The Game Theory of Overbooking

Posted by Mike Dorf

Having just completed a bit of holiday travel, I'm thinking about the game theory of overbooking, which, I discovered upon googling " 'game theory' & overbooking' " has produced a rather substantial literature.  Here's what happened on my latest flight, which presents a nicely simple case:  About 45 minutes before the scheduled departure, the gate agent announced that the flight was overbooked by one passenger and so the airline was offering the first volunteer a seat on a later flight plus $250 to give up his or her seat on this one.  There were apparently no takers, and so 20 minutes later, the offer was upped to $450, whereupon a volunteer came forward.

Was this the best deal the airline could get?  Quite possibly not.  If the volunteer was willing to take the later flight for $450, perhaps he would have been willing to take the later flight for $300, or even for LESS than $250.  True, someone whose break-even point is under $250--let's say $200 for simplicity--risks getting stuck on his scheduled flight (and thus giving up a $50 surplus from his perspective) by turning down the $250 offer in the event that another passenger comes forward and volunteers to take the $250.  But he also knows that everyone else knows that the airline will make a better offer if everyone turns down the $250, and that everyone else knows that everyone else knows that, and so on.

The airline is clearly counting on the collective action problem of the passengers.  If we could organize, we could hold out for a still-higher payout, and then split the surplus among us, but this is very complicated.  Some of us (e.g., I) were traveling in a group or had important deadlines to meet and thus would have required MUCH more money than the airline was likely to offer, and so in fairness, we shouldn't be required to be bought off at all--but the other passengers didn't know that, and so we could unfairly claim a share in the surplus.  In addition, we're strangers, and the airline personnel would likely witness us collaborating, whereupon they'd resort to some other approach.

According to data I downloaded from the Aviation Consumer Protection Division of the Department of Transportation (here), in the last quarter, about 15,000 confirmed passengers were involuntarily "bumped" from their flights, while over 175,000 voluntarily accepted an inducement to take a later flight.  Not having read the small print on my airline ticket, I assume that I have agreed to be bumped if necessary whenever I fly, but I count on the very low involuntary bump rate (just over 1 in 10,000, according to this short informative piece on overbooking) to ensure that this won't happen to me.  However, I would guess that the odds might go up if the gate personnel were to see the passengers organizing a holdout.

But let's go back to the case where there are enough passengers willing to accept an inducement the airline is willing to offer.  The procedure used for my flight and for every other flight I've been on when this issue has arisen is in many respects a prisoner's dilemma: the players (passengers) would do best by cooperating, at least to get the airline's bid up, but they are effectively isolated, and so they adopt a competitive strategy.  As noted above, this isn't a bad strategy from the airline's perspective but the game theory literature I came across suggests that it's not the airline's optimal strategy.  An alternative procedure that might work better for the airline would be to have passengers submit sealed bids indicating the LOWEST figure they'd each be willing to accept to take the later flight.  Then the lowest bidder wins (or lowest bidders, if the flight is multiply overbooked).

But that approach is tough for the airline for two reasons.  First, many of the passengers wouldn't submit bids at all, and other passengers, seeing this, might therefore write down a higher figure than the lowest they would really be willing to take.  Second, and in my view more importantly, the sealed bid approach and others like it would render too obvious what is really going on: Namely, that the airline is trying to conduct a reverse auction among its passengers.  That would likely have harmful effects on the passengers' good will towards the airline--already at something of a low among air travelers.  Sure, the actual procedure used is also more or less a reverse auction, but it creates the appearance of the airline giving something away--which in fact it is doing: The passenger who took the $450 really did value the difference between arriving on his original schedule and arriving later at less than $450.

So, much as I hate to admit it, this really was win-win.

Thanks to Whom?

By Mike Dorf

Is it possible to be thankful without being thankful to anyone or anything in particular?  That question might be thought to bear on the appropriateness of official celebrations of Thanksgiving in a secular country.  Judges and scholars who argue that the Establishment Clause permits a fair degree of official religious exercise often point to the tradition of Presidents' Thanksgiving Proclamations.  George Washington's 1789 Proclamation pretty much set the standard, and while its invocation of the Divine is non-denominationally monotheistic, it nonetheless has religious content.  Thus, modern separationists who say that the Thanksgiving holiday is merely a secular occasion may be right about what the holiday has become, but it seems they are wrong about the origins.

