Christianity and the Law
Pardon my self-promotion
In an earlier post, I talked about my late friend Bill Stuntz, who was a pioneer in studying the intersection of Christianity and the law.
In this post, I’m going to point you in the direction of some of my work in the area. In a future post, I’ll discuss some sources I’ve found very useful.
Bob Cochran on Law and Lawyering: A Catholic Perspective, 47 Pepperdine Law Review 371 (2020). Available at SSRN: https://ssrn.com/abstract=3421790. Like Bill Stuntz, my friend Bob Cochran was a towering figure in. the development of Christian legal studies. This essay was written for a festschrift in his honor. One strain of Law and Christianity scholarship focuses on normative critiques of substantive legal issues based on Christian theology. In other words, it seeks to make the civil law more moral; i.e., to conform Man’s Law to God’s Law. A second strain seeks to help lawyers deal with the difficulties inherent in being a Christian and a lawyer. As Cochran has put it, one might ask “whether there is a connection between religious faith and what ordinary lawyers do in ordinary law offices on ordinary Wednesday afternoons.” Cochran’s work has intersected both possibilities. In Part I of this Article, I tackle his analysis of the extent to which we should strive to harmonize God’s and Man’s Law. In Part II, I turn to Cochran’s analysis of the Christian lawyer’s vocation. In both parts, I come at his work from the perspective of a Roman Catholic called upon to give religious assent to both Christian scripture and, where I differ from Cochran, the Church’s Magisterium.
Christianity and Corporate Purpose (December 1, 2019). Available at SSRN: https://ssrn.com/abstract=3496850. I’m pretty happy with this article. I think it reflects a much more mature and much better informed perspective. The essay compares and contrasts the law governing corporate purpose with the pertinent Christian teachings from Scripture and Tradition, with a special focus on Catholic social thought.
Restoring Confidence in the Roman Catholic Church: Corporate Governance Analogies (2018). Available at SSRN: https://ssrn.com/abstract=3249236. This was one of the articles in which I looked at the implications of the law for the Catholic sex abuse scandals. Much of my work has been about how Catholic social thought and Christianity more broadly inform our understanding of the law. This article and its ilk point in the other direction; namely, what impact does the law have on the Church. I argue herein that the Catholic Church’s sexual abuse crisis reflects not only failures of reporting but, more importantly, failures by Church leaders to act on reports they received. I propose anonymous reporting channels, stronger whistleblower protections, and mandatory reporting by priests, but my principal recommendation is to create diocesan and national disciplinary bodies led by expert lay members with final authority over abuse cases. Drawing on the corporate audit committee model, I argue that independent lay oversight would provide greater accountability than relying on the existing hierarchy.
The Parable of the Talents (August 15, 2016). Available at SSRN: https://ssrn.com/abstract=2787452. This is one of the pieces of which I’m proudest. I use the Parable of the Talents to explore the legal relationship between the master and his servants. Although the story focuses on the servants’ differing use of entrusted assets and the rewards or punishment that follow, I argue that it also raises important questions about their underlying duties, the legal rules governing their relationship, and how that relationship compares to modern concepts such as principal and agent. I also note that these issues have received surprisingly little attention in Anglo-American legal scholarship.
Must Salmon Love Meinhard? Agape and Partnership Fiduciary Duties (October 8, 2013). 17 GREEN BAG 2D 257 (2014). Available at SSRN: https://ssrn.com/abstract=2337659. This one was fun. Meinhard v. Salmon is one of my favorite partnership cases; actually, it probably is my favorite. I love teaching it. I wrote it for a conference on agape and the law, which was a great conference at Pepperdine sponsored by by friend Bob Cochran. In it, I imagine what partnership fiduciary law would look like if it were organized around agape, or self-renouncing love, drawing on Cardozo’s famous opinion in Meinhard v. Salmon. I conclude that agape is too demanding and indeterminate to serve as a legal duty, but it remains a valuable ideal because partners who act with trust and selflessness can reduce monitoring costs and strengthen their relationships. Agape therefore should not be imposed by law, but the law should encourage it as a best practice. (Which I suspect is the only time any best practice recommendation has invoked agapic love.)
The Bishop's Alter Ego: Enterprise Liability and the Catholic Priest Sex Abuse Scandal. Available at SSRN: https://ssrn.com/abstract=901663. In this article, I touch on how law impacts not Church teaching per se but rather Church rules about how to structure the Church in civil society. Specifically, I examine whether victims of clergy sexual abuse can reach the assets of separately incorporated Catholic parishes and other diocesan entities through the alter ego doctrine. I conclude that, although courts are constitutionally permitted to apply alter ego principles to church organizations, the doctrine will rarely be appropriate because bishops typically lack the necessary day-to-day control over separately incorporated parishes and because religious-liberty concerns may weigh against expanding liability. I argue that other legal doctrines, especially fraudulent transfer law, are generally better suited to addressing efforts to shield diocesan assets from creditors.
Catholic Social Thought and the Corporation (October 22, 2003). Available at SSRN: https://ssrn.com/abstract=461100. This brief essay explores Catholic social thought on corporate governance. Human dignity and freedom are central principles of Catholic social thought. This essay argues that preserving the economic freedom of corporations to pursue wealth is an essential part of effective means for achieving human freedom. To the extent prudential judgments about corporate regulation are required, the Church and civil society should strive towards a nuanced balancing of freedom and virtue.
The Bishops and the Corporate Stakeholder Debate (April 2002). Available at SSRN: https://ssrn.com/abstract=308604. I wrote this article while going through RCIA (now called OCIA). Twenty-plus years later, I would be more sympathetic to the Catholic social thought arguments made by the Bishops. But I still think their pastoral letter on economic justice was really bad economics. In it, I critique the U.S. Catholic Bishops’ position on corporate social responsibility, focusing on their view that corporate directors should consider stakeholder interests alongside those of shareholders. I evaluate three possible ways to translate that position into public policy and conclude that none would improve existing law: one would be ineffective, another would raise agency costs, and the strongest version would be impractical, threaten economic liberty, or both.
Corporate Decisionmaking and the Moral Rights of Employees: Participatory Management and Natural Law (September 28, 1998). Available at SSRN: https://ssrn.com/abstract=132528. This is another one that I’d like to go back and do over. I was still a Protestant when I wrote it (oddly enough, it was working on this article that first got me thinking about becoming Catholic) and I was too poorly versed in Catholic social thought to really appreciate it. In any case, in this article I examine participatory management as a major development in industrial relations. By participatory management, I mean systems that involve employees in corporate or workplace decision-making, an approach that thousands of U.S. firms have adopted in various forms. I suggest that participation may foster trust between employers and employees, promote workplace democracy, or protect employees against opportunistic behavior by employers. I conclude that only the anti-opportunism argument is genuinely plausible, but even that argument is insufficient. Although employee participation may help protect workers from employer opportunism, I do not believe this establishes a persuasive case for government-mandated employee participation in corporate governance.