who are unworthy take him into themselves at grave risk.
Dolan is unquestionably what most people would regard as a “conservative.” His closest friends and advisers are conservatives, he’s by-the-book when it comes to faith and morals, and he’s unabashedly proud of being a “John Paul II bishop.”
In other words, Dolan has strong personal views which some would see as fairly partisan.
However, another defining quality of Dolan is a relentless determination to keep lines of communication open, never to demonize or alienate anyone, and to demonstrate that one can have strong convictions without forever going to war against people who don’t share them. ...
Dolan suggests another America, one in which people who disagree can still be friends, still talk to one another, still recognize one another’s fundamental decency, and where disputes don’t have to end in shoving matches and handcuffs.
A friend on FB posted an interesting hypo. My version: Gun to your head; forced to choose: would you prefer to be ruled by a rich man who uses his wealth to gain great power or a politician who uses his power to gain great wealth? No fighting the hypo. Crassus or Caesar, I suppose would be an historical example.
This Loire Valley Cabernet Franc is a balanced, light-bodied red wine that lacks the depth and richness of a truly great wine but makes a yummy match for a casual bistro-style meal. (In this case, Gordon Ramsay's steak sandwich.)
Deep dark ruby. No sediment thrown to speak of.
Strong nose of blackberry, blueberry, and spices. On the palate, there are modest and soft tannins. Blackberry and blueberry again with a streak of minerals. Not a wine for the cellar but at just $15 per bottle, it's a great choice for near term drinking.
This blend of 88% Zinfandel, 8% Petite Sarah, and 4% Carignane from an old vines vineyard in Sonoma made a nice match for stir-fry flank steak with carrots and snow peas.</a>This blend of 88% Zinfandel, 8% Petite Sarah, and 4% Carignane from an old vines vineyard in Sonoma made a nice match for stir-fry flank steak with carrots and snow peas.
Deep purple. Almost no sediment. Dark fruit and warm spices on the nose. Well balanced and medium bodied. Drinkable now, but might improve with a couple of years of bottle age.
This year the Range 30 West red wine is 60% Merlot and 40% Cabernet Franc. Despite being just 4 years and a couple of months old, it had thrown a ton of sediment. I had not decanted it, but strongly recommend doing so unless you want the last glass to be sludge!
The bouquet suggests cherries, dried Italian herbs, and cassis. The palate follows the nose, suggesting rich red and black fruit with a dash of spice. Nice food wine.
At the height of the drought I never thought I'd say this, but I'm finally getting tired of the rain.
I am addicted to playing Settlers of Catan on my iPad even though the AI cheats. Don't tell my co-authors or the dean.
My book progresses despite #2.
My office currently smells of wet dog.
I think I've settled on giving up red meat for Lent. This is a major penance, as I firmly believe that beef is always the answer when the question is "what shall we have for dinner." Fortunately, I'm taking the pork producers at their word that it's a white meat, so bacon and sausage are still on the menu.
The Porsche Macan has 90% of the driving fun of a 911 and treble the practicality. That's a win.
Among many reasons I crossed the Tiber back in 2001 was the prevalence of praise music in Protestant churches here in Los Angeles. I had an instinctive reaction against worship services that seemed more like rock concerts (not, of course, that I'm against rock concerts, but there is a time and a place). I was thus struck by this passage from John O'Malley's wonderful history of the Council of Trent, Trent: What Happened at the Council:
Embedded in the decree, however, was a sentence exhorting the bishops to “keep out of their churches the kind of music in which a base and suggestive [lascivum et impurum] element is introduced into the organ playing or singing, and similarly all worldly activities, empty and secular conversation, walking about, noises and cries, so that the house of God may truly be called and be seen to be a house of prayer.”
I'm not saying all Protestant churches are like that, of course, but it was in large part a desire for traditional High Church liturgy that sent me to Rome.
As previously noted, I'm enrolled in Notre Dame's STEP program and currently taking the Core Course: Introduction to the Catholic Faith. This week's class focused on the Church. This week's assignment question is:
Explain the link between the Holy Spirit and the Church.
As always I am limited to the stated maximum of 200 words.
I believe that, prior to Pentecost, the Church was merely inchoate. Acts 1-2 tells us that they were gathered together in the upper room (it just occurred to me to wonder of that was the same room as where they held the last Supper?), but they had not really launched on the tasks set out in the Great Commission. Apparently, it was only when the Holy Spirt came upon them at Pentecost that they began preaching to the public rather than praying amongst themselves.
Today, the Holy Spirit sustains, guides, and empowers the Church. As the Catechism explains (para. 736), "By this power of the Spirit, God's children can bear much fruit. He who has grafted us onto the true vine will make us bear 'the fruit of the Spirit: . . . love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control..'"
We encounter the Holy Spirit in the sacraments. The baptism seals us with the Holy Spirit. In the Eucharist, it is the Holy Spirit who effects the transubstantiation of the bread and wine. The Holy Spirt convinces us of sin and prompts us to seek Reconciliation.
Kellyanne Conway, one of President Trump’s top advisers, may have violated federal ethics rules on Thursday by urging people to buy fashion products marketed by Ivanka Trump, the president’s daughter, legal experts said.
