As an adult convert to Catholicism, I found this tweet deeply offensive.

Don’t get me wrong. I agree with the substance of Nichol’s critique of many of J.D. Vance’s pronouncements on the intersection of faith and religion. As many folks have observed, not just Nichols, Vance has a tendency to “mansplain” Catholicism to priests, bishops, and even the Pope himself. Not infrequently, moreover, Vance gets it wrong.

The trouble I have with Nichols—and many others—is the incessant harping not on what Vance says but when Vance became a Catholic. E.g.:

Why exactly does it matter when Vance learned the creed? Why do commentators like Nichols incessantly harp on Vance’s status as an adult convert? Why do they repost comments that feed into and perpetuate stereotypes about adult converts?

So let’s think about some of those stereotypes.

Stuff Cradle Catholics Say About Adult Converts

Charles Pierce:

It is considered axiomatic among cradle Catholics that adult converts are the worst. … [T]oo many adult converts see all of this incense-stained filigree as the real message of the gospels. And the American members of the species are also particularly interested in political power and the means to acquire it.”

Jana Bennett (herself a convert):

I have heard people complain that converts do not really understand Catholic theology because they bring Protestant habits with them about reading scripture, about discussing topics like God and that good old faith versus works debate; I have been privy to a few academic searches where people have discussed whether a convert would really be a good fit for a department; I have heard converts denounced as people who ruin the church because they are “more conservative” than the “real” Catholics.

Paul Chu and V. J. Tarantino in an open letter to JD Vance:

There is a familiar nostrum, applied to certain new converts to Catholicism – to wit, that they think that they’re more Catholic than the Pope. While such may not be a fair evaluation in most cases, let it be said that you have today, in this respect, set a new benchmark.

Lady Pent:

Being more Catholic than the Pope is annoyingly common behavior from converts, especially converts with Evangelical backgrounds. It’s very odd.

Some Data

Catholic converts are slightly more likely to attend Mass weekly, pray daily, and got to confession:

Those numbers are disappointing on both sides, of course.

With reference to the repost that started me on this discussion, note that the percentage of adult converts who regularly contribute to their parish is 16 points higher than that of cradle Catholics.

With respect to practicing what the Church teaches, adult converts are more likely to believe in a core teaching of the Church; namely, the Real Presence:

As noted by the Center for Applied Research in the Apostolate (CARA) at Georgetown University, which was the source for the above data:

Why would adult converts be more knowledgeable and believing than other Catholics? Perhaps it was the eight months to a year they spent studying intensively in an RCIA program? … It appears that having an intensive religious education experience as an adult has a more lasting effect than relying on religious education in the childhood years alone.

The Point

My point emphatically is not that adult converts are better Catholics than cradle Catholics.

My first point is that the stereotypes about adult converts we encounter in social media and the news media are sweeping generalizations frequently motivated less by faith than by politics.

My second point is that maybe all of us who are Catholics—whether as adult converts or from the cradle—should think before we speak. We should emulate Christ, who prayed that his Church “may all be one, as you, Father, are in me and I in you, that they also may be in us.”

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In this post, I take up a key line from the Nicene Creed:

[We believe] in one Lord Jesus Christ, the only Son of God, begotten from the Father before all ages,
God from God,
Light from Light,
true God from true God,
begotten, not made; of the same essence as the Father.

Compare that lengthy description of Jesus’ nature to the much simpler one in the Apostles’ Creed:

[I believe] in Jesus Christ, his only Son, our Lord ….

The longer Nicene text was necessitated as a response to one of the Arian heresies circulating in the early part of the fourth century. Arius taught that Christ did not come into existence until after the events of Genesis 1:1 (“In the beginning, when God created the heavens and the earth ....”). Instead, Christ was created by God thereafter. Arius regarded Christ as the “first born” of God’s creatures, but insisted Christ was a creature and therefore neither co-eternal with God nor partaking of God’s essential nature.

Most of the relevant passage speaks to the Arian heresy. “True God from True God,” for example, confirms that Jesus shares God’s nature as do the other statements. But I’ve always found the word “begotten” interesting in this context.

What immediately comets mind is the series of “begats” that begins Matthew. One function of the Creedal statement this is to affirm that Jesus was not begat of Joseph, but was begat of God the Father. More important, however, “begotten” also affirms orthodox (lower case o) Christianity’s rejection of Arianism. But to see why requires us to dig into the meaning of “begotten.”

The Greek word translated as “begotten” is monogenes, which some linguists argue connotes a unique relationship. “One of a kind.” This translation makes sense in this context, since it conveys the unique relationship between God the Father and God the Son.

Other linguists translate it as “to generate,” which in this context could be understood not as creation (bringing something out of nothing) but as the process of bringing something of of something. Hence, Jesus proceeds from the Father--is generated by the Father out of the divine essence.

Christ thus proceeds from the Father, but is of the same nature. Christ thus is simultaneously God but also a distinct person begotten by the Father.

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We know what we believe, so why the need to recite it every Sunday?

Malcolm Gladwell famously said that to master something, you must do it 10,000 times. (More, precisely, he said you must practice it for 10,000 hours.) Repeating the Creed every week is like practicing an instrument regularly, It helps us internalize the Creed and to make it as natural a part of life as playing the instrument. It becomes part of the muscle memory of our faith.

Why is it important for the Church to be able to point to scripture to back up the Creed?

Here’s a common Protestant take on Catholic beliefs:

… official Catholic doctrine is so far removed from biblical moorings the Catholic Church cannot be a true church. …

Because the Catholic Church has rejected fundamental Biblical doctrines such as justification, by faith alone, worshiping and praying to God alone, Christ as the head of the Church, and Christ’s sacrifice for all sins of his people, I believe the Catholic Church is a false church.

But Catholics in fact believe that Scripture is the divinely inspired word of God. While the Church teaches that God’s revelation did not end when the canonical order and content of the New Testament were finalized, no statement of faith or belief that is contrary to the Scripture can be regarded as truly orthodox. It is the touchstone against which our beliefs are measured.

What is the difference between the Nicene and Apostles Creeds?

There are some important differences between the two Creeds:

As Marthaler relates (83ff), the additional language in the Nicene Creed does not reflect a change in doctrine but rather a rejection of heresy. The authors of the Nicene Creed elaborated the Church’s theology of the Trinity and the Godhead by making it more precise, albeit at the cost of complexity. “Begotten of the father” rebuts the heresy that claimed there was only one God with three names or modalities. “God from God” affirms that Christ’s nature was fully divine, as does the statement that Christ was “begotten not made,” which reaffirms that he is God and not a creature. “Became man” confirms that Jesus was also fully human, while simultaneously being fully divine.

Hence, it seems to me that the Apostles’ Creed likely an earlier creed that was largely settled before the controversies to which the Nicene Creed is addressed.1 The Apostles’ Creed lacks the developed theology—especially the more fully developed Christology—that is present in the Nicene Creed. As a result, Unitarians accept the Apostles’ Creed because of its lack of an explicit Trinitarian statement. Likewise, Arians (if there are still any) can accept the Apostles’ Creed because of that absence.

Marthaler explains that “The Apostle’s Creed came to have more of a pedagogical than a liturgical function.” Given that we use the Apostles’ Creed in the liturgy part for the liturgical year,2 I initially found this unenlightening. On further examination, however, I take his point. The Nicene Creed functions as a detailed test of orthodoxy, while the Apostle’s Creed is better suited for teaching new converts and the young, because it gets across the basics without getting to deeply into into the complex mysteries of the Trinity.

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Steve, I have a rather unconventional question. I find a great void in life without the meaning that God and salvation give it. And I always want to believe this is the reality, but the very fact that I want to believe it makes me think I am biased when weighing the facts. So you tell me, how do you believe in God? These days, I need this more than ever.

Or, as one of my nieces once asked me, why do I believe in God?

I sort of stumbled through an answer, which I fear was not terribly coherent. But it’s a question I’ve been thinking about a lot lately. I am quite sure that I believe in Jesus Christ as Lord and Savior. I am quite sure that I believe in the tenets of Christianity set out in the Nicene Creed. But why?

Starting With Lewis

People smarter than I and far more deeply versed in theology and philosophy have tried to make rational arguments for the existence of God. Works that I found particularly helpful in my own faith life include C.S. Lewis’ Mere Christianity. Among the various arguments Lewis advances in it, I found his so-called trilemma especially convincing:

A man who was merely a man and said the sort of things Jesus said would not be a great moral teacher. He would either be a lunatic—on the level with the man who says he is a poached egg—or else he would be the Devil of Hell. You must make your choice. Either this man was, and is, the Son of God: or else a madman or something worse. You can shut Him up for a fool, you can spit at Him and kill Him as a demon; or you can fall at His feet and call Him Lord and God. But let us not come with any patronizing nonsense about His being a great human teacher. He has not left that open to us. He did not intend to.

Granted, there are those who assert various logical fallacies in Lewis’ argument, most notably the purportedly false dilemma, but I think those critics have been rebutted quite effectively.

Other Smart Folks

Other works I’ve found helpful include Paul Johnson’s The Quest for God and Jesus: A Biography from a Believer, Timothy Keller’s Making Sense of God, and Bishop Barron’s To Light a Fire on the Earth.

I will not try to recapitulate their various arguments here. But I point out the existence of such arguments first to counter those who claim there is no logical rason to believe in God and second because St. Paul told us that “Faith comes from what is heard, and what is heard comes through the word of Christ.”

Belief is fostered through the authority and witness of others. We all have the ability to sense whether certain people are truthful and credible.

Apply that ability to what you read and hear. Whether we receive God’s message through written texts (such as those above) or spoken words (Bishop Barron’s YouTube videos are a great place to start), we gain access to truths that are rooted in trust—trust in what and whom we have heard and experienced firsthand.

Intuiting God Experientially

At the end of the day, however much merit the various rational arguments for God may have, “faith is the substance of things hoped for, the evidence of things not seen.” Ultimately, I think, we—or, at least I—intuit God experientially.

Put another way, my belief in God rests as much—if not more—on personal experience rather than rational discourse. Of course, skeptics have often vehemently opposed justifying faith solely through religious experiences, a stance that is understandable. Indeed, they raise a legitimate question: Can religious experience, without additional evidence, sufficiently validate faith? One must also acknowledge that relying solely on emotion, feelings, and personal experience can lead us astray into believing falsehoods.

Yet, I concur with theologian Alvin Plantinga, who drew on what John Calvin called the “sense of the divine” to argue that belief in God may be considered a “properly basic” belief. In other words, belief in God is a foundational belief requiring no further justification to be held rationally.

I also concur with St. Paul, who posited that the world around us reveals God’s “eternal power and divine nature, invisible though they are” (Romans 1:20). In other words, St. Paul believed in the ability of the senses to reveal truths. He maintained that through philosophical reflection following sensory experiences, we could grasp God’s existence. Our senses guide us towards the ultimate reality—the singular God who exists in simplicity and infinity.

Begin with Beauty

I think this insight is what Bishop Barron has in mind when he argues that belief in God begins with beauty:

The pattern is more or less as follows: first the beautiful (how wonderful!), then the good (I want to participate!) and finally the true (now I understand!). A young man watches a skillfully played game of baseball, and it awakens in him a profound desire to play as well as those whom he admired; and then the actual playing of the game teaches him, from the inside, the rules and rhythms of baseball. A completely inadequate way of drawing a kid into the world of baseball would be to start with a clarification of the rules or with a set of drills. Rather, show him the beauty of baseball, and he will want to play, and having played, he will know.

Conclusion

I would not claim profundity for anything I just said. To the contrary, I would disclaim it.