Well, so what?  If the holiday has become secular, then, under the Supreme Court's Establishment Clause precedents, there's nothing with the govt recognizing the holiday's secular aspects.  Of course, modern Presidential proclamations often have as much religious content as the first one.  (For the complete set, click here.)  They tend to vary in the degree to which they directly invoke God versus recognizing how past and present Americans have thanked God.

Still, one might think that there inherently cannot be a secular holiday of "Thanksgiving," because the whole concept indicates thanks to God.  This is plainly not true, both in a trivial and a less trivial sense.  Obviously, one can be thankful to other people--and President Obama's proclamation makes just this point.  It talks of
Americans coming together "to express appreciation to those whose lives enrich our own."  But beyond gratitude to others, one can meaningfully be grateful "in the air," as it were (to borrow and pervert a line of then-Judge Cardozo).  Perhaps this is just a linguistic point, so that people in these circumstances, if they are not thankful to the Divine, aren't technically "grateful" for, say, good weather on a wedding day; perhaps they feel lucky or relieved or something similar.  Still, I think it meaningful to talk about being grateful in general, or perhaps grateful to the universe, even if one thinks it a Godless, soulless place.

Happy Thanksgiving to all, whomever, Whomever, or whatever you are thankful to.

Exclusion, the Doctrine of Double Effect, and Animal Deaths

by Sherry F. Colb

On FindLaw today, I have a column that explores the heated disagreements that people have had over the Fourth Amendment exclusionary rule, a rule that suppresses evidence obtained illegally through unreasonable searches and seizures.  I propose in the column that the Doctrine of Double Effect ("DDE") helps account for the distinction that some draw between having a Fourth Amendment (which results in guilty criminals escaping justice because they are not discovered), on the one hand, and enforcing the Fourth Amendment by suppressing evidence (which results in guilty criminals escaping justice because there is insufficient evidence to convict), on the other.  The distinction is between directly doing something permissible that has undesirable and unintended (though foreseeable) side effects, and doing something that directly brings about the undesired effects.  Many view the latter as much worse than the former and accordingly either illegitimate or in need of a more robust justification.

I wish here to discuss the role of DDE in responding to a common argument that people opposed to veganism articulate.  Just to give some context, the Sunday New York Times published an op/ed by philosopher Gary Steiner about what has been missing from much recent discussions around vegetarianism, so-called "conscientious omnivorism," and "humane" farming legislation (such as Prop. 2 in California):  the very basic notion that animals' lives matter, that it is wrong to kill an animal in order to consume that animal, and that the wrongfulness of such killing does not rest exclusively on the excruciating pain, both physical and emotional, that we inflict on helpless, feeling beings when we purchase and support animal agriculture by consuming its products, including flesh, dairy, and eggs.

Unfortunately, Steiner does not explain why dairy and eggs are no better than flesh, whether one is concerned only about suffering or about death as well.  To fill that gap, here is a relatively brief answer:  (A) Cows give milk only because they are impregnated and give birth, and the baby calves to whom they give birth are taken from their mothers early and slaughtered as veal so that people can buy and consume the milk.  Consumption of milk is thus morally no different from consumption of veal; (b) Cows, like human mothers, suffer terrible distress when their babies are taken away from them.  Cows often cut themselves badly on the fences that surround them in their fruitless efforts to escape and reunite with their babies; they bellow and refuse to eat for days; (c) The hens who produce eggs come from "stock" that is not viewed as the most tasty for eating; as a result, the male chicks of such hens are considered garbage and are separated from the females at birth, at which point the males are promptly killed, typically by live and fully conscious dismemberment in a wood chipper or by being thrown into a garbage bag, which is then tied so that they slowly suffocate to death.

After Steiner's op/ed appeared, some common responses emerged.  Among them was one that comes up often enough to merit mention here:  the argument that living in the world and eating anything, including vegan foods, results (inadvertently) in animal deaths and that, therefore, if it is acceptable to live in the world and eat vegan foods, then it is also acceptable to consume (and thus to order the production of more) flesh and other farmed animal products.

On purely utilitarian grounds (under which one is minimizing suffering but perhaps indifferent to death), this argument is unconvincing.  The production of flesh for our consumption requires much more plant cultivation (thus resulting in much more inadvertent animal death in the fields) than the production of plants (including grains, fruits, and vegetables) for our consumption would.  It takes much more land to cultivate feed for farmed animals (whose numbers are far greater than our own) whom we eat than to cultivate our own food directly.  Therefore, if one is attempting to minimize the suffering of animals who live in the fields and grass, animal agriculture is precisely the opposite of what one would want to do.

