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Question for the day

Question for #lawtwitter. What's the most insulting citation sentence you've ever seen in a #lawreview article. Something like: "For an astonishingly incompetent review of the cases, see ...."

— Professor Bainbridge (@ProfBainbridge) November 15, 2018

Park on "Insider Trading and the Integrity of Mandatory Disclosure"

My friend and UCLAW colleague Jim Park has just posted a new article:

Insider trading regulation has been primarily shaped by two theories. The first argues that unequal access to material information corrupts the integrity of securities markets. The second contends that insider trading primarily undermines the property rights of a corporation. The dominance of the market integrity and property frameworks has obscured an important reason to regulate insider trading – it can undermine the integrity of the disclosure mandated by the securities laws. Such disclosure is meant to benefit all investors and should not be exploited by a few. Insider trading is particularly problematic in a periodic disclosure system where the release of significant information is deliberately delayed so it can be analyzed and verified. This Article argues that protecting the integrity of mandatory disclosure is a compelling reason for insider trading regulation. This disclosure approach suggests clearer limits to the reach of insider trading law and enforcement than the market integrity and property theories.

Park, James J., Insider Trading and the Integrity of Mandatory Disclosure (October 1, 2018). 2018 Wisconsin Law Review (Forthcoming); UCLA School of Law, Law-Econ Research Paper No. 18-12. Available at SSRN: https://ssrn.com/abstract=3258608

Anabtawi on "The Twilight of Enhanced Scrutiny in Delaware M&A Jurisprudence"

My friend and colleague Iman Anabtawi has posted a new article:

Merger and Acquisition (M&A) transactions create the potential for self-interested behavior by the boards of directors of acquired, or target, corporations because target boards may have self-interested reasons for preferring one acquirer over any other. The preferred acquirer may, for example, be more likely to retain the services of certain board members or to employ them in some other capacity after the completion of the transaction. In recognition of these potential conflicts of interest, the courts have recognized that target boards of directors may not always be incentivized to exercise their business judgment in M&A transactions in the best interests of shareholders and have therefore held them to the heightened standard of review of enhanced scrutiny. Enhanced scrutiny contemplates substantive judicial review of the reasonableness of the target board’s conduct in the sale of the company. Until recently, enhanced scrutiny review was not susceptible to being adjusted downward to business judgment-level review through procedural safeguards, such as the constitution of a special committee of the board or shareholder ratification. A special committee was not considered to be an effective means of cleansing an inherent conflict, and shareholder approval of the transaction was deemed to approve only the board’s decision to sell, as opposed to the board’s conduct of the sale process. The Delaware Supreme Court revisited the issue, holding that the shareholder ratification doctrine applies to a shareholder approval of an M&A transaction on the rationale that shareholders, particularly institutions, are at least as well-positioned as judges to evaluate the merits of a sale. As a result, approval of an M&A deal by target shareholders displaces enhanced scrutiny of the board of directors’ conduct in managing the sale in favor of the business judgment rule, effectively making the target board’s decision unreviewable. This Article argues that recent Delaware jurisprudence on shareholder ratification constitutes a fundamental shift in M&A jurisprudence, predicts that, while it will reduce deal litigation, it will have unnecessary detrimental effects on deal process, and proposes a procedural mechanism for mitigating those effects in the form of a bifurcated shareholder vote on each of the deal process and the sale transaction.

Anabtawi, Iman, The Twilight of Enhanced Scrutiny in Delaware M&A Jurisprudence. 43 Delaware Journal of Corporate Law (January 2019, Forthcoming); UCLA School of Law, Law-Econ Research Paper No. 18-11. Available at SSRN: https://ssrn.com/abstract=3248474

Holman Jenkins: "Google Confronts Its Bolsheviks"

From behind the WSJ paywall:

We may have to refine our theories of creative destruction. America’s big tech companies—Google in particular—suddenly seem less at risk from nascent competitors than from the politicization of their own employees. ...