It is simply the best answer I have today to the most basic question of life.

I hope it helps.

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I usually go on to mention journalists John Micklethwait and Adrian Wooldridge, whose magnificent history, The Company (AMAZON LINK), contends that the corporation is “the basis of the prosperity of the West and the best hope for the future of the rest of the world.”

Lastly, I often invoke Michael Novak’s observation that the corporation gives “liberty economic substance over and against the state.”

Not infrequently, those comments get thrown in my face when I say something critical of a specific corporation. The throwers seem to think that they’ve scored some huge rhetorical point by positing that a leading defender of the corporate form pointed out that a corporation did something awful. Which I don’t understand. I’m well known as a fan of golden retrievers. Does that mean I can’t point out that a specific golden retriever shat on my doorstep? It strikes me as an example of the tu quoque fallacy.

What’s My Point?

I laid out all that because I’m about to criticize a specific corporation. One of the biggest and most famous. Does that mean I’m be a hypocrite because I praise the corporate form as the greatest invention since the wheel? No.

The Motivating Incident

Over on X.com, famed antitrust scholar Herbert Hovenkamp wrote:

The Case Against Walmart

Hovenkamp’s post called to mind something I wrote a long time ago about Walmart.

Hugh Hewitt Pokes the Bear’

Back in 2005 then Walmart CEO Lee Scott came to Los Angeles to give a tough response to the company’s critics and confirm his plans for Walmart to expand aggressively in Southern California.

Conservative radio host Hugh Hewitt loved it:

Resistance to WalMart opening new stores always amazes me. Really. Good jobs at good wages, many of them entry-level jobs with training and advancement possibilities. Excellent advantages for consumers, benefits for employees, and neighborhood redevelopment.

But the media loves to hate the giant retailer, and local small businesses always put up a predictable cry. When WalMart is blocked, you never hear about the folks who didn’t get jobs or the insurance plans that don’t get enrollees. The small stores are happy, but the next time an objection is raised, I’d love to see a report on the wages and benefits paid to employees of such mom and pop operations. There will be some exceptions, but the average worker who is not an owner would be better off at the WalMart.

I disagreed. I think there’s a strong conservative case to be made against Walmart.

Impact on Workers

The data show that entry of a Wal-Mart store into a community has only a very small positive impact on county-level employment. According to a study by Missouri economist Emek Basker, “in the first year after entry, retail employment in the county increases by approximately 100 jobs; this figure declines by half over the next five years as small and medium-sized retail establishments close. Wholesale employment declines by approximately 20 jobs over five years.” Note that the “typical Wal-Mart store employs 150-350 workers. These results suggest that employment increases by less than the full amount of Wal-Mart’s hiring, even before allowing other firms time to fully adjust to Wal-Mart’s entry.”

As noted below, entry of Wal-Mart typically results in exit by at least some local businesses, as suggested by the fact that the increase in employment is smaller than the number of positions Wal-Mart fills.

Impact on Communities

Objective data on the impact of Wal-Mart’s entry into a community on prevailing wages is difficult to find, but one suspects it is not positive. (Timothy Noah pointed out that Wal-Mart’s CEO distorted Walmart’s wage picture in his speech by using average rather than median salaries.)

The data also show that Walmart’s entry into a community has a downward impact on overall retail prices of certain core consumer commodities.

Even if the subsidies given Walmart by many local communities to encourage opening a store are not as large as Walmart’s critics claim, does anyone seriously doubt that Walmart often gets breaks on things like zoning, property or sales taxes, and other regulatory issues that small business competitors don’t receive?

So opening a Walmart has a small positive effect on consumer prices and employment for the community. The latter effect dissipates over time as Walmart drives competitors out of business or, at least, the area. In addition, many of these employees appear to be part-time, according to Basker’s study, who likely get smaller benefits and opportunity for advancement than full-timers. (Timothy Noah also pointed out that Walmart overstates the number of full-time employees by counting as full-time anybody who works more than 34 hours a week.)

Impact on Small Business Owners

But even if Hugh was right that “the average worker who is not an owner would be better off at the Walmart,” what about those owners?

In his article, Thwarting the Killing of the Corporation: Limited Liability, Democracy, and Economics, 87 Nw. U. L. Rev. 148 (1992), law professor Stephen Presser wrote eloquently about the role small business plays in our democracy. Presser explained that corporations were endowed with limited liability precisely so as to encourage the growth of small business:

The popular democratic justification for limited liability is rarely observed by modern scholars. Nevertheless, it appears that to the nineteenth-century legislators in states such as New York, who mandated limited liability for corporations’ shareholders, the imposition of limited liability was perceived as a means of encouraging the small-scale entrepreneur, and of keeping entry into business markets competitive and democratic. Without limitations on individual shareholder liability, it was believed, only the very wealthiest men, industrial titans such as New York’s John Jacob Astor, could possess the privilege of investing in corporations. Without the contributions of investors of moderate means, it was felt, the kind of economic progress states like New York needed would not be achieved.

The author of the most comprehensive study of New York legislative policy toward corporations in the nineteenth century concluded that New York’s policy of limited liability, and its policy of encouraging incorporation by persons of modest means “facilitated the growth of a viable urban democracy by allowing a wide participation in businesses that could most advantageously be organized as corporations.” “More importantly,” he suggested, New York’s general incorporation statutes “helped equalize the opportunities to get rich. The passage of general incorporation laws for business corporations was the economic aspect of the political and social forces that democratized the United States during the Age of Jackson, 1825-1855.”

Note carefully this line: the “policy of encouraging incorporation by persons of modest means ‘facilitated the growth of a viable urban democracy by allowing a wide participation in businesses that could most advantageously be organized as corporations.’” By trampling small businesses underfoot, through its mix of volume pricing and subsidies, Walmart and its ilk undermine the possibility of “wide participation in businesses.” Prospective entrepreneurs are thus pushed out of fields like retail.

Of course, maybe Walmart makes up for that by buying products from small entrepreneurs in places like China. But do we really want to encourage our nation’s superpower rival to continue building up its economy with massive trade deficits?

Aesthetics

Finally, there is an aesthetic/humanistic argument to be made. I come back here, as I do so often, to Russell Kirk’s description of his beloved Detroit:

All my life I have known the city of Detroit, called-during World War II “the arsenal of democracy.” ... In the shocking decay of that great city nowadays, we behold the consequences of an inhumane economy-bent upon maximum productive efficiency, but heedless of personal order and public order. Henry Ford’s assembly-line methods had much to do with the impersonality and monotony of Detroit’s economic development; and so, in some degree, did Ford’s concentration of his whole productive apparatus at the Rouge Plant; but of course Henry Ford had no notion, in the earlier years of his operation, of what might be the personal and social effects of his highly successful industrial establishment; nor did the other automobile manufacturers of Detroit. Indeed, they seem still to be ignorant of such unhappy consequences, or else indifferent to the consequences, so long as profits continue to be made. Consider the wiping out of Poletown through the unholy alliance of industrial, municipal, and ecclesiastical power structures, regardless of the rights and the wishes of Poletown’s inhabitants-all to build on the site of Poletown a new industrial complex, which already, far from supplying the promised increase in tax revenues for Detroit, is involved in grave difficulties.

Apropos of which, outside the most heavily urbanized areas, Walmart typically builds on the edge of town, putting up a huge (and butt-ugly) big box building surrounded by acres of bare concrete parking lots. There are few sights in the American scene less attractive or appealing to the eye.

Kirk further observed that “Detroit, during my own lifetime, has produced tremendous wealth in goods and services. But it has been a social failure. And so have nearly all of America’s other major cities.” I put it to you that Walmart contributed to moving those failures into small town America by shuttering local business and creating huge barriers to entrepreneurial entry into fields traditionally the province of local small business men and women.

Being a conservative is supposed to be about things like tradition, community, and, yes, aesthetics. If I’m right about that, it’s hard to see why a conservative should regard Walmart as a societal force for good even if Hugh was right about the job story.

Conclusion

I concluded that we must strike a balance between respect for private property rights and our other values. How? On the one hand, government should not legislate against Walmart and its ilk. On the other hand, government should not subsidize Walmart either through zoning or tax breaks. Walmart’s a big boy, so to speak, who can take care of itself. We ought to let it compete in a free market. And those of us with a bully pulpit out to use it to encourage Walmart to become a better neighbor and citizen.

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As such, I was steeped in biological sciences, including evolution.

Of course, I am also (and was then) a devout Christian who believes the Bible is the inspired word of God.

Faith and Science

As a Catholic, there is no conflict between my faith and my belief that the scientific account of evolution is correct.

The Catechism states:

The question about the origins of the world and of man has been the object of many scientific studies which have splendidly enriched our knowledge of the age and dimensions of the cosmos, the development of life-forms and the appearance of man. These discoveries invite us to even greater admiration for the greatness of the Creator, prompting us to give him thanks for all his works and for the understanding and wisdom he gives to scholars and researchers. With Solomon they can say: "It is he who gave me unerring knowledge of what exists, to know the structure of the world and the activity of the elements. . . for wisdom, the fashioner of all things, taught me." (§ 283)

Pope John Paul II thus declared “there is no conflict between evolution and the doctrine of the faith.” Indeed, he recognized that “new findings lead us toward the recognition of evolution as more than an hypothesis.”

Catholicism thus does not teach the literal 6-day Creationism propounded by some fundamentalists. Instead, it adopts a form of theistic evolution.

The Creation Account

Catholics reconcile the competing claims of faith and science by viewing the Genesis account of creation as a theological and spiritual narrative rather than a literal, scientific history. Catholics thus do not interpret Genesis as a modern biology or physics textbook, but rather as divinely inspired truth told through poetry, metaphor, and figurative language. As Bishop Robert Barron has said, the Genesis creation accounts (there are two) should be understood “as they were meant to be seen: not as primitive science, but as exquisite theology.”

A Literal Adam?

Given all of that, I have long assumed that there was no literal Adam and Eve, setting aside the question of whether there was a single mitochondrial Eve and Y-chromosome Adam.

But, the knowledgeable reader will ask, what about Pope Pius XII’s statement in Pius XII in Humani Generis?

For the faithful cannot embrace that opinion which maintains that either after Adam there existed on this earth true men who did not take their origin through natural generation from him as from the first parent of all, or that Adam represents a certain number of first parents.

Pope Pius is propounding what theologians refer to as monogenism; i.e., that Adam and Eve were the literal and sole progenitors of all of humans. As compared with polygenism.

Stumbling Across an Islamic Perspective

I tee up all of the foregoing as an introduction to an article I recently stumbled across offering an Islamic perspective on these questions. I cannot vouch for the validity fo the author’s interpretation of Islamic theology, of course, but I thought it was a very interesting treatment of an issue that I’ve occasionally pondered.

The gist of the argument is that:

… the physical substrate of humanity (bashar) developed through evolutionary processes documented by paleoanthropology and genetics, the essential qualities that constitute humanness—consciousness, volitional agency, and moral responsibility—were realized through a metaphysical endowment described in the Qur’an as nafkh al-rūḥ (the inbreathing of the spirit). This intervention did not contradict or supersede natural processes but rather completed them, transforming a biologically evolved organism into a morally accountable subject.

A Quick Catholic Digression

I note that this seems to be a similar argument to that made by Catholic scholar Edward Feser, who posits that:

There is nothing at all contrary to what Pius says in Humani Generis in the view that 10,000 (or for that matter 10,000,000) creatures genetically and physiologically like us arose via purely evolutionary processes. For such creatures -- even if there had been only two of them -- would not be “human” in the metaphysical sense in the first place. They would be human in the metaphysical sense (and thus in the theologically relevant sense) only if the matter that made up their bodies were informed by a human soul -- that is, by a subsistent form imparting intellectual and volitional powers as well as the lower animal powers that a Planet of the Apes-style “human” would have. And only direct divine action can make that happen ….

