Mirror of Justice

Call for Papers: CST and Citizenship at Villanova Law

Just in time for the general election!

Symposium on Catholic Social Thought and the Law

Catholic Social Thought and Citizenship

Villanova University School of Law

October 11, 2008

CALL FOR PAPERS

On the eve of the 2008 election, Villanova University School of Law's sixth annual symposium on Catholic social thought will take up the question of citizenship and political participation. Every four years, the U.S. Conference of Catholic Bishops releases a document entitled "Faithful Citizenship," and the media engage in speculation about the "Catholic vote." The Bishops assert that "responsible citizenship is a virtue, and participation in public life is a moral obligation." After visiting America, Alexis de Tocqueville worried that Christianity neglected the duty of citizenship while also arguing that religion was the first of America's political institutions.

But Catholic social thought arguably lacks a coherent account of citizenship. As John Coleman, S.J., complained in the pages of Commonweal over 20 years ago, "Christianity has not adequately adumbrated or embodied the moral ideal of the citizen in its social ethics or popular preaching."  Among the questions to be addressed by the symposium are the responsibilities of citizenship in Catholic social teaching, the relationship between faithful citizenship and voting, the role of the American Catholic Church in public life, the duties of public officials, and the historical development of citizenship in Catholic social thought. The Symposium will bring together legal scholars, political scientists, theologians, and philosophers to explore the implications of citizenship for Catholic legal theory.

Articles presented at the Conference will be considered for publication in the Journal of Catholic Social Thought, a peer-reviewed, interdisciplinary journal published by Villanova University.  Please submit paper proposals or requests for more information to:

Dean Mark A. Sargent

sargent@law.villanova.edu 

or

Professor Michael Moreland

moreland@law.villanova.edu

CST and the City: Looking for Advice

As the 2007 Journal of Catholic Social Thought Conference  on CST and the Law approaches, I''ve been mulling over ideas for the 2008 conference. One that occured to me is really just a phrase at this point: "CST and the City." I am wondering what CST has to tell us about the conundrums we face in deciding what sort of communities we want to live in physically. What spaces, physical settings are most conducive to community? What does CST mean  by "community"? Is there a relationship between the evolving Catholic thinking about the environment and ways to think about urban planning? Is exburban sprawl a form of 'social sin''? Is Ave Maria Town really "Catholic" in its self-conception as a community and in its environmental implications? Naturally, all of the familiar threshold questions about CST as a guide, inspriration or source of authority for complex practical problems apply here as well, particularly when we move to the legal implications. Problem is, I know even less about this stuff than I do about most 0other things. Thoughts, reactions, suggestions from both my fellow blogistas and readers would be welcome as I try to figure out whether this would be worth exploring. Rick and Nicole Garnett -- I know you have some interesting ideas about all this...

--Mark

CST on the Market: Conference Brochure

Here is a link to the brochure for the Journal of Catholic Social Thought Conference on CST on the Market, the State and the Law, containing registration info as well as the agenda.

http://www.law.villanova.edu/links/docs/jcst2007.pdf 

Situation at Ave Worsens

From AveWatch, an independant blog that chronicles what goes on at Ave Maria Law:

Dean Retaliates Against Whistleblower

Wed, Jun27, 2007 | School of Law | Permalink

It's more of the same strong-arm tactics.

On Monday, Ave Maria School of Law's Dean Bernard Dobranski attempted to censure and begin dismissal proceedings against tenured professor Steven Safranek, a founder of the school. Professor Safranek was involved with the faculty's complaint to the school's accreditor, has filed a complaint with law enforcement against Dobranski, and recently called for a renewal of the faculty's earlier "vote of no confidence" in governance.

Professor Safranek has worked in prestigious law firms, and clerked for Judge O'Scannlain on the US Court of Appeals for the Ninth Circuit. He has been admitted to practice before federal courts, including the US Supreme Court. He has numerous publications and is the Executive Director and Founder of The True Marriage Project, an extension of Safranek's interest in "helping to ensure the survival and growth of the institution most critical to society, the family".

Safranek is in good company. Recall that another Law School founder, Professor Emeritus Charles Rice of Notre Dame, was also terminated by Dobranski and booted from the Law School Board for questioning institutional governance and the legality of Monaghan's proposed Florida town concept. Ave Maria's history of firing whistleblowers is well-known.

More will be posted as this story develops. See Fumare for commentary here and here.    [endquote]

I encourage those disturbed by this to review earlier posts on AveWatch and Fumare to get a fuller sense of what has been going on.

-Mark

Jesus and the Rabbis on Law

My young colleague Chaim Saiman has just posted a fascinating new article on SSRN at http://ssrn.com/abstract=992280. It is entitled "Jesus' Legal Theory-- A Rabbinic Interpretation." Here is the abstract:

This article locates the ancient debates between Jesus and the Talmudic rabbis within the discourse of contemporary legal theory. By engaging in a comparative reading of both Gospel and rabbinic texts, I show how Jesus and his rabbinic interlocutors sparred over questions we now conceptualize as the central concerns of jurisprudence. Whereas the rabbis approach theological, ethical and moral issues through an analytical, lawyerly interpretation of a dense network of legal rules, Jesus openly questions whether law is the appropriate medium to structure social relationships and resolve interpersonal conflicts. Through an examination of Talmudic sources, this paper argues the controversies between early Christianity and the nascent rabbinic Judaism (summarized by Paul in terms of Letter vs. Spirit) have the same argumentative architecture as the ongoing debates over law vs. equity, procedural vs. substantive justice, rules vs. standards, formalism vs. instrumentalism, and textualsim vs. contextualism. Moreover, the contrast between the Gospels and the emerging rabbinic discourse brings Jesus' bold claims about the role, rule and domain of the law to the fore. Thus while the mainstream representation of Christian legal theory tends towards rules, procedural justice, formalism and textualism, this analysis of primary sources shows that Jesus argued for exactly the opposite.

I am sure Chaim would appreciate comments either on MOJ or directed to him here at Villanova Law.

-Mark

Crisis at Ave Maria Law

Many MOJ contributors have had some sense of the evolving crisis at Ave Maria Law school. Below is a statement of the Association of Ave Maria Law Faculty, which group represents all but a tiny portion of that school's faculty, that provides a very full picture of the seriousness of that crisis.    -- Mark

What's going on at Ave Maria School of Law?