Quite apart from the sheer numbers of animals who suffer and die (in which might also be included the farmed animals themselves, who number over 50 billion a year even when we include only land animals), there is an important difference between inadvertently and unintentionally killing animals while cultivating a field and deliberately killing animals to eat those animals and the products that we take from them.  The DDE helps explain this difference -- in the one case, we are growing plant food for us to eat, and any deaths that result are inadvertent and undesired; in the other, we are intentionally inflicting deaths on animals so we can consume them (along with their bodily fluids).  The death of farmed animals is, accordingly, not an incidental side effect of animal farming; it is an intended outcome.

Despite the DDE difference, of course, one might conclude that it is nonetheless wrong to cause any animal deaths, even as an undesired side effect of living in the world.  But if that is one's position (or, more likely, if that is the purported "reductio ad absurdum" argument that one has embraced to avoid moral responsibility for killing animals), then one might be committed to the proposition that killing people inadvertently by voting for a higher speed limit (65 mph as opposed to 55 mph, which results in a predictable rise in deaths on the highway) is morally no different from endorsing intentional homicide.

My Letter to the Senate Judiciary Committee Regarding Notice Pleading

[With the Senate Judiciary Committee set to hold a hearing on restoring notice pleading next week, I have sent the following letter:]

The Honorable Patrick J. Leahy, Chair
The Honorable Arlen Specter
The Honorable Sheldon Whitehouse
Committee on the Judiciary
SD-224 Dirksen Senate Office Building
Washington, DC 20510-6275

Dear Senators Leahy, Specter, and Whitehouse:

    I am writing regarding the hearing scheduled for December 2, 2009, on the following question: “Has the Supreme Court Limited Americans’ Access to Courts?”  The answer is clearly yes.  The only real question is what Congress should do in response.

    I have been teaching civil procedure and federal jurisdiction at the law schools of Rutgers University, Columbia University, and Cornell University for over seventeen years.  During that time, I have also represented both paying and pro bono clients in federal court litigation.  Based on my knowledge of and experience with the Federal Rules of Civil Procedure, I can say that the changes wrought by the recent two Supreme Court decisions that have occasioned the coming hearing--Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)--are nothing short of revolutionary.  Since their adoption in 1938, the Federal Rules have been universally understood to establish a system of “notice pleading,” in which pleadings simply serve to place opposing parties and the court on notice of the nature of the plaintiff's case, with merits decisions on questions of contested fact to follow discovery.

    Although the Supreme Court’s rulings in Twombly and Iqbal formally pay lip service to the notion of notice pleading, in substance they discard it.  By requiring federal district judges to dismiss complaints that contain “conclusory” or “implausible” allegations, Twombly and Iqbal demand the impossible: Judges must now make determinations about what events are likely to have occurred before the parties have presented any evidence--indeed, before the parties have even had an opportunity to develop their evidence through discovery.

    Let me be clear that I do not have a political ax to grind.  I acknowledge that there are tradeoffs between a system of liberal notice pleading and a system of more demanding “fact pleading.”  Liberal notice pleading ensures that plaintiffs with meritorious, but difficult to prove, cases have an opportunity to avail themselves of discovery in order to obtain the evidence they need.  However, notice pleading also permits some plaintiffs with non-meritorious or even frivolous claims to impose potentially large discovery costs on defendants, thus inducing some of those defendants to settle the litigation for its nuisance value.  Conversely, the stricter regime of Twombly and Iqbal reduces the damage that can be done by frivolous suits, but it also prevents some plaintiffs with meritorious claims from ever having their day in court. 

    If Congress or the Rules Advisory Committee were writing on a clean slate, it would be appropriate to attempt to weigh the costs and benefits of looser or tighter pleading standards.  However, for three inter-related reasons, that sort of a priori cost-benefit analysis is inappropriate here.

     First, the Supreme Court lacked the legitimate authority to change the pleading standard.  Under the Court's own precedents, when interpreting the Federal Rules, its job is to effectuate the language and policy of those Rules, rather than to substitute its own policy judgment.  See Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).  Congress has sometimes made the policy judgment that the particular combination of costs and benefits in some area of law call for a heightened pleading standard, as in the Private Securities Litigation Reform Act (PSLRA), 15 U.S.C. § 78u-4(b)(1).  But absent guidance from Congress, the Court has no business re-weighing the pros and cons of liberal versus restrictive pleading rules.

