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.

Monday, November 30, 2009

The larger context for the debate about healthcare reform

There *is* a larger context--and Catholics should understand that there is a larger context at least as well as anyone.  What is that larger context?  For a part of the answer--an important part--read Tony Judt's new, fine essay, What Is Living and What Is Dead in Social Democracy, NYRB, 12/17/09, here.

November 30, 2009 | Permalink | TrackBack (0)

"The Thanatos Syndrome"

Have you read Walker Percy's 1987 novel, "The Thanatos Syndrome"?  You should!  I admit it -- I read a bunch of Percy novels in law school, because I was told by a super-smart Catholic that, well, I should.  I don't think I really appreciated them.  So, I've been re-reading them.  (I didn't appreciate, for one thing, how funny -- while still heavy -- they are.) 

In Thanatos, the protagonist, Dr. Thomas More has an old acquaintance named Fr. Smith who gets in some choice, if hard to hear, observations about modern science.  (Amy Welborn has a short-and-sweet review, here.  See also this, in First Things, from 16 years ago.)  Remember, he warns, "tenderness leads to the gas chamber."

November 30, 2009 in Garnett, Rick | Permalink | TrackBack (0)

"Conscience Clause" discussion at Notre Dame

More here:

A panel discussion titled “What Would a Good Conscience Clause Look Like? A Catholic University’s Perspective” will be held Dec. 3 (Thursday) at 12:30 p.m. in the Patrick F. McCartan Courtroom of the University of Notre Dame’s Eck Hall of Law.

The discussion will concern how Catholic teaching and tradition, scholarship and legal developments might inform efforts to protect the rights of conscience of health workers, pregnant women, taxpayers and other citizens. . . .

November 30, 2009 in Garnett, Rick | Permalink | TrackBack (0)

Questions for Krauthammer

Hello All,

Two quick sets of observations here: 

(1)  The first is offered by way of thanks to Robbie George for the thoughtful posts occasioned by his friend Charles Krauthammer's Op Ed on health care reform legislation, recently published in the Washington Post.  In this connection, ... 

(a)  I'd like to add my voice to Robbie's where our "responsibility to consider the arguments for competing alternatives and [to] support the alternative [we] believe best serves the common good, all things considered," is concerned. 

(b)  I'd also like to second his observation that "there are indeed many considerations to be taken into account, including costs, efficiencies, impact on overall quality of care, concern about the scope, size, and intrusiveness of government, the impact of competing alternatives on the autonomy and authority of families and other institutions of civil society, and the priority that must be given to the interests of the poorest and most vulnerable members of the community." 

(c)  And finally, I find myself nodding vigorously in assent to Robbie's observation that "[w]e should not expect Catholics and other men and women of goodwill to arrive at a common view; but this is certainly an issue on which people should make sure their opinions, whatever they turn out to be, are informed opinions, and not merely partisan ones."

(2)  The second set of observations, however, takes the form of concerns that I harbor about Krauthammer's OpEd itself, with which I cannot in good conscience agree unless and until certain vitiating deficiencies in the argument, doubtless attributable to the limitations of the OpEd genre itself, are addressed. 

(a)  Dr. K first objects to the size, sprawl, and patchwork-style inelegance of the House and Senate Bills under debate, expressing a preference for something a bit more like what I would call a "Euclidian" piece of legislation.  (I'm thinking of E's Elements.)  I'd like that too, and am sure most everyone would, all else equal.  But when have we ever seen comprehensive legislation with that degree of organic unity and elegance?  Never.  Legislation in a sprawling democracy has always been, well, sprawling.  It's been likened to sausage-making for over a century, and to damn particular bills on this ground, it seems to me, is always either idle or meant to damn legislating on the subject at issue altogether. 

I would accordingly first ask Dr. K to name some modern pieces of legislation, aimed at subjects of complexity similar to that which afflicts health care finance, that he would view as exemplary by his own criteria.  Then we could perhaps urge Congress to attempt to repeat that (so far as I'm aware, never accomplished) feat. 

I would, second, ask Dr. K why he does not favor, say, simply going the Canadian, British, or even French route, which routes all are comparatively simple, streamlined, inexpensive compared to the American "system," and productive of much better health outcomes overall.  In other words, why not treat health insurance as social insurance on a par with unemployment and elders' income insurance as all other nations with developed economies do?  There is a reason, of course, that we don't, and that very reason is the reason that simple and elegant health care finance legislation of the familiar well regulated "single payer" or "single provider" varieties has not even come before Congress: viz., objections from private parties who benefit at all of our expense from the way things are. 