The Google protests have been led by a group calling itself the Tech Workers Coalition, whose avowed purposes are ideological rather than strictly work-related. It got its start helping the Teamsters organize subcontractors who operate Silicon Valley’s employee shuttle buses. ...

They want politics to be in control of business. That includes deciding which products and services will be developed. According to San Francisco’s KQED, the activist group is reluctant even to name its “founders” due to the word’s “negative associations with what they call the capitalist-driven ethos that has become pervasive in Silicon Valley.” ...

Notice an irony here: Google’s bosses are shielded from any challenge coming from disappointed shareholders by a special voting-rights lockup. This was justified at the time of Google’s initial public offering as protecting management’s ability to make brave, long-term decisions without concern for short-term market reaction.

Now management seems to be in need of some bravery to defend the company’s long-term interests against a small band of employees who feel entitled to substitute their political hobby horses for their employer’s business priorities.

"The Costs and Benefits of Shareholder Democracy"

Gantchev, Nickolay and Giannetti, Mariassunta, The Costs and Benefits of Shareholder Democracy (October 18, 2018). SMU Cox School of Business Research Paper No. 18-35. Available at SSRN: https://ssrn.com/abstract=3269378

We show that while low-cost shareholder activism via shareholder-sponsored proposals is occasionally value-enhancing, many proposals are submitted by the same few individual investors and other sponsors without organizational capabilities to analyze a large number of firms. These proposals if approved and subsequently implemented appear to destroy shareholder value. We show that firms whose shareholders are more likely to collect information before voting benefit from low-cost shareholder activism because these investors weed out low-quality proposals. We conclude that an informed shareholder base is crucial for firms to take advantage of low-cost shareholder activism.

As I suspected!

Verstein on Insider Trading in the Stocks of Insolvent Corporations

Andrew Verstein writes:

Are insolvent firms different from solvent firms with respect to insider trading law and policy? Formally, the law does not change. But economic realities and non-securities law duties do. As a result, the insider trading landscape changes considerably. The law is more permissive in some ways, and more constraining in others, as troubled instruments trade.

It's a very interesting analysis. And one that I have not thought about before. (Verstein's very good at sniffing out these sort of seemingly obscure problems that turn out to be interesting and important.)

I'm going to have to mull this one over for a while.

Some unsolicited advice for law students, especially 1Ls

On a serious note: Dear 1Ls: My experience in law school (which was probably about the time your parents were being born, so take this with a grain of salt) was that libraries were a noisy social hall full of distractions at exam time. https://t.co/cIIdAzEyRZ

— Professor Bainbridge (@ProfBainbridge) November 7, 2018

I did much better in law school when I gave up studying in the library and studied in my apartment bedroom with the door closed and ear plugs in my ears. Silence was indeed golden.

— Professor Bainbridge (@ProfBainbridge) November 7, 2018

The Catholic Church Needs a Change in Tone at the Top, which Requires a Change in the Top

From Crux:

The National Review Board chairman called for changes to the “Charter for the Protection of Children and Young People” to “make it a less ambiguous document” because despite nearly every diocese meeting its standards in third-party audits, some bishops are facing scrutiny about their handling of reports of wayward priests.

Francesco Cesareo, the board’s chairman since 2013, ...

“This is much more of a crisis of a failure of leadership,” he said.

“It is frustrating because on the one hand, you know that the church has put in place all of these policies and procedures, which have definitely made a difference. All of these allegations are historic. (There are) very few new ones,” he said.

“What’s frustrating is that there’s been this collapse in leadership,” Cesareo continued. “That’s the real frustrating part. There hasn’t been a recognition to the level of responsibility that needs to be taken on the part of leadership to address this in a way that minimizes this from possibly happening in the same way again.”

I agree that the response of too many of the Bishops has been a huge part of the problem (although not the whole problem, obviously), which is why my article on proposed reforms to the Dallas Charter includes a section on "Changing the Tone at the Top by Changing Who is at the Top."

