Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, January 29, 2006

Remedying "associational fraud": more reasons for skepticism

I agree with Rick's critique of the Ayres / Brown proposed remedy for "associational fraud."  Imposing a state-approved disclosure form on the membership process presumes that associations are nothing greater than the sum of their individual parts -- that is, an association's value is realized only to the extent that its members have subjectively and verifiably consented to the group's mission and message.  Seen in this light, required disclosure simply helps associations become more effective associations.  It is true that much of an association's mediating function would be lost if there was no correlation between the association's identity and the member's conception of that identity, but much of the mediating function would also be lost if associations were constrained to express that identity in a way that fits on a state-approved form.  The fact that an association's identity is defined, articulated, and pursued beyond the reach of the state is inseparable from the reasons we value associations in the first place.

Further, even for folks concerned with ensuring "correct" identities across the associational landscape, it's not clear that the Ayres / Brown remedy would deliver on its promise.  The proposal presumes that members will be empowered to demand change once a group's illiberal beliefs are brought into the light of day.  But one advantage of not having a formal process by which associations must declare their identities is that those identities maintain a higher degree of malleability than if every facet of an association's core beliefs must be put in writing and incorporated as part of every membership decision.  Institutional change may actually prove more difficult when the unspoken and uncertain beliefs are made explicit and certain.  E.g., I'd venture to say that the Dale litigation made the leaders of the Boy Scouts more wedded to their anti-gay policy than they would have been if the issue had never been pursued by New Jersey.  Just as a scholar's open mind can be jeopardized out of loyalty to his past work, an extensive paper record might prove a formidable obstacle to an evolving associational identity.



Vischer, Rob | Permalink

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