    Second, no one--not the Court, the Rules Advisory Committee, or Congress--is writing on a clean slate.  Notice pleading is simply one piece of the overall civil litigation system in the federal courts.  It is designed to work with the rest of the rules, including Rule 11, governing sanctions for improper filings, and Rules 26 through 37, governing discovery.  The Rules as a whole presume that merits decisions in cases of disputed facts will occur only after a fair opportunity for discovery.  Even when Congress has supplanted the notice pleading default, as it did in the PSLRA, it has been careful to adopt a standard--the specificity of the factual allegations--that a court can apply from the face of a complaint.  By contrast and as noted above, the Court’s “plausibility” standard makes no sense for district judges who have not yet heard any evidence.

     Third, if it ain’t broke, don’t fix it.  Neither the Supreme Court in its recent decisions nor any credible commentator has cited evidence that the traditional regime of notice pleading has led to systematic abuses that cannot be handled through the Rules Advisory Committee process.  Over the last three decades, the Rules Advisory Committee has repeatedly studied allegations of discovery abuse.  It has responded forcefully with extensive changes that have been working well.  The Rules Advisory Committee did not propose the changes wrought by Twombly and Iqbal because it did not think them necessary or useful.

    Accordingly, I urge you to reinstate the notice pleading standard as it existed before Twombly and Iqbal.  There are many different ways this can be accomplished.  Perhaps the simplest would be a statute providing that neither a complaint nor an answer which otherwise satisfies the requirements of Rule 8 shall be dismissed on the ground that it is “conclusory” or makes “implausible” factual allegations.  The supersession clause of the Rules Enabling Act, 28 U.S.C. § 2072(b), would remain in effect so that the Rules Advisory Committee could, pending further study, tinker with the pleading standard should evidence emerge that the costs of notice pleading substantially outweigh the benefits.

    Whether Congress uses the foregoing approach or one of the alternatives currently under consideration, the important thing is to roll back the illegitimate, incoherent, and ill-advised changes wrought by the Supreme Court in Twombly and Iqbal.

   Respectfully,
   /MCD/

Cloture, the Constitution and Democracy

By Mike Dorf

The recent procedural theatrics over starting Senate debate on the health care bill provide only the latest occasion for reflecting on the oddity of the cloture rule, which effectively requires 60 votes to accomplish anything in our upper house.  A naive reader of Article I, Section 7 of the Constitution would think that all it takes for the Senate to act positively on a bill is for a simple majority to vote in favor of it.  Section 7 doesn't expressly state this point, but that's the only fair inference from a provision that discusses "yeas and nays," and also specifies a particular super-majority (2/3) for overcoming a veto.

Plus, various other provisions of Article I specify various super-majorities, leading to the only plausible inference that ordinary legislation requires only a simple majority.  The kicker is Article I, Section 3, which only gives the Vice President a vote in the Senate if the other Senators "be equally divided."  This provision makes no sense unless it is meant to give the VP the power to break a tie by creating a bare majority.  And indeed, no one has seriously doubted the simple-majority voting rule for ordinary legislation.  Except, of course, that the cloture rule effectively requires a 3/5 majority to accomplish anything, so long as the minority Senators are willing to translate their votes on the merits into votes on whether to end debate.

I am not interested right now in arguing that the cloture rule is unconstitutional.  Article I also gives each house the power to set its own procedural rules, and so it is at least plausible to contend that adding procedural "veto gates" via procedural rules is simply part of the Senate's power.  Nor is it obvious to me that the various minority protections in the Senate rules (including not just the cloture rule but various individual privileges and the complex committee system) are, over the long run, likely to favor conservatives or progressives.

One might think that, over the long run, veto gates benefit conservatives more than progressives, as blocking powers tend to lead to gridlock, and conservatives generally want the government not to do things, while progressives want the government to do things (like guarantee health care, combat global warming, etc.)  But I don't think this analysis carries through.  Given a status quo of no-law, conservatives will systematically benefit more from blocking powers than progressives will (assuming equal likelihood of being in the majority or minority).  However, we do not have a no-law status quo.  We have a status quo of substantial government and so when conservatives come to power, progressives find blocking powers quite useful in trying to stop the formers' efforts to enact legislation rolling back government.  Another way to put the point might be to say that modern conservatives are not "conservative" in the literal sense of wanting to conserve the status quo: They have an ideology that is generally skeptical of government efforts to regulate the private sector (except when the private sector is actually inside people's bedrooms or women's uteri, in which case they're generally for such regulation, as sardonically explained here).

