Professor Bainbridge...on law, politics, religion, culture & food

Book Review: Michael Novak, Toward a Theology of the Corporation

Michael Novak is probably the foremost Christian thinker on the economy. His Toward a Theology of the Corporation is an under-appreciated classic that succinctly, yet powerfully, sets out a theologically sound analysis of the modern corporation and its role in society. In this slender but well-written volume, Novak joins issue with theologians like Paul Tillich who contend that "any serious Christian must be a socialist." THEOLOGY has two principal themes. First, it is addressed to those who work for corporations. Many Christians have been taught to feel, at best, "faint disdain" for corporations and those who manage them. In contrast, Novak knows that many (most) business men and women are ethical people who yearn for moral guidance and advice. Consequently, THEOLOGY tackles a basic moral question: "Can a Christian Work for a Corporation." Novak's answer? "Yes!" (Those wishing more detailed discussion of practical business ethics ought also read Novak's Business as Calling.) Second, Novak recognized that anyone who purported to think about practical business ethics needed to understand the predominant form of business organization-the public corporation. Much of THEOLOGY is thus devoted to an analysis of the corporation: Is the firm's structure as a bureaucratic hierarchy consistent with human dignity? What social responsibility, if any, does the corporation have? And so forth. Thinking about those questions naturally lead Novak to broader issues, such as the consistency of capitalism with church teachings on wealth. In THEOLOGY, therefore, Novak began working out the line of argument that was later developed more fully in his magisterial The Spirit of Democratic Capitalism. Novak recognizes that church teaching has been hostile to capitalism, as with much else of modernity. Yet, Novak contends that arguments against capitalism serve mainly to give aid and comfort to the Leviathan state. In the most controversial portions of THEOLOGY, Novak attributes Christian opposition to capitalism to two main sources: ignorance and antique world views. Church leaders and theologians tend to be poorly trained in economics and inexperienced with the world of economic reality. Many believers (again, this is especially true of theologians) "are likely to inherit either a pre-capitalist or a frankly socialist set of ideals about political economy." As a result, "Church leaders are more likely to err in this territory [i.e., economic justice] than in most others." (p. 59.) To be clear, Novak does not believe that faith should be subordinated to capitalism. To the contrary, he recognizes that the divine plan was that we should enjoy the fruits of the earth and of our own industry. He simply contends that capitalism is the best way Fallen humans have yet devised to obey the Biblical command that we are to be stewards of God's world. Novak never loses sight of the basic proposition that it was equally the divine plan that God should be worshiped, obeyed, and feared. The fear of the Lord, he would argue, is the beginning of capitalist wisdom, just as it is of any other kind of wisdom. Not surprisingly, therefore, Novak's analysis has begun to impact the way the church thinks about capitalism. Pope John Paul II's most recent encyclicals on work and the economy, for example, such as Centesimus Annus, contain obvious marks of Novak's influence. In sum, THEOLOGY is very highly recommended for any Christian interested in corporations.

We

We occasionally refer to ourselves in the first person plural, a fact which has not gone wholly unremarked in the blogosphere. We are considering adopting it full time. We think it has a certain, ahem, gravitas. E.g., "We were not amused." If we do opt for full time usage, rest assured that we shall disregard the nattering nabobs of negativity.

Glassman on Spitzer

Over at TCS, James Glassman observes:

The politically ambitious Mr. Spitzer has a history of trying to use prosecution, not merely to punish, but to restructure businesses and industries. He pressured investment firms into changing the way they compensate stock analysts, and, in a less visible case, he agreed to exempt owners of New York produce stores from future litigation if they would promise to pay workers extra wages for overtime.

Somebody else I know has been saying the same thing for weeks. (Heh.) Anyway, Glassman also has some good stuff on mutual fund fees. As they say, read the whole thing.

2 + 2

My friend and colleague Eugene Volokh posted a cartoon in which the gag is based on the math problem 2 + 2, which reminds me of an old joke.

The king was wondering what 2+2 equalled. The king called in the court mathematician and asked "what's 2+2?" The mathematician answered "4." The king wasn't satisfied, so he called in the court economist. "What's 2+2?" ""On average, four - give or take ten percent." Then the king called in the court accountant. "What's 2+2?" The accountant smiled and asked "Tell me, your majesty, what figure did you have in mind?"

Domestic Tranquility

As of today, not only is the semester over, but my Christmas shopping is done. I'd say it was Miller time, but I don't really drink beer. By a happy coincidence, the good wife is out tonight with her cousin, leaving the faithful dog and I unsupervised. Very long time readers know what this means: Bachelor night! Steak, roasted new potatoes, red wine, a DVD (Two Towers ... yes, again, its only the 11th time), followed by port and a cigar in the house. I'm going to make the faithful dog take the fall for the cigar, but I'll let her have the bone to make up for it.