Having the right tone at the top of an organization is critical to establishing a proper culture of compliance within the organization, but when the organization’s leadership has lost credibility achieving that correct tone requires replacing those at the top. Accordingly, this section proposes shifting responsibility for investigating and adjudicating sexual misconduct cases from the extant system of Church tribunals overseen by the diocesan bishop to an independent review board. It further proposes the creation of a national review board under the auspices of the USCCB to investigate and adjudicate charges against bishops of sexual misconduct or enabling of abusers. Finally, this section draws on an analogy to corporate audit committees to suggest certain features that should be incorporated into these bodies to insure their independence and competence.

These proposals will run afoul of current canon law. They offend the canons on the limited powers of national conferences, the extensive powers and rights of diocesan bishops who answer only to the Pope, and role of tribunals, bishops, and the Vatican in conducting investigations and trials. As we have seen, however, canon law can be changed.

Bainbridge, Stephen Mark, Restoring Confidence in the Roman Catholic Church: Corporate Governance Analogies. UCLA School of Law, Public Law Research Paper No. 18-32. Available at SSRN: https://ssrn.com/abstract=3249236 or http://dx.doi.org/10.2139/ssrn.3249236

Beware the new "delivery charge" scam going around Los Angeles (and maybe elsewhere)

The following is a recounting of the incident from the victim:

 

The following is a recounting of the incident from the victim:

Wednesday a week ago, I had a phone call from someone saying that he was from some outfit called: "Express Couriers," (The name could be any courier company).  He asked if I was going to be home because there was a package for me that required a signature.

The caller said that the delivery would arrive at my home in roughly an hour. Sure enough, about an hour later, a uniformed delivery man turned up with a beautiful basket of flowers and a bottle of wine. I was very surprised since there was no special occasion or holiday, and I certainly didn't expect anything like it. Intrigued, I inquired as to who the sender was.

The courier replied, "I don't know, I'm only delivering the package."

Apparently, a greeting card was being sent separately (the card has never arrived!).  There was also a consignment note with the gift.

He then went on to explain that because the gift contained alcohol, there was a $3.50 "delivery/ verification charge," providing proof that he had actually delivered the package to an adult (of legal drinking age), and not just left it on the doorstep where it could be stolen or taken by anyone, especially a minor.

This sounded logical and I offered to pay him cash. He then said that the delivery company required payment to be by credit or debit card only, so that everything is properly accounted for, and this would help in keeping a legal record of the transaction.

He added, "Couriers don't carry cash to avoid loss or likely targets for robbery."

My husband, who by this time was standing beside me, pulled out his credit card, and 'John,' the "delivery man," asked him to swipe the card on a small mobile card machine with a small screen and keypad. Frank, my husband, was asked to enter his PIN number and a receipt was printed out. He was given a copy of the transaction.

The guy said everything was in order, and wished us good day.

To our horrible surprise, between Thursday and the following Monday, $4,000 had been charged/withdrawn from our credit/debit account at various ATM machines.

Apparently the "mobile credit card machine," which the deliveryman carried now had all the info necessary to create a "dummy" card with all our card details including the PIN number.

Upon finding out about the illegal transactions on our card, we immediately notified the bank which issued us a new card, and our credit/debit account was closed.

We also personally went to the Police, where it was confirmed that it is definitely a scam because several households had been similarly hit.

WARNING: Be wary of accepting any "surprise gift or package," which you neither expected nor personally ordered, especially if it involves any kind of payment as a condition of receiving the gift or package. Also, never accept anything If you do not personally know or there is no proper identification of who the sender is.

Above all, the only time you should give out any personal credit/debit card information is when you yourself initiated the purchase or transaction!

Third edition of my Agency, Partnership, and LLC treatise is available for preorder

You can preorder the new edition of my Agency, Partnerships & LLCs text via @amazon https://t.co/D1XaQ7qpb8

— Professor Bainbridge (@ProfBainbridge) November 7, 2018

CST and the Law: Reading Part II of Gaudium et spes (The Pastoral Constitution on the Church in the Modern World)

In the next session of my Catholic Social Thought and the Law seminar, we will be reading Gaudium et spes(literally “joy and hope,” but formally referred to as The Pastoral Constitution on the Church in the Modern World). GS was one of the four “constitutions” promulgated in Vatican II. As a pastoral document, it presents Catholic social thought that builds on the earlier documents but also adds a more explicitly theological and scriptural basis for CST.