Even if I'm right about all of the foregoing, one might still think that, on balance, veto gates like the filibuster are a bad idea because, though not systematically favoring conservatives or progressives, they systematically favor the legal status quo, thus frustrating translation of the democratic will into legislative action.  Now the nice point about this criticism is that it's not vulnerable to the typical rejoinder, which is that a substantial goal of our system of representative government is to frustrate plain old majoritarianism.  The reason that rejoinder won't wash is that it is usually married to a libertarian argument that the threats from government action are greater than the threats from government inaction.  But we've just seen that veto gates can frustrate efforts to get the government to STOP acting as well as they can frustrate efforts to get the government to act.

I can think of two other possible defenses of veto gates like the cloture rule in response to the democratic objection.  First, we might note that the Senate is already a dismal example of democracy, given that Wyoming and North Dakota get the same number of Senators as California and Texas.  Thus, the "minority" Senators trying to block legislative action can actually represent a majority of the population.  The problem with this response is that it can just as easily cut the other way.  Senators representing a truly TINY proportion of the population can use the cloture rule to block the wishes of the supermajority.

That brings me to the second possible defense of veto gates like the cloture rule: A Burkean skepticism of all manner of legal change.  If one were traditionally conservative in this sense, then one would be wary of any major change in our legal arrangements absent truly overwhelming popular support.  Is that a persuasive response?  Here I find it very difficult to separate my substantive views from my views about institutional design.  When I share the views of the majority of my fellow citizens, then I am inclined to the Wilsonian frustration with how difficult our system of government makes it to get anything done; when I find myself in the minority, I'm with Burke.

KSM (non)Politics

By Mike Dorf

I don't have much to add to the substantive discussion--sensible and otherwise--of the Justice Department's decision to try Khalid Sheikh Mohammed in a civilian court.  I do want to register what will undoubtedly be seen as faint praise for what I imagine must have been the integrity of that decision.  Here goes:

1) The Obama Administration's conservative critics think that any backing off from a policy of military detention and military tribunals is weakness if not treason.  Nuff said here.

2) Meanwhile, critics from the liberal side (a group that often but not always includes yours truly) will not be nearly as pleased as one might expect from this decision.  KSM is probably the highest-ranking Al Q'aeda operative to have been apprehended since 9/11 (or ever).  He was waterboarded 183 times.  Thus, if there is any 9/11 suspect as to whom there are serious security and evidentiary issues in civilian court, it would seem to be KSM.  And yet the govt plans to give KSM a civilian trial but NOT to provide civilian trials to all Gitmo and Gitmo-equivalent detainees.  For liberal critics, this raises the question of who is more difficult to try in a civilian court than KSM.  They suspect that the answer is no one, making the decision to use even new and improved military tribunals for anyone else problematic.

Compounding matters, the near-certainty that KSM will be sentenced to death will undermine any PR benefit that might have accrued among domestic death penalty opponents and Europeans who were most troubled by the military detention and trial regime.  Add to that the delay in closing Gitmo and it seems that, as far as criticism from the left is concerned, the KSM civilian trial is at best a bad PR case that the Administration can only hope to manage.

Thus, no one is likely to be pleased by the current suite of detainee decisions by the Administration. Which brings me to my main point: The politics of this latest confluence of decisions and announcements is so bad for the Administration that one can only assume they were not made on the basis of politics but were instead the result of a judgment about what would be best on the merits.  Faint praise perhaps, but praise nonetheless.

Future Generations of Europeans and Americans

-- Posted by Neil H. Buchanan

My latest FindLaw column (available here later today) revisits one of my favorite policy issues: public investments in infrastructure, education, and so on. I used my recent travels in Europe and the U.K. as an anecdotal complement to some publicly-available research that demonstrates the extremely precarious state of the public capital stock in the United States. My own academic work also has covered this topic, including this law review article from 2006 and this work-in-progress that I am developing for publication (I hope) next year.

It is one thing to experience the effects of the decaying U.S. infrastructure (as all Americans do on a daily basis), but it is quite another to see how much better it could be. I therefore describe in my column just how different an experience it is to travel in Europe, compared to traveling in the U.S. What I found especially interesting was that Bilbao, Spain's small airport was quite modern and was connected to the city via an efficient and simple bus system. To an American, noticing that the airports in Germany and Austria are modern and efficient is perhaps unsurprising, since we generally accept the stereotype of Germanic efficiency. But when Spain -- which is only one generation removed from a corrupt fascist regime, which has never been thought of as an economic powerhouse, and which currently has even higher unemployment than the U.S. -- is able to maintain a decent public sector even in one of its poorer regions, we have a long way to go.