We have chosen to reply as a group to repeated inquiries concerning recent events at Ave Maria School of Law (AMSL). We do so to indicate the extent of our agreement concerning the serious nature of the crisis unfolding here, the need for fundamental change if AMSL is to continue to exist and serve its Mission, and to appeal for input from our colleagues in the wider legal academy.

Until now, the majority of the faculty has not made public the outrageous behavior of the Law School's administration. We have remained silent in the hope of minimizing damage to our school, believing that responsible parties would set matters right, and out of fear of escalating acts of retaliation. At this point, however, we believe it is important to allow the larger legal community to know the reality of the way AMSL's administration has abused the power with which it has been entrusted.

Those who have not been closely following events at AMSL, nonetheless, may have heard of a number of events over the last year or so. To summarize: last spring, a substantial majority of the faculty issued a vote of "no confidence" in Dean Bernard Dobranski. The response from the AMSL Board of Governors, led by Board Chairman and AMSL's largest funder, Thomas Monaghan, was a terse restatement of its support for the Dean. This rejection of open discussions, combined with retaliatory actions by the Dean, exclusion of the faculty from governance of the school, and serious violations of academic freedom were subjects of an investigation by an ABAfact-finder earlier this year. In the midst of this ABAprocess, the AMSL Board voted in effect to close AMSL and transfer its assets to a new law school to be located on the campus of Ave Maria University, in southwest Florida.

Disagreement over this proposed move is thus only one aspect of the difficulties at AMSL. Problems at AMSL go much deeper, and are much more structural.  Since the vote of "no confidence" in Dean Dobranski in April 2006 over issues of faculty governance and academic freedom, he has used threats and retaliation to try to silence members of the faculty from voicing concerns about his leadership and that of Mr. Monaghan. A majority of the faculty whom the Dean believes to be disloyal to him have been punished financially and through manipulation of the promotion and tenure system. One tenured faculty member has been repeatedly threatened with termination based upon bizarre allegations. Junior faculty members have been threatened that their careers would be harmed if they associate with disfavored tenured faculty. We have also been informed that Dean Dobranski had instituted a system of monitoring our emails and computers, and student research assistants have been closely questioned about research projects of disfavored faculty members. All tenured faculty members have been removed from the Chairs of faculty committees, and such chairs are now in the control of the few faculty members whom the Dean believes to be loyal to him. Cumulatively, such intimidation and bullying has created an intolerable atmosphere of fear and contempt at our school.

We repost here, as an example of this atmosphere, a portion of an email by AMSL's President and Dean Bernard Dobranski to the faculty sent on Wednesday, March 14 - eight days before the school was visited by an ABA fact-finder investigating complaints regarding the manner in which AMSL is being run.

The full memo is available on a web site established as a repository of documents related to the various educational enterprises run by Mr. Monaghan [html; PDF]. Here is an excerpt:

Ave Maria School of Law resources, including the Law School email, may not be used ... for any ... activities or purposes that are intended to or are reasonably likely to undermine or damage, tangibly or intangibly, the successful operations of our Law School. These limitations do not apply to activities conducted by a faculty member on his or her own time and using his or her own resources. These limitations, however, do not imply any permission to engage in activities injurious to the Law School, which activities, of course, are impermissible for any employee, regardless of the equipment used or location of the activity. Moreover, these limitations do not interfere with a faculty member's legitimate right to interact with the American Bar Association in any way, nor do they interfere with any other legitimate activities of and expressions by faculty members, consistent with the concepts of "The Centrality of the Mission" and "The Definition and Role of Academic Freedom" as set forth in the Faculty Handbook.

If any faculty member is considering using Law School resources in such a way as might be contrary to the limitations described here, he or she should fully advise me or Dean Milhizer in writing of the contemplated use and we will notify the faculty member in writing whether the contemplated use is prohibited.

We find this memo, in the context of current events, to be breathtaking in its audacity. The Dean of a (currently) ABA accredited law school is threatening to fire faculty whom he finds, in his own opinion, to be acting in any way he thinks might possibly cause harm to AMSL. He also appears to be demanding that faculty get prior approval for use of AMSL resources, thereby imposing prior restraint on their speech and conduct. Such threats (which were reiterated in a memo to all system distribution and alumni [html; PDF]) would be chilling in any atmosphere, let alone that at AMSL, which is under ABA investigation, and where the Dean already has had a vote of "no-confidence" registered against him by a substantial majority of the faculty.

In light of this conduct, a substantial majority of the faculty of AMSL has no plans to participate in relocating our beloved school to Ave Maria Town in Southwest Florida. No evidence has been presented that would suggest that the move, which was recently approved by our Board of Governors, is in the best interest of AMSL.  Indeed, it appears that the move is being pursued primarily to benefit Ave Maria University, an institution that is wholly unrelated to the Law School.

Prior to the Board of Governors’ vote to "relocate" the school, a substantial majority of the faculty, having been denied repeated requests for both a written relocation proposal and a meaningful opportunity to comment as a group on the wisdom of this move, sent a resolution to the Board opposing the proposed move and explaining that opposition [PDF]. There are all sorts of reasons why one would find it imprudent to leave a well-populated area, where a law school has made valuable contacts with the profession and for its students over the last seven years, to move 1,300 miles to a new and untested community, isolated from most of the kinds of social networks in which legal communities thrive. The resolution pointed out many of these concerns in a detailed response [PDF] to the administration's feasibility study regarding the move [PDF 5.3MB]. Given the recent track record of the poor governance of AMSL under the current administration, and given that the same governing authority will exercise an even greater range of influence - directly or indirectly - over all of Ave Maria Town, we cannot subject our institution, ourselves, and our families to the whim of that authority over the entire community: university, housing, shops, town, public services, children's schools, and Oratory.

In fact, no more than a handful of faculty members will be moving to Florida.  In combination with other challenges facing Ave Maria University [overview], it is our opinion, based upon the information made available to us and the opinions of knowledgeable persons whom we have consulted, that the ABAwill not acquiesce to the move. If AMSL moves without such acquiescence, it stands to lose its most valuable asset, its ABA accreditation.

The fear is growing that Dean Dobranski and Mr. Monaghan now intend to abandon our school, whether or not a new one eventually will arise in Florida. Indeed, at a recent meeting with AMSL students, the Dean stated that the administration has no contingency plan in the event that the ABA refuses to acquiesce in the move, and that two Board members believe that AMSL is a "failed experiment."