Reading Gaudium et spes: Part II

Part II of Gaudium et spesturns from big questions of human nature and so on to five specific issues of contemporary (early 1960s) concern:

1. Marriage and the family
2. The state of the culture
3. The economy
4. Politics
5. Peace

The Culture

Some random thoughts while reading the chapter on culture:

Section 56 poses a series of questions, including:

What is to be done to prevent the increased exchanges between cultures, which should lead to a true and fruitful dialogue between groups and nations, from disturbing the life of communities, from destroying the wisdom received from ancestors, or from placing in danger the character proper to each people?

Some would argue, of course, that Christian missionaries have done much to diminish indigenous cultures around the world. On the other hand, however, does political correctness really demand that we treat all cultures as equal? Are there not some cultures whose foundational precepts offend universal values? (Of course, here I am committing what some would regard as the error of believing that universal values exist.)

Section 57 speaks to an issue that has become even more pronounced in our time:

… today's progress in science and technology can foster a certain exclusive emphasis on observable data, and an agnosticism about everything else. For the methods of investigation which these sciences use can be wrongly considered as the supreme rule of seeking the whole truth. … Indeed the danger is present that man, confiding too much in the discoveries of today, may think that he is sufficient unto himself and no longer seek the higher things.

Is that not a precise statement of the attitude so many hold today, especially among the younger “Nones”? Bishop Robert Barron has been flagging on this problem for a long time, writing for example that:

It is sadly becoming axiomatic among many that religious faith is incompatible with a scientific worldview. As philosophy at the university level has degenerated into deconstruction, relativism, and nihilism, and as literary study has devolved into political correctness, trigger warnings, and the uncovering of microaggressions, the hard physical sciences remain, in the minds of many, the sole reliable bearers of truth about the world. And many have bought the critique that religion is, at best, a primitive and outmoded version of science. Read Daniel Dennett, Stephen Hawking, Sam Harris, Lawrence Krauss, and Richard Dawkins if you want the details. I can testify from direct engagement with the contemporary culture that the disciples of these figures are thick on the ground—and these devotees have not been hugged into atheism; they have been argued into it. We have to argue them back to our position.

The most fundamental problem in this regard is scientism, the reduction of all knowledge to the scientific form. The smashing success of the physical sciences and their attendant technologies has, understandably enough, beguiled the young into thinking that the scientific method is the only legitimate route to truth and that anything lying outside its purview is nonsense or fantasy. As Cardinal George once observed, the effective disappearance of philosophy as a mediating discipline between science and religion has had a deleterious effect on epistemology in general. When philosophy was construed as a legitimate bearer of truth, people saw that a discipline could be nonscientific and yet altogether rational. Given the self-destruction of philosophy, religion seemed, a fortiori, relegated to the shadows of irrationality and superstition. Scientism is, in point of fact, a rather silly position to hold. It is operationally self-refuting: In no way can it be proven through the scientific method that the scientific method is the sole route of access to truth. Moreover, as I have frequently endeavored to show in my apologetic work, people readily, though without assenting to it consciously, accept drama, painting, literature, and philosophy as not only diverting but truth-bearing. Though they are anything but scientific texts, Hamlet, the Symposium, and The Waste Land teach truths about the world, destiny, and human psychology that could not be known in any other way.

Having said that, however, GS was an important statement by the Church of a (some would say new) commitment to intellectual freedom:

This Sacred Synod, therefore, recalling the teaching of the first Vatican Council, declares that there are "two orders of knowledge" which are distinct, namely faith and reason; and that the Church does not forbid that "the human arts and disciplines use their own principles and their proper method, each in its own domain"; therefore "acknowledging this just liberty," this Sacred Synod affirms the legitimate autonomy of human culture and especially of the sciences.