The academic purpose of the trip, however, was to develop my work on intergenerational justice. In presenting my work to academic workshops in each of the countries that I visited, after describing the basic issues that I address, I asked my audiences to tell me whether the standard U.S. political move to justify all policy initiatives as being good for "our grandchildren" was common in other countries. Scholars and students from all over Europe and South America indicated that the "future generations" meme was simply not part of the political conversation in their countries. Even acknowledging the non-systematic nature of the evidence that I gathered, it was truly surprising that none of my listeners indicated that there was any political currency to appeals to intergenerational obligations in their countries.

(This was particularly interesting in the environmental context, because the commitment to policies that sacrifice current comfort for long-future payoffs is manifest throughout Europe. One scholar from Portugal (who had attended a university in Spain) told me that it was actually rather difficult to figure out why Iberian policies were so environmentally friendly, when the typical citizens of Portugal and Spain were quite skeptical of, for example, the usefulness of separating trash into recyclables and non-recyclables.)

By contrast, consider the op-ed by Bob Herbert from Tuesday's New York Times, which was my hook for the FindLaw column. Even though Herbert was really talking about policies that will have immediate benefits as well as benefits that will begin to show up long before even the Baby Boomers have died, he framed the entire column around the idea of what kind of world today's toddlers will inherit when they enter the work force twenty years from now. Similarly, Sen. Joe Lieberman's justification for opposing the health care bill relies on the idea that deficits (which, of course, would not go up under that bill) must be avoided in the name of future generations. This rhetorical move by both liberals and conservatives is, I now have reason to believe, uniquely American.

This means, of course, that we have an especially odd juxtaposition between rhetoric and policy in the U.S. and Europe. In the U.S., we talk incessantly about our obligations to the future; yet we consistently fail to enact policies that would clearly benefit us in the immediate-term, medium-term, and long-term future. In Europe, they apparently do not obsess about their children and grandchildren; but they enact policies that are much more oriented toward the future. Actions really do speak louder than words.

Who May Deem a Woman an Egg-White? A Karamazovian Inquisition in Chancery

By Bob Hockett

Sherry’s thoughtful post last Monday, November 9th reminded me of a couple of equity-rooted considerations that have occasionally floated before my mind, in connection with the morality and legality of abortion, ever since first encountering the conscription argument in Judith Jarvis Thomson’s influential article on the subject. Perhaps these considerations will be of interest to DoL readers, and thereby contribute something of value to the conversation initiated by Sherry’s many wonderfully thoughtful essays, articles, and posts on this profoundly fraught subject.

Equity jurisprudence, our lawyer friends in particular will recall, is especially well known for the many colorful maxims and ‘doctrines,’ as well as such institutions as the trust, which it has contributed to the commonlaw tradition. Most of these contributions bear a distinct moral flavor, as manifest not only in their contents, but even in their very terms. And this for its part is no accident, as the Chancellors who long administered the courts of equity often had training in the moral theories of their day.

So the ‘fid’ in ‘fiduciary,’ for example, stems from the Latin ‘fide,’ or faith – ‘faith’ as in ‘faithfulness,’ ‘reliability,’ ‘trustworthiness.’ And this is the very faith that we have in mind when we employ the morally charged phrase ‘good faith’ whether in ordinary parlance or as a legal term of art. Like observations hold in turn of the ‘justice’ implicated by the equitable doctrine of ‘unjust enrichment,’ the ‘cleanliness’ referred to by ‘the clean hands doctrine,’ and so forth. One could adduce quite a few examples, as I shall be doing in a work I am currently drafting on the subject.

Now two equity doctrines that I find particularly attractive – and of which the law has made much use – seem to me nicely implicated by the debate occasioned by the conscription argument in discussions of the morality and legality of abortion. And what is most interesting, perhaps, is how the second one in a certain sense ‘check mates’ the first on at least one possible reading. It is this tension that I hope might occasion additional helpful discussion on this site and perhaps beyond.

