ProfessorBainbridge.com

Glendon, Garvey, and others blast Obama contraception "compromise"

I've had the privilege of meeting both Harvard Law Professor and former US Ambassador to the Vatican Mary Ann Glendon and Catholic University of America President John Garvey, both of whom are tremendously smart and accomplished lawyers/academics. Along with  Princeton Professor Robert George, Notre Dame Law Prof. Carter Snead, and EPPC Fellow Yuval Levin, they've sent an open letter to President Obama rejecting the so-called compromise on contraception coverage as "unacceptable":

This so-called “accommodation” changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy.  It is certainly no compromise.  ...

It is no answer to respond that the religious employers are not “paying” for this aspect of the insurance coverage.  For one thing, it is unrealistic to suggest that insurance companies will not pass the costs of these additional services on to the purchasers.  More importantly, abortion-drugs, sterilizations, and contraceptives are a necessary feature of the policy purchased by the religious institution or believing individual.  They will only be made available to those who are insured under such policy, by virtue of the terms of the policy.

It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer.  It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer.  What matters is what services the policy covers.

Go read the whole thing, please.

Once again, Obama proves to be clueless about economics or religious liberty

The Washington Post (of all places) explains why Obama's so-called contraception coverage compromise is all smoke and mirrors:

... on Friday, the White House rolled out a new rule, where insurance companies, rather than faith-based agencies, will offer birth-control coverage directly to these employees and foot the bill.

 “If a charity, hospital or another organization has an objection to the policy going forward, insurance companies will be required to reach out to directly offer contraceptive care free of charge,” one administration official explained.

The first thing I learned in Econ 101 is that there is no such thing as a free lunch. Somebody is going to have to pay for the birth control pills. Back to WaPo:

By one report’s measure, it costs about $21.40 to add birth control, IUDs and other contraceptives to an insurance plan. Those costs may be offset by a reduction in pregnancies. But unless drug manufacturers decide to start handing out free contraceptives, the money to buy them will have to come from somewhere.

Where will it come from, since neither employers nor employees will be paying for these contraceptives? That leaves the insurers, whose revenues come from the premiums that subscribers pay them. It’s difficult to see how insurance companies would avoid using premiums to cover the costs of contraceptives. 

Indeed. As Tom Maguire explains for the simple minded:

If the insurance company can reasonably predict that a certain number of employees will take up the "free" contraceptive coverage, the quoted premium will be adjusted accordingly.

And so the Church will still end up paying for services it belives are immoral.

Predictably, Planned Parenthood is pleased, but still felt it necessary to fire a shot over Obama's port side:

... we will be vigilant in holding the administration and the institutions accountable for a rigorous, fair and consistent implementation of the policy, which does not compromise the essential principles of access to care. The individual rights and liberties of all women and all employees in accessing basic preventive health care is our fundamental concern.

Curious. I don't recall learning anything about a right to health care when I studied Consitutional law. I do, however, seem to recall something about "Congress shall make no law ... prohibiting the free exercise" of religion. What part of "no law" is former law professor Obama unable to understand?

Obama versus the Bishops

If forced to chose between Barack Obama and the Catholic Bishops, I'd be inclined to invoke Henry Kissinger's quip about the Iran-Iraq war; i.e., it's a pity they can't both lose. I'm one of those Catholics who believes with St. John Chrysostom that the road to hell is paved with the skulls of bishops.

In the kerfuffle over contraception, however, I'm squarely with the Bishops. So a couple of great op-eds in today's WSJ caught my eye. First, Daniel Henninger:

The question raised by the Catholic Church's battle with ObamaCare is whether anyone can remain free of a U.S. government determined to do what it wants to do, at whatever cost.

Older Americans have sought for years to drop out of Medicare and contract for their own health insurance. They cannot without forfeiting their Social Security payments. They effectively are locked in. Nor can the poor escape Medicaid, even as the care it gives them degrades. Farmers, ranchers and loggers struggled for years to protect their livelihoods beneath uncompromising interpretations of federal environmental laws. They, too, had to comply. University athletic programs were ground up by the U.S. Education Department's rote, forced gender balancing of every sport offered. ...