“Go buy Ivanka’s stuff is what I would say,” Ms. Conway, whose title is counselor to the president, said in an interview with Fox News. “I’m going to give a free commercial here: Go buy it today everybody, you can find it online.”
Federal ethics rules state that an employee of the government’s executive branch “shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity.” Legal experts said Ms. Conway appeared to have violated those rules.
As regular readers know, I thought it was infeasible--and undesirable as a matter of policy--to force President Trump to divest his business interests. Instead, I proposed that he erect an ethics wall to separate his and his family's businesses from his political position.
Using the Presidential bully pulpit to advance the interests of his family, however, is hardly in keeping with the kind of separation required.
I am reminded of something I said long long ago apropos of Presidential brothers, with Roger Clinton and Billy Carter in mind, that the Constitution should be amended so that only unmarried orphans with no children are eligible to the office.
An email from the Washington Legal Foundation reports that:
Washington Legal Foundation today asked the U.S. Supreme Court to review (and ultimately overturn) a divided Eighth Circuit ruling that upheld a term of imprisonment for two executives of Quality Egg LLC under the “responsible corporate officer” (RCO) doctrine—a rare instance of strict supervisory liability in the criminal law. In a brief filed in United States v. DeCoster, WLF argues that by depriving the defendants of their liberty based on employee misconduct of which defendants were unaware, the decision below expands the RCO doctrine far beyond what Supreme Court precedent or the Due Process Clause permits.
The case arises from the sentencing appeals of Austin and Peter DeCoster, the former CEO and COO, respectively, of Iowa-based Quality Egg. After a Salmonella outbreak at the company’s facilities in 2010, it voluntarily recalled hundreds of millions of shell eggs. Despite their cooperating fully with the Food and Drug Administration’s (FDA) investigation, the government charged both DeCosters with criminally violating the Food, Drug, and Cosmetic Act (FDCA). They pled guilty to one count each of introducing adulterated foods into interstate commerce, but because they had no knowledge of the statutory violation or the conduct that led to it, they pled guilty based solely on their status as “responsible corporate officers” at the time of the offense.
Urging review, WLF’s brief argues that although the Supreme Court has permitted criminal liability in the absence of mens rea in the narrow category of public welfare offenses, it has done so on the understanding that penalties imposed in such cases will be relatively small and conviction will not gravely damage offenders’ reputations. If the Eighth Circuit’s holding in this case is allowed to stand, WLF contends, it would expand the RCO doctrine far beyond the constitutional bounds the Supreme Court first articulated when adopting it over 70 years ago.
Upon filing its brief, WLF issued the following statement by Senior Litigation Counsel Cory Andrews: “FDA officials give every indication they view the draconian penalties imposed here—including the prison terms—as a model for similar cases. Either they don’t understand the limits of the ‘responsible corporate officer’ doctrine, or else they are deliberately acting contrary to Supreme Court precedent.”
UCLA SJD alum Martin Petrin has the leading article on the RCO doctrine:
The recent oil spill disaster in the Gulf of Mexico and ensuing questions of accountability have brought a controversial legal tool to the forefront, the “responsible corporate officer doctrine.” This doctrine allows courts to hold individuals that exercise control over business policies or activities personally liable for failing to prevent statutory offenses by subordinates, even if they themselves were not aware of any wrongdoing.
For corporate officials, the RCO doctrine is dangerous because of its ability to sidestep the usual requirements that apply to holding corporate agents responsible. Moreover, from their viewpoint, the doctrine is troubling in that it extends statutory duties of legal entities to their “responsible corporate officers” as an additional class of defendants. Examined from a broader perspective, the RCO doctrine may also result in additional costs, contribute to overdeterrence, and undermine the notion of limited liability.
This Article explains how the RCO doctrine runs contrary to established tort, criminal, and corporate law principles and why it represents an unwarranted augmentation of corporate agents’ duties. It then proceeds to explain that current justifications of the doctrine are not convincing and explores the doctrine’s negative effects. Finally, the Article advances the idea of a “cautious approach” to applying the RCO doctrine, arguing that legislatures and courts should reduce the RCO doctrine to rare and clearly delineated instances of statutory liability for intentional or knowing misconduct.
Petrin, Martin, Circumscribing the ‘Prosecutor’s Ticket to Tag the Elite’ – A Critique of the Responsible Corporate Officer Doctrine (2012). Temple Law Review, Vol. 84, No. 2, p. 283, Winter 2012. Available at SSRN: http://ssrn.com/abstract=1808344
The D&O Diary has a post on Judge Neil Gorsuch's view of securities litigation:
On the bench, Judge Gorsuch has written only one opinion in a private securities litigation case. SeeMHC Mutual Conversion Fund, L.P. v. Sandler O’Neill & Partners, L.P., 761 F.3d 1109 (10th Cir. 2014). It is noteworthy that the ruling, on a significant topic in securities litigation, evinces a distinct undercurrent of skepticism toward the expansive application of federal securities laws, and was ultimately embraced by the United States Supreme Court.