This "spin" on events unfortunately is not unexpected. Mr. Monaghan has already abandoned and destroyed two colleges (Ave Maria College in Michigan  and Orchard Lake Saint Mary's College, also in Michigan). So it is sadly unsurprising that he is behaving in this manner. More disappointing is Dean Dobranski's conduct, refusing even to meet with his own faculty to discuss issues of governance and the move - insisting, in effect, that they are none of the faculty's business. Most disappointing is the conduct of the Board, which has (or had) among its members two cardinals and four prominent Catholic professors.

Acting as if the move to Florida is a fait accompli before acquiescence has been granted, and failing to have a contingency plan should it be denied, is reckless. In view of this failure, faculty members have investigated options for maintaining a program of sound Catholic legal education in Ann Arbor, and have uncovered several promising avenues. We ask for support for these efforts in the near future from our colleagues around the country.

What is more, in our view calling a living community of hundreds of human persons a "failed experiment" reveals a remarkable disregard for basic Christian values. Furthermore, the charge of failure is demonstrably false. On the contrary, as our high bar passage rate and judicial clerkship numbers demonstrate, our school actually is a phenomenal success. The only failure has been the Board's inexcusable failure to provide leadership in the face of the current crisis.

As evidenced by a number of documents available on the internet [link], as well as by some rather angry, though sometimes humorous blogs [link], and by the experience and general mood and convictions of faculty and students, AMSL is engulfed in an atmosphere of fear - fear for one's job, and for one's future should one cross an administration that has shown itself determined to squelch all dissent. Faculty members, both tenured and tenure-track, have been threatened with termination. The Dean has pocketed ballots and stalked out of faculty meetings unilaterally declaring them adjourned.

Although the faculty has maintained confidentiality regarding all the specific reasons for the vote of no-confidence in Dean Dobranski, one thing not confidential is the reaction of the Board of Governors to a detailed list of the Dean's abuses: a bald reiteration of complete confidence in Dean Dobranski, followed by a year long refusal to have any substantive discussions with the faculty regarding issues of academic freedom and faculty governance. The Board also has refused repeated requests for intervention to see that the faculty's views are taken into account in regard to the decision to close down the school and transfer its assets to Florida.

We ask our colleagues at Mirror of Justice and elsewhere whether it is in keeping with Catholic Social Teaching - or even with basic standards of human decency - for a Board of Governors to simply ignore the faculty's detailed allegations of the denial of appropriate faculty governance and academic freedom? Are threats to people's jobs, should they dare speak out against a major change that may (indeed most likely will) bring ruin to the school, acceptable? What do conditions at AMSL tell us about Catholic legal education - especially if, as appears the case, Catholic law faculty from other institutions who serve on our Board of Governors are willing to let the school be destroyed in this manner? Finally, of course, we would ask for prayers and advice on how best to deal with this deplorable situation.

In Christ,

The Association of Ave Maria Faculty

Benedict, CST, Labor and the Market

The Pope recently made the statements about labor excerpted below in this clip from ZENIT. MOJ readers may find them relevant to our ongoing discussion of CST and the market and the tensions between CST and economic liberalism. Law profs and lawyers will also recognizae their obvious implications for lawyers struggling between the demands of practice and the Catholic sense of time, the purpose of labor and human flourishing, as Amy Uelmen, Cathy Kaveny and others have explored so eloquently.

---

VATICAN DOSSIER

---

Pope Calls for Revaluing Human Side of Work
Sends Message to Young Professionals in Forum

VATICAN CITY, MARCH 30, 2007 (Zenit.org).- In a message sent to young professionals gathered to analyze the world of labor, Benedict XVI appeals for a revived appreciation of the human dimension of work.

The Pope's appeal was sent to participants in the 9th International Youth Forum, organized by the Pontifical Council for the Laity, on the theme "Witnesses of Christ in the Labor World" being held in Rome through Sunday.

Three hundred 20- to 35-year-olds from about 100 nations are participating in this encounter.

The Holy Father points out in his message: "The process of globalization going on in the world has brought on a need for mobility, which obliges many young people to emigrate and live far away from their birthplace and from their families.

"This generates a disquieting sense of insecurity, with indubitable repercussions on the ability not only to imagine and adopt a plan for the future, but also to concretely commit oneself to marriage and to the formation of a family."

Dignity

"In a context of economic liberalism conditioned by market pressure, by competence and competitiveness," the Pontiff underlined "the need to value the human dimension of labor and to guarantee the dignity of the human person."

"The final reference point of any human activity can be only the individual, created in the image and likeness of God," he added. "Work is part of God's project for the human being" and implies "a participation in his creative and redemptive work."

Benedict XVI continued: "Therefore, every human activity should be a motive and a place of growth for the individual and for society, a development of personal 'talents' that must be valued, a service oriented toward the common good, with a spirit of justice and solidarity.

"For the faithful, moreover, the ultimate finality of labor is the building up of the Kingdom of God."

To face these "complex issues," the Pope proposed Catholic social doctrine as a reference point for the young professionals.

"Today, more than ever, it is urgent and necessary to proclaim the 'Gospel of work,' to live as Christians in the world of labor and to become apostles among workers," the Holy Father asserted. "But to complete this mission one must stay united to Christ with prayer and an intense sacramental life, and with this objective, to value Sunday, the day dedicated to the Lord."

-- Mark

CST on the Market, the State and the Law at Villanova

I am emerging from the swamp of the deanery long enough to post this Call for Papers to be presented at the Fifth (mirabile dictu!) Annual Conference on Catholic Social Thought and the Law here at Villanova Law in September 2007. Many MOJ-ers and friends-of-MOJ have presented at or attended these conferences. This year's topic will be one that has engaged several of us on this blog over the years -- what does CST tell us about the relationship of the market, the state and the law? Confirmed speakers include David Hollenbach, who will speak about "Economic Justice for All 20 Years Later," the economist/theologian Daniel Finn, who has recently published "The Moral Ecology of Markets" with Cambridge UP, our own Susan Stabile, and yours truly. But there is plenty of room for other papers and respondent. I hope my co-blogistas and our readers will be kind enough to circulate this call to their colleagues and other interested parties.

VILLANOVA

UNIVERSITY

SCHOOL

OF LAW

JOURNAL OF CATHOLIC SOCIAL THOUGHT

The Fifth Annual Conference on Catholic Social Thought and the Law

Catholic Social Teaching on the Market, the State and the Law

CALL FOR PAPERS

Villanova

University

Conference

Center

Friday, September 21, 2007

The nature and implications of Catholic social teaching on the significance of the market for human dignity, and on the role of the state in the regulation of the market, is one of the most controversial aspects of the social doctrine. Catholic social teaching on these issues can best be described as sui generis and non-assimilable to secular conceptions of “left” or “right,” but both the left and right have claimed that teaching for their own. This has led to fundamentally inconsistent characterizations of Catholic social teaching as either left-communitarian or as supportive of a strong form of economic liberalism. Can both characterizations be correct? Does disagreement over the proper role of the state prevent creation of a coherent theory of how the market contributes to the common good?