The Catholic Church has stumbled into the central battle of the 2012 presidential campaign: What are the limits to Barack Obama's transformative presidency? The Catholic left has just learned one answer: When Mr. Obama says, "Everyone plays by the same set of rules," it means they conform to his rules. What else could it mean?

Likewise, John Cochrane opines that:

When the administration affirmed last month that church-affiliated employers must buy health insurance that covers birth control, the outcry was instant. ... Critics are missing the larger point. Why should the Department of Health and Human Services (HHS) decree that any of us must pay for "insurance" that covers contraceptives? ...

By focusing on an exemption for church-related institutions, critics effectively admit that it is right for the rest of us to be subjected to this sort of mandate. They accept the horribly misnamed Patient Protection and Affordable Care Act, and they resign themselves to chipping away at its edges. No, we should throw it out, and fix the terrible distortions in the health-insurance and health-care markets.

Sure, churches should be exempt. We should all be exempt.

Both are great reads.

Meanwhile, the Obama administration is talking out of both sides of its mouth:

White House press secretary Jay Carney, defending the decision for the third consecutive day, reiterated on Wednesday that the administration would work to address concerns while maintaining that it would continue to require free contraceptive coverage for all women except those covered by a narrow exemption, such as those working directly for churches.  ...

How do you address the concern while refusing to address the source of the concern?

McArdle on the contraception flap

Megan McArdle's got a great post on the flap over the Obama--Catholic Church fight over whether the latter should have to ensure that its employees have coverage for contraception.

A remarkably narrow definition of religion

The current debate over the Obama administration's decision to require Catholic-affiliated social services to provide health insurance for employees that includes coverage for abortions has prompted both liberals and libertarians to take a remarkably narrow definition of what constitutes religion. Kevin Drum opines for example that:

I'm just a big ol' secular lefty, so I guess it's natural that I'd disagree. And I do. I guess I'm tired of religious groups operating secular enterprises (hospitals, schools), hiring people of multiple faiths, serving the general public, taking taxpayer dollars — and then claiming that deeply held religious beliefs should exempt them from public policy. 

Doug Mataconis likewise opines that:

I think Drum is correct here. Religious liberty is an important principle, one that I take very seriously, but it doesn’t mean what Dionne and the Catholic Bishops seems to think it means. Operating a hospital or a school or an adoption agency is not a religious undertaking in the same way that, well, operating a church is, and there’s simply no merit to the argument regulations regarding how you operate an institution that is essentially secular in nature are somehow a violation of religious liberty. More importantly, operating such institutions while taking government money (i.e., Medicare and Medicaid) means accepting at least some regulation about how that money is used. 

I agree that taking taxpayer money presents a problem. If the church could avoid this sort of intrusive government regulation simply by refusing taxpayer money, I'd prefer that the church do so. But a lot of these secular elites would prefer that the church be kicked out of the public square as a whole. Consider, for example, the recent debate over the so-called ministerial exception. Anti-church secularists have been trying for years to subject Church organizations like Mataconis' hospital, school, or adoption agency to the anti-discrimination laws so that the Church could not use adherence to its teachings as basis for hiring and firing employees. Fortunately, the Supreme Court upheld a broad (albeit incoherent) version of the ministerial exception. 

The basic problem is that to the extent secular elites are willing to begrudgingly tolerate religious liberty at all, they have come to define religion in remarkably narrow terms. Consider the distinction Mataconis draws between "a hospital or a school or an adoption agency" and "a church." I accept Mataconis claim that he values religious liberty, and am happy to exempt him from the secular elites who wish the Church ill, but even so the narrow definition of religion he adopts is precisely the technique by which others have sought to erode the religious liberty of the Catholic Church in particular.