(b)  Dr. K next accuses Congress three times, in rapid succession, of simply "picking numbers out of a hat" in arriving at assessible penalties, risk-weight assignments, and subsidy amounts.  I would like to know on what basis he makes these damning accusations.  If it is that they are compromises arrived at after reasoned argument, backed up by evidence, offered by disagreeing parties, then I refer him back to point (a) above, for what he is objecting to in that case is that the amounts are arrived at through legislation.  If instead it is that there was really just a hat here, well, please prove it and I'll join in the condemnation. 

(c)  Dr. K then concludes, on the basis of (a) and (b), that "[t]he bill is irredeemable. It should not only be defeated. It should be immolated, its ashes scattered over the Senate swimming pool."  Apart from the carcinogenic effects apt to be wrought by immolation, which would add to our health care cost burdens as well as to the earth's oversupply of carbon emissions, I must object to the suggestion that (a) and (b), even if my reservations just stated are adequately addressed, would suffice to warrant this conclusion -- at least pending a convincingly better and workable alternative's being offered.  And Dr. K thus far offers none.  For ...

(d)  Dr. K next proffers a three-part solution of his own, which so far as I can tell is no solution at all. 

(i)  First Dr. K urges tort reform, because, he alleges, our current system of malpractice litigation is wasteful in two ways -- first, by "simply hemorrhag[ing money] into the legal system to benefit a few jackpot lawsuit winners and an army of extravagantly rich malpractice lawyers such as John Edwards," and second by prompting "millions of unnecessary tests, procedures and referrals undertaken solely to fend off lawsuits."  These are very familiar, and according to the best evidence, simply false, claims.  Ted Eisenberg, a colleague to Steve, Greg, Eduardo and myself, has done countless statistically sophisticated empirical studies of the so-called "malpractice crisis," all of which show the claim -- long a favorite of lawyer-demonizing political opportunists -- to be a canard.  I commend the publications listing on Ted's CV to interested readers.  A nice summary of this long-running debate can also be found here -- http://www.citizen.org/documents/Bush_Disinformation_Campaign.pdf -- though of course some here will think Public Citizen to be sufficiently partisan as to warrant a salt grain's being taken along with the document.  Let me also note that the most widely accepted explanation for excessive testing is not medical malpractice suits, but the "fee for service" incentive structure pursuant to which our medical system currently operates, combined with the fact that when it's you who are the patient, you're a lot less likely to forgo tests for their alleged "cost-ineffectivness" than you are to judge them so when not a patient.  In other words, there are very obvious micro-economic explanations for widespread overtesting, while there is no good empirical evidence to the effect that a "malpractice litigation crisis" has ever caused it.  (Note also that charges of "rationing!" from the right greet every suggestion ever made to cut back on testing.) 

(ii)  Dr. K next proposes "abolish[ing] the prohibition against buying health insurance across state lines," because "[s]ome states have very few health insurers," with the consequence that "[r]ates are high." This is all very well -- indeed, Dr. K could make his own case much more strongly and do so plausibly.  For it is not simply "some" states that have "very few" health insurers.  Rather, by far *most* states have at most *two* dominant insurers, and a nontrivial number of states have only *one.* Partly for this very reason, the Congress is acting to repeal the McCarran Ferguson Act, which is the source of the prohibition to which Dr. K refers.  It would be nice, then, were Dr. K to credit the Congress with having seen this problem and begun acting upon it well before his suggestion to this effect.  One must also add, however, that there are more reasons than McCarran Ferguson behind the immense degree of market concentration we find in health insurance markets, chief among them the scale economies that attend health insurance.  Health insurance, in other words, is afflicted with what economists call "natural monopoly" attributes, rendering it a prime candidate for treatment as a public utility or regulated monopoly.  That's no doubt one of the reasons why health insurance is treated as a form of social insurance in all other advanced economies.  It's also why it is simply false -- false -- for Dr. K to assert that repealing McCarran Ferguson (which private health insurers of course oppose doing) "would obviate the need -- the excuse -- for the public option."  For fuller elaboration of these points, as well as discussion of all current proposals in light of the economic structure of health insurance, please see this piece -- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1484768 -- that I have coming out in the next issue of the peer-reviewed economic journal Challenge. 

