Thursday, February 2, 2017
If you're a lawyer in need of an optimism boost about your chosen profession, I have an op-ed in today's Star-Tribune that might help:
[I]n the end, Americans like to poke fun at lawyers only until they need one. Few of us will ever sue the president of the United States. Much of our work takes place in a small office, a crowded courtroom, or across the table from a client who may be feeling scared, hopeless, and invisible. If we take the rule of law seriously, we must be cognizant not only of an overreaching executive branch, but of an overreaching landlord, employer, business partner, or prosecutor.
Lawyers, at their best, help remedy disparities before the law. Those disparities can stem from imbalances in political power, social standing, financial resources, or information. At a time in U.S. history when we cannot seem to agree on much, committing to a level playing field before the law may be a great place to start.
Today I presented a lecture at St. Joseph's University titled "Catholic Universities and our Polarized Nation." I focused on how we can model the concept of civil friendship on campus and beyond. Among several attributes of a commitment to civil friendship, I highlighted the need for coherence in our political engagement:
Citizens may disagree on a given issue, but even those who do should be persuaded of the internal logic and consistency of the worldview and values that animate our positions. If critics perceived that Catholics were willing to move heaven and earth to stop same-sex marriage, but were not willing to lift a finger to roll back no-fault divorce laws, the perception would be that our objective is not to defend the institution of marriage, but rather to keep gays out of it. Opponents of Trump who deemed him unfit for office because of his treatment of women but rushed to defend President Clinton against the women who accused him of sexual misconduct are vulnerable to charges of incoherence and hypocrisy. A lack of coherence in our political engagement doesn’t just make our advocacy less effective – it promotes cynicism, suggesting that politics is just about power, not about reason or principle.
The prompted a line of questioning from students and faculty after the lecture, asking how our media consumption can promote cynicism and make coherence more difficult. One student even asked me which sources I rely on for news if I'm trying to maintain a nuanced, evenhanded understanding of events. In these and other exchanges, I have observed a strong desire among students to be engaged with the world but confused about how to sort through media perspectives/bias in ways that don't boil down to picking a side. The delegitimizing effect of (real or perceived) bias is exacerbated by the social media platforms through which we are encountering the news -- every link served up with a snarky comment thread. In past decades, we may have been too naïve in our consumption of news; now, we're raising a generation inclined to believe that everyone reporting the news has an angle, so our choices are either to stop paying attention or choose camps and stay there. I think we need to devote sustained attention to this problem -- not just the problem of media bias, but the problem of reacting to media bias by dismissing "mainstream" sources of news as tainted to the point of worthlessness. This problem did not begin with Donald Trump, but he is taking it to a new level with sweeping #fakenews pronouncements. (Promoting widespread distrust in our institutions may prove to be the most destructive legacy of President Trump. Can #fakelaw be far behind #fakenews?)
Savvy media consumption is key to a coherent worldview and the cultivation of empathy for those with different perspectives and life experiences. If we're going to tackle our society's polarization head-on, that will have to be at the center of the conversation.
Sunday, January 29, 2017
Why is there a strong likelihood that this weekend's chaos will repeat itself over the next four years? It's not simply about the clash of worldviews or a politically divided citizenry. We have largely learned to live with our disagreements, and I highly doubt that tougher immigration laws from President Rubio or President Kasich would've brought thousands of protesters to airport terminals and city centers. The outrage is not a product of our failure to realize that President Obama barred Iraqis in 2011, or that we've always had limits on the number of refugees admitted, or that this is what our President said he would do on the campaign trail. The outrage arises from a combination of the substantive overreaching, the background anti-Muslim rhetoric, the rushed timing, the failure to consult, the confused roll-out, and the utter failure to contextualize the EO as part of a broader story: perhaps a story of the EO as a regrettable but necessary concession to our fallen world, to be undertaken along with a redoubled commitment to care for our Muslim brothers and sisters who are here legally, along with refugees from around the world who are vetted under whatever new processes emerge. I still might disagree with such a decision on the merits, but it would be a disagreement, period. In context, the current EO feels like a repudiation of core American values. I think it boils down to a question of character, which is why I'm afraid that it's a harbinger of things to come.