The Catholic Church believes--as an article of faith--that both the Church as an institution and its members as individuals have a religious duty to tend to everyone, not just fellow Catholics. Indeed, the whole point of the Parable of the Good Samaritan is that there is a moral obligation to help those in need without regard to who they are. In response to this teaching, Catholics have run social services like hospitals since the earliest days of the Church's history:

Another characteristic of Christian charity was the obligation and practice of hospitality (Romans 12:13; Hebrews 13:2; 1 Peter 4:9; 3 John). The bishop in particular must be "given to hospitality" (1 Timothy 3:2). The Christian, therefore, in going from place to place, was welcomed in the houses of the brethren; but like hospitality was extended to the pagan visitoras well. Clement of Rome praises the Corinthians for their hospitality (Ep. ad. Cor., c. i) and Dionysius of Corinth for the same reason gives credit to the Romans (Eusebius, Church History IV.23). The bishop's house above all others was open to the traveller who not only found food and shelter there but was provided in case of need with the means to continue his journey. In some cases the bishop was also a physician so that medical attention was provided for those of his guests who needed it (Harnack, "Medicinisches aus d. ältestenKirchengesch." in "Texte u. Untersuchungen" VIII, Leipzig, 1892). The sick were also cared for in the valetudinaria of the wealthier Christians who in the spirit of charity extended hospitality to those who could not be accommodated in the bishop's house. There was thus from the earliest times a well organized system of providing for the various forms of suffering; but it was necessarily limited and dependent on private endeavour so long as the Christians were under the ban of a hostile State. Until persecution ceased, an institution of a public character such as our modern hospital was out of the question. it is certain that after the conversion of Constantine, the Christians profited by their larger liberty to provide for the sick by means of hospitals. But various motives and causes have been assigned to explain the development from private care of the sick to the institutional work of the hospital (Uhlhorn, I, 317 sq.). It was not, at any rate, due to a slackening of charity as has been asserted (Moreau-Christophe, "Du problème de la misère", II, 236; III, 527), but rather to the rapid increase in the number of Christians and to the spread of poverty under new economic conditions. To meet these demands, a different kind of organization was required, and this, in conformity with the prevalent tendency to give all work for the common weal an institutional character, led to the organization and founding of hospitals.

To force Catholics to differentiate between "a hospital or a school or an adoption agency" and "a church" is thus to deny us the right to practice our religion as we see fit. 

As Ross Douthat put it:

... it’s precisely the more universal services provided by Catholicism’s institutions that have left them vulnerable to the Obama White House’s current regulatory attack. If they were explicitly sectarian in their community service, they would be eligible for the narrow conscience exemption that the Department of Health and Human Services has afforded to religious bodies. But because they serve non-Catholics as well as Catholics, the government has decided (as Yuval Levin puts it in a fine post today) that they can be “fined for holding views regarding contraception, sterilization, and abortion that are different from the Obama administration’s views.”

In other words, contemporary liberalism offers religious groups a choice. They can try to serve the widest possible population, in which case a liberal administration will set rules that force them to violate their conscience. Or they can serve a narrower one, in which case liberal journalists will sneer at them (and their most generous benefactors) for only caring about their co-religionists.

Hence, as Justice O'Connor put it in her concurrence in McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005):

There is no list of approved and disapproved beliefs appended to the First Amendment-and the Amendment's broad terms (“free exercise,” “establishment,” “religion”) do not admit of such a cramped reading.

The Amendment's broad terms likewise should not admit the cramped and narrow reading of religious belief reflected in the claim that we must differentiate between "a hospital or a school or an adoption agency" and "a church." 

Religious liberty does not equal democratic religions

The Washington Monthly's Political Animal blog has gone from good (Kevin Drum) to bad (Steven Benen) to much worse (Ed Kilgore). Case in point is Kilgore's argument that:

... it should be clear that given the vast opposition of U.S. Catholics to the Church’s teachings on contraception and (to a lesser extent) abortion, the Bishops do not exactly come to the table with clean hands when it comes to its demands for “religious liberty.” 