All this supposes that, within the limits of morality and the common utility, man can freely search for the truth, express his opinion and publish it; that he can practice any art he chooses; that finally, he can avail himself of true information concerning events of a public nature. (59)

The trial of Galileo Galilei inevitably springs to mind here. Pope John Paul II’s address of October 31, 1992, to the Pontifical Academy of Sciences did much to rehabilitate Galileo and to affirm the Church’s new openness to science:

… the new science with its methods and the freedom of research which they implied, obliged the theologians to examine their own criteria of scriptural interpretation. Most of them did not know how to do so.

Paradoxically, Galileo, a sincere believer, showed himself to be more perceptive in this regard than the theologians who opposed him. "If Scripture cannot err", he wrote to Benedetto Castelli, "certain of its interpreters and commentators can and do so in many ways." …

It is a duty for theologians to keep themselves regularly informed of scientific advances in order to examine if such be necessary, whether or not there are reasons for taking them into account in their reflection or for introducing changes in their teaching.

Socioeconomic Life

The Church had come a long way from Leo XIII’s Rerum Novarum, which seemed mainly concerned with class conflict, to GS’s emphasis on the moral and social costs of inequality. Of course, the world was a very different place:

The world in 1962-65 had changed dramatically since the pontificate of Leo XIII. Politically, the dominant characteristic of the century had been the two world wars and the cold war which was the backdrop for Vatican II.  The world of Leo XIII had been destroyed by World War I which swept away the German, Austro-Hungarian, Russian and Ottoman empires.  Within two decades after the Peace of Paris (1919) the cataclysmic conflict of World War II yielded the bipolar superpower competition with the danger of nuclear war an ever present reality for the next forty years.  Just as significant as the changing European order after 1945 was the process of decolonization and political independence of over one hundred new states across the southern hemisphere.  Economically, the post-war division of the world into market and centralized economies – the spheres of capitalism and socialism – reinforced the political division of East and West.

In GS, we see a more fully developed version of the Church’s via media as an alternative to both socialism and capitalism (again, compare Leo XIII’s preoccupation with socialism):

Growth is not to be left solely to a kind of mechanical course of the economic activity of individuals, nor to the authority of government. For this reason, doctrines which obstruct the necessary reforms under the guise of a false liberty, and those which subordinate the basic rights of individual persons and groups to the collective organization of production must be shown to be erroneous. (65)

Labor and Bringing Creation to Perfection

GS states plainly a conception of labor that is a central feature of CST and, candidly, one with which I have always struggled:

By his labor a man ordinarily supports himself and his family, is joined to his fellow men and serves them, and can exercise genuine charity and be a partner in the work of bringing divine creation to perfection. Indeed, we hold that through labor offered to God man is associated with the redemptive work of Jesus Christ, Who conferred an eminent dignity on labor when at Nazareth He worked with His own hands. (67)

Work is thus seen as a means by which we collaborate in God’s on-going act of creation.  The Creator hid untold riches and possibilities within His creation, which it is Man’s vocation to discover and develop through work.  Man’s capacity for creativity thus is one of the ways in which he was made in God’s image. This innate capacity, however, requires development. Accordingly, work is not only a process by which we collaborate in God’s creative transformation of the world, but also by which we ourselves are transformed into a more fully human person.  According to CST, this process of self-fulfillment is both a duty and a privilege.

In my personal view, however, Man may (and should) imitate God’s creative work, but Man does not share in God’s work as Creator. In the Genesis account, Creation was completed on the sixth day.  “That is exactly why God could call it good and rest” on the seventh day.[1]  Instead of being part of an on-going process of Creation, work was a direct result of the Fall: When exiled from Eden, Man was condemned to “painful toil.”[2]  Work thus was not intended to be intrinsically fulfilling, but simply a necessary means of survival.

I suspect that my perspective on work and creation is a relic of my Protestant upbringing. I suppose I shall have to (pardon the weak pun) work on it.