Supposing, then, that the smallest human-like population of animals evolution could have initially produced numbered around 10,000, we have a scenario that is fully compatible with Catholic doctrine if we suppose that only two of these creatures had human souls infused into them by God at their conception, and that He infused further human souls only into those creatures who were descended from this initial pair.

Back to Islam

As the quote above suggests, Ismayilov argues that Adam should not be understood as the first biological Homo sapiens, but as the first fully volitional and morally responsible human. Its central model distinguishes bashar, the evolved biological human organism, from insān, the ensouled human person endowed with consciousness, free will, symbolic thought, and moral accountability.1 In this view, biological evolution prepared the human body through taswiyah—proportioning or refinement—while nafkh al-rūḥ,2 the Qur’anic “inbreathing of the spirit,” marks a metaphysical transition from biological life to morally accountable personhood.3

Ismayilov presents this as a way to reconcile evolutionary biology with Qur’anic anthropology: evolution explains the bodily substrate, while revelation explains consciousness, moral agency, and spiritual vocation. Adam’s “firstness” is therefore metaphysical rather than biological: he is the first bearer of the divine trust and the prototype of humanity as insān.

Ismayilov is not trying to prove the soul scientifically. His aim is philosophical and theological; namely, to show that Islamic belief in Adam, divine creation, and human moral dignity can be interpreted in a way that remains compatible with evolutionary biology.

A major strength of Ismayilov’s paper is that he openly admits the model is not an empirical scientific hypothesis. He treats nafkh al-rūḥ as a philosophical-theological explanation, not something archaeology or neuroscience can directly verify. He also acknowledges unresolved problems, including the timing of ensoulment, the status of Neanderthals and Denisovans, and how his model fits with classical interpretations that treat Adam as the first biological human. The core problem, of course, is the difficulty of identifying where biological cognition ends and metaphysical moral agency begins.

Conclusion

In many respects, I found this paper quite illuminating. It struck me as a well thought out attempt to reconcile faith and science with respect to the core question of human origin.

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Canonization

Canonization is the process by which the Roman Catholic Church formally recognizes that an individual lived a life of heroic virtue and is now in Heaven. It is a four-step process1:

1. Initiation: The local bishop—usually of the diocese in which the candidate died—opens an investigation into the candidates life, collecting testimony and written records. If the Vatican’s Dicastery for the Causes of the Saints agrees,2 the candidate is named a Servant of God.

2. Declaration. If the diocese’s and the Dicastery’s investigation finds evidence that the candidate lived a life of heroic virtue, they can recommend that the Pope declare the Candidate to be “Venerable.” Only the Pope has this power. Catholics can ask the Venerable to intercede with God on their behalf.3 Contrary to what some Protestants claim, we do not worship the Venerable (of a saint, for that matter). Rather, we ask them to intercede in Heaven on our behalf.

3. Beatification. If the Dicastery determines that a miracle—usually defined as a scientifically inexplicable healing—can be attributed to the Venerable’s intervention, it can recommend that the the Pope beatify the candidate. If the Pope does so, the candidate is now referred to as “Blessed.” A miracle is not necessary if the Dicastery determined that the candidate was a martyr.

4. Canonization. If the Dicastery determines that a second miracle can be attributed to the candidate’s intervention, it can recommend sainthood. If the Pope agrees, he can declare the individual to be a saint.

The Congressional Medal of Honor

Although there are separate statutes defining the conditions under which the President may award the Congressional Medal of Honor for each of the Army, Navy and Marine Corps, and Air Force, they are all basically the same as the Army version (10 USC § 7271):

The President may award, and present in the name of Congress, a medal of honor of appropriate design, with ribbons and appurtenances, to a person who while a member of the Army, distinguished himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty:

(1) while engaged in an action against an enemy of the United States;

(2) while engaged in military operations involving conflict with an opposing foreign force; or

(3) while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party.

Just over 3,500 individuals have received the Medal of Honor. Only nine of them have been chaplains.

Father Emil Kapaun

Emil Kapaun was born in Kansas in 1916. In 1940, after attending seminary, he was ordained as a priest of the Diocese of Wichita. In 1944, Father Kapaun attended the Army Chaplaincy School. He served in Georgia and Burma during WWII, rising to the rank of Captain.

After the war, Kapaun attended graduate school, but then rejoined the Army as a chaplain. In 1949, he was assigned as a regimental chaplain in the 1st Cavalry Division, which was then on occupation duty in Japan. In July 1950, the division was sent to Korea as part of the US-led response to North Korea’s invasion of South Korea.

Kapaun served with his regiment on the front lines both in the Pusan Perimeter and during the subsequent breakout.

On November 1-2, 1950, Kapaun was with his regiment during the Battle of Unsan. His Medal of Honor citation explains what happened next:

For conspicuous gallantry and intrepidity at the risk of his life above and beyond the call of duty while serving with the 3d Battalion, 8th Cavalry Regiment, 1st Cavalry Division during combat operations against an armed enemy at Unsan, Korea, from November 1-2, 1950. On November 1, as Chinese Communist Forces viciously attacked friendly elements, Chaplain Kapaun calmly walked through withering enemy fire in order to provide comfort and medical aid to his comrades and rescue friendly wounded from no-man's land. Though the Americans successfully repelled the assault, they found themselves surrounded by the enemy. Facing annihilation, the able-bodied men were ordered to evacuate. However, Chaplain Kapaun, fully aware of his certain capture, elected to stay behind with the wounded. After the enemy succeeded in breaking through the defense in the early morning hours of November 2, Chaplain Kapaun continually made rounds, as hand-to-hand combat ensued. As Chinese Communist Forces approached the American position, Chaplain Kapaun noticed an injured Chinese officer amongst the wounded and convinced him to negotiate the safe surrender of the American Forces. Shortly after his capture, Chaplain Kapaun, with complete disregard for his personal safety and unwavering resolve, bravely pushed aside an enemy soldier preparing to execute Sergeant First Class Herbert A. Miller. Not only did Chaplain Kapaun's gallantry save the life of Sergeant Miller, but also his unparalleled courage and leadership inspired all those present, including those who might have otherwise fled in panic, to remain and fight the enemy until captured. Chaplain Kapaun's extraordinary heroism and selflessness, above and beyond the call of duty, are in keeping with the highest traditions of military service and reflect great credit upon himself, the 3d Battalion, 8th Cavalry Regiment, the 1st Cavalry Division, and the United States Army.

Although he had a chance to escape capture, Father Kaupan voluntarily remained behind with the wounded to minister to them.

His official Army biography explains that after his capture Father Kapaun continued to minister to his fellow prisoners:

Kapaun spent the next seven months in the Sambukol and Pyoktong prison camps, in what is now the Democratic People's Republic of Korea. With disregard for his own safety and comfort, Ch. Kapaun tended to the sick and wounded, scoured for food, built fires against guards' commands, and fashioned iron sheet vessels to launder the clothing of the wounded and purify drinking water. He also led prayers and spiritual services for the POWs, at the risk of punishment. For his outspoken resistance, Ch. Kapaun was feared by the guards and revered by his fellow POWs. Upon return, Pyoktong prison survivors told stories of Ch. Kapaun's courage, compassion, and spirit. They credited him with saving their lives, and hundreds more, before eventually succumbing to his own wounds and prison maltreatment.

Kapaun reportedly forgave the captors who took him away to die, offering them God’s blessings. Reportedly, he told his fellow prisoners “I’m going where I always wanted to go, and when I get there, I’ll say a prayer for all of you” and asked them to tell his bishop “I died a happy death.” He died of neglect in what was described as the camp’s death house.

In addition to the Medal of Honor, Kapaun was awarded the Distinguished Service Cross; Bronze Star Medal with "V" Device; Legion of Merit; Prisoner of War Medal; Asiatic-Pacific Campaign Medal with one Bronze Service Star for Central Burma Campaign; World War II Victory Medal; Army of Occupation Medal with Japan Clasp; Korean Service Medal with two Bronze Service Stars; National Defense Service Medal; and United Nations Service Medal, making him one of the most highly decorated Chaplains in the history of the US Army.

Kapaun was buried in a mass grave, but in 2021 his remains were identified and repatriated to the US. He was finally laid to rest in the Cathedral of the Immaculate Conception in Kansas City.

The Archdiocese for the Military has a nice webpage with information and videos relating to the finding of Kapaun’s remains and their internment.

The Cause of Father Kapaun

The Diocese of Wichita opened the requisite investigation and in 1993 John Paul II named Kapaun a Servant of God. In 2025, Kapaun was declared as Venerable by Pope Francis.

According to the website on his Cause, the Diocese has “received testimony of several instances of alleged miraculous intercession by Father Kapaun. Some of these potential miracles date back nearly two decades, while others occurred very recently. One or two will be sent in detail to the Dicastery for Saints in Rome for review by both theologians and medical experts before papal approval is given.”

The Call to Duty

Father Kapaun once wrote:

When I was ordained, I was determined to ‘spend myself’ for God. I was determined to do that cheerfully, no matter in what circumstances I would be placed or how hard a life I would be asked to lead.

I find that an incredibly inspiring call to duty. His life is an amazing example of the sort of heroic virtue to which we should all aspire.

The Prayer for Intercession

Father Kapaun, I ask your intercession not only for these needs which I mention now, [list them], but that I too may follow your example of service to God and my neighbor.
For the gifts of courage in battle and perseverance of faith, we give you thanks O Lord.

Then recite one Our Father, Hail Mary, and Glory Be.

Father John Hotze, Episcopal Delegate for Father Kapaun’s Cause, will be celebrating a novena of Masses the first 9 days of each month for those who have asked for Father Emil’s intercession. You can send your intention to the Cause via their website.

The Prayer for the Cause

Lord Jesus, in the midst of the folly of war, your servant, Chaplain Emil Kapaun, spent himself in total service to you on the battlefields and in the prison camps of Korea, until his death at the hands of his captors.

We now ask you, Lord Jesus, if it be your will, to make known to all the world the holiness of Chaplain Kapaun and the glory of his complete sacrifice for you by signs of miracles and peace.

In your name, Lord, we ask, for you are the source of peace, the strength of our service to others, and our final hope. Amen.

Venerable Emil Kapaun, pray for us!

Support the Cause

The Diocese collects offerings to support the dissemination of Father Kapaun’s story, the Cause, and his museum. I think it’s a very worthy cause (so to speak).

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The Original Post

SSRN Responds

Earlier today I received an email from SSRN management:

We at SSRN are aware of your recent Substack post and I just wanted the opportunity to share some additional context and clarity with you; please see SSRN’s Ongoing Commitment to Legal Scholarship – SSRN Blog.

Their blog post states, in part, with interspersed commentary:

We are aware that Professor Bainbridge raises understandable concerns about changes at SSRN, particularly given how central the platform is to legal scholarship. …

We would like to clarify a few specific points raised by Professor Bainbridge ….

I appreciate the recognition and the use of the word “understandable.”

Institutional research paper series will be closed on a rolling basis at the end of each institution’s existing term, or at the end of December 2026, whichever comes first. …

With the exception of some sponsored niche areas, existing areas of legal scholarship on the site and their associated email alerts will continue unchanged.

I take this statement mean that institutionally-focused email lists like the UCLA Law and Economics ejournal will be cancelled, but that the subject matter email ejournals will continue. If so, that is very, very good news.