First recall the character of the conscription argument, a wonderfully pregnant (sorry – pun foreseen but not quite intended) variation on which Sherry presents in her post: The argument’s guiding idea is that, even conceding that the human embryo or fetus bears moral interests – on any of what might be any number of ethically compelling grounds – this cannot of itself suffice to underwrite a claim to the effect that a woman is under obligation to make her body available to sustain and carry that 'interest-bearer' until sustained life is possible outside of the womb.

The reason is that there are literally thousands of perfectly innocent adult human beings who through no delict of their own have need of externally supplied life-sustaining functions ordinarily supplied internally by humans’ own organs. And yet very few argue that those faultlessly unfortunate persons have claims on the organs of the more fortunate. For to argue thus would be effectively to argue that the bodies of the healthy may legitimately be conscripted to aid the unhealthy. And few seem to wish to argue that.

(One legal philosopher who I think has argued this is Eric Rakowski at Berkeley. And I should confess that I myself have wondered whether there might not be a moral obligation to donate organs or the temporary use thereof even prior to death under some circumstances. But let us leave this to one side for present purposes.)

Why, then, the conscription argument concludes, should the case of the unborn be any different from that of the already born?  Do we not have here further evidence of the claim that many political conservatives, who often support capital punishment and wars of choice while opposing social safety nets, are 'pro life only until you are born'?  To hold that a woman must supply her body to the cause of life-support to a fetus or embryo, the conscription argument concludes, is effectively to treat her as what I'll call an 'egg-white,' affording gratuitous nourishment to the ‘yolk’ that is growing within her, until such time as a physically autonomous human life has formed.

Enter now the first envisaged intervention from equity doctrine. In a comment appended to Sherry’s Monday post, Sam Rickless queries whether the ready availability of effective birth control might not diminish the force of the conscription argument, at least in cases of voluntary sexual activity. One way of interpreting this query, I think, is as asking whether the equitable doctrine of ‘induced detrimental reliance’ might not have application in some cases, in such manner as might diminish the conscription argument ‘s force in those cases. (It would not, of course, touch other arguments for leaving the choice with the woman, which are of course many but not here under discussion.) The idea then would be that bringing the dependent life into existence through an act that could easily (and that caveat is of course crucial) have been engaged in nearly identically without bringing that dependent life into existence is somehow morally different: a contraception-based variation on the ‘you [avoidably] break it, you buy it’ idea.

Now what to make of this argument? Well, I think it bears an initial intuitive bite like all equitable arguments seem to me to do. But now comes the second equitable doctrine, which on one reading might tend to undermine the utterability of the argument that proceeds from the first equitable doctrine - or at least to shrink the class of those who could legitmately utter it. This doctrine engages at the very moment that somebody might open his – yes, his – mouth to enunciate an argument sounding in the first doctrine.

Which doctrine?  I have in mind here the venerable ‘clean hands’ doctrine, briefly mentioned above. Pursuant to this line of thought, one who is no differently situated, putative-culpability-wise, than is she whom he asserts to be culpable, simply ‘will not be heard’ – that’s how the courts put it – to lay the relevant charge of culpability. It’s a bit like a variation on the ‘people who live in glass houses’ proverb, not to mention the ‘do as I say, not as I do’ taunt, and the venerable ‘why do you find fault with the speck in your neighbor’s eye when you’ve a beam in your own?’ challenge.  You lack standing to level a charge, if you too are subject to that charge, unless you level it at yourself just as readily as to another.

So how does this doctrine find application in connection with the conscription argument? Well, note that the predicate to application of the induced detrimental reliance claim just countenanced is that reliance has indeed been induced. And if indeed it has, then it would seem there is at least as much reason to say that the male party to the transaction that issued in the reliance has done the inducing as that the female party has done. (Indeed there are many cases - rape conspicuous among them - where the male is solely responsible.) Yet nobody – certainly no male – seems ever to argue that fathers are obligated to give their bodies over to fetal or embryonic life support.

Now one reason that arguments of the latter sort are not encountered obviously would be that we don’t as yet seem to have means of actually enabling male bodies to afford the mentioned form of support. (If we did, rape-caused pregnencies might not occasion the dilemma they do for many abortion-opponents.)  Perhaps one day we will have such means, and perhaps, if so, that will be the day that we find ourselves able more seriously to parse out how much in the way of present day argumentation about abortion is attributable to disgusting and altogether condemnable feelings or attitudes of male entitlement, and how much proceeds in good faith from more honorable springs.