Private Property

Recall Leo XIII’s strong defense of private property in Rerum Novarum. Now consider this rather astonishing statement from GS:

If one is in extreme necessity, he has the right to procure for himself what he needs out of the riches of others. (69)

To be sure, GS goes on to give a (rather weak) defense of private property:

Private property or some ownership of external goods confers on everyone a sphere wholly necessary for the autonomy of the person and the family, and it should be regarded as an extension of human freedom. Lastly, since it adds incentives for carrying on one's function and charge, it constitutes one of the conditions for civil liberties. (71)

But surely it stretches the Catholic “both and” to the breaking point to simultaneously defend private property and seemingly endorse theft.

But perhaps we should read the former statement not as an endorsement of theft, but as a recognition of the necessity defense. As one legal scholar observes of the defense of necessity in American law:

The applicability of the necessity defense depends entirely on the nature of the offense committed and the circumstances that occasioned its commission. One who committed trespass or theft because she otherwise would have suffered the effects of hunger or exposure can argue, at least in theory, that her conduct was justified under the defense of necessity. By contrast, one who committed rape or murder or assault as a result of her impoverishment would almost invariably be unable to establish a defense of necessity, because her action (1) would not be effective in abating the danger she sought to avoid, and (2) even if it was (say, if she killed V to get the loaf of bread he was holding), the harm caused by the criminal act would be no less serious than that sought to be avoided.

In practice, even a starving or homeless person charged with theft or trespass will have a hard time establishing a necessity defense if the prosecution can show that: (1) she would not have suffered any serious injury if she had not committed the crime; (2) there were legal alternatives available to her, such as attending a soup kitchen or homeless shelter; or (3) she somehow bore responsibility for the impoverished situation in which she found herself. Presumably as a result of these stringent requirements, reported cases in which a defendant charged with theft or trespass was acquitted by virtue of the necessity defense are virtually nonexistent, at least in modern times.

Still, the defense exists in theory ….[3]

On the other hand, Judge Frank Easterbrook has cautioned:

Allowing a defense of necessity creates a risk that people may act precipitately, before the necessity is genuine. Thus if the law allows a starving mountaineer to break into a remote cabin as a last resort to obtain food--if, in other words, necessity is a defense to a charge of theft--it creates a risk that wanderers will break doors whenever they become hungry, even though starvation is far in the future.[4]

That risk is “addressed by the rule that the evil must be imminent and the means, well, necessary; the departure from the legal norm must be (as with self-defense) the very least that will avert the evil.”

I assume that the point the authors of GS were trying to make is that necessity can be seen as a moral justification for something—theft—that would otherwise be wrongful. As the Catechism explains:

The seventh commandment forbids theft, that is, usurping another's property against the reasonable will of the owner. There is no theft if consent can be presumed or if refusal is contrary to reason and the universal destination of goods. This is the case in obvious and urgent necessity when the only way to provide for immediate, essential needs (food, shelter, clothing ...) is to put at one's disposal and use the property of others. (2408)

In other words, extreme necessity wholly justifies taking another’s property to such an extent that the taking is no longer theft.

The Common Good

In section 73, Gaudium et Spesstates: “There is no better way to establish political life on a truly human basis than by fostering an inward sense of justice and kindliness, and of service to the common good ….” How does the Church define “the common good”?

… the common good embraces the sum of those conditions of the social life whereby men, families and associations more adequately and readily may attain their own perfection. (74)

The Catechism elaborates as follows:

First, the common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person. Society should permit each of its members to fulfill his vocation. (1907)

Second, the common good requires the social well-being and development of the group itself. Development is the epitome of all social duties. Certainly, it is the proper function of authority to arbitrate, in the name of the common good, between various particular interests; but it should make accessible to each what is needed to lead a truly human life: food, clothing, health, work, education and culture, suitable information, the right to establish a family, and so on. (1908)

Finally, the common good requires peace, that is, the stability and security of a just order. It presupposes that authority should ensure by morally acceptable means the security of society and its members. (1909)