As the Church has been trying to tell us for many years, the character of our leaders matters (and yes, the Church's own history sadly reflects that fact):
[R]esponsible authority . . . means authority exercised with those virtues that make it possible to put power into practice as service (patience, modesty, moderation, charity, efforts to share), an authority exercised by persons who are able to accept the common good, and not prestige or the gaining of personal advantages, as the true goal of their work.
Compendium of the Social Doctrine of the Church para. 410.
You may not think that Jimmy Carter or George H.W. Bush were effective Presidents. That's fine - reasonable people can disagree about either one. But I submit that they were good men, and their goodness made them better Presidents than they otherwise would have been.
Sunday, January 15, 2017
Donald Trump's criticism of John Lewis is discouraging, not just because it came as the nation prepares to celebrate Martin Luther King Jr., or because of Trump’s eyebrow-raising assumptions about Lewis’s congressional district, but because the criticism is another example of Trump’s failure to show any interest in, much less deference to, a story of America that extends beyond himself.
In his op-ed today, Michael Gerson puts it well:
[A] president-elect attacking a hero of the civil rights movement less than a week before he takes the oath of office is not normal. There is some strange inversion of values at work. Because Vladimir Putin praises him, Trump defends Putin. Because Lewis criticizes him, Trump attacks Lewis (as “talk, talk, talk — no action or results”). The only organizing principle is the degree of deference to Trump himself. It is the essence of narcissism.
Some commentators complained that President Obama’s farewell address sounded like a speech he could have given in 2008. Well, yes, that’s the point. He invoked George Washington, Atticus Finch, Iwo Jima, Selma, Stonewall – hardly ground-breaking references. There are themes and moments that need to be sounded again and again, not just across the span of an eight-year administration, but across the breadth of the American experience. Whether or not we agree with how a particular President has interpreted or contributed to the national story, the construction and stewardship of shared meaning within a community is essential. That shared meaning must transcend the individual without lapsing into an abstract universalism that lacks resonance with particular lives and histories. The stories of a nation that are handed down across generations matter, and the heroes of those stories matter. Virtually all of our Presidents have recognized that a central aspiration of their leadership must be to integrate their administration’s priorities into the broader narrative, building on the legacies of those who came before us, no matter the party. Martin Luther King Jr. did the same when he appealed to the better angels of his fellow Americans; in his "I Have a Dream" speech, he cited the Constitution, the Declaration of Independence, and the Emancipation Proclamation. King did not believe that he was creating something from nothing -- he was claiming a place for his people in our national story.
The importance of our shared story does not mean that criticism of our nation’s heroes is off-limits, but it does mean that the criticism should be focused and substantive, not dismissive or demeaning. We can and should discuss Thomas Jefferson's relationship with his slave Sally Hemings when we account for his part in our national story, for example, but his part remains important and should be honored. The current clamor to rename university buildings and municipal monuments can be problematic in this regard, suggesting that the individual’s sins override the importance of the broader story. In many of those cases, though, the renaming effort springs from a desire for more Americans to participate fully in our shared story – the story remains central, though its driving themes of tolerance and inclusion can, if not handled carefully, erase other messy but important elements. The battles over “political correctness” are still battles premised on the relevance of story, shared meaning, and heroes.
In my view, John Lewis spoke imprudently when he said that Trump is not a legitimate President. By responding to Lewis as he did, Trump showed more than a lack of prudence – he showed categorical disdain for one of the last remaining public figures who was instrumental in a key chapter of our national story. Among the many concerns I have about our new President is that he has no interest in stewarding our shared story, pushing instead the cult of personality and the overriding power of now. I hope and pray that I am proved wrong.
Monday, January 2, 2017
I appreciate Mary Leary’s reflection on the lessons of history and the safeguarding of the rule of law. I have been wondering about how Catholic universities should proactively engage a political era in which we may increasingly see, as she puts it, “the normalization of the objectification of other human beings by those in power.” Over the past few decades, legalized abortion has been an issue that facilitated relatively clear line-drawing for Catholic universities. (Whether or not a Catholic university recognized or honored those lines is another question, of course.)