Even more troublesome is the argument that the teaching on the market and its relation to the state is so general and abstract, and so deferential to secular/technical knowledge, that virtually all specific questions of economic and regulatory policy should be regarded matters of prudence, and that the social doctrine gives no or little guidance to their resolution. If that is true, then the value of Catholic social teaching in this field is questionable, to say the least. Is such a wholesale deference to prudential judgment consistent with Catholic social teaching’s robust conception of the common good?

These contesting claims about Catholic social teaching have broad implications for Catholic legal theory. Can the social doctrine provide a framework for determining when and how the market should be freed or constrained by law? Can we derive from it a set of normative propositions about the nature and purpose of the corporation that would provide a foundation for the law of corporate governance and social responsibility?  What implications does Catholic social teaching about the market have for the legal structuring of the employment relationship?  These are just a few of the questions that will be considered at the Conference.

The Conference will bring together legal academics, economists, theologians and philosophers. Articles presented at the Conference will be considered for publication in the Journal of Catholic Social Thought, a peer-reviewed, interdisciplinary journal.  Please submit paper proposals or requests for more information to Dean Mark A. Sargent, sargent@law.villanova.edu or Professor Michael Moreland, moreland@law.villanova.edu at Villanova University School of Law.

Information for those wishing to attend the Conference will be published shortly.

Families

Mike Perry's quotation of R.D. Laing on families, who has a lot to answer for about a lot of things, including romanticization of mental illness, reminds me of Phillip Larkin's bitter poem that begins:

They fuck you up, your mum and dad,

          They may not mean to, but they do

Larkin ends with this advice:

Get out as early as you can,

          And don't have any kids yourself.

Well, so much for families, I guess. But maybe even Larkin and Laing would admit that orphanges, foster homes, and the streets will fuck you up, too. And maybe they would acknbowledge that with parents, or someone like parents who love you, you have a chance of becoming a person.

-- Mark

Preliminary Call for Articles -- The 2007 Conference on Catholic Social Thought and the Law.

I wanted to announce that the Fifth (mirabile dictu!) Conference on Catholic Social Thought and the Law will be held on September 21, 2007, sponsored by Villanova University School of Law and the Journal of Catholic Social Thought, and held at the Villanova Conference Center outside of Philadelphia.This year's topic will be "CST on the the Market, the State and the Law." The goal of this conference will be to shed some light on the never-ending battle over where CST stands on economic life, economic regulation and the virtues and deficiencies of the market. Those who have followed the MOJ debates on just wage, corporate law and globalization will remember the very different points of view among those of us working in the CST vineyard. This topic will, I think, bring to the fore the difficulties of translating the broad precepts of CST into specific policy and legal applications. Those difficulties, however, do not relegate CST to the airy realms of abstraction, leaving the tough questions to "prudential" resolution: If CST is to mean anything, it must somehow guide or constrain our choices in a serious way. In other words, we have to ask whether CST is broad enough to encompass the very different conceptions of economics, politics and law that have invoked its name. Our conference will be broadly interdisciplinary as usual, including law profs, economists, business ethicists, theologians and others. I will be posting a more formal call for articles shortly. The articles will be published in the JCST as usual. My colleague Mike Moreland will be joining me in organizing this and future conferences; feel free to contact either of us with questions, though we will be publicizing all the logistical details before too long.

           A note on last year's conference on the "The Meaning of the Preferential Option for the Poor for the Law:" The articles are all going through the editing process (some are finished) and we hope to publish that issue of the JCST by the end of the semester.

--Mark

Jewish Law in American Legal Scholarship

If you are going to be at the AALS in DC on Jan 4, check out this fascinating program sponsored by the Section on Jewish Law , entitled "Emerging Applications of Jewish Law in American Legal Scholarship." Of particular interest will be a paper by my Villanova Law colleague Chaim Saiman on "Christian Legal Theory--A Rabbinic Perspective." I've had several discussions with Chaim about his paper, and he has some quite original thoughts about how fundamental differences in Jewish  and Christian thinking about moral theology influence our understandings of law. I think we are sorely in need of dialogue with our Jewish colleagues about our Catholic legal theory project -- we are both interested in how our religious faith influences the way we understand and do law, lawyering and legal scholarship, so the differences and similarities between the Catholic/Christian and Jewish perspectives on this question would be very interesting.

http://www.aals.org/am2007/thursday/jewishlawflyer.pdf

Reinforcements for Manne

Mike Perry's colleague Bill Carney thought my critique of Henry Manne's position on Corporate Social Repsonsibility (CSR) was all wet. Here is his comment:

Sargent's quarrel with Manne's claim that CSR is pushed by enemies of

private enterprise is, apparently, that it's an attack on the messenger. He

has to ignore the public choice side of this phenomenon, which is often an

attempt by interest groups to capture benefits from corporations. I give

you organized labor's attack on Wal-Mart, which is only designed to raise

wages (the "living wage" campaign) and fringe benefit costs for Wal-Mart, to

make it easier for employers with higher cost union contracts to compete,

and raises the cost of goods for the poor (and everyone else). Others do

much the same thing. When Pacific Lumber was acquired by outsiders who were

expected to increase the harvest rate on old growth redwoods,

environmentalists attacked. Ultimately they achieved their goal not by

dissuading the new owners from cutting trees, but by getting the government

to buy the land from the new owners, who apparently didn't want to maintain

a scenic wilderness at private expense. It is, I think, in this sense that

Manne uses the word "socialist" -- to express the idea that forcing CSR on

corporations gives the "public" (more likely some interest group) a claim of

some kind of right to the corporation's property. I'm not sure we've

developed a term other than socialist to describe this.

The main attack on Manne's argument is that it's simplistic. Sargent then

goes on to concede that most CSR is done for profit-making motives, which

Manne has stated, I think. I'm not familiar with Catholic Social Thought on

the subject of the corporation, but to the extent that it goes beyond law

obedience and profit-maximizing, I'm on Manne's side. Any attempt to make

the corporation (read corporate management) accountable for something in

addition to profits dilutes the accountability of management, increases its

discretion, lowers profits, and increases the cost of capital for new and

existing enterprises. I wrote about this in the 1990 Cincinnati Law Review,

and I won't repeat the elaboration of those arguments here.