I like this analogy by David Cloutier:

… the common good is not the “aggregate good.” It is not a matter of adding up the individual goods of each person. It is something distinct from (though not separate from) any individual’s good. In teaching this, I often draw on the example of a sports team. Individual players have goods they seek, like being fit, scoring runs, and the like. And of course it benefits the whole when people accomplish their individual goods. But not always. This is because the individual goods do not somehow add up to the ultimate goal: winning. In team sports, winning is the common good – or perhaps one could further cite the good of ongoing competition and the integrity of the sport. Seeing that winning is the common good of the team illustrates that individual and common goods need not be seen as zero-sum. Part of one’s individual good is presumably winning, but it would be equally foolish to suggest that somehow a team could “win” if members did not pursue individual goods.

The importance of distinguishing the common good is above all illustrated in how we think about our connection to the others on the team. As the Compendium puts it, “the human person cannot find fulfillment in himself, that is, apart from the fact that he exists with others and for others.” There is no way to win by yourself. This means that if someone else on the team is struggling or frustrated, what do you do? You help. If they are performing well, what do you do? Congratulate them enthusiastically. Fundamentally, this approach defuses destructive competition, which refuses help and envies the success of others. If you are sad, I am sad. Even more crucially, it means that we do not look on other persons and society as simply means – as instruments for an ultimate goal that is solely ours.

Justice

Justice is closely related to the common good. It is defined as a moral virtue that directs one’s actions towards the common good.

It grows increasingly true that the obligations of justice and love are fulfilled only if each person, contributing to the common good, according to his own abilities and the needs of others, also promotes and assists the public and private institutions dedicated to bettering the conditions of human life. Yet there are those who, while possessing grand and rather noble sentiments, nevertheless in reality live always as if they cared nothing for the needs of society. Many in various places even make light of social laws and precepts, and do not hesitate to resort to various frauds and deceptions in avoiding just taxes or other debts due to society. Others think little of certain norms of social life, for example those designed for the protection of health, or laws establishing speed limits; they do not even avert to the fact that by such indifference they imperil their own life and that of others. (30)

Equality

In this area also we see a sharp shift from Rerum Novarum. Whereas Leo XIII emphasized that human dignity was compatible with a highly stratified society in which the different social classes have different rights and powers, the Council moves towards a more egalitarian image of the just society:

Since all men possess a rational soul and are created in God's likeness, since they have the same nature and origin, have been redeemed by Christ and enjoy the same divine calling and destiny, the basic equality of all must receive increasingly greater recognition.

True, all men are not alike from the point of view of varying physical power and the diversity of intellectual and moral resources. Nevertheless, with respect to the fundamental rights of the person, every type of discrimination, whether social or cultural, whether based on sex, race, color, social condition, language or religion, is to be overcome and eradicated as contrary to God's intent. For in truth it must still be regretted that fundamental personal rights are still not being universally honored. Such is the case of a woman who is denied the right to choose a husband freely, to embrace a state of life or to acquire an education or cultural benefits equal to those recognized for men.

Therefore, although rightful differences exist between men, the equal dignity of persons demands that a more humane and just condition of life be brought about. For excessive economic and social differences between the members of the one human family or population groups cause scandal, and militate against social justice, equity, the dignity of the human person, as well as social and international peace. (29)

Is the equality for which the Church argues one of opportunity or of outcome?

Subsidiarity

In Quadragesimo Anno, Pope Pius XI laid out what is widely regarded as the best statement of the Catholic Social Thought principle known as “subsidiarity”:

Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them. (79)

GS section 75 therefore recognizes duties for both rulers and subjects:

Rulers must be careful not to hamper the development of family, social or cultural groups, nor that of intermediate bodies or organizations, and not to deprive them of opportunities for legitimate and constructive activity; they should willingly seek rather to promote the orderly pursuit of such activity. Citizens, for their part, either individually or collectively, must be careful not to attribute excessive power to public authority, not to make exaggerated and untimely demands upon it in their own interests, lessening in this way the responsible role of persons, families and social groups.