For one thing, as noted in the earlier post, I rely on the subject matter ejournals to keep up to date with developments in my field (corporate law) and other areas of interest (such as law and religion). I am glad that I will be able to continue doing so.

As I noted in the earlier post, UCLAW plans to shift to the UC’s open access repository, eScholarship, as the law school’s default repository. But apparently we will be given the option of also having our work posted to SSRN.

I plan to select the option to have my work posted to SSRN, in large part because I believe the ejournals are a great way of having my new scholarship brought to the attention of others in the field. I suspect a lot of people are like me in using them as a way of monitoring our professional reading options.

Published work in legal scholarship will continue to be posted in most cases, except where prohibited by copyright, as we have done in the past.

Good.

While SSRN will introduce the ability to select a CC-BY license at submission later this year, options will include CC-BY, CC-BY-NC and CC-BY-NC-ND, providing additional flexibility and choice for authors.

This is very good news. As I noted in the earlier post, the CC-BY copyright license, it is the most open and permissive Creative Commons license.

This change is another reason I will continue using SSRN. But I plan to opt for the CC-BY-NC-ND license. It is the most restrictive of the six main Creative Commons licenses. It allows others to download and share your work, but they cannot change it in any way or use it commercially, and they must always give you credit. I think that should help limit the use of my work my AI companies for training their models, although I recognize that they claim that fair use allows them to do so.

Final Thoughts

I’ve just hit the highlights of SSRN’s response. I urge interested readers to go check out the whole post.

I note that SSRN concludes:

Please continue to share your thoughts and concerns with us and thank you for your patience as we grow into the future.

I encourage you to do so.

In sum, I don’t know whether SSRN’s response is merely clarifications or if I managed to induce some changes in their policy.1 In either case, I appreciate SSRN management taking my concerns—which I believe were widely shared—seriously and seeking to accomodate them.

As noted, given these developments, I plan to continue using SSRN.

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In addition to providing a searchable depository of working papers and other scholarly items, SSRN also provided weekly emails of newly deposited papers in a wide variety of fields.

I use SSRN as my main depository for pre-publication drafts and, when permitted by the publishers, works as published. It’s been a considerable personal success. As of today, my papers have been downloaded 194,000 times. As a result, SSRN has contributed greatly to my visibility as a scholar. In addition, I’m ranked 13th out of 3,000 legal authors in total number of all-time downloads, which the law school has taken into account in various promotion and related decisions.

In 2016, the founders and other insiders took the Boeing,2 selling out to Elsevier. This resulted in what one observer aptly described as “much wringing of hands, gnashing of teeth, and the obligatory call for the community to pony up and create a true open piece of infrastructure.”

At the time, however, SSRN’s management team promised that:

Both existing and future SSRN content will be largely unaffected and … we’ll help researchers share post-submission versions of their work responsibly. Importantly, Elsevier respects our key values and core-proposition (free posting and reading) and commits that authors (or eventual publishers) will retain their copyright to any paper posted to SSRN.

And, in fact, I have noticed relatively little difference in the post-Elsevier SSRN.

Until now.

The UCLA Law Library has notified our faulty that SSRN has announced “significant and unwelcome changes,” including:

1. SSRN is discontinuing its Research Paper Series at the end of July.

2. Already-published papers and book chapters will no longer be eligible for posting on SSRN after July.

3. SSRN will require authors submitting preprints or working papers to select a CC-BY license. A CC-BY license permits others to distribute, remix, adapt, and build upon the work, including for commercial purposes, so long as appropriate attribution is given.

The research paper series has been an incredibly useful way of staying on top of recent scholarly developments. It gives you a listing of recently posted works and, crucially, each work’s abstract. As such, you know whether or not the paper looks to be of sufficient interest to justify downloading and reading the whole work. I shall miss it greatly.

Disallowing published works means that open access to my publications will become more difficult. Many are available freely on the publisher’s website, especially in the case of law reviews, but there is no single searchable depository (but see below) where you can get them all in one palce.

As for the CC-BY copyright license, it is the most open and permissive Creative Commons license. It allows anyone—including AI providers—to copy, distribute, remix, adapt, or build upon a creator’s work, even commercially, provided they give the original author credit for the creation. Once applied, a CC-BY license cannot be revoked by the creator. The license remains valid for the duration of the copyright of that work. It guts the author’s ability to impose any more significant limitations.

In response, UCLAW has adopted a policy that faculty working papers will be submitted to the University of California’s open access repository, eScholarship, rather than to SSRN.

I agree with and support this policy shift, but there are several problems that will follow:

1. At the moment, the UC eScholarship repository is incomplete. In my case, for example, there are 30 of my papers on the UC site. There are 124 on my SSRN author page. I gather they will be moving all of them over at some point, but it will take a while.

2. The UC eScholarship repository lacks the single author page SSRN offers. That page contains contact information and links to all of my posted works. It acts as a single hub for accessing my scholarship.

3. The eScholarship site does not offer the same kind of disciplinary current-awareness eJournal service that SSRN has provided for newly submitted papers.

4. The UC eScholarship repository is a UC site. SSRN offered researchers a single location to access work by global scholars. Literally thousands of institutions are represented on SSRN, as well as thousands of independent, unaffiliated authors. According to SSRN, there are papers from over 2,750,000 authors on the site. As such, SSRN provided researchers with a literal world of sources to explore and gave authors the whole world as an audience. In contrast, how many people are going to go to the bother of looking at a single university’s depository, even one for a university as big as UC?3

5. Although eScholarship provides article-level usage statistics and can display an author’s scholarship within the repository, it does not provide SSRN-style aggregate author metrics or rankings.

Rob’s not the only one who thinks this a good idea.

Back in 2012, The Economist reported that:

. . . on January 18th the law school of New York University (NYU) held a discussion on a reform that would jolt the system: cutting legal education by a year.

The reason for the event was a recently published article by Samuel Estreicher, a professor at NYU, entitled “The Roosevelt-Cardozo Way: The case for bar eligibility after two years of law school.” Rules in almost every state require an undergraduate degree and then a three-year law degree from a law school accredited by the American Bar Association. Mr Estreicher wants students to take the bar before completing their degrees, and, if they pass, letting them practise—as Benjamin Cardozo (a revered judge) and Franklin Roosevelt did before the three-year rule became universal in the early 20th century.

The proposal was surprisingly well received. Many agreed that the third year is useful but not crucial. One panelist, Zachary Fasman, a partner at Paul Hastings, a big law firm, announced that he would happily hire eager and talented lawyers with just two years of law school, though colleagues might not. Others pointed out that the first year of work could be in effect an apprenticeship, during which the rookie would earn less and be billed to clients more cheaply. Law firms already have to train new hires on the job anyway; even three years of education does little to prepare lawyers for actual practice.

At the time, I asked “Why not make law an undergraduate major?”

At The University of Virginia, where I went to law school, law was originally an undergraduate degree. If it was good enough for Thomas Jefferson, why not for the modern legal profession?

As Rob notes, in most of the world, law is an undergraduate degree. As a Harvard report on the German legal system explained, for example:

German legal education consists of a four-year undergraduate degree completed following completion of secondary school and passage of the university entrance exam.

Students then take the First Examination, a comprehensive set of exams that emphasizes academic knowledge of the law. This is followed by a two-year practical training period. (Referendarzeit).

Students then must pass the Second Examination, a comprehensive set of exams that emphasizes practical legal skills. Upon passage, students are entitled to work in any legal profession.

But nobody thinks German lawyers aren’t perfectly competent.

So, why should this not be the case in the USA? Law schools could offer an undergraduate degree, which would qualify students to take the bar, a Masters degree akin to the MBA for students who want to practice at BigLaw firms, and a SJD, akin to a PhD, for potential legal academics.

The vast majority of lawyers would graduate with far less debt. In addition, a law undergraduate major might well be useful to a slew of students who never intend to practice law.

Of course, this is not a novel proposal. John McGinnis and Russell Mangas advanced this very same proposal in the WSJ. They argued that:

An undergraduate legal degree could be readily designed. A student could devote half of his course work to the major, which would allow him to approximate two years of legal study. There is substantial agreement in the profession that two years are enough to understand the essentials of the law—both the basics of our ancient common law and the innovations of our modern world. A one-year apprenticeship after graduation would allow young lawyers to replace the superfluous third year of law school with practical training. ...

The idea of learning law as an undergraduate discipline is hardly untested. Great Britain, for instance, educates lawyers in college, not graduate school. These college-educated lawyers appear to provide legal services on par with those of their American colleagues.

I remain genuinely puzzled as to why this idea doesn’t have more support. It would be better for students. It would integrate law schools into the larger university, which would be good for faculty. It just makes sense, which is probably the problem.

The last post was an introduction to Marthaler and the work.

This post focuses on the Trinitarian1 terminology in the Creed:

We believe in one God, the Father almighty …

And in one Lord Jesus Christ, the only Son of God …

And we believe in the Holy Spirit, the Lord, the giver of life.

Some theologians and believers in general prefer to speak of the Triune God using the names, “Creator, Redeemer and Sanctifier” rather than the traditional names of “Father, Son and Holy Spirit.” The fact that the usage tends to be more common in progressive, mainline Protestant denominations leads many to assume that the nomenclature is a modern attempt to use gender-neutral, inclusive language. As one Episcopalian source observes, for example:

This formulation is—as far as I know—a construct of liberal protestant theology without particularly deep roots in Christian practice, especially in the ways it’s coming more and more into use.

Marthaler similarly observes that “some (many?) … feel that the father-figure has been used as a justification of the hierarchical organization of society and the source of many inequalities.” (44)

In fact, however, there is some evidence for a far earlier origin. One commentator traces it to the (unratified) 1689 Anglican Book of Common Prayer, for example.2

Yet, even if it is not a modern politically correct neologism, I am not convinced that the “Creator, Redeemer and Sanctifier” terminology is an improvement on the traditional “Father, Son, and Holy Spirit.” To the contrary, I think there are two serious problems with that formulation.

Scriptural Warrant

Granted, it is obviously desirable for the Church to be all-inclusive, so that all may be saved. Also granted, it is true that God “is neither male nor female” in a literal sense. (43)3

Nevertheless, it is not obvious (at least to me) that non-gendered language is appropriate when speaking the Triune God. The historical Jesus, after all, was indisputably male. At Jesus’ baptism by John, God spoke from Heaven, naming Jesus as “my Son.” Conversely, Jesus refers to God as “Abba” or Father. According to Marthaler, he does so 170 times in the NT. (42) So too do the writings of the New Testament and the early Church fathers.

The Catechism explains that:

By calling God “Father”, the language of faith indicates two main things: that God is the first origin of everything and transcendent authority; and that he is at the same time goodness and loving care for all his children. (¶ 239)

As the Catechism goes on to emphasize, of course, this does not exclude the important role of women in the Church nor does it gender God: “He is neither man nor woman: he is God.” Instead, as Marthaler suggests, this usage reflects the fact that we attribute to God “those ideal qualities we associate with fatherhood: the giving of life, love, faithfulness, continued care and protection, and wisdom that guides and instructs. (43)

Insufficient Monotheism

It has been aptly observed that:

Creator, Redeemer and Sustainer don’t work. They are about what God does not who God is. They are about operations not ontology.

… “‘Creator,’ ‘redeemer,’ ‘sustainer’ are operational or economic names. But trinitarian language is ontological language. It is the language of God’s being, not of God’s doing.”

Or, as another commentator observes:

The actions of God, outside of himself (ad extra), are common to all three persons. The Trinity creates. Therefore, the action of creation is common to all three persons, the Father, Son, and Holy Spirit. Whenever we describe the action of one person of the Trinity, such as the work of the Holy Spirit at Pentecost, the other persons are always there. Pentecost is as much the action of the Father and the Son as it is of the Holy Spirit.