[Mark here] As you might expect, I'm not persuaded by this response. First, Carney does not address my criticism of Manne's tendentious assumption that anyone who buys into CSR despises capitalism and entrepreneurship in particular. Second, Carney points out that CSR arguments may be used by unions or other "interest groups" to capture benefits from corporations. Public choice analysis cuts both ways, however, as evidenced by the nonshareholder constituency statutes extracted from state legislatures by powerful local corporations to protect themselves from hostile takeovers. In other words, CSR can be used hypocritically by both sides. That does not mean, however, that the concept is nonsense; there is such a thing as the common good. Catholic social thought, of course, regards the ownership of private property as constrained by social obligations to an extent that Manne and Carney obviously would not accept. Third, my "concession" that much CSR activity represents an indirect way of maximizing profits does not mean that I buy into Manne's overall argument: a recognition that CSR is "good for business" opens up the possibility of dialogue between the private good and the common good that hardly seems to be countenanced by the Friedman/Manne hard line position. Third, Carney does not address my argument about how the minimalist law compliance approach actually may breed cynicism about law compliance and actually exacerbate illegal or antisocial behavior, and that this may be countered by a more positive approach to CSR. Finally, the Friedman/Manne/Carney view may not even be an accurate way of describing the way people running large corporations actually think about what they should be doing. Note the following observations in a new piece by Peter Haslam of Cambridge University:

doing business with purpose

With the death last week of the Nobel laureate Milton Friedman, business lost one of its brightest and most influential gurus. His saying ‘There’s no such thing as a free lunch’ has become part of popular English usage, but in business circles his name is associated with another dictum: ‘The social responsibility of business is to maximise profits.’ This idea, which has been dubbed ‘shareholder value’, has helped to provoke a vigorous reaction in the form of the ‘corporate social responsibility’ movement, which insists that business has responsibilities not only to shareholders but to stakeholders: customers, employees, suppliers, society at large and the environment. Despite the obvious appeal of this argument, there are several reasons why Friedman’s point should not be too easily dismissed. After all, any good that business can do is dependent on it making a profit, and shareholder value obliges managers to put the interests of shareholders first rather than their own. Moreover, shareholder value is not so much the invention of business gurus as the product of our demands for the best return on our investments. Nonetheless, there is a serious problem with shareholder value, though it’s not one we might expect: it conflicts with the way most business people think. According to recent research, the great majority of CEOs believe that corporations should balance their obligations to shareholders with those to wider society. Only one in six, in fact, agrees with Friedman on this score. None of the most admired companies regards shareholder value as its main purpose; and, paradoxically, companies that do focus on shareholder value perform less well than those whose first priority is to serve their customers. What motivates most business people, evidently, is the sense that they’re providing something that people want or need. And will want or need again. And again. Business, it seems, is less about serving a remote share index than about creating and sustaining long-term relationships with people. Perhaps this reflects the nature of our universe: ultimately, true purpose and meaning are found not in the quantity of material returns but in the quality of relationships. Business shoots itself in both feet, therefore, if it makes maximising profit its chief objective. Not only does it damage its reputation by convincing the public that it’s up to no good, it also reduces its shareholder value – two outcomes that Friedman would have been keen to avoid. [Mark Again] I think these are very challenging arguments that "complexify" the question in a way that makes the lapidary Friedman/Manne position ultimately reductionist. --Mark

GOSH!!!

And I thought "Napoleon Dynamite" was about the age-old question: "Do chickens have large talons?"

Oh Manne!

When I saw the op ed by Henry Manne below, I thought Rick had stumbled on something that Henry Manne wrote in 1976, not 2006. To my surprise, it was an op ed he had published very recently. Manne, the former dean at George Mason, is one of the founders of the law and economics movement, and was particularly influential in its application to corporate law. He was particularly disdainful of the notion of corporate social responsibility, which had only just begun to make a splash in the '70s. He elaborated Milton Friedman's old saw that the corporation's social responsibility was to make a profit. His new op ed shows that he is at least consistent. But that's about the best thing I can say it.

Where to begin? Let's start with his claim that the idea of "corporate social responsibility" (CSR) is being pushed by those "who do not like or appreciate the genius of corporate success stories." Apparently all of us who think that the idea has some traction are lefty ex-hippies who hate anyone who knows how to make an honest buck by starting a business. To be sure, there are plenty of reflexively anti-business lefties; probably about as many as there are reflexively pro-business rightwingers. But there are plenty of people like yours truly, who have spent plenty of time on corporate boards and representing entrepreneurs (and probably more then Dean Manne), who find his (and Friedman's) approach to CSR reductionist and, at least, incomplete. Manne's canard, which is one also used often by Michael Novak, is a way of (inaccurately) attacking the messenger rather than the message.

Another reason I thought this was an old piece was his claim that all this CSR stuff was the "essence of socialism". Is "socialism" still a dirty word?  Are there still "socialists" around? I know there are still "socialist" parties around in Europe, though of a watered down type, but is anyone who talks about the CSR in the US really talking about state ownership of enterprise? I imagine that Manne's definition of socialist is so broad as to encompass any attempt to constrain private property through anything other than a minimalist conception of obeying the law.

But let's get to his real argument. According to Manne, the public corporation is private property that exists to make a profit for its owners. It must obey the law (misguided as those laws may be), but it has no moral responsibility to be "socially responsible" beyond that. Imposition of any legal obligation to be "reponsible", in that sense, is an attempt to undermine the sanctity of private ownership of private property, which he regards as the "essence of socialism." There is an intuitive sense in which Manne/Friedman are correct. There is strong philosophical support for the notion that a thing should be what it is, in this case a profitmaking entity, and not something else. And the private public distinction in business is an important one. The dismal failure of most state-owned business entities in Europe shows one of the reasons why. But even if there is an element of truth in the lapidary Friedman/Manne formulation, and an elegant simplicity that makes it appealing, it misses all the nuances that make the question of CSR more complicated than they believe.