Ninth Circuit: Guantanamo Prisoners May Get Counsel and Trials - Revised and Reposted

Justice Jackson famously remarked that the Constitution is not a suicide pact. Apparently 9th Circuit Judge Stephen Reinhardt disagrees,^* as he has decided that US courts have jurisdiction to hear the claims by enemy combatants being held offshore at the Guantanamo navy base that they are entitled by the US Constitution to counsel and trials. My first reaction? If that's true, why didn't we try German and Japanese POWs during WWII? Admittedly, I haven't had a chance to read the opinion yet, but it's worth remembering that Reinhardt "is one of the most overturned judges in history." If you want a detailed analysis of the legal problem, however, check out the DC Circuit's opinion on the very same issue, which held that US courts have no jurisdiction. See also Tung Yin's careful comments. For a thoughtful analysis of the problem from the other side of the issue, see CE Petit's take. Via Howard Bashman we learn that the 9th Circuit panel stayed issuance of its mandate pending the Supreme Court's decision in Al Odah v. US, which presents the same legal issue. Note, by the way, this is not the Jose Padilla case, in which the decision that Padilla is entitled to a civilian trial seems far more defensible.^** Update: After reading the opinion, I've concluded that Eugene Volokh is exactly right:

When the U.S. took German and Japanese soldiers prisoner during World War II, it imprisoned them without a fixed term (it did release them after the end of hostilities, but no-one knew how long this would be). It imprisoned them regardless of their formal citizenship. It did not give them access to civilian courts, or allow challenges in any civilian judicial forum (the judicial forum that Reinhardt seems to be calling for). Imagine what it would have been like if the government had to defend hundreds of thousands of habeas cases brought by enemy soldiers. Giving such rights to enemy soldiers would simply give them an extra weapon they could have used to fight us. That's no way to effectively wage war.

The ability to detain enemy soldiers, in a military system with no civilian court review -- the ability that Judge Reinhardt is condemning -- is a basic, traditional, and necessary prerogative that any nation that's fighting a war must have. It can certainly be abused, as the other military prerogatives (say, of killing enemy soldiers in the field, or dropping bombs on enemy targets) can be abused. But that's no reason to shift this military matter into civilian courts.

UPDATE: UNC law brof and blawgger Eric Muller has a long post disputing the derision with which the Padilla and Gherebi decisions were received in the blogosphere. He's also got a link to his 1999 review of Chief Justice Rehnquist's book on civil liberties in wartime. Both well worth checking out. I find his analogy to Korematsu far more persuasive with respect to Padilla than Gherebi. It's one thing to indefinitely hold a US citizen who is taken into custody on US soil and held in a jail on US sil. It's something quite different to hold offshore foreign nationals captured in a war zone. For me, only the former looks remotely like the Japanese internment case.

Snowmobiles and Judicial Activism

I don't like snowmobiles. They're loud and dangerous (just ask Hugh Hewitt, with updates from the Elder). In the highly unlikely event that I were to be found outdoors in a national park in the middle of the winter, I would prefer not to have to hear/see/smell them. If there were a referendum to ban them from parks, I would happily vote in the affirmative. Having said all that, however, why does one -- one! -- judge get to decide these issues? From the WSJ (sub. req'd):

The biggest problem with environmental policy today is that the legislators duly elected by the people to make and implement it are more or less irrelevant. When an environmental lobby doesn't like a policy, it invokes some ancient and ambiguous environmental law and hunts for a judge to implement its own preferred solution. And while we agree it'd be more efficient to have only one branch of government -- the judiciary -- there is this little detail in our political heritage called democracy.

Regular readers know this is a recurring theme; new readers are encouraged to scroll through the judicial activism archive.

The Limits of the Oklahoma AG’s Knowledge

Walter Olson caught an astonishing admission by the Oklahoma AG who is prosecuting the WorldCom cases:

"I have recently been made aware of a market practice known as 'short selling' and am amazed that it is legal," Oklahoma Attorney General Drew Edmondson wrote the Securities and Exchange Commission last year. That's one of many tidbits to be found in a column by the L.A. Times's Mike Hiltzik about politicians' ties to Oklahoma-based Pre-Paid Legal Services, a multilevel marketing (MLM) enterprise that has been the subject of a fair bit of controversy and litigation over the years (Mike Hiltzik, "Lockyer Not Above a Little Legal Aid", Los Angeles Times, Dec. 18). Oklahoma AG Edmondson's bio lists him as having been born on "October 12, 1946" rather than, as one might assume, "yesterday".

These AGs are the people who want to take over from the SEC as regulators of our capital markets. Very reassuring, isn't it?