Accordingly, the commentator argues:

… to baptize in the name of the “Creator, Redeemer, and Sanctifier,” as opposed to the “Father, Son, and Holy Spirit” is to do one of two things:

1. Imply that there are three gods: one is the creator god, another is the redeemer god, and the other one is the sanctifying god. [Or]

2. Imply that the one person acts in three different modes, that God is acting as creator, then as redeemer, then as sanctifier.

Both of which are heretical denials of the Trinitarian creed.

President Trump has alleged for years that his opponents weaponized the legal system against him and his supporters for political gain. On Monday, his administration created an extraordinary program to pay his allies back—with taxpayer funds.

The Justice Department unveiled what it called the “Anti-Weaponization Fund,” backed by nearly $1.8 billion. It described the initiative as a resolution to a lawsuit and two administrative claims that Trump filed in his personal capacity against the government he now runs. …

[Later] the Justice Department expanded the deal to end all pending tax audits of Trump and his businesses.

In January, Trump filed a lawsuit against the Internal Revenue Service, seeking $10 billion in damages for the illegal disclosure of his tax returns by a government contractor. He also had filed administrative claims against the government seeking millions of dollars stemming from a Federal Bureau of Investigation search of his Mar-a-Lago estate in Florida and an investigation into Russian interference in the 2016 election.

Trump faced several legal hurdles in prevailing against the IRS. Instead of defending the government, Justice Department lawyers reached an agreement with the president’s personal legal team to create the fund, overseen by a commission appointed by the attorney general and subject to firing by Trump.

If this strikes you as deeply corrupt, welcome to the club. If it doesn’t, please seek help.

There’s plenty of learned commentary out there on the deal (as well as a much larger amount of unlearned commentary), so I won’t be adding to it.

But this story did remind me of an amusing anecdote from my days as a judicial law clerk.

Internal Revenue Code (IRC) § 104 provides in pertinent part that:

(a) … gross income does not include—

(2) the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness;

IRS Regulation § 1.104(c)-1(c) provides “the term damages means an amount received (other than workers’ compensation) through prosecution of a legal suit or action, or through a settlement agreement entered into in lieu of prosecution” (my emphasis).

After. the Korean War, two young people—lets call them John and Mary—married and started a family. John was a skilled carpenter who worked in the building trades. Despite union work rules, John gradually added experience as an electrician and plumber.

In the mid-1960s, John struck out on his own by starting a home repair and remodeling business. John never incorporated the business. As for other business-related paperwork, such as fictitious business name filings and the like, John pretty much ignored them too.

Despite John’s lackadaisical approach to the legal niceties of running a business, John’s business succeeded and began generating a comfortable amount of income for the family. Up to this point, Mary had been a stay-at-home mom but as the business grew she began running the office work side of the business. Mary handled bookings, billing customers, paying suppliers and other vendors, preparing their taxes, and so on.

One day John was up on a ladder at a job site. He fell off and broke his right arm. John was in a cast for seven weeks and then had to undergo several weeks of physical therapy. John ultimately was unable to work for almost three months, resulting in a considerable loss of income.

As she was preparing their federal income tax return for the year in question, Mary noticed IRC § 104 and Reg § 1.104-1. She pointed them out to John and, at her suggestion, they went to see a lawyer.

The lawyer drafted a bunch of documents for John and Mary, including:

• A written partnership agreement. The first recital to the agreement stated that it reduced to writing and memorialized an oral partnership into which John and Mary had entered when the business was started.

  • The rest of the agreement was quite standard. It provided equal rights to profits and in management. Pretty basic boilerplate.

• A fictitious business name filing for, let’s call it, John & Mary’s Repair and Remodeling Company.

• A Form 1065 and Schedule K-1 for the relevant tax year.

  • John and Mark later went to an accountant who prepared Form 1065s for the previous three tax years, which he filed along with a Form 843 request for a waiver of late fees. The accountant also prepared amended and Form 1040s and Schedule K-1s for the previous three years.

• A written employment contract between John in his capacity as the firm’s sole worker and the partnership.

• A Settlement and Waiver of Claims. In his capacity as an employee of the company, John asserted claims of negligence, providing defective equipment, lack of supervision, and so on against the company. In their capacities as partners, John and Mary acknowledged their liability. The settlement was for $4 million to be paid in installments over a period of 20 years. The annual installment payment was to equal the company’s earnings for the year in question. So, for example, if in Year 4 the partnership had pre-settlement payment earnings of $100,000, that year’s installment payment would be $100,000,

You will see, of course, that John and Mary had thereby zeroed out their taxable income for what we likely to be the remainder of John’s working life.

This went on for some years until the IRS finally noticed it. They IRS promptly audited John and Mary and imposed an enormous amount of back taxes, penalties, and interest. When John and Mary objected, the IRS began making noises about criminal tax fraud charges.

John and Mary paid the IRS what they owed, but then—and this is my favorite part—sued in federal district court to recover their payments.

The case landed in front of my judge.

John and Mary acted pro se.

The judge held an evidentiary hearing on the IRS motion for summary judgment. John and Mary were remarkably cheerful and candid. The IRS attorney was a Cylon. No sense of humor. No suggestion that she thought John and Mary were cute (they really were an adorable couple). No willingness to budge an inch. She kept mumbling something about tax fraud indictments. Basically, she struck me as somebody who would have been one of Torquemada’s best inquisitors.

After the hearing, my judge barely made it back to chambers before he cracked up. He told me to turn my bench memo into a letter opinion ruling for the IRS, but only after saying he wished there was someway he could find for John and Mary. They were just so likeable and matter of fact about the whole thing.

1. Legal Ethics Question: If you had been John and Mary’s lawyer, would you have felt comfortable doing what their actual lawyer did? If you had done the same things for a client, would your state bar discipline you?

2. Partnership Law Question: The key preliminary issue is whether John and Mary had a valid partnership. If not, the whole scheme falls apart—setting aside the many other problems with the scheme. Did they have a valid partnership?

3. Prosecutorial Discretion Question: If you had been the head of the IRS enforcement division, would you have sued John and Mary or just let it slide?

4. Who would you rather have over for dinner? John and Mary or Trump?

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In the decade that Father Ed has been my parish priest, he has grown my faith immensely. He’s an amazing homilist. When I was growing up Protestant, I was told Catholics never talk about sin and salvation. Father Ed does every week. His messages inspire and encourage, but also challenge. You’ll see that in the videos linked below.

In addition to his duties as our parish priest, Father Ed runs a wonderful program Feed My Poor that provides meals for the homeless in Los Angeles. I urge you to consider donating to it.

Father Ed’s also started a website to evangelize the unchurched and catechize searchers and new Catholics on a website called SmartGuy:

There’s a lot of useful resources provided, including:

• Father Ed’s bio.

• A guided 30-day faith journey that provides daily videos “designed to help you experience faith, not just learn about it.”

• A link to their YouTube channel.

Father Ed’s not the only person using SmartGuy to get messages out. Rather, there seems to be a ton of self-help videos by other folks. As a result, I find the site somewhat difficult to navigate, which is why I provided the links above. If you stick to Father Ed’s content you’ll be in great shape.

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His book, The Creed: The Apostolic Faith in Contemporary Theology (AMAZON LINK), offers a comprehensive study of the Apostles’ and the Nicene Creeds, which are the Christian Church’s foundational statements of belief. His perspective blends history and theology, with dollops of social, cultural, and liturgical commentary. It is doubtless the best thing I’ve ever read on the Creeds.

What is a Creed?

The Catechism of the Catholic Church states that:

From the beginning, the apostolic Church expressed and handed on her faith in brief formulae normative for all. But already very early on, the Church also wanted to gather the essential elements of her faith into organic and articulated summaries, intended especially for candidates for Baptism:

“This synthesis of faith was not made to accord with human opinions, but rather what was of the greatest importance was gathered from all the Scriptures, to present the one teaching of the faith in its entirety. and just as the mustard seed contains a great number of branches in a tiny grain, so too this summary of faith encompassed in a few words the whole knowledge of the true religion contained in the Old and the New Testaments.”

Such syntheses are called “professions of faith” since they summarize the faith that Christians profess. They are called “creeds” on account of what is usually their first word in Latin: credo (”I believe”). They are also called “symbols of faith”. (¶¶ 186-187)

Although the Church has promulgated many creeds over the centuries, the Catechism tells us that “two occupy a special place in the Church's life.” (¶ 193) These are the Apostles’ Creed and the Nicene Creed.

The Creeds

Both Creeds focus on the question Jesus posed to his disciples on the road to Caesarea Philippi: “Who do people say that I am?” In other words, they are exercises in Christology.

Or, perhaps more precisely, they are statements about not just who Jesus is but also who are the Father and the Holy Spirit.

The Apostles’ Creed

The origins of the Apostles’ Creed are lost in the mists of time. Some believe they were written by the Apostles after whom the Creed takes its name. Others believe it was written as late as the 700s. The Catechism implies the former:

The Apostles' Creed is so called because it is rightly considered to be a faithful summary of the apostles' faith. It is the ancient baptismal symbol of the Church of Rome. Its great authority arises from this fact: it is "the Creed of the Roman Church, the See of Peter the first of the apostles, to which he brought the common faith.” (¶ 194)

In any event, the Creed is frequently divided into three sections:

1. God the Father – Affirming belief in one God, the Almighty Creator.

2. Jesus Christ – Detailing the life, death, and resurrection of Jesus, affirming his dual nature, suffering under Pilate, ascension, and future return as judge.

3. The Holy Spirit and the Church – Focusing on the Holy Spirit, the church, the communion of saints, forgiveness, and eternal life.

As Marthaler recounts, however, even this is the subject of long debate. An old tradition asserted that because there were twelve Apostles, their Creed should be divided into twelve statements of belief. St. Thomas Aquinas taught that there were 14 articles. (12) The Catechism divides it into twelve articles of faith. (¶ 191)

In any event, the accepted text of the Apostles’ Creed goes as follows:

I believe in God the Father almighty, Creator of heaven and earth.

And in Jesus Christ, His only Son, our Lord, Who was conceived by the Holy Spirit,
born of the Virgin Mary, suffered under Pontius Pilate, was crucified, died, and was buried. He descended into hell; the third day He rose again from the dead; He ascended into heaven, and sits at the right hand of God the Father almighty, from thence He shall come to judge the living and the dead.

I believe in the Holy Spirit, the holy Catholic Church, the communion of saints, the forgiveness of sins, the resurrection of the body and life everlasting. Amen.

The Nicene Creed

In contrast to the Apostles’ Creed, we know exactly when the Nicene Creed came into being. In the early part of the Fourth Century, an Alexandrian-based presbyter named Arius pulled together various strains of early Christology into a coherent doctrine that rejected the Trinitarian view of God’s nature. As Marthaler observes, Arius taught that “Christ was neither truly God nor truly human.” (89) Instead, Arians believed that Jesus was created by God as the first and highest of all God’s creatures. As a creature, Jesus was subordinate to God, although the highest and first born of all God’s creatures.

A serious division arose in the 320s as Alexander, then Bishop of Alexandria, taught a more Trinitarian Christology. After Arius criticized Alexander’s views, the latter excommunicated Arius. But Arius had support from other leaders of the Eastern Church and the debate spread.

In 325, Emperor Constantine called the first ecumenical council to meet in Nicea. At that Council, Arianism was declared heretical and anathematised. According to tradition, the Council also promulgated a profession of faith accepted by 318 prelates, which became the Nicene Creed. (89-91) Accordingly, “it was the term homoouisos that became the slogan of Nicea: the Son is “on in being with the Father.”