Huh? Religious liberty means freedom of religion from government. It has never required democratic religions. As such, hierarchical churches (like us Catholics) have the same rights to non-interference by the government as do whatever congregational churches Kilgore has in mind (if any).

"Hauerwasian Christian Legal Theory" by Skeel

A typically insightful essay by David Skeel:

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like.

After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy.

Huge win for religious liberty

The NY Times is reporting that:

In what may be its most significant religious liberty decision in two decades, the Supreme Court on Wednesday for the first time recognized a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.

I exaggerate only slightly to say that it was getting to the point in the lower courts in which a woman would be able to sue the Catholic Church for employment discrimination for barring her from the priesthood. Indeed, at oral argument, the Obama administration's assistant solicitor general told the court that it "should make no distinction between secular or religious employers," which would head in that extreme direction. So this is a big win for religious liberty.

Christian Ethics and Capital Markets

Interesting new paper by Seth Payne argues that:

The financial turmoil of the past several years has caused many to question the integrity, stability, and very purpose of financial systems which, in today’s world, represent a unique blend of primarily capitalism but also aspects of socialism and collectivism as well. A key factor contributing to this sustained period of economic upheaval has been the uncertainty surrounding capital markets – the fuel that powers all modern economies. Capital markets have, in the minds of many, come to represent the embodiment of greed, unrestrained egoism, and exploitation of the vulnerable – conceptions at complete odds with the central values of social justice as set forth in both Christian and Jewish primary sources: caring for the poor, protecting the weak, and the promotion of justice.

In this paper I argue that capital markets, rather than being a means for the powerful to exploit the weak, have in fact become a force for social good in the aggregate. Indeed capital markets are, in fact, a social contract and as such must be governed by a set of normative ethical principles – both self imposed, and imposed by government regulation. I explore the ethical difficulties that have led to the systemic problems and market failures that lead to not only this current financial crisis, but literally all financial crises over the past eight hundred years. Capital markets, left to their own devices and without both self and governmental oversight, quickly become hotbeds of manipulation and exploitation. In order for markets to function properly, principles of basic fairness must become normative. It is when capital markets become unfair and unjust, that they fail. Thus, these markets must be structured in such a way as to 1) promote Rawl’s “Justice as Fairness” principle and 2) align the interests of market participants to produce universally beneficial market efficiency and stability.

Finally, I propose concrete ways in which the power of capital markets may be harnessed to promote the central moral values of Christian tradition and be used by people of faith to promote the ideals of social justice.

Payne, Seth R., Christian Ethics and Capital Markets (March 18, 2011). Available at SSRN: http://ssrn.com/abstract=1952030

 

People who come to the nuisance should not be heard to complain

Fox News reports:

The Washington, D.C. Office of Human Rights confirmed that it is investigating allegations that Catholic University violated the human rights of Muslim students by not allowing them to form a Muslim student group and by not providing them rooms without Christian symbols for their daily prayers.

The investigation alleges that Muslim students “must perform their prayers surrounded by symbols of Catholicism – e.g., a wooden crucifix, paintings of Jesus, pictures of priests and theologians which many Muslim students find inappropriate.”

WTF? Nobody held a gun to their head and made them enroll at a school called CATHOLIC University.

It reminds me of the city dwellers who move out into the sticks, build a house next to a chicken farm, and then complain because the roosters' crowing wakes them up at 5 AM.

You make your bed, you have to lie in it.

BTW, the lawsuit was brought by repeat offender "John Banzhaf, an attorney and professor at George Washington University Law School. Banzhaf has been involved in previous litigation against the school involving the same-sex residence halls." In my humble but First Amendment-protected opinion, one begins to suspect a pattern of anti-catholic bias on the professor's part. But then again he hates everything that makes life worth living from alcohol to tobacco to decadent food, so why not throw in religion too?

The Center for Individual Freedom has some thoughts about Professor Banzhaf, as do our good friends at Overlawyered.com. My own thoughts on the gentleman are not fit for publication in a family friendly forum such as PB.com.

Should a law faculty applicant list religious affliations on his/her cv?

Bridget Crawford offers up a list of the worst things a law school faculty applicant can list on his/her cv:

• Pre-collegiate employment or volunteer activity
• Pre-collegiate anything, really
• Lists of blog postings
• Religious affiliation or membership.

Which prompts Paul Horwitz to opine that:

The argument for not including any trace of one's religious involvements strikes me as more of a prudential or pragmatic argument: why bother including something, whether it involves your politics or your religion, that might hurt your job chances?  I'm not sure I faced this issue, because I didn't really have prominent involvements of either kind, so the question of whether to put them on my CV didn't come up.  But I say, to hell with the prudential argument.  If you think these activities are worth listing, list them.  Period.  And certainly there is nothing more objectionable about listing relevant activities that signal one's religious affiliation than listing relevant activities that signal one's political allegiances. 

Given how relentlessly secular the modern American legal academy has become, it's not terribly surprising that Jim Lindgren's studies found that people of faith are highly underrepresented on law school faculties. So my advice is that applicants ought to at least consider the prudential approach. Whether you adopt it depends, I suppose, on which of the following two biblical principles you think is more important:

"Neither do men light a candle, and put it under a bushel, but on a candlestick; and it giveth light unto all that are in the house."

versus

“Behold, I am sending you like sheep in the midst of wolves; so be shrewd as serpents and simple as doves."

I've done fine opting for the former approach, but I can certainly understand why somebody might want to opt for a more prudential approach to their first cv.

Economics and the Catholic Vision of the Good Life

A debate between left-liberal John C. Médaille and conservative Robert T. Miller. Predictably, I prefer the latter's take, in part because his take is so modest:

The editors of Dappled Things have asked me to opine on the question of which of two economic systems, capitalism or distributism, is more compatible with a Catholic understanding of the good life. This is hardly the kind of the question that lends itself to a succinct response, but if a short answer is required, it is this: capitalism and distributism are equally compatible with the Catholic understanding of the good life, if by that we mean that neither system violates the moral doctrines taught by the magisterium of the Catholic Church. This answer should surprise no one, for the magisterial doctrines of the Catholic Church entail very little about economics or even politics. They do not, for example, make any particular form of government morally obligatory, and thus the autocracy of the Roman Empire, the constitutional monarchy of Elizabethan England, and the democratic republicanism of the United States are all morally permissible. Similarly, Catholic doctrine does not make any form of economic organization morally obligatory; rather, a wide range of systems, including both capitalism and distributism, are morally permissible.

Now, I suppose the editors asked my opinion on this question because they expected me to argue that capitalism has some special moral standing in Catholic doctrine. Although I will not go that far, I will defend a more modest proposition, namely, that, for people like us in a society like ours, capitalism is the most reasonable choice among the various economic systems we might adopt.

FWIW, I touched on some of the same themes in my essay Catholic Social Thought and the Corporation (October 22, 2003).

Skeel's "faith and finance" approach to Dodd-Frank

David Skeel's posted an interesting new paper, Making Sense of the New Financial Deal:

In this Essay, I assess the enactment and implications of the Dodd-Frank Act, Congress’s response to the 2008 financial crisis. To set the stage, I begin by very briefly reviewing the causes of the crisis. I then argue that the legislation has two very clear objectives. The first is to limit the risk of the shadow banking system by more carefully regulating the key instruments and institutions of contemporary finance. The second objective is to limit the damage in the event one of these giant institutions fails. While the new regulation of the instruments of contemporary finance - including clearing and exchange trading requirements for derivatives - is promising, its treatment of systemically important financial institutions is likely to create a troublesome partnership between these institutions and the government. I also argue that our financial world is just as prone to bailouts after Dodd-Frank as it was before, and that it would have made a lot more sense to focus on bankruptcy as the solution of choice for troubled financial institutions.