First of all, there is a bit of a straw man in his argument. Manne seems to suggest, although he is not very clear, that government is imposing substantive requirements for CSR. If he is, I am not sure what he means. Most companies who choose to do things as a matter of CSR, do so not because required by law, but voluntarily. They usually adopt CSR programs not out of altruism, or even because they believe what they want to do is good, but because they believe that doing it will be good for business. Sometimes this is cynical pandering for publicity's sake; other times it is a sincere effort to build good will, to establish a reputation as a responsible citizen in the relevant community or because it will have positive internal effects on its work place. Hardly socialism, and hardly inconsistent with Manne's insistence on the primacy of the profit motive. Indeed, much of the current CST movement, especially in Europe, rests specifically on the CSR=Good Business equation. Hence there is a market for such things as "social accounting" and management techniques for determining the appropriate focus of CSR activities and assessing their impact. Actual government imposition on corporate governace of CSR requirements is quite rare, at least in the US. Those should not be confused with regulatory imitations on what corporations do -- environmental regs, OSHA requirements, antitrust laws etc. Perhaps Manne would like to get rid of them as well, but that's a different argument. This argument is about whether public corps should have a state-imposed legal obligation to pursue a " social good"  unconnected to profit maximization. To be sure, there are a few instances of that sort of thing -- perhaps the community reinvestment requirements imposed on bank mergers -- but that is definitely not the legal norm.

Second, the Friedman/Manne "minimalist "law compliance" modelm of CSR is more than a little simplistic. A public corporation is not like a big dump truck that obeys the red light or not. First of all, thru political influence (remember your public choice theory), large public corporations influence what the law is. They try to decide what is "good" as a matter of policy. However, their conception of the good can be, in a word, narcissistic. I have written elsewhere about how Enron (just to use a well known example) affirmatively shaped federal law to insure that virtually all of its activities would escape any type of meaningful regulation. I am not arguing here about whether that is good or bad (it is inevitable, anyway), but to suggest that the corporation should be understood as passive subject of the laws is a bit naive. Second, the psychology of law compliance is extraordinarily complex, especially in institutions. As Robert Jackall as shown in his classic "Moral Mazes: The Moral World of Corporate Managers", an institutional culture of minimalist law compliance breeds a cynicism and opportunism that undermines the possibility of real compliance. The absence of any kind of ethos of social responsibility will exacerbate that risk. In other words, a CSR ethos may in fact facilitate law compliance, making it less necessary to rely on expensive regulation and enforcement efforts to constrain corporate illegality.

Third, Manne lists a number of CSR concerns that he seems to feel are being thrust upon corporations. From the list, he seems to be talking about the kinds of things that are the subject of shareholder proposal that SEC regs may require to be presented in the corporation's proxy statement. The government is hardly forcing the corporation to actually do anything about those concerns; they merely require them to be brought to the attention of all shareholders, who then, theoretically, might use their votes to require the corporation to do something about them (although they usually don't). We can argue about whether the SEC concept of shareholder democracy makes sense in terms of the proper economic roles of shareholders and managers; we cannot argue that they reperenent an SEC endorsement, and hence imposition,  of any shareholder's concept of social responsibility.

Fourth, and perhaps most important, Manne implicitly but utterly rejects the vision of the corporation implicit in Catholic social thought, which cannot be reduced (pace Steve Bainbridge and Michael Novak) to the liberal  (in the classic economic sense) vision of the public corporation as a species of private property, defined exclusively (or essentially)  by contract and devoted to shareholder wealth maximization. Recent work has produced linkages between CST and CSR that are incompatible with Manne's "law compliance" approach.  This new movement goes beyond the CSR=Good Business approach mentioned above; It would justify CSR not because it is potentially profitable, but because it helps corporations ahieve solidarity and serve the common good in the CST sense. I can hear Manne laughing about those concepts, but that only shows the profound philosophical gap. In any event, I've written about much of that elsewhere, so will end this response to Rick's invitation to a smackdown here.

--Mark

Conservatives Behind the Wheel

I dunno, Greg. I was stuck behind a conservative the other day. He was driving a giant Cadillac, going 25 in a 45 MPH zone, and taking up two lanes, impeding everyone else's progress. His (right) rear turn signal kept blinking even though he never deviated from his path. He was deaf to the desperate honking of everyone behind him, and I was choking on his exhaust fumes -- or maybe it was the sight of his Bush-Cheney sticker!

-- Mark

Who Are Better Drivers?

Apropos our recent discussion about comparative charitable giving and the Pope's recent statement on Thanksgiving accidents (cited by Rick below), I have to ask: who are better drivers, liberals or conservatives?

-- Mark

Why (Some) Conservatives Give

An interesting and moving response to my "Who Cares?" post from Harry Hutchison, explaining that at least some religious conservatives feel a Gospel-based spiritual and moral obligation to engage in charitable giving as a response to apparently intractable social problems. I certainly don't doubt that among some religious conservatives (such as Harry) that sentiment is absolutely genuine -- I would not make that concession about all conservatives, by the way -- but that it is again besides the point (pace Greg). For all the spiritually informed personal generosity of some religious conservatives, their political and economic philosophy reflects a willingness to tolerate a much greater degree of social inequality and poverty than leftish political and economic philosophies. Assuming that is true (and I know, of course, that it is debatable), then the fact of a somewhat higher rate of personal charitable giving by conservatives is interesting, but not important, because it doesn't really achieve the kind of change that would actually help ameliorate inequality and policy. It also doesn't establish that liberals are really smarmy hypocrites, which I am sure will be one of the ways in which the Brooks study will be read. I should add, furthermore, that this whole debate seems to be focusing on a red herring, ie the accusation allegedly thrown by liberals at conservatives that they don't "care" about the poor. I would put that claim on the same absurd level as the charge sometimes thrown at liberal Catholics that you "don't care about the lives of the innocent unborn, but you do care about the lives of guilty murders."  Both accusations grotesquely oversimplify complex issues and positions. I'm sure that some, and maybe even most conservatives "care" at some level about the poor, but what matters is how they care. and whether that translates into social policy and action that will actually do something to address the needs of the poor in a structural way.

Mark:

I read with interest your recent post "Who Gives More? –Who Cares." I concede as I must that you know more about Catholic Social Theory than I shall ever know. Nevertheless, I am troubled. You apparently, describe the charity of conservatives as a rationalization that covers an enormous amount of relative indifference to the human cost of policies (or non-policies) that result in worsening the lot of the poor. On the other hand, the Holy Father states that God is love and he who abides in love abides in God and God in him." . . . .Being Christian is not the result of an ethical choice . . . but the encounter with an event, a person, which gives life a new horizon and a decisive direction." The Encyclical continues by suggesting necessity of loving of God and loving our Neighbor. The connection between the two constitutes an unbreakable bond. Consistently with that intuition, Jesus in responding to a certain lawyer in Luke 10 gives us the story of the good Samaritan. In my view, this story does not separate us into conservative or liberal camps by demonstrating the indifference of conservative Samaritans and the concern of liberal ones. My understanding of that story is that we, (all of us) must give to the needy. How that is expressed is obviously a big question but I think that if "conservatives" are actually giving to the poor and the needy that constitutes important evidence that they are, however imperfectly, beginning to live out the commands of Jesus and the Holy Father however intractable the social problems and social structures appear to be.

Charitable giving bears witness to the lot of the poor and to ourselves as we respond to the injunctions of Jesus and the admonitions of the Holy Father. I hope that is something we can all care about. Although, I concede that one life can be seen as simply one more data point in a sea of data, and without getting overly personal, my life represents a living symbol of the power of individual conservatives (at great personal cost) motivated by Christian charity to rescue lost souls like me.

Here is a Familiar Idea

Universities Urged to Focus More on Social Doctrine
Advice From Conference Convoked by the Vatican

VATICAN CITY, NOV. 20, 2006 (Zenit.org).- Catholic universities must pay more attention in all their disciplines to the Church's social doctrine, recommended participants at an international conference convoked by the Holy See.

Such attention to social doctrine would allow the Gospel to penetrate deeper in the social fiber, in order to defend and promote human dignity, the common good, solidarity, and justice and peace, they stated last Friday, the first day of the conference.

The conference, entitled "University and Social Doctrine," was being attended by about 150 representatives of Catholic schools worldwide. It was held in a hotel in Rome and sponsored by the Congregation for Catholic Education and the Pontifical Council for Justice and Peace.

In the opening address, Cardinal Renato Martino, president of the Pontifical Council for Justice and Peace, urged that Catholic universities pay more attention to social doctrine as the basis for the common promotion of an integral and solidaristic humanism.

The cardinal said that in this way "the light of the Gospel, which is at the same time light of charity and intelligence," can make fruitful "human learning and, in the legitimate autonomy of the methods and languages and without ever losing sight of the necessary unity of learning, also animate the building of a social coexistence of justice and peace."

For his part, Cardinal Zenon Grocholewski, prefect of the Congregation for Catholic Education, stressed that the social doctrine of the Church should not be taught as an isolated subject, but should penetrate the various subjects imparted by Catholic universities.

In his intervention, Cardinal Camillo Ruini, the Pope's vicar for Rome, said that recognition of the dignity of the human person needs "above all a push from the world of Christianity, which regards every one with a human face as possessing that dignity and destiny of the human being, creature in the image and likeness of God." .....

  [Mark here] An excerpt from today's ZENIT. I have always argued that CST provides  crucial  concepts, analytical categories and vocabulary for Catholic thinking about law, the teaching of law and legal scholarship. The notion of a "pervasive CST" in the law school curriculum is an intriguing one. Anyone ready to start a new "CST Law School"? Now, don't jump on me because I'm neglecting Aquinas, Augustine, von Balthazar, nouvelle theologie or moral theology in general. All of that's relevant, and would have an important place -- BUT, CST is a kind of applied social theology  -- and wouldn't that provide a particularly fruitful basis on which to organize a law school curriculum?

--Mark

Christian Democracy--Italian Style

Thanks to Rick for the ref to the TOUCHSTONE article on Christian Democratic parties in Europe, a topic of great interest to me. The description the article provides of those parties' ideological premises sounds accurate. It is important to recognize, however, that there were important national variations. Of particular interest, I think, is the peculiar Italian variation. For over 40 years the Italian state and the Christian Democratic party (CDP) were almost synonymous. No government was possible without it, and wielded enormous power. To be sure, it had a strong infusion of Catholic ideology. It had a kind of Catholic Social Thought wing which emphasized the importance of moderating the effects of capitalism and the other premises Rick summarized; Azione Cattolica, the most important Catholic org in Italy, was a crucial source of both political strength and ideas. Other ancillary organizations had a strong Catholic character, such as the Coldiretti, a group that represented the interests of peasant farmers, and emphasized the family as the primary component of society (still around),
as well as Catholic business and agricultural cooperatives and workers' unions). The CDP also, for much of its history, reflected Catholic views regarding divorce and popular culture. Unfortunately, the CDP, particularly after the economic boom of the late 1950's and 1960's, became a deeply corrupt organization, totally distorted by its own enormous power. The virtual identification of party and state, particularly in the South, accentuated the inherent weakness of Italian civil society, turned clientalism (long an Italian specialty) into an endemic disease, and turned the party-dominated state corporations into black holes. Ironically, the greater strength of the Communist Party in Italy than in any other Western European country, had the effect of maximizing CDP power and ultimately corruption, because millions (especially serious Catholics) turned to it as the principle bulwark against communism. Anti communism was one of the party's dominant ideologies; but fear of the Communists' real power, especially in Sicily fueled an unholy alliance with the Mafia. The endless series of corruption scandals at the highest levels of Italian government and society over thye last 50 years resulted from a variety of social and civic pathologies in Italy, but they all involved a Christian Democratic party that had lost its Catholic soul, despite its rhetoric. The CDP's heir today is Silvio Berlusconi's Forza Italia! party ("Let's Go, Italy!"), which doesn't even pretend to be inspired by the Catholic social thought tradition. Ony Italy's profound left/right division would allow such a party continuing influence (even though it --barely-- lost the last election. Those interested in these matters should see two marvelous (and angry) books by the historian Paul Ginsborg, A HISTORY OF CONTEMPORARY ITALY, 1943-1980 and ITALY AND ITS DISCONTENTS (continuing the strory after 1980). Alexander Stille's recent book, THE SACK OF ROME shows how Berlusconi picked up where the CDP left off, and his earlier EXCELLENT CADAVERS tells the sad story of the Christian Democratic Party's deep involvement with thye Sicilian Mafia.
But Rick raises an interesting question -- other European CDPs, and the Italian one in its better moments, represented a distinctive Christian/Catholic view of politics that never had any traction in the US. Why? A subject for another post....

-- Mark

Women on Corporate Boards: A Matter of Equity, not "Difference"

I find myself increasingly frustrated by the conversation about the Wellesley "study" regarding women on corporate boards. That "study" was worse than useless; it's silliness makes it difficult to take as seriously as we should the question of whether the presence of women on boards would make a difference to corporate governance. Why is the study silly? Let me count the ways: the sample size is absurdly small; it is a survey of opinion, rather than anything measurable; the survey has no clear idea of how a critical mass of women would make a difference; it also has no clear idea of what the difference between good governance and bad governance might be; so the opinions it elicits are incommensurable with each other let alone anything coherent or tangible. The fatuousness of the study makes it look like special interest pleading supported by pseudo-scientific data. This is unfortunate, because feminist legal scholars have raised interesting questions about whether corporate law, and our models of corporate governance, are gender determined in some pernicious ways. I will add, however, that some distinguished female corporate law scholars find this whole line of inquiry fruitless. I will leave that debate to others. It strikes me as more important to figure out how we can get more women into the boardroom as a matter of equity, not because we should assume that corporations will be run differently, let alone "better" if more of them were there. In any event, I actually have spent a lot of time as a member of corporate boards and the boards of SROs (such as the New York Stock Exchange and the NASD) in the financial/securities world. I have served with many female co-directors. One cannot generalize from personal experience, but I can testify that my experience with highly professional, accomplished and hard nosed female directors from that world is that they were absolutely no different in any respect from their male colleagues ijn the way they approached their responsibilities and in the types pf decisions they made and the issues they considered important. They weren't "men in dresses"; they were people who adhered to the same professional/business/fiduciary ethos as the men. I was also delighted to see in the recent Hewlett Packard imbroglios with first Carly Fiorina and then Patricia Dunn that they are also equally prone to the same temptations of power as us guys. I think it is very dangerous to fall into a kind of essentialism about what women are like -- and I know some feminists would agree with that -- and to assume that a "critical mass" of women would produce a particular type of "better" corporate governance. As I stated above, it is silly to even begin this discussion without a very clear idea of what "better" governance is, or to continue it without a plausible explanation of how women would be more likely to produce it than men.

-Mark

Still Not Getting It -- Comments from Robbie George

Robbie George has thoughtfully intervened by email to me in our debate over blastocysts vs. infants. I will let him respond to Eduardo's argument that he does not get what I don't get about this hypothetical: Robbie begins

"I'm deeply skeptical, as I see from your MoJ posting in reply to Eduardo Penalver you are, of the capacity of emotional reactions to disclose ethical truths, especially when it comes to difficult and contested ethical questions.  (This is one point on which I sometimes find myself a little at odds with Leon Kass---a thinker for whom I have the greatest admiration.)  But even assuming that our reaction to the hypothetical dilemma sketched by Professor Penalver could disclose something about the moral status of human beings in the embryonic stage, a profound problem is presented by the difficulty of imagining how we would feel---what our emotional reactions would be---in circumstances in which all the factors other than stage of development just as such incline our feelings towards rescuing the infants.

When we first hear the hypothetical case, we immediately think:  "of course, I would rescue the infants."  But at work here are lots of implicit assumptions---many having no necessary connection to the differences of developmental stage between embryos and infants.  Unless we pause very deliberately to disentangle things, we will (for example) be working with the background assumption that the infants would suffer intense pain in the fire, and perhaps even experience terror.  In addition, we will be assuming that the infants have parents and perhaps grandparents, siblings, and others who have already bonded with them and have begun forming relationships with them.  These people will be devastated by the loss of these infants, and it will intensify their pain to know that the infants' death came by incineration.  So, if we are to have any hope of learning anything about the moral status of embryos from the problem, we will have to stipulate that the infants had, as it happened, been given general anaesthesia just before the fire began and will therefore feel no pain and experience no terror.  We will have to stipulate further that no one has bonded with the infants or formed any sort of relationship with them.  Now, when we begin entering these stipulations (and we would have to enter still more, but I don't want to make this comment too tedious), we become less sure of just what (and how powerful) our feelings or "intuitions" would be in the circumstances of the fire.  But let us grant, for the sake of argument, that even with all the stipulations entered, we would still find ourselves drawn to rescue the infants rather thant the embryos in tragic circumstances in which a choice between them must be made.  Does that tell us that humans in the embryonic stage really are inferior in moral worth to infants (or, at least, what we really believe "deep down" that they are inferior)?

Let's step back to get a bead on the problem.  We assume that "everyone would choose to rescue the infants."  Yet no one can identify a reason (that can stand up to analytical scrutiny) for distinguishing in fundamental worth and dignity between human beings on the basis of age, size, stage of development, or condition of dependency.  That is because we humans possess fundamental worth and dignity by virtue of the kind of substance we are---namely, a rational animal organism---and not in virtue of accidental qualities, such as the stage of development we happen to have reached.  So we rational animal organisms possess worth and dignity from the point at which we come into being, and we possess them for our entire lives.  We come to possess them by coming into being as a human (or other rational animal, if such exist) individual, and we cannot cease to possess them except by ceasing to be (by dying).

So the question is whether the fact that "everyone would choose to rescue the infants" indicates that there is some deep reason---one that no one has been able to articulate (and which is perhaps not articulable)---for supposing that infants and those at later developmental stages possess greater worth and dignity than human beings in the embryonic and (perhaps) fetal stages.  The point of the hypothetical dilemma is to find a way to defeat the analytical argument that at least seems to show rigorously that the nature of human dignity is such that it cannot depend on accidental qualities.  (I'll attach to this message the ms. of an article I have forthcoming in Daedalus which presents a version of the argument in non-technical terms.)

Now, Professor Penalver is heading in the right direction by trying to eliminate all elements of differential attachment, so that we are left with a pure choice (in which emotion plays no role) between rescuing the embryos or the infants.  The idea is that by eliminating emotion, we're left only with reason.  The reason is, in other words, whatever it is that is left when we squeeze out all the elements of emotional motivation.  So the inference that is invited is that, since we would (it is assumed) in the tragic circumstances choose to rescue the infants, there must be a reason.  The trouble, I think, is that it is impossible to remove all the elements of emotional motivation. Building in all the stipulations necessary to make the hypothetical case work as a true test, there still remain powerful emotional factors. It is far easier to empathize with and emotionally relate to the infants because (though they are no more capable than the embryos of immediately exercising characteristically human mental functions) they manifest more fully than the embryos qualities we associate with ourselves.  They have faces, for example, and hands.  (As a matter of psychological fact, humans across cultures tend to regard their faces and hands as integral to their identities as individuals.)  The infants are sentient, as any adult contemplating the hypothetical dilemma would have to be.  (Of course, some living adults lack sentience, just as there are adults lacking faces and hands.)  The infants have begun expressing, albeit in a very rudimentary way (so rudimentary as to justify the quotation marks I am about to set the term within), a "per