The rejection of Arianism was confirmed at the Council of Constantinople in 381. (93) As for the Nicene Creed, the Council of Chalcedon in 451 decreed that “pre-eminence belongs to the exposition of the right and spotless creed of the 318 saintly and blessed fathers who were assembled at Nicaea when Constantine of pious memory was emperor.”

The Roman Catholic version of the Creed reads as follows:'

We believe in one God, the Father, the Almighty, maker of heaven and earth, of all that is, seen and unseen.

We believe in one Lord, Jesus Christ, the only Son of God, eternally begotten of the Father, God from God, Light from Light, true God from true God, begotten, not made, of one Being with the Father. Through him all things were made. For us men and for our salvation, he came down from heaven: by the power of the Holy Spirit he was born of the Virgin Mary, and became man. For our sake he was crucified under Pontius Pilate; he suffered died and was buried. On the third day he rose again in fulfillment of the Scriptures; he ascended into heaven and is seated at the right hand of the Father. He will come again in glory to judge the living and the dead, and his kingdom will have no end.

We believe in the Holy Spirit, the Lord, the giver of life, who proceeds from the Father and the Son. With the Father and the Son he is worshipped and glorified. He has spoken through the Prophets.

We believe in one holy catholic and apostolic Church. We acknowledge one baptism for the forgiveness of sins. We look for the resurrection of the dead, and the life of the world to come.

Amen.

I say the Roman Catholic version, because our Orthodox brothers and sisters object to the italicized language in the fourth paragraph. This is the filioque clause and the source of much controversy.

The original text of the Creed stated that the Holy Spirit proceeded from the Father. In the late sixth century, however, churches in Gaul and Spain began adding the filioque clause to the creed. (250) The issue cropped up again in the Eighth Century when Charlemagne took a personal interest in supporting its use. (251) The controversy perked along for a couple of centuries. (253-255) But it was not until the reign of Pope Benedict VIII in the early Eleventh Century that the Western church officially added the filioque clause to the approved official text of the Creed. (253) The Eastern Orthodox churches rejected the clause, which contributed significantly to the Great Schism of 1054.

Personally, I am unable to get worked up about the filioque controversy, with all due deference to those for whom it is a most serious matter. It is probably a matter of inadequate catechesis. I grew up in an Army family. Although my father was a Chaplain (of the Baptist persuasion), he was mostly in administrative roles during my formative years. I thus attended services with whatever Protestant chaplain happened to be assigned to our base. Once I went to college and then on into adulthood I continued to bounce around between Protestant denominations more or less freely. As a result, my faith long was what C.S. Lewis describes as Mere Christianity (AMAZON LINK): I was in “an entrance hall out of which doors opened into various rooms.” But a “hall is a place to wait in, a place from which to try the various doors, not a place to live in.”

When my faith journey led me to Catholicism, I learned about obsequium religiosum—i.e., religious assent, which means giving a respectful submission to authoritative teachings of the Church. I’m perfectly happy to give religious assent to the filioque clause, but I must admit that I do so mainly by not worrying too much about it.

I felt somewhat better about that when I read Bishop Robert Barron’s wonderful study of the Nicene Creed, Light from Light (AMAZON LINK), in which he wrote:

I am convinced that there is ultimately nothing to it and that it gives dogmatic theology a bad reputation for logic-chopping and hairsplitting. (119)1

The Creed in Worship

We Catholics recite the Creed in every Mass. Although the Church allows parish priests to choose between the Apostles’ and the Nicene Creed any time of year, during most of the year most priests have their parishioners use the Nicene Creed. During the Lenten and Easter seasons, however, many parishes use the Apostles’ Creed. (My parish does.)

Why recite a statement of belief every week? After all, we know what we believe don’t we?

Affirmation

Marthaler describes the creed as a “criterion of orthodoxy.” It became a regular feature of the Mass in Spain at the end of the sixth century, where its function was to help eradicate lingering Arianism among the Visigoths.2 (250)

Today, the Catechism states:

Whoever says “I believe” says “I pledge myself to what we believe.” Communion in faith needs a common language of faith, normative for all and uniting all in the same confession of faith.

I take that to mean that the weekly recitation of the Creed at Mass serves as a regular reminder of what we believe and thereby help ensure that what we believe is orthodox. Reciting it out loud and publicly is a form of giving testimony to what we believe. Reciting it in unison is a way of being in community with our parish and, indeed, every Catholic—every Christian, for that matter—who is reciting the creed anywhere in the world.

Other Reasons

In addition to being a theological statement of orthodox belief, Marthaler identifies other roles the Creeds play in our faith walk. In particular, he emphasizes that they are “doxologies, prayers of praise and thanksgiving for all God has done.” (382)

And so we will go forward in gratitude.

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The phrase was brought to mind recently by news about the growing threat to the American Bar Association’s (ABA) lock on law school accreditation.

Former Northwestern law school dean Daniel Rodriguez recently posted to his Substack that:

Another shoe has dropped in the attack on the citadel of ABA law school accreditation. At the beginning of this month, Alabama announced reforms that bring it a more or less common place with Texas and Florida. Other states are actively considering similar reforms. At the same time, the ABA Council continues its internal evaluation (may we say reform?) efforts through the work of a special committee. Change in one form or another seems just around the corner; indeed, in the states just mentioned, it is already here.

Albeint with some caveats, Daniel blames the ABA’s troubles in part on the body within the ABA that oversees law school accreditation; i.e., The Council of the ABA Section of Legal Education and Admissions to the Bar:

Conventional wisdom among those (myself included) who have been strongly critical of the ABA’s accreditation performance is that many of the problems originate from within the ABA Council and management. … [T]he ABA accreditation team has been neglectful of external pressures to change their ways, and in some cases has double-downed on standards and approaches that are anachronistic and unimaginative ….

But he also blames “the legal academy itself,” by which he means “law school leaders and also invested, attentive law professors.” He criticizes the academy’s “deep conservativism,1 excessive caution, and lassitude,” which has caused the academy to fail “to construct models of and practices in legal education that are adaptive to contemporary conditions and circumstances.”

He points to several areas of failure:

• Costs: “Law school tuition has ballooned over the past many decades.”

• Learning infrastructure and the exceptionalist illusion: The gist of his point here is that the ABA has worked hand-in-hand with law school administrators to insulate law schools from “a university environment that strikes for general success and economies of scale.”

• Transparency: “Law school leaders typically disclose only what they are forced to disclose.” Students and prospective students thus lack information that would make them better consumers.

All of which strikes me as quite correct. All of them speak to longstanding problems with the law school accreditation process and served as well springs of the present moment.

Yet, while they are the root causes, the immediate crisis lies in the politicization of the ABA and the legal academy.

Daniel alludes to the problem. He refers to the ABA accreditation bureaucracy as having “become politically toxic, as is the story of what will someday come to be called the Trump years.” He also refers to law schools being “especially vulnerable to external critics, especially from the Right currently, searching for reasons to press and sometimes even bully law schools to reconfigure their agendas.”

But why has the ABA and the legal academy become politically toxic?

Obviously, we live in an era of serious political polarization. The ABA and the legal academy have chosen a side. It is the side of progressive politics with all of its baggage.

A 2017 survey concluded that almost all law school faculties—especially at the top—lean sharply left:

There is no reason to think the pattern has shifted in the last decade.

As for the ABA, there has been a steady leftward shift in the ABA’s political positions. As Jonathan Turley observes, starting with its 1992 decision to endorse abortion rights the ABA repeatedly adopted organizational principles and positions that leaned left. Each time it did so, more conservative and libertarian lawyers left the ABA. As each conservative lawyer left, of course, it became easier for progressive activists to ram through the next left-wing position. Today, ABA official positions include:

• Opposition to the death penalty

• Abolition of cash bail

• Repeal of mandatory minimums

• Opposition to religious freedom exemptions from discrimination laws

• Gun control

• ESG

• DEI

Of all of these, however, it is the ABA’s position on DEI issues that has become the focus of the campaign to restrict its role in accreditation.

The ABA accreditation standards include # 206 on “Diversity and Inclusion”:

(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.

(b) Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, and ethnicity.

To which the Council added an “interpretation” clearly aimed at California state law schools subject to Proposition 209:

The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 206. A law school that is subject to such constitutional or statutory provisions would have to demonstrate the commitment required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions.

In February, the Council suspended that provision until August 31, 2026. On May 8, the Council’s committee that drafts its accreditation standard announced a recommendation that the Council repeal Standard 206.

In addition, Reuters reports that:

The ABA council on Friday will also consider eliminating a rule adopted in ​2022 that requires law schools ​to educate students about bias, ⁠racism, and cross-cultural competency, as well as a proposal to drastically pare back, opens new tab its non-discrimination rule for students and faculty.

So what do we make of all this?

The ABA is basically a left-wing bully. It espouses progressive politics and pushes them on to a target—the legal academy—all too willing to cave in. But, like most bullies, it’s a coward. When it gets pushback, it caves.

The ABA could have stood its ground. It could have said something along the lines of “We adopted these DEI policies. We stand by them. Come and have a go if you think you're hard enough.”

But it didn’t.

It seems the ABA is desperate to maintain the appearance of relevance. It’s membership has shrunk to about 17% of the legal profession. It’s only claim to speak for the profession is its role as the gatekeeper to judicial nominations (now thankfully squashed) and law school accreditation.

Take away its role as law school accreditor and it will be exposed as what it is: Just one of the many left-wing interest groups making up the progressive alliance.

The ram has touched the wall. The Trump administration should have no mercy on the ABA.

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To be clear, I am only talking about public unions here. I actually support private sector unions, albeit for reasons I’ll leave for a future post.

This is that post.

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The Case Against Public Unions

Today’s WSJ editorial opines on public union reforms in multiple states…

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2 months ago · 2 likes · Stephen Bainbridge

First, I come from a long line of union members. Second, Catholic Social Teaching emphasizes that workers have a natural right both to form unions and to strike. As I read the relevant encyclicals and pastoral letters, this teaching is not a matter of prudential judgment, but rather an authoritative teaching to which faithful Catholics must give religious assent. Finally, and most important for present purposes, unions potentially are an important way of minimizing transaction costs.

Labor contracts are subject to moral hazard problems on both sides. Workers shirk (by which I mean providing less effort than that to which they have agreed, whether intentionally or not). Owners behave opportunistically; i.e., providing fewer rewards than promised.

Preventing such opportunistic behavior on both sides is one of the principal functions, in economic terms, of any labor relations system. Hence, at least among lawyer-economists in the transaction costs branch of law and economics, the once widely-held view that unions exist to capture monopoly rents for workers in the form of higher wages and superior benefits has given way to an understanding that unions play an important role in reducing transactions costs by constraining strategic behavior by management.

Because workers value job security, firms can obtain lower labor costs if they can credibly promise to refrain from opportunistic conduct. One way of bonding that promise is to sign a collective bargaining agreement with a union. Collective bargaining transforms the decision-making process from unconstrained management prerogative to limited managerial discretion bounded by claims of right sounding under the agreement. The seniority system, with its ports of entry, internal promotion ladders, and protection from lay-offs, offers job security. Union monitoring helps ensure compliance by the firm with its contractual obligations. Grievance procedures allow for dispute resolution.

Collective bargaining thus becomes a burden on the enterprise, in that it raises the transaction costs associated with decision-making processes and limits management discretion. Yet, because that burden serves to make the firm’s promises to its employees more credible, it is one rational managers would accept. (Putting the theory into practice, of course, has been a problem. Unions have been plagued by internal agency costs and been a source of social costs.)