After this initial assessment, I discuss the CEO compensation issues that have gotten so much attention in the press. I conclude by considering the legislation from a distinctively Christian perspective.

It's the conclusion that is the most provocative part of the paper. Skeel makes 5 points about "faith and finance":

The first is that we always need to be careful about how much we expect from secular law. Law is essential in a fallen world, but it cannot save us and can be used to oppress. It is important to be modest about our aspirations for law. This is true with social issues like abortion and gambling, and it is true with economic issues like credit and banking.

I would invoke the Fall for a somewhat different purpose; specifically, to suggest that economics may be more relevant to legal analysis than theology. In my view, the assumptions about human behavior made by economists are largely congruent with the fallen state of man. If Economic Man is a fair description of Adam after the Fall, the rational choice model used in economics is not a bad model for predicting the behavior of fallen men.

To be sure, Christians are called to a higher standard of behavior than that of fallen man. If the purpose of economic analysis is to predict how people will respond to changes in legal rules, however, can we assume Christian behavior by the masses of a secular and God-less society? As Michael Novak observed somewhere or another, no realistic social order can assume “heroic or even consistently virtuous behavior” by its citizens. A realistic social order therefore must be designed around principles that fall short of Christian ideals. In particular, the rules must not be defined in ways that effectively require every citizen to be a practicing Christian. Christian visions of Justice therefore cannot determine the rules of economic order. Instead, legal rules and predictions about human behavior must assume the fallen state of Man, which is precisely what economic analysis does.

Back to Skeel:

Second, with this caveat in mind, the most useful contribution that legal reform can make is often to fix rules that have the unintended consequence of encouraging people to misbehave.

The trouble, of course, is that determining what constitutes "misbehavior" can be quite difficult. Skeel posits, for example, that:

The implicit governmental subsidy enjoyed by banks that are “too big to fail” has this kind of effect, since it invites risk-taking, as does the tax treatment of executive compensation ...

As the Parable of the Talent teaches, however, we want servants to take risks on behalf of their masters when it comes to investing the master's assets. This is so because risk and return are positively correlated. As such, or so I assume, the real problem is "excess" risk taking and the moral hazard inherent in government subsidies. If so, however, does the faith Skeel and I share (even though he's on the wrong side of the Tiber), tell us very much about how to identify what constitutes "excess" risk taking? To answer that question, I revert to the fallen nature of humankind. Because regulators are fallen people, we cannot trust them to adopt optimal rules. In an incisive essay Catholic Social Teaching, Free Enterprise and Poverty, Paul Atkins argues that:

It is a blunt instrument at best, and subject to the frailties of the human regulators. If the regulator does not use an effective cost/benefit screen to analyse its proposed rules properly, or does not listen to public comments, or tries to regulate through enforcement, the consequences can be inconsistent, distortive, and not easily corrected. We must remember that investors ultimately pay for regulation. If regulations impose costs without commensurate benefits, investors suffer the costs of lack of effectiveness and efficiency, not only through higher prices but also through constrained investment opportunities. That ultimately hurts them in their investment performance, because it means less opportunity for diversification. ...

Can regulators do the jobs of industry better than industry can? In his last book, The Fatal Conceit: The Errors of Socialism, Friedrich Hayek, the Austrian-born economist, wrote in 1989 about the dangers of a paternalist attitude toward regulating the economy. He labels as the “fatal conceit” the idea that “man is able to shape the world around him according to his wishes.” Hayek argues: “To act on the belief that we possess the knowledge and the power which enable us to shape the processes of society entirely to our liking, knowledge which in fact we do not possess, is likely to make us do much harm.”

As Hayek teaches, at some point, we must recognize that businesses are better than governments at business. To suggest that regulators somehow know more than a company about its own business and the risks its faces is both egotistical and naïve. In addition, by removing risk management from firms and placing it in the hands of government, there is a danger that firms will become careless and take on additional risk, believing regulators are protecting them. This is the moral hazard that we all try to avoid. Simply put, the risk management function must remain in the hands of the firms that face the risk.

Back to Skeel:

Third, I believe that the income inequality that we hear so much about— the enormous gap between the income at the highest level and income at lower levels—is a genuine issue with obvious Christian implications. The real estate bubble disguised the gap between those in the executive suites and ordinary Americans by encouraging Americans to buy and live beyond their means.

As a Catholic, I accept that social policy ought to reflect what the Church calls the preferential option for the poor. Once we move beyond basic wealth redistribution questions, however, turning the preferential option into policy becomes difficult. many people truly thought that promoting home ownership would reduce wealth inequality, help the poor to build assets, and, of course, provide shelter. As Skeel's excerpt suggests, however, the pre-2008 policies that drove home ownership ever higher may actually have been detrimental to the poor.

That point is affirmed in Atkin's essay:

The fundamental problem was that mortgage loans were made to borrowers who, if they had had tighter underwriting standards, might not have been able to get those loans. They put little money down, in general, so the amount of money lent on the house was pretty close to what the house was worth. That means not much room for error if the house price declined.

The  policies pursued by the government thus increased the vulnerability of the poor.

Skeel's fourth point is that "Congress would have done far more to make the biggest banks and their executives more accountable—and more responsible—if it had taken serious steps to downsize them, and had looked to bankruptcy as the strategy of choice if they fail." Which strikes me as a true point, but not one especially driven by faith-based insights.

The same seems to be true of Skeel's fifth point, which is that there is a "cultural cost of the recent bailouts" in that they "may have made homeowners less hesitant to default on their own home loans." Again, it's not clear to me that this insight is uniquely faith-derived.

In sum, I liked this piece a lot, but I came away once again wondering if faith-based reasoning really leads to unique scholarly insights when it comes to issues like corporate governance or finance.

The late William Stuntz was a friend of both Skeel and I. At a conference many years ago, I heard Stuntz observe that, before His public ministry, Jesus made tables and whatever else it was that ancient Middle Eastern carpenters made. Bill went on to ask whether there was anything uniquely Christian about those tables. Bill's insight suggests that we need to ponder what, if anything, makes Christian perspectives on law distinctive.

In doing so, we need to differentiate between several different types of "law and religion" scholarship:

1. Studies of how the law impacts religion. This probably is the dominant form of law and religion scholarship, but it's really mostly Constitutional law dealing with the free exercise and establishment clauses of the First Amendment. Not really distinctively Christian.
2. Critiques of policy recommendations made by religious figures. This is what I mostly do in the law and religion field. Where US Catholic Bishops have made legal and regulatory proposals grounded in Catholic social thought, for example, there is a space for distinctively Christian legal scholarship that engages those proposals not only from secular grounds like economics but also from theological perspectives. 
3. Christian critiques of laws like Dodd-Frank. This is the area where I think it is hardest to do something that is both rigorous and distinctively Christian. As far as I can tell, for example, there's very little in either the Bible or the Magisterium that would help me answer the question of whether executive compensation at TARP recipient firms should be capped.

For more on these issues, see Skeel's excellent article The Unbearable Lightness of Christian Legal Scholarship.

Prosecution as Regulation

Whether litigation is an appropriate forum for making policy is a vexing question of long standing. An interesting case study is provided by Richard Cupp's essay Seeking Redemption for Torts Law – A Review of ‘Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse’ by Timothy D. Lytton:

In Holding Bishops Accountable, Professor Timothy Lytton presents the Catholic Church child molestation lawsuits as an example to encourage a more careful look at torts litigation’s potential policymaking benefits. In this forthcoming book review (draft available for download), Professor Cupp praises Professor Lytton’s thesis and his impressive scholarship. However, the review raises as an open question whether the clergy abuse cases provide an illustration that is too exceptional to substantially enhance openness to the idea of torts litigation as a policy tool.