But in the era of Trump, where should the institutional witness of Catholic universities emerge? I’m not talking about the political advocacy of individual members of Catholic university communities, but about the issues on which institutional weight is brought to bear. E.g., over the next four years, when and on what issues should a Catholic university be paying for bus transport for students to join protests? Where do we see university leaders, in their official capacities, speaking out? Where should law school clinics be jumping into the fray? And how will these points of tension with the emerging (or already prevailing) order look different than they did under President Obama and his predecessors? Does it all depend on future events, or are there already lines that we should be drawing now? We’ve already seen one example in the response of Catholic universities to perceived threats to the Deferred Action for Childhood Arrivals program. If we project to the end of the Trump Administration, where should our students and the broader public have seen the moral witness of Catholic universities expressed most clearly and consistently?
One challenge is that much of what is objectionable, from a Catholic perspective, about our President-elect does not lend itself easily to institutional protest or pronouncements. His rhetoric, priorities, self-absorption, scapegoating of others, and fomenting of distrust in institutions all were important factors as Catholics decided how to cast their votes in November. But now that he's been elected, how should those objectionable qualities shape the response of Catholic universities to President Trump? It makes sense to protest pending legislation. It's much less obvious how or why to protest the President's demonstrated lack of important virtues.
So how do Catholic universities work collaboratively with governing authorities in the era of Trump to advance the common good without normalizing the behavior and views that are in such tension with the Church's teaching? My own inclination is that the potential good of collaboration outweighs the danger of normalization unless and until President Trump acts to implement some of the more noxious policy proposals that he floated on the campaign trail. Though we should hope for the best, we should be proactive in preparing for the possibility that the darker themes of Trump's life and campaign will emerge in ways that compel Catholic universities to act.
Friday, November 18, 2016
Today I had the pleasure of participating in a conference convened by Columbia University’s Center on Capitalism and Society. The conference explored the (expansive) topic, “Agency, Prospering, Progress and the Working Class.” Highlights from the day included Richard Sennett (London School of Economics) offering a tour de force argument that the experience of class in the U.S. is intensely personalized; compared to Europe, Americans who struggle economically are more likely to believe that something is wrong with them, rather than with the system. In this regard, Trump's victory cannot be explained as globalization's losers overcoming globalization's winners. It goes much deeper than that.
My panel included Philip Howard (author of The Death of Common Sense), Richard Robb (Columbia), and JD Vance (author of Hillbilly Elegy), all of whom reflected on paths by which human agency can be supported and enhanced among the working class.
Here are the questions I asked at the outset of my remarks: should caution about top-down, one-size-fits-all legal solutions to practical problems also apply to our assessment of top-down, one-size-fits-all legal resolutions of moral disputes? If we care about human agency, how do we discern the moral norms that should govern our public lives, and at what point should we invest them with legal authority?
I then explained how the disputes over transgender bathrooms, florists required to serve same-sex weddings, and demands made by Black Lives Matter protesters can all be understood as reflections of the desire for moral agency. Maintaining legal space for dissenting moral claims is a necessary but insufficient condition for moral agency; agency also requires empathy, which is essential to – some would say constitutive of – moral deliberation. We face a significant empathy deficit, as the 2016 campaign season displayed powerfully and painfully. Strengthened commitments to civil friendship and local political engagement offer a promising path forward.
Human agency was almost completely ignored in the rhetoric and policy proposals of both presidential candidates, as JD Vance pointed out in his remarks. If we care about the insights of Catholic social teaching (e.g., subsidiarity, economic justice understood as participation in the economy), we can’t lose sight of its importance.
Friday, October 21, 2016
At the Washington & Lee symposium honoring his work, Lyman Johnson offered a luncheon keynote reflecting on what he found when he entered the world of corporate law teaching thirty years ago. Corporate law was experiencing enormous upheaval, particularly via the hostile corporate takeover movement. This movement received the support of the Chicago law-and-economics school, a reductionist interpretation that drained the corporate institution of its humanity and left it as a nexus of contracts. This view did not account for real harms to employees, local communities, and others. The Delaware judiciary, unlike federal actors, could not avoid weighing in, and the judges used traditional tools (including fiduciary duties) to stabilize the corporate landscape. Lyman has spent much of his career explaining, teaching, and criticizing these materials.
His scholarship is premised on the belief that people everywhere crave meaningful work as a key element of human flourishing. In his remarks, he highlighted ongoing themes of his scholarship, including corporate purpose and the relationship of religious faith to corporate law. He believes that a pluralistic approach to corporate purpose is preferable to the economically reductionist view of shareholder wealth maximization. He has helped point out that shareholder wealth maximization is not legally required. Directors must enhance monetary goals for the purpose of benefiting shareholders, but that is not maximization. We should favor a diverse business ecosystem over a business monoculture. This debate remains crucial, as reflected by a Wells Fargo employee's recent lament that the company's culture was "soul crushing."
Lyman wondered why criticism of corporations comes primarily from the left. Conservatives (of which he is one) should care deeply about corporate culture and the elevation of profit over other considerations. At the corporate theory level, people are regarded simplistically as individuals, not as fully formed persons who can behave sacrificially, not just selfishly. There is a profound dissonance between what we expect of ourselves in life generally and what is demanded in business. The belief in a shareholder wealth maximization norm has a prescriptive and pedagogical function, shaping corporate culture in powerful ways as rampant self-aggrandizement is rewarded.
The dominant corporate law paradigm does not pay much attention to the corporate body in favor of focusing only on shareholders and directors. He believes we need to reclaim the corporation itself as a subject of study for corporate law. Like other groups, corporations can have commitments that are not equivalent to the commitments of its individual members. The corporation should be respected as a distinct person. It would be helpful to have a rule requiring the corporation to state its purpose clearly, providing an understanding to all stakeholders of its corporate identity.
He closed by underscoring the value of collaboration in our work, praising the contributions of his friend and frequent coauthor, David Millon.
Today I'm at Washington & Lee for a corporate law symposium in tribute to the scholarship of David Millon and (my St. Thomas colleague) Lyman Johnson. Both Lyman and David have together expanded our understanding of corporate purpose and social responsibility, and Lyman especially has done tremendous work exploring the religious dimension of corporate law (a subject I'll explore this afternoon). The opening panel addresses theoretical perspectives on the corporation.
Matt Bodie (St. Louis U Law) kicked things off by recounting how Lyman and David have created a countervailing ethos to the dominant shareholder primacy theory, focusing more on norms than on straight law. They keep posing the question, what norms should be operative when we think about the corporation? Matt wants us to move beyond norms and think about real shifts in power within the corporation, giving employees some of the traditional rights of corporate governance. Shareholder primary is based on more than a norm -- it's a function of power given that shareholders have voting rights, so a stakeholder theory grounded in norms rather than power won't go very far. Neither labor law nor contract are mechanisms by which employees will participate meaningfully in corporate governance -- e.g., voting rights, board participation. He also suggests that employers should owe certain fiduciary duties to employees.
Eric Orts (Wharton) expressed gratitude for Lyman and David serving as champions of humanism in the corporate law field and alerting us to the dangers of adhering to a single outlook (economics). He explained how David's work helped bring attention to the wealth distribution effects of corporate law -- we cannot focus solely on its wealth maximization effects. David has also argued that limited liability acts as a kind of subsidy to corporations, which raises questions about the corporation's contributions to society.
Alan Palmiter (Wake Forest Law) presented his paper, "Corporate Governance as Moral Judgment." Science tells us that we have no idea how we make moral judgments; such judgments are not based on rationality. As Lyman and David have encouraged, socially responsible investment and boards' focus on sustainability are increasing, but changes are likely not induced by rational arguments. We make moral judgments instinctively and emotionally, then our reasoning is motivated by those judgments. As Jonathan Heidt argues, intuitions come first, strategic reasoning second. So how do we shift corporate focus? Perhaps by shifting perceptions of risk, adding moral vectors (e.g., caring or sacred), and introducing moral modelers.
Leo Strine (Chief Justice, Delaware Supreme Court), citing Berle and Orwell, noted that, if we want the world to be what we want it to be, we have to be clear-eyed about what it is. He objects to Hobby Lobby and Citizens United as bad corporate law decisions that do not do anything to alter the existing concentration of power with equity holders. He respects the consciences of Hobby Lobby's owners, but not to the extent that they should be empowered to override the publicly mandated benefit packages of their employees. He encourages us to think about power. When we cite companies like Hobby Lobby and Cracker Barrel, we're still supporting the maximization of the interests of equity holders -- we're not broadening traditional corporate law to consider other stakeholders. The money that is in the system makes it very difficult to address important externalities through regulation. If we want to change the world of corporate law, we need to do more than raise the consciousness of independent directors; we need to push for real solutions. E.g., he's a fan of statutes creating benefit corporations.
Saturday, October 15, 2016
Michael Gerson's op-ed on the "pathetic" state of the GOP is spot-on. I won't attempt an excerpt - you should read the whole thing. The GOP's collapse as a principled, idea-driven party this election cycle should be cause for concern to liberals, not just conservatives. Our political culture is so much more focused on winning than on governance, though, that it seems many on the left will continue to see the sorry state of the opposition as cause for glee rather than deep concern.
Our country needs a strong center-right party, and I am hopeful that one will emerge from the ruins. But we have to be candid in acknowledging the ruins before building again. I'm not making a point about the candidates' relative merits (though I have my own views on that topic as well). My point is that the country is better off with a strong center-right party that champions the ideals, priorities, and virtues that have been associated with the GOP over the past few decades. Even those who are on the left should recognize that we're stronger as a nation with an opposition party that pushes back with a different but principled perspective. If the GOP nominee would have been a person who upheld that tradition, Hillary would not be coasting to victory right now. Political parties are important counterweights that make the opposition's ideas better, align ultimate policy more closely with public opinion, and help avoid overreach in governance. That's obviously not happening this year. And there really isn't any comparison between the candidates on this front: Hillary is nowhere close to my first choice, but she hasn't played the same type of corrosive role in upending the Dems' traditional positions and priorities that Trump has within the GOP. Trump seems incapable of carrying on an idea-driven conversation for more than 30 seconds, and that will result in a Clinton administration implementing ideas that have faced little or no reasoned opposition on the national stage. That's bad news for her presidency and for the country.
Friday, September 30, 2016
The third RALS panel is focused on new scholarship and includes presentations from Bruce Ledewitz (Duquesne), James Duane (Regent), Judith Reisman (Liberty), Stacy Scaldo (Florida Coastal), and Tom Folsom (Regent).
Prof. Ledewitz spoke about the role of law schools in renewing American democracy, particularly the tone of our democracy. The state of crisis demands attention from law schools, but law schools focus instead on marketing themselves in a market of declining demand. The source of our democratic crisis is spiritual - we are living with the consequences of a materialistic technocratic culture that fosters nihilism. He recommends serious study of Lonergan's cosmopolis. Could the study of law be something that is high and holy? If not, why not?
Prof. Duane presented a paper titled, "The Day the Supreme Court Almost Outlawed Religious Discrimination in Jury Selection." He explored the Davis v. Minnesota case, in which a prosecutor stated openly that he was striking a juror based on religion. The Supreme Court, in deciding another jury selection case at the time, included religion on the list of prohibited grounds in draft opinions. Justice Souter asked Justice Blackmun to take it off the list, believing that another case regarding religion would be coming to the Court.
Prof. Reisman spoke about transgender fluidity, recounting the history of Kinsey's research and the Model Penal Code.
Prof. Scaldo spoke about "seditious acts of faith," exploring the Supreme Court's cases on the HHS mandate.
Tom Folsom proposed a unifying set of non-theocratic principles that might make religiously affiliated law schools more relevant in the legal education conversation. He suggested that we work to specify a common morality for a neo-tech, neo-global era, "Designing Law for Human Good," in the form of a Restatement.