A long time ago, I explained all this to a colleague in the context of explaining why I have a general rule against crossing picket lines (by private sector unionized workers but not public sector unionized workers for the reasons discussed in the preceding post). He objected (despite being a good LBJ-style Democrat) that, whatever merit my arguments might have, I had not made a case for refusing to cross all picket lines.

He had a point. Neither efficiency nor morality compels the conclusion that every strike is worth respecting.

My rule of thumb against crossing picket lines, however, is economically justified as a transaction cost minimizing decision-making heuristic. Bounded rationality is a neo-institutional economics concept capturing the idea that we all have inherently limited memories, computational skills, and other mental tools. These limitations become a significant constraint on decision making under conditions of complexity and uncertainty. Under those conditions, we can reduce decision-making costs by adopting a heuristic—i.e., a rule of thumb—for making judgments. Yes, any rule of the thumb inevitably produces errors, but the benefit in time and effort saved may outweigh error costs. In this case, a rule of thumb of not crossing any picket line saves me the time and effort necessary to figure out whether a given strike is morally and economically justified.

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The single biggest problem in state governance is the political dominance of public unions. These include the SEIU, Afscme and the teachers unions. Several states are now pressing reforms that curb their coercive hold over their members.

Idaho Gov. Brad Little recently signed a bill that will end taxpayer support for teachers unions, notably the Idaho Education Association. …

Arizona is working on similar guardrails for public unions with a proposed constitutional amendment that would prevent school districts from collecting union dues through a payroll deduction. …

Bills pending in Oklahoma and Florida also get shoutouts. The editors conclude:

The fiscal health of states can be measured in large part by the extent public unions control state capitals. These state reforms can prevent more states from going the way of Albany, Trenton, Springfield, Sacramento or Olympia.

To my mind, however, these reforms seem like half measures. Public unions and good governance are simply incompatible.

A Bit of History

In fact, as Daniel DiSalvo wrote, in a detailed article well worth reading, leading labor and political figures long recognized that public sector unions were a bad idea:

Prior to the 1950s, as labor lawyer Ida Klaus remarked in 1965, "the subject of labor relations in public employment could not have meant less to more people, both in and out of government." To the extent that people thought about it, most politicians, labor leaders, economists, and judges opposed collective bargaining in the public sector. Even President Franklin Roosevelt, a friend of private-sector unionism, drew a line when it came to government workers: "Meticulous attention," the president insisted in 1937, "should be paid to the special relations and obligations of public servants to the public itself and to the Government....The process of collective bargaining, as usually understood, cannot be transplanted into the public service." The reason? F.D.R. believed that "[a] strike of public employees manifests nothing less than an intent on their part to obstruct the operations of government until their demands are satisfied. Such action looking toward the paralysis of government by those who have sworn to support it is unthinkable and intolerable." Roosevelt was hardly alone in holding these views, even among the champions of organized labor. Indeed, the first president of the AFL-CIO, George Meany, believed it was "impossible to bargain collectively with the government."

DiSalvo went on to quote a 1943 New York state judicial opinion, which held that:

To tolerate or recognize any combination of civil service employees of the government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our government is founded. Nothing is more dangerous to public welfare than to admit that hired servants of the State can dictate to the government the hours, the wages and conditions under which they will carry on essential services vital to the welfare, safety, and security of the citizen. To admit as true that government employees have power to halt or check the functions of government unless their demands are satisfied, is to transfer to them all legislative, executive and judicial power. Nothing would be more ridiculous.

Or, as DiSalvo opined:

The very nature of many public services — such as policing the streets and putting out fires — gives government a monopoly or near monopoly; striking public employees could therefore hold the public hostage. As long-time New York Times labor reporter A. H. Raskin wrote in 1968: "The community cannot tolerate the notion that it is defenseless at the hands of organized workers to whom it has entrusted responsibility for essential services."

A Bit of Economics

A core problem with public sector unionism is that it creates a uniquely powerful interest group. In theory, bureaucrats are supposed to work for and be accountable to the elected representatives of the people. But suppose those bureaucrats organize into large, well-funded, powerful unions that can tip election results. With very few and very unique exceptions, no workplace in which the employees elect the supervisors functions well for long. Yet, research by Terry Moe (22 J.L. Econ. & Org. 1) into the electoral power of teachers’ unions finds just such an outcome:

The first study ... provides evidence that teachers, acting through their unions, are quite successful at getting their favored candidates elected to local school boards. When a candidate is supported by the unions, her probability of winning increases dramatically, so much so that the impact of union support appears to be roughly the same as the impact of incumbency. In terms of total impact, union influence may be even greater than this suggests, because union victories literally produce incumbents and the power of incumbency then works for union candidates to boost their probability of victory still further in future elections.

The second study ... shows that public bureaucrats’ turnout advantage over other citizens is much greater than the existing literature would lead us to expect. It also offers persuasive new grounds for believing that their high turnout is indeed motivated by occupational self-interest and more generally, that they are actively and purposely engaged in an electoral effort to control their own superiors.

Moe concludes:

The prevailing theories treat bureaucrats as mere subordinates, controlled from above by political authorities. But the control relationship can run both ways, and not just because bureaucrats have expertise and other sources of private information. In a democratic system the authorities are elected, and this gives bureaucrats an opportunity to exercise electoral power in determining who will occupy positions of authority and what choices they will make in office. It would be odd indeed if public bureaucrats and their unions did not invest in this kind of reverse control and there is ample evidence that they do.

In effect, public sector unionism thus means that representatives of the union will often be on both sides of the collective bargaining table. On the one side, the de jure union leaders. On the other side, the bought and paid for politicians. No wonder public sector union wages and benefits are breaking the back of state budgets. They are bargaining with themselves rather than with an arms’-length opponent.

Even if the public’s representatives at the collective bargaining table are not de facto union representatives, the nature of public sector collective bargaining inherently leads to inefficiencies. As far back as 1971, in their book The Unions and the Cities, Harry Wellington and Ralph Winter argued that “there are sound reasons for concluding that government is not just another industry” (Book Review, 13 Wm. & Mary L. Rev. 960):

Foremost of these reasons is the unreliability of transplanting the private sector labor legislation’s operating assumption that the employer’s superior bargaining power should be equalized. That power in a given city may already be equal or tipped in favor of public employee unions due to the very nature of the public employer who, unlike the private employer, is not subject to market restraints but is subject to political restraints. Government decisions are properly political decisions and economic considerations, although paramount to the private employer, are but one criterion among many for the public employer. Market restraints in the private sector are such that increased benefits will cause higher prices for the employer’s product which in turn, in a system of tradeoffs, causes possible unemployment of some employees. No such market restraint exists in the public sector except in theory since discharging teachers, sanitation workers, or police- men as a result of granting higher benefits raises very real political pressures from within the affected government department and from an inconvenienced public. Government employers too frequently yield to constituents by a grant of increased benefits to employees and then either bury the increases in the “bowels of an incomprehensible municipal budget,” seek new funds, or reduce other services by reallocating the city’s treasury. Thus, normal market restraints are often supplanted by political restraints regardless of economic or social impact. ...

Add to this political power of public employee unions the private sector strike weapon and they may have, argue the authors, a disproportionate quantum of power sufficient to distort the normal political process. Their power may be so effective a means of redistributing income that they will have “an institutionalized means of obtaining and maintaining a subsidy for union members.”

A Bit of Politics

The power wielded by public sector unions distorts the political process. Consider, for example, the looming economic disaster coming in most states and localities as bloated public sector union benefits—especially pension benefits—are essentially bankrupting the public sector.

Public employee unions are one of the most—if not the most—powerful political actors in state politics and have used that power to protect and expand the pension benefits of their members, as one would expect. As Healey, Hess and Nicholson have observed:

Public sector unions are often highly involved in raising funds and donating to the campaigns of political candidates, often with the goal of preserving the pension status quo ... As important as it may be to take on the challenge [of pension reform] many lawmakers are still politically incentivized to maintain the status quo for as long as possible.

The Providence Journal thus observed that:

At the bottom of it all is a political culture that rewarded politicians who made unsustainable promises, working in mutually beneficial tandem with public employee union leaders who extracted remarkably generous benefits without worrying about the long-term costs to the citizenry, especially when the inevitable recession arrived.

Why do union leaders support pension policies that threaten to undermine the ability of a state to deliver promised benefits to their members? Dr. Thomas H. Little from the State Legislative Leaders Foundation noted that it has a lot to do with internal union politics: “Union representatives tend not to look long-term but rather focus on the short-term interests of the current and retired members who elected them and on whom they depend for re-election. These folks tend to be adamantly opposed to cuts in their benefits.”

Conclusion

Public sector unionism is thus inherently at odds with the common good, as it impedes the ability of the State to provide basic services to citizens at large.

The late Cardinal Edward Egan was thus correct when he argued at a 2011 conference on work (50 J. Cath. Legal Stud. 149) that:

There is a basic difference between the public employee and the private employee. You cannot fairly say, “Here is an argument for the private employee,” and apply it without distinction to the public employee. That tactic may get you through an opinion piece in a newspaper, but it will not work in a serious discussion where the participants are free to demand precise definitions and, above all, clear distinctions.

I’ve previously argued that we should not use Kaldor-Hicks efficiency to evaluate the transition to an AI economy. Instead, we should strive for Pareto efficiency.

In brief, as I argued, there will be winners and losers from the transition to an AI economy. Under Pareto efficiency, the winners should be taxed to compensate the losers (Kaldor-Hicks does not require compensation).

At least part of the problem with Kaldor-Hicks efficiency arises from the fact that it only requires a hypothetical redistribution. If the winners could compensate the losers, there is a new social gain and the change in question is efficient (at least in terms of social wealth maximization).

The solution is thus obvious: Force the winners to compensate the losers. Tax the winners a sufficient amount to compensate the losers and redistribute the proceeds to those who lose.

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Taxing AI

I’ve been a science fiction fan almost since I started reading and watching TV and movies. So I grew up with sentient computer antagonists like Colossus, Hal 9000, Skynet, and AM…

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5 months ago · Stephen Bainbridge

I became even more persuaded of the need for such a tax when I read a new paper, The AI Layoff Trap, by computer science professor Brett Hemenway Falk and information systems professor Gerry Tsoukalas.

Falk and Tsoukalas argue that AI-driven automation will create a competitive trap. Each private sector company benefits from replacing workers with AI, but their privately optimal decision is socially harmful because the collective impact of all collectively those layoffs is to reduce consumers’ income. Most consumers, after all, are also workers. Unemployed or underemployed workers will have less to spend. Accordingly, consumer demand for all firms’ products will fall.

In their model, Falk and Tsoukalas make the simplifying assumption that each automated task displaces one worker. This simplifies the analysis but assumes a relatively direct substitution channel, rather than AI primarily augmenting workers, creating complementary tasks, or increasing labor demand elsewhere. If AI does the latter, the problem becomes much less concerning.

The model likewise assumes that layoffs are driven by AI replacing workers. If it is true, as some reports suggest, that layoffs taking place now are not the result of AI but instead firms are blaming/crediting AI for layoffs driven by other factors, the problem again becomes less concerning.

But let us assume that they are correct, at least in large part.

If so, AI will function as a demand externality. A negative externality occurs when a firm is able to offload a portion of its costs of producing goods and services onto society. Pollution is a classic example. Pollution harms society, but the producer does not bear the costs generated by its pollution and thus lacks an economic incentive to minimize pollution.