Patriotism and Nationalism

Patriotism and nationalism have been much in the news this fall (2018). The Church’s statement on that issue is classically “both and”:

Citizens must cultivate a generous and loyal spirit of patriotism, but without being narrow-minded. This means that they will always direct their attention to the good of the whole human family, united by the different ties which bind together races, people and nations. (75)

Peace and Nonviolence

Chapter 5 praises the peacemakers, while acknowledging that peacemaking is always an ongoing process:

… peace is never attained once and for all, but must be built up ceaselessly. Moreover, since the human will is unsteady and wounded by sin, the achievement of peace requires a constant mastering of passions and the vigilance of lawful authority. (78)

The Church praises those who use nonviolence to achieve peace and resolve disputes:

… all Christians are urgently summoned to do in love what the truth requires, and to join with all true peacemakers in pleading for peace and bringing it about.

Motivated by this same spirit, we cannot fail to praise those who renounce the use of violence in the vindication of their rights and who resort to methods of defense which are otherwise available to weaker parties too, provided this can be done without injury to the rights and duties of others or of the community itself. (78)

But the Church remains realistic that war is sometimes necessary and licit:

As long as the danger of war remains and there is no competent and sufficiently powerful authority at the international level, governments cannot be denied the right to legitimate defense once every means of peaceful settlement has been exhausted. State authorities and others who share public responsibility have the duty to conduct such grave matters soberly and to protect the welfare of the people entrusted to their care. But it is one thing to undertake military action for the just defense of the people, and something else again to seek the subjugation of other nations. Nor, by the same token, does the mere fact that war has unhappily begun mean that all is fair between the warring parties.

Those too who devote themselves to the military service of their country should regard themselves as the agents of security and freedom of peoples. As long as they fulfill this role properly, they are making a genuine contribution to the establishment of peace. (79)

Even, so the Church wishes all to work for peace:

It is our clear duty, therefore, to strain every muscle in working for the time when all war can be completely outlawed by international consent. This goal undoubtedly requires the establishment of some universal public authority acknowledged as such by all and endowed with the power to safeguard on the behalf of all, security, regard for justice, and respect for rights. (81)

Is that a realistic goal? Is a universal public authority more or less likely to protect liberty and justice than national authorities?

Struggling with Catholic Social Thought's View of Labor as Co-Creation

I continue reading Gaudium et spes in preparation for the next Catholic Social Thought and the Law seminar. GS states plainly a conception of labor that is a central feature of CST and, candidly, one with which I have always struggled:

By his labor a man ordinarily supports himself and his family, is joined to his fellow men and serves them, and can exercise genuine charity and be a partner in the work of bringing divine creation to perfection. Indeed, we hold that through labor offered to God man is associated with the redemptive work of Jesus Christ, Who conferred an eminent dignity on labor when at Nazareth He worked with His own hands. (67)

Work is thus seen as a means by which we collaborate in God’s on-going act of creation.  The Creator hid untold riches and possibilities within His creation, which it is Man’s vocation to discover and develop through work.  Man’s capacity for creativity thus is one of the ways in which he was made in God’s image. This innate capacity, however, requires development. Accordingly, work is not only a process by which we collaborate in God’s creative transformation of the world, but also by which we ourselves are transformed into a more fully human person.  According to CST, this process of self-fulfillment is both a duty and a privilege.

In my personal view, however, Man may (and should) imitate God’s creative work, but Man does not share in God’s work as Creator. In the Genesis account, Creation was completed on the sixth day.  “That is exactly why God could call it good and rest” on the seventh day.[1]  Instead of being part of an on-going process of Creation, work was a direct result of the Fall: When exiled from Eden, Man was condemned to “painful toil.”[2]  Work thus was not intended to be intrinsically fulfilling, but simply a necessary means of survival.

I suspect that my perspective on work and creation is a relic of my Protestant upbringing. I suppose I shall have to (pardon the weak pun) work on it.