(iii)  Finally, Dr. K suggests that we "tax employer-provided health insurance," which is "an accrued inefficiency of 65 years, an accident of World War II wage controls."  This would of course be a very good idea, both for the reasons Dr. K adduces and for other reasons as well, including the fact that the current system favors large employers over small ones, which operates as a drag on factor mobility and disadvantages the most dynamic sector of the economy -- small business.  (See my article linked to above for more on this too.)  There are two little wrinkles to note here, however:  The first is that, were this do-able, it could simply be added to the present bills under debate, and would accordingly render them all the more readily financed.  There is absolutely nothing about the current legislation that would prevent this proposed legislation.  So Dr. K's proposal here can be viewed as a friendly amendment rather than an "instead of."  The second wrinkle is more problematic.  As Dr. K himself notes, this reform would be the most difficult to enact.  Entrenched interests -- and far from only the unions or the president, as Dr. K puzzlingly limits himself to mentioning (consider all the managment and directors of the large firms, for goodness sake) -- prefer to leave in place the present system under which large firms offer insurance benefits untaxed.  But that is simply another instance of the more general observation I made at the outset:  All "do-able" health care finance reform will be messy, for the simple and familiar reason that there are multiple parties with conflicting interests, upon whom Congress members are dependent for financing the campaigns by which they gain office, whose interests will be implicated by what ever we do.  So I repeat that to call for "burning" legislation that looks like sausage is to call for not legislating at all -- at least until such time as we eliminate the decisive role private financing plays in election campaigns.  What say you all, including Dr. K, to that?

Thanks for listening,


November 30, 2009 | Permalink | TrackBack (0)

Authority: The Church, the classroom, and the Camino

Continuing the thread on "Rebellion Against Church Leadership" (here, here, and here) and a post from the Camino (here), I offer some thoughts on the question of" authority," a word that has gotten a bad rap for a generation or two. 

Each of us voluntarily submits to numerous authorities in our lives. 

  • When I fly, I voluntarily submit to the authority of the airline, the FAA, and the TSA..  If I am not entitled to check-in in the line for elite travelers, I can be told to go to the back of the regular persons line.  I must submit a proper form of identification to proceed past security, and I can't take my water bottle with me at this point.  Airlines have been known to make unscheduled landings to deplane passengers who rebel against the airline's rules.  In short, the airline proposes rules (doesn't mandate them for anyone), but once you decide to fly, you are bound by the rules, and the authorities have the right and the means to enforce the rules. 

Individuals choose to submit to our authority when they enroll in law school and register for our classes.  In my class, I reserve the right to count tardy students absent, decrease grades for excessive absences, and call on students with the expectation that they will be prepared.  In short, the law school proposes rules (doesn't mandate them for anyone), but once you decide to attend the law school, you are bound by the rules, and the authorities within the law school have the right and the means to enforce the rules. 

  • On the Camino, I voluntarily submitted myself to the authority of yellow arrows and blue/yellow concha shells for 500 miles, trusting that they would lead me to my destination.  Although I was free to desregard the signs, ignoring them (ignorance?) came at a cost.  Unlike the airline situation or my classroom, there was little in the way of an external authority enforcing the rules.  This really only came about in two instances.  First, the albergues (the pilgrim's hostels) turned away people who had arrived by motorized vehicle, reserving the valuable bed spaces for walker's first,followed by those on bicycle or horseback if there was room.  Second, in Santiago, a pilgrim could apply for a Compostela (a certificate indicating that the person had completed a religious pilgrimage).  Those who were walking for purely non-religious reasons got a piece of paper acknowledging their walk in lieu of a Compostela.  (more on this later)

    The Catholic Church, it seems to me, is similar to the Camino in the exercise of its authority.  It provides signs (like the yellow arrows and blue/yellow concha shells) that point those who are following the path to greater love and holiness.  It proposes that if you partake in the Sacraments regularly with an open heart, if you spend time in prayer with an open and broken heart, if you perform works of charity and love with an open heart, if you live a chaste life and follow the commandments (the moral law) with an open heart, you will be on the path to wholeness and happiness in this life and the next. 