A demand externality occurs when an individual firm’s production or pricing decisions directly affect the revenue and profitability of other firms, usually due to aggregate demand effects. This often creates a positive feedback loop in which lower consumer demand reduces aggregate producer output, leading to clustered defaults or involuntary unemployment, creating self-fulfilling prophecies.

In this case, an automating firm captures its own cost savings but bears only a fraction of the demand destruction caused by displaced workers’ lost spending. As a result, rational firms may over-automate even when everyone can foresee that the outcome is collectively harmful. A recursive loop results: automation reduces labor costs, but displaced workers lose purchasing power, which feeds back into firms’ revenues.

Falk and Tsoukalas show that this distortion grows with the number of firms. Accordingly, in game theory terms, AI creates a Prisoner’s Dilemma. The outcome of which is that all firms automate even though all would be better off under collective restraint. In other words, even though companies may recognize this danger, they will be unable to avoid it because each individual firm has an incentive to automate before its rivals do.

Falk and Tsoukalas show that the resulting loss is not merely redistribution from workers to owners. Instead, over-automation can harm both workers and firm owners. As workers lose income, firms lose demand and therefore profits. This makes the problem a deadweight loss rather than simply a fairness or inequality issue.

The paper is highly mathematical. So much so that much of the paper is way above my pay grade. But the narrative argument makes a lot of intuitive sense. After all, it is a more sophisticated version of the argument I put forward in my earlier post.

So let us assume the authors are correct. What to do?

Falk and Tsoukalas contend that several popular responses—universal basic income, capital income taxation, worker equity participation, upskilling, and Coasian bargaining—may cushion losses but do not fully correct the externality. Accordingly, they propose a Pigouvian automation tax, set equal to the uninternalized reduction in demand per automated task.

A Pigouvian tax, named after 1920 British economist Arthur C. Pigou, is a tax on a market transaction that creates a negative externality, or an additional cost, borne by individuals not directly involved in the transaction. Examples include tobacco taxes, sugar taxes, and carbon taxes.

For instance, smoking in a public restaurant creates a negative externality because secondhand smoke can affect nonsmokers and worsen their long-term health outcomes. Drivers of gas-powered vehicles pay the gas tax to account for the externalities of pollution and wear and tear to the roads. Levying an excise tax in these situations can serve to recoup some of the cost of these externalities and “internalize” the cost of the externality to the purchase of the product. Sin taxes in general are also used to discourage consumption and “price-in” the externalities of products such as gambling, alcohol, and tobacco.

The Pigouvian concept of internalizing externalities in order to correct inefficient market outcomes suggests that the size of the excise tax should be equal to the cost of the negative externality. (LINK)

Unfortunately, implementing that solution poses multiple difficulties. Falk and Tsoukalas acknowledge one:

. . . the model is a closed-sector game, and a unilateral automation tax could push adoption offshore, strengthening the case for multilateral coordination or border-adjustment mechanisms analogous to those used in carbon policy.

In addition, however, the standard objections to Pigouvian taxes seem equally applicable here. How do you measure the size of the externality? How do you determine the effectiveness of the tax in reducing the demand externality? Can a single tax system take into account all the individual variations between locations, industries, firms, and individuals?

The paper assumes regulators can observe or approximate automation rates and impose a per-task tax equal to the uninternalized demand loss. This is conceptually clean but would be administratively demanding in reality, especially when AI augments some workers, replaces others, and changes task composition gradually.

Do those objections mean we should simply ignore the problem?

I think not. Recursive loops can lead to death spirals. Public policy likely cannot wait and see.

In Life After Cars (the title feels sweetly hubristic; one might as well write a manifesto against air, or the seasons) Sarah Goodyear, Doug Gordon, and Aaron Naparstek call this state of affairs “motornormativity”: the uninterrogated assumption that “car ownership is a magic portal to ease, comfort, and personal freedom.” Even though cars have done “far more collective damage to the world, in terms of death, illness, and environmental destruction, than nearly any other invention in human history,” they write, we seem increasingly unwilling to question their role within society.

In the polite academic circles in which I travel, defending anything with “normativity” in the name is now cause for shaming and cancelling. Because speech hurts. So, naturally, I mostly self-censor.

But when it comes to the car, I cannot be silent.

It came as no surprise to learn that Day is a Londoner, while the authors are all Brooklynites. Cities that hate the car. Cities that are designed to make driving unpleasant, parking impossible, and push everybody into the overcrowded petri dishes they call subways or onto the accidents waiting to happen called bicycles.

But out here in the rest of America, cars are necessary. They are a tool. There’s a reason why more than 6% of all country songs are about trucks. Think of the Ford F-150. For over 40 years it has been the best-selling motor vehicle in the USA. And, for most of that time, it’s because it was the essential working man’s tool.1 It’s a reliable, tough, and highly capable instrument for manual labor. Sure, a lot of wannabes have bought high end editions, but when all the white collar jobs are taken by AI, we’ll all be working jobs where a Ford F-150—or its lesser rivals—will be essential.

But cars are more than just a tool. They are an instrument of freedom.

Bruce Springsteen sang about finding redemption under “a dirty hood,” not while riding Day’s “large cargo bike.” Springsteen’s definitive about finding escape and purpose is Racing in the Street, which is about modifying and racing cars. Tracy Chapman remembers “when we were driving, driving in your car,” not when they went riding on a tandem bike. The Beach Boys sang about the girl who would “have fun, fun, fun. 'Til her daddy takes the T-Bird away.” Not the girl who would have fun until her dad took away her bicycle. Chuck Berry sang about “Riding along in my automobile. My baby beside me at the wheel.” Not about riding along with his girl behind him on a tandem bike.

Songs about freedom and liberation always seem to involve cars.

But let’s switch gears to literature. Day hails his favorite writers—C. S. Lewis, Vladimir Nabokov, Ursula Le Guin2—as being non-drivers.

Fine. I like one of the three myself, although not because he didn’t drive.

But I can throw some names into the other side of the balance: Jack Kerouac’s On The Road (Amazon Link), Sinclair Lewis’ Free Air (AMAZON LINK), John Steinbeck’s Travels with Charley (AMAZON LINK).

In closing, Day quotes something Margaret Thatcher supposedly said: “Any man who finds himself riding a bus after the age of twenty-six, … can count himself a failure in life.” I like it.

But I much prefer the wit and wisdom of Jeremy Clarkson:

There’s a lot of misunderstanding out there about Citizens United, so it seemed like an appropriate topic. FYI: I’ll also be blogging about it over at BainbridgeOnCorporations.com.

What Happened

Citizens United was (and still is) a non-profit organization funded mostly by private donations, although it did (and, presumably, still does) receive some funding from for-profit companies. CU created Hillary: The Movie, a ninety minute documentary criticizing then-Senator Hillary Clinton for use during her run for President in 2008.
CU sought to distribute the film through cable video-on-demand within 30 days of the 2008 primaries. CU also wanted to create three commercials to advertise the movie.

Federal campaign finance law—specifically 2 U.S.C. § 441(b), as amended by § 203 of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA)—prohibited corporations and unions from spending money from their general treasury2 to fund an '“independent expenditure” or “electioneering communication” that expressed support for or opposition to a federal candidates election. (Although CU tried to argue to the contrary, the SCOTUS majority concluded that the documentary and the tv ads were electioneering communications.)

Fearful of being fined or prosecuted under federal law, CU filed suit in the United States District Court for the District of Columbia seeking declaratory and injunctive relief from § 441(b) relating to their film, as well as the disclaimer and disclosure requirements contained in §§ 201 and 311 of the BRCA.3

The case was assigned to a three judge panel, which dismissed the request for declaratory and injunctive relief and granted summary judgment in favor of the FEC based upon its interpretation of McConnell v. FEC4 and Austin v. Michigan Chamber of Commerce.5

The SCOTUS Majority Opinion

Writing for a 5-4 majority, Justice Kennedy held that § 441b's prohibition on corporate independent expenditures violated the First Amendment. After determining that the constitutional issues could not be avoided, Kennedy expressly overruled Austin and the portion of McConnell had upheld BCRA § 203's facial validity.

In brief, Kennedy’s opinion held that:

1. The government may not suppress independent political speech based solely on the speaker’s corporate identity.

2. Corporations and unions may make independent political expenditures from general treasury funds.

3. Direct contributions to candidates remain subject to regulation.

4. Disclaimer and disclosure requirements are constitutionally permissible

Chief Justice Roberts and Justices Scalia and Alito joined Justice Kennedy’s opinion in its entirety. Justice Thomas issued a separate opinion joining the portions of Kennedy’s opinion setting out the first three holdings, but dissented from the portion—Part IV of the opinion—setting out the last holding. Justice Stevens filed an opinion concurring in part and dissenting in part, in which Justices Ginsburg, Breyer, and Sotomayor joined. Stevens et al. joined Part IV, giving it a majority, but dissented from the portions laying out the first three holdings. Chief Justice Roberts filed a concurring opinion in which Alito joined. Scalia filed a concurring opinion in which Alito joined and Thomas joined in part. In short, it was a mess. But unlike some SCOTUS messes, there was a majority for each portion of Kennedy’s opinion.

Kennedy began by observing that Hillary: The Movie criticized a candidate for President, which is precisely the sort of political speech at the core of the First Amendment. Drawing on First National Bank of Boston v. Bellotti,6 Kennedy reaffirmed that the First Amendment’s protection extends to corporations and that political speech does not lose constitutional protection simply because its source is a corporation. The statute was, in his framing, a speaker-based restriction under which some speakers—such as individuals and media corporations—could speak freely, while ordinary corporations and unions could not use their general treasury funds for equivalent political advocacy. Kennedy held that such identity-based drawing lines are constitutionally suspect.

There were basically three lines of defense advanced for drawing such lines:

1. The anti-distortion rationale accepted in Austin.

2. The anti-corruption rationale accepted in Buckley v. Valeo.7

3. The shareholder protection rationale.

Austin

Austin had upheld corporate expenditure limits on the theory that the wealth accumulated by incorporated entities through state-conferred privileges—such as limited liability and perpetual life—could distort the political process. But Kennedy rejected that rationale outright, holding that the First Amendment does not permit the government to seek to equalize speakers' influence or to suppress speech because some speakers are wealthy or powerful.

Roberts’ concurrence was mainly concerned with defending in more detail the decision to overturn Austin. His opinion was a response to Justice Stevens’ dissent, which strongly objected to overruling Austin and (part of) McConnell. Stevens argued that stare decisis, the relatively recent nature of those cases, the fact that Congress had relied on them, and that campaign finance regulation was an area where legislative judgment deserved respect all argued against overturning those decisions.

Buckley

Buckley held that direct corporate or union contributions to candidates were justified by the need to prevent corruption or the appearance of corruption. But Kennedy narrowly defined the sort of corruption that justified campaign finance laws as quid pro quo bribery. In his view, independent expenditures, by definition, are not coordinated with candidates and therefore do not create the same danger.

Different Framing

Setting aside technical legal disputes such as stare decisis, the disagreement between Kennedy and Stevens comes downs to framing. Kennedy framed the case as one involving government regulation of speech about elections, which invoked the most rigorous First Amendment scrutiny. Stevens framed the case as an issue of democratic integrity being brought into question through corporate wealth.

Once you recognize that framing, the continuing disagreement over Citizens United starts to make more sense. Are you more worried about regulation of speech or about the potential for corruption and distortion of political discourse by wealth inequalities?

Speaking for Myself

I come down squarely on the side that worries about government regulation of core political speech and thinks that the First Amendment should be applied with strict scrutiny to such laws. I do so mainly because of a point Chief Justice Roberts made in his concurrence:

The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

Hence, as I sarcastically tweeted the other day: