Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, August 28, 2015

"Agape, Gift, and Intellectual Property"

In the years ahead, intellectual property and related legal and policy questions will become even more important than they already are. The Catholic Church has had things in the past about intellectual property rights and common good; and the Church and other Christian bodies will need to say more in the future. Following up on my previous work in this vein, I've posted "Agape, Gift, and Intellectual Property" on SSRN. The abstract:

The scope of protection of intellectual property (IP) has become a social justice as well as a legal and business issue, especially in the international arena, where disputes continue over whether expanded IP rights help or harm people in developing nations. Scholars writing in the Christian tradition have begun to respond to these questions, analyzing IP-related issues in the light of Christian theological themes such as creation, stewardship, and solidarity with the poor.

This paper, written for a Pepperdine Law School symposium on love and justice, explores potential implications for IP of another central Christian theme, agape: the form of love, independent of particularistic loyalties, that is most distinctive of Christian ethics. Agape in turns connects with the idea of “gift”: that creativity, among other human attributes, is a gift that humans receive (from a divine giver, Christians and other religious believers say). In Christian thought the sense of gift, and gratitude for the gift, connects to love of God and neighbor: the response of gratitude to God is to use the gift to benefit others. I connect these themes to those critics of IP rights, such as Lewis Hyde, who appeal to the virtues of a “gift economy” in which knowledge is shared rather than commoditized. Economies based on gift, and gratitude to the giver, have been thought to have a dark side: they can reinforce personal indebtedness and social hierarchies. But, following on the work of other Christian thinkers, I argue that the gift-giving economy can be universalized, and made more egalitarian, if we maintain, or recover, the sense that the human talents that produce goods are themselves gifts from a universal source (in Christian and other religious thought, from the God who gives all gifts in the first place).

Creativity is thus a fundamental gift we receive, and IP law should encourage the response of gratitude: dissemination of that gift to others to benefit them, and empowerment of others to realize their own creative gifts. The paper concludes with suggested general implications for IP law and policy.

August 28, 2015 in Berg, Thomas | Permalink

Tuesday, August 11, 2015

"Liberal Arrogance"

Tony Jones is an interesting blogger. He's a former leader in the "Emergent" movement among young evangelicals, a movement that one needs to understand in order to see where evangelicals are likely to head in the future. (That in turn should be a matter of interest to those asking the same questions concerning Catholicism.) Now Tony tends liberal more frequently, but he still has evangelical elements. (He has a new book out called Did God Kill Jesus?, grappling with the tough theological questions about the meaning of Jesus's Atonement.)

At any rate, Tony has a new post up on "Liberal Arrogance." It isn't, and isn't intended to be, an analytical review of this phenomenon. But it came into my inbox just as a bunch of other complaints and news stories about the same phenomenon arrived, some of them (like Tony's) complaints by people who themselves are mostly liberal. (See. e.g., Jonathan Haidt on Morning Joe today talking about political correctness on college campuses, in response to a recent Atlantic story about standup comics who run into this when they play college venues.)

"Liberal arrogance" is in danger of becoming like the weather (apologies to Mark Twain). Everyone talks about it, but no one does anything about it.

August 11, 2015 in Berg, Thomas | Permalink

Monday, August 10, 2015

More on Non-Profits (Especially Religious Ones) Providing Civic Services

Thanks, Marc, for the interesting post. I too see a difference in trends between (1) excluding religious or private groups altogether from state-promoted social efforts and (2) subjecting them unyieldingly to conditions (e.g., nondiscrimination conditions) that may effectively exclude them. I think the former impulse--to exclude religious (or more generally private) groups as such has weakened over the last 30 years, with no reversal of that recently. Obama has mostly continued the Bush administration's effort to enlist faith-based groups in social services (and channeled additional funds to FBOs in the 2009-10 stimulus package); the contribution of those groups has been commended in the 2012 Democratic platform (see p. 15) and in speeches by both Barack and Michelle Obama.

But the second impulse above, to subject groups rigidly to accompanying conditions,  has significantly strengthened  in recent years. I think it's an open question how much of this is attributable to the gay-rights revolution, and how much to the broader establishmentarian idea that the state can and should make use of religions that are willing to conform fully to the state's norms. (As Marc suggests, the latter approach is one that separationists have warned against for a long time.)

August 10, 2015 in Berg, Thomas | Permalink

Tuesday, August 4, 2015

Kasich Makes the Debate?

The NY Times "Upshot" blog reports that Ohio governor John Kasich is doing well enough in the GOP presidential race, despite his late entry, that he seems likely to squeeze into Thursday's debate. That is good news, I think, because for a couple of reasons Kasich is a candidate from whom people ought to hear more. (In contrast to the dude at the top of the GOP polls.) First, Kasich sounds many of the themes of "compassionate conservatism" that I think have  been very muted (unfortunately so) in recent Republican politics with the rise of Tea Party anger about government. Second, during this time of polarization, Kasich has, as governor, worked with both sides of the aisle.

I would still disagree with Kasich on a lot of issues (I'm a Democrat, albeit a conflicted one). Moreover, I am not saying there aren't other GOP candidates who have done the two things above.  But Kasich has done them more, and/or more recently, even when polarization was often the path of least resistance.

August 4, 2015 in Berg, Thomas | Permalink

Garnett, Inazu, and McConnell on Protecting Faith-Based Service Organizations

The bill known as the First Amendment Defense Act (FADA), designed to protect adherents of traditional-marriage views from being penalized by the federal government in various contexts, has of course sparked a lot of controversy. There are likely to be amendments, or amended versions introduced. Rick Garnett, John Inazu, and Michael McConnell now have a powerful piece online at Christianity Today on (1) why some form of this legislation is needed now and (2) why its protections should focus (more so than the current version) on nonprofit religious organizations providing social services and education of great value to the common good. These organizations

give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.


Despite the crucial role that religious organizations and individuals have long played in our country, some voices now suggest that they and their work are somehow tainted because of their beliefs about marriage and sexuality. Some argue that the time has come to push religious believers out of the public square and confine them to the quiet, private realm of personal prayer and worship. This despite the Supreme Court's recent decision in Obergefell v. Hodges, which not only required states to legally recognize same-sex marriages but also said, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Read the whole thing.

August 4, 2015 in Berg, Thomas | Permalink

Monday, August 3, 2015

Planned Parenthood, Women's Health Services, and Alternatives

As the debate over defunding Planned Parenthood continues, the Democrats for Life of America (on whose board I serve) are among the leaders in presenting the evidence that such defunding does not have to mean withdrawing from women vital health services such as pap smears, mammograms, etc. We can (as the current bill provides) switch funding to community health centers, which provide such services on a far larger scale. The statistics are quite striking. (See here and here for further discussion.)

UPDATE: And here, DFLA's Kristen Day emphasizes how central the theme that "there are good alternatives" must be.

FACT CHECK: The Largest Women’s Health Care Provider In America Is NOT Planned Parenthood

August 3, 2015 in Berg, Thomas | Permalink

Monday, July 27, 2015

NC's School Choice Program Upheld

I'm happy to report that the North Carolina Supreme Court has upheld the state's school choice program against state constitutional challenges. (The main case is Hart v. State; a second ruling, Richardson v. State, relies on Hart.) The program provides scholarships to low-income students to use at the private school of their choice, religious or secular. The plaintiffs brought a variety of challenges, which boiled down to three arguments:

(1) The state cannot fund private schools at all. (E.g., the plaintiffs said, the clause requiring the state to maintain a "uniform system of schools" means that funded schools must be uniformly public.) The court answered that the uniformity clause only applies to policies within the public school system and does not prohibit the state from funding other educational opportunities. This is the opposite result from the one the Florida Supreme Court reached in 2006 in striking down that state's program under a similar "uniform education" provision (Bush v. Holmes).

(2) The state failed to include sufficient safeguards for the educational quality of schools participating in the program. This allegedly violates, e.g., the requirements that legislation serve a public purpose, and as well as the state's duty to "maintain the right of the people to the privilege of education"). The court responded that since some (most?) private schools were educationally adequate, claims of inadequacy were not the basis for a facial challenge to the program. (This reasoning might suggest there could be an as-applied challenge to a particular school's inadequacy, although the court isn't entirely clear on that.)

(3) Finally, the plaintiffs said, the program authorized the participation of schools that discriminate on the basis of religion, in violation of the provision that no person shall "be subjected to discrimination by the State because of race, color, religion, or national origin." The court held that the plaintiffs--state taxpayers--lacked standing to bring this claim because they did not claim they had been personally subjected to discrimination (e.g. denied employment or admission by a school on grounds of religion).

     Basically, the  plaintiffs' problem on the religion question was that there was no North Carolina  anti-establishment provision restricting government support of religious schools ("sectarian schools," as other states call them). So the plaintiffs tried to shoehorn their objection to religious schools into the provision prohibiting state discrimination based on religion. But the round peg didn't fit the square hole: they hadn't been discriminated against just because they were taxpayers, and moreover their equation of discrimination by the school with discrimination by the state misstates Con Law 101 principles about state action.  [UPDATE: I struck out "anti-establishment" above because, as Marc points out, the 19th-century Blaine-type restrictions on aid to "sectarian" schools can certainly be seen as doing something quite different from promoting pluralism as anti-establishment provisions do. I didn't mean to weigh in here on that issue--although I basically agree with Marc on it.] 

     The religious liberty clinic I supervise at St. Thomas, together with the Christian Legal Society,  filed a brief for several amici on the merits of the religious-discrimination claim. We emphasized that a religious school's employment and admissions decisions on ground of religion involve a constitutionally protected right to form a community based on religious ideals, and that the state could legitimately preserve that while also supporting the education those schools provide. (We also pointed out the basic state-action error.) The court didn't reach these arguments.

A passage in the court's discussion of the "public purpose" doctrine sums up the basic message of this decision:

Although the scholarships at issue here are available only to families of modest means, and therefore inure to the benefit of the eligible students in the first instance, and to the designated nonpublic schools in the second, the ultimate beneficiary of providing these children additional educational opportunities is our collective citizenry.

July 27, 2015 in Berg, Thomas | Permalink

Monday, July 20, 2015

Schneck on PP, the 20-Week Ban, and Support for Pregnant Women

At U.S. Catholic, Steve Schneck laments how the outrage over the Planned Parenthood video will likely devolve into familiar abortion politics, leaving little or nothing done legislatively about--for example--ending late-term abortions where the child could well be viable and, "many agree[,] feels  pain." He describes the proposal from Democrats for Life about how to move forward, on the late-term ban that currently has no prospects in the Senate:

By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, [Kristen] Day  and [Charlie] Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life.

(Disclosure: Schneck and I are both board members of DFLA.)

The U.S. is extreme among the Western industrial nations in how little we restrict abortion (Western European prohibitions kick in after three or four months). We are also the only OECD nation that does not guarantee some paid maternity leave. This moment presents another opportunity to take a different approach.

By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, Day  and Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life. - See more at: http://www.uscatholic.org/blog/201507/planned-parenthood%E2%80%99s-video-can-we-ever-get-beyond-banality-abortion-politics-30251#sthash.uGsAeJlS.iWrulYH2.dpuf
By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, Day  and Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life. - See more at: http://www.uscatholic.org/blog/201507/planned-parenthood%E2%80%99s-video-can-we-ever-get-beyond-banality-abortion-politics-30251#sthash.uGsAeJlS.iWrulYH2.dpuf

July 20, 2015 in Berg, Thomas | Permalink

Thursday, July 9, 2015

Religious Freedom Sessions at the Christian Legal Society Conference (NEW ORLEANS! IN OCTOBER!)

I will be speaking at the Christian Legal Society's national conference in New Orleans on October 2 and 3. (An especially fine time of year to visit NOLA, and a fascinating group of featured speakers, overall topics, etc.) First I'll join a panel on religious freedom issues, on the 2nd; then on the 3rd, I'll do a follow-up workshop on "Why Progressives Should Care About Religious Freedom." I hope these will give food for thought on very challenging issues (the whole conference is sub-themed "practicing law in turbulent times"). And then there will be great food for savoring, only blocks away. Y'all come down!

July 9, 2015 in Berg, Thomas | Permalink

Friday, July 3, 2015

"What Every American Should Know"

Here is a thoughtful piece that explains well why, in an ever-changing America, we need both "cultural literacy" and multiculturalism: that is, an expanded and changed shared core of literacy. Just a couple of bits (read the whole thing):

The more serious challenge, for Americans new and old, is to make a common culture that’s greater than the sum of our increasingly diverse parts. It’s not enough for the United States to be a neutral zone where a million little niches of identity might flourish; in order to make our diversity a true asset, Americans need those niches to be able to share a vocabulary. Americans need to be able to have a broad base of common knowledge so that diversity can be most fully activated. . . .


As the cultural critic Albert Murray wrote in his 1970 classic The Omni-Americans, the essence of American life is that it relentlessly generates hybrids. American culture takes segments of DNA—genetic and cultural—from around the planet and re-splices them into something previously unimagined. The sum of this—the Omni—is as capacious as human life itself, yet found in America most fully. This is jazz and the blues. This is the mash-up. This is everything creole, mestizo, hapa. In its serious forms, multiculturalism never asserted that every racial group should have its own sealed and separate history or that each group’s history was equally salient to the formation of the American experience. It simply claimed that the omni-American story—of diversity and hybridity—was the legitimate American story.

July 3, 2015 in Berg, Thomas | Permalink