Church leaders abusing vulnerable children creates a deeply compelling “morality play,” and a plaintiff’s attorney’s perfect plotline. Finding a more sympathetic plaintiff than a defenseless child or a more deplorable defendant than a corrupt clergyman abusing innocents is not easy. The review acknowledges that in the information age a strong symbiotic relationship exists between news and torts lawsuits that should not be underestimated in assessing torts law’s impact on policymaking. With a scenario as shocking as priests molesting children, the media justifiably flock to cover the scandalous story, the extensive coverage shapes public perceptions, and significant policy change predictably follows.

The review recognizes that under the right circumstances, torts law might play a role as a policymaking tool, but it cautions that the particularly powerful illustration of clergy abuse litigation is just that – particularly powerful – and that torts law’s potential for influencing policy is more limited in most litigation scenarios.

The Bishops and the budget

There's been a bit of kerfuffle lately between the House GOP and the US Catholic Bishops over the budget and Catholic social teaching. I'll borrow a Rick Garnett post to summarize the context:

Here is Rep. Paul Ryan's April 29 letter to Archbishop Dolan; here is Archbishop Dolan's reply.  The exchange is well worth reading, I think, especially as a follow-up to the much remarked public letter to Speaker Boehner, which was signed by a number of Catholic academics.  (As I indicated, in an earlier post, I thought the letter to Boehner overstated the alleged conflict between his voting record and "the Church's most ancient moral teachings", but that's water under the bridge.) 

Speaker Boehner reponded, in a statement, to the Ryan-Dolan exchange:

“I welcome Archbishop Dolan’s letter and am encouraged by the dialogue taking place between House Republicans and the Catholic bishops regarding our budget, the ‘Path to Prosperity.’ Our nation’s current fiscal path is a threat to human dignity in America, offering empty promises to the most vulnerable among us and condemning our children to a future limited by debt. We have a moral obligation as a nation to change course and adopt policies that reflect the truth about our nation’s fiscal condition and our obligation to future generations, and to offer hope for a better future. Our duty to serve others compels us to strive for nothing less. As Chairman Ryan notes in his letter to the archbishop, Americans are blessed to have the teachings of the Church available to us as guidance as we confront our challenges together as a nation.”

Michael Sean Winters, at NCR, and others are underwhelmed by Ryan's letter and -- in Winters's case -- skeptical about the possibility for consonance between the vision proclaimed in the Church's social-teaching tradition and that on display in the work of Ayn Rand.  I don't share (what seems to be) Winters's view that Ryan's reported interest in the (banal and turgid) writings of Ayn Rand has, in his budget, simply been translated into proposed policy.  (By the way, for Rand-haters, David Hart's essay on the occasion of the "Atlas Shrugged" movie is a must-see.) 

One does not have to like Ayn Rand (and I don't), or to be a "Catholic neo-con", to think that (a) it is both profoundly immoral and stupid to continue accumulating debt burdens at our current rates, (b) deep cuts in spending are required, and (c) these cuts require more than the usual promises of increased attention to "waste, fraud, and abuse" and "corporate loopholes" and will have to touch popular social-welfare programs (and defense spending).  Winters is right, of course, to say that Rand's vision is less attractive (because it is unsound) than is Pope Benedict's; but this fact does not eliminate the need to attend more seriously than, say, Sen. Reid has been willing to do to the need to cut spending and to design carefully any tax increases so as to avoid stunting growth.

Catholic neo-con, of course, is more or less where I situate my politics on economic issues, so I have no trouble embracing Rick's points a to c. I'd go on, however, to express a certain amount of skepticism about the Bishop's policy prescriptions. As Michael Novak observes, Catholic prelates and theologians tend to be poorly trained in economics and inexperienced with the business world. They “are likely to inherit either a pre-capitalist or a frankly socialist set of ideals about political economy.”[1] Consequently, theologians “are more likely to err in this territory [i.e., economic justice] than in most others.”[2]

So I take the Bishop's attack on the House GOP budget with more than a grain of salt.

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[1] Michael Novak, Toward a Theology of the Corporation 59 (rev. ed.1990).

[2] Id. at 12.