    • No one (at least in our day) is requred to be on the  path proposed by the Church. 
    • Most if not all of us who choose this path, proceed imperfectly, failing in multiple ways more often than we succeed.
    • Like the Camino (and unlike flying and law schools), the Church rarely uses external authority to enforce its rules.  In short, unlike the TSA, it isn't normally checking credentials in the communion line. And, unlike my classroom, it isn't calling on its members to answer for themselves.  For the rank and file Catholic, it is only when someone wants something from the Church (the sacrament of marriage, for instance), that the Church checks the credentials of its members. 

    Most of the people on the Camino would describe themselves as spiritual and not religious.  Like so many others today, they are leary of commiting themselves to an authority outside of themselves.  Yet, when questioned (by me in casual conversation), they saw some profound power in following this ancient pilgrimage tradition.  They were seeking answers to life's ultimate questions (which is a religious quest) and chose this path because of its tradition.  Upon arriving in Santiago, they received the Compostela from the issuing authority because their's had a religious/spiritual journey. 

    I met two people who were refused the Compostela by the issuing authority because, when questioned, they responded that they had walked the Camino solely for non-religious reasons.  Their very different responses highlighted their notions of authority.  One person was completely fine with not receiving the Compostela.  He understood that the issuing authority had a right to set its own rules, and even though it had set a fairly low bar, he couldn't in good conscience meet it.  The other person was irate.  She had walked the 500 miles and was, in her words, entitled to the Compostela.  She wanted to define the rules by which the issuing authority had to live.

    How do we respond to the authorities in our lives?  How should we respond?  How is Church authority similar or different to other authorities?  And, when we feel that an authority, especially the Church authority, is abusing its power, how should we respond?  Like Martin Luther or Matthew Fox?  Or, like Dorothy Day, Francis of Asissi, Catherine of Siena, and Teresa of Avila?


  • November 30, 2009 in Scaperlanda, Mike | Permalink | TrackBack (0)

    Free Exercise Exemptions: Required? Permitted?

    I notice that a former student of mine (Northwestern Law) has posted what looks to be an interesting piece on SSRN:

    "Equality and the Free Exercise of Religion"

    Cleveland State Law Review, Vol. 57, p. 493, 2008

    BRET BOYCE, University of Detroit Mercy - School of Law


    The most contentious issue in constitutional free exercise doctrine is whether exemptions for religiously motivated conduct are constitutionally required or permitted. For decades, the Supreme Court’s jurisprudence in this area has been in considerable disarray. In recent years the Court has increasingly rejected the notion of constitutionally required religious exemptions, but shown considerable indulgence for legislative exemptions. This Article argues that while the Free Exercise Clause confers the highest protection on religious belief, expression, and association, it requires equal treatment of all in the regulation of conduct, regardless of their religious beliefs or lack thereof.

    The common claim that the original understanding of free exercise requires exemptions is unsupportable, and the claim that it permits such exemptions is less than convincing. While some exemptions were enacted in the founding era, their significance and probative value is limited, especially because the First Amendment did not apply to the states. Significantly, many objected to such exemptions as violations of religious equality. Nor is there significant historical support for the widely-accepted claim that the Fourteenth Amendment, under which the Religion Clauses have been applied to the states, was understood to alter their original meaning.

    The textual, religious, and theoretical arguments advanced to justify constitutionally compelled exemptions are unpersuasive. Proponents of such exemptions typically argue that they are required unless the government interest at stake is compelling, which would eviscerate the rule of law by making compliance optional in most cases. They also argue that even where not required, such exemptions should be permitted unless they create incentives to practice religion. But this is incoherent - all religious exemptions create such incentives.

    Recent congressional statutes such as RFRA and RLUIPA have sought to resuscitate the application of the compelling interest standard to a vast range of federal and state legislation. Recent Supreme Court decisions upholding such measures are deeply troubling. The Court’s decision extending immunity from the drug laws under RFRA on a religiously discriminatory basis embroiled it in policy determinations which it was ill-suited to make. Its decision upholding RLUIPA in the prison context extended special privileges to violent and racist religious organizations that are not enjoyed by their peaceful secular counterparts. These decisions pay scant regard to the constitutional requirement of equal treatment. The free exercise of religion requires equal and impartial treatment of all regardless of their beliefs, not a patchwork of special privileges, favors and exemptions.

    Downloadable here.

    November 30, 2009 | Permalink | TrackBack (0)

    Sunday, November 29, 2009

    The debate about how to insure the uninsured

    I recently called attention to my friend Charles Krauthammer's scathing criticism of the Democrats' health care proposals, and his alternative ideas for reducing health care costs and inefficiencies and achieving the important moral goal of insuring the uninsured.  Now Dan Pfeiffer has responded to Dr. K on the White House blog.  According to Pfeiffer, "the columnist's article may be cogent and well-written, but it is wholly inaccurate":


    I expect Krauthammer to respond soon to Pfeiffer's response.  This is, I believe, a debate that warrants our close attention.  The fact that the fundamental moral principles proclaimed by the Catholic Church do not by themselves resolve the question of how the health care system should be structured, does not mean that Catholics have no responsibility to consider the arguments for competing alternatives and support the alternative they believe best serves the common good, all things considered.  And there are indeed many considerations to be taken into account, including costs, efficiencies, impact on overall quality of care, concern about the scope, size, and intrusiveness of government, the impact of competing alternatives on the autonomy and authority of families and other institutions of civil society, and the priority that must be given to the interests of the poorest and most vulnerable members of the community.  We should not expect Catholics and other men and women of goodwill to arrive at a common view; but this is certainly an issue on which people should make sure their opinions, whatever they turn out to be, are informed opinions, and not merely partisan ones.  If ever there were an issue on which Republicans and Democrats alike should seriously consider whether this time their own party has gotten it wrong and the other guys actually have the superior argument, this is it.

    November 29, 2009 | Permalink | TrackBack (0)

    Don't forget advent!

    I confess:  The day after Thanksgiving, I traditionally eat a lot, and go get a Christmas tree with the kids.  MOJ-friend Jody Bottum reminds us, though . . . there's Advent.

    November 29, 2009 in Garnett, Rick | Permalink | TrackBack (0)

    Saturday, November 28, 2009

    the false dilemma of "authority (= the authoritarian) vs. the Holy Spirit"

    Discussion of the topic of the Apostlic Visitation of congregations of women religious in the U.S. can tempt one to side for or against based on the indefensible idea that one side (the women religious) stands for charism (= the Holy Spirit) and the other (the Holy See [aka "the Vatican"]) for authority (= authoritarianism or the like).  The false dilemma must be avoided.  Neither side is pure. 

    The triangulating insights of Eamon Duffy (in chapter 9, "Who Leads the Church?", of Faith of Our Fathers (2004)) seem helpful here:  "In Pope Innocent [III], Francis, and Dominic, are embodied the three major forms of Christian leadership -- institutional, charismatic, intellectual; or, to put it in other terms, structure, spirit, theology -- the kingly, the priestly and the prophetic dimensions.  The Church needs structure and order if it is to survive; it needs fire, ardour, heart, if it is not to become a prison for the spirit; it needs intellectual rigour and commitment to the truth if it is to have a gospel to preach.  A Church in which one or the other of these elements dominated or was unchallenged by the others would be intolerable -- rule-bound, or in retreat from ordinary life, or with no truth to proclaim.  Innocent III was the unquestioned head of the Church over which he presided, and both Francis and Dominic sought papal approval for their movements.  But the papacy was the means of anchoring those movements within the Church, not their initiator or inspirer: the spiritual and intellectual leadership of the Church in the age of Innocent III lay in Assisi, Tolouse, and in the University of Paris, not in Rome."  

    The Holy See has asked women religious, most (though by no means all) of whom are members of congregations that are by any reasonable account members of congregations that are dwindling to the point of disappearing, voluntarily to answer some questions that pertain to the heart of their lives as individual religious, as congregations, and as corporate members of the Church.  Is the refusal to answer the questions a demonstration of charism?  Of vitality?  What does it mean to be "self-defining religious agents?"   See   http://hancaquam.blogspot.com/2009/11/us-religious-women-closing-door-on.html  Why won't the religious reveal the mean age of the members of the their respective congregations?  What is the theology behind this lack of "transparency?"  Surely it concerns the whole Church what the size and longevity of its institutional members are?  Would Francis or Dominic defend the defiant, angry opting out a dialogue that the Holy See has asked (not demanded) to have with members of congregations already recognized by the Holy See?     


    November 28, 2009 in Brennan, Patrick | Permalink | TrackBack (0)

    Change we can believe in? (con't)


    November 28, 2009 | Permalink | TrackBack (0)