But as things stand at present, and strictly personally speaking, I find it a bit difficult, on what I suppose might be described as 'vicarious' clean hands grounds, to imagine myself saying in clean conscience to a woman, ‘you must consult not only your own conscience, but also my opinion, in deciding how to react to your pregnancy.’ At least I find this difficult while knowing, as I do, that I could be equally or more responsible than a female partner for inducing the reliance of a life upon the body of that partner herself, while not being even so much as potentially hoist by the petard of my own moral assertion. 

So while I find that I perceive all life - including all nonhuman life - as sacred, at all stages from start to finish, I find also that there are some propositions concerning the decisions of others that I fear to predicate, without more, on that commitment.  In Karamazovian terms, I suppose that means I'd make a better Alyosha - recall that his only reply to his brother Ivan's posing a seemingly unanswerable moral dilemma was to kiss him on the cheek - than Inquisitor.

What then do I - yet again provisionally - conclude? Well, my only ‘conclusion’ thus far is, in addition to provisional, rather more practical than theoretical in character: I have made it a practice thus far to abstain from thinking myself qualified to ‘have an Inquisitor's say’ in the deliberations of those I know (and a fortiori, those I don’t know) about what to do in response to problematic pregnancy. I confess to not knowing what more to say.  Am I merely ducking a question that I ought – and am equipped – to address?  Truly, I do not know.  I feel a bit like Alyosha Karamazov or 'The Idiot' - Prince Myshkin - on this. 

Please note that none of what I have said here is to say that I’ve not readily acted in the capacity of a loving friend and ‘sounding board’ for those comparatively few dear friends who have blessed me by actually requesting my counsel on such profoundly sacred and personal matters. It’s only to say I’m reluctant to volunteer unsolicited ethical considerations in such cases – even to myself (who feels he ought to abstain even from soliciting them from himself). Knowing as I know that at present I never could actually be in that unimaginably poignant position in which only a woman can be, even while I could be just as responsible as anyone for inducing a pregnancy, I simply don’t know what or how to opine ethically here. My hands, in a certain sense, feel as though they could never be clean in the requisite sense, and so I'm reluctant to try to employ them.

I’ll close, then, with a tentative answer to one question the title to this post might invite: Can a woman justly - equitably - be expected, on moral or legal grounds, to serve as an egg-white?  Tentative answer:  Well, if so, then until men can be pregnant, it probably won’t be for men to be those who say it.

Anonymous Campaign Donations Revisited

By Mike Dorf

In my latest FindLaw column, I examine a recent Ninth Circuit decision, Doe #1 v. Reed, that rejected a claimed First Amendment right of anonymity for people who signed a petition to have a domestic partnership law repealed.  I argue that the Ninth Circuit essentially missed the true strength of the plaintiffs' claim, but that the court may have gotten it right after all.  I nonetheless say that, as a policy matter, government ought generally to allow anonymous politicking.  The wishy-washiness of my position--tentatively against the constitutional claim but in favor of the policy claim--reflects what I regard as the difficulty of the question.

To be clear, I don't regard the underlying merits as difficult at all.  I think that laws protecting same-sex domestic partnership shouldn't be repealed; they should be extended so that we have marriage equality.  Indeed, as I've said many times before (e.g., in 2004, here, and in 2008, here), I regard the denial of the right to same-sex marriage as a denial of equal protection.  But of course the answer to the question whether there is a right to anonymous petitioning cannot be "yes" for petitions one favors and "no" for petitions one opposes.

So, why do I regard the anonymity issue as close?  As I explain in the column, partly because the constitutional law in this area is equivocal: Government can demand disclosure of the identity of campaign contributors (except for small unpopular parties whose supporters run a serious risk of harm if they are thus "outed"), but government must allow anonymous pamphleteering.  The column asks whether petition signing is more like pamphleteering or more like donating money to a campaign.

Here I want to add a note of normative skepticism about the campaign finance law in this area.  The basic idea is that government requires disclosure of the identities of campaign contributors to prevent corruption.  But at least in federal elections and state elections that utilize similar caps on contributions, this fear is often unrealistic.

In the 2008 election, an individual could contribute up to $2,300 per candidate per election (meaning $4,600 total if one gives to the same candidate in a primary and a general election), plus a maximum of $28,500 to a national party.  Taking account of the possibility of supporting multiple candidates in different races and of the stand-alone caps, an individual could give up to $108,200 over two years to candidates and PACs.  That's a sizeable chunk of change, and the public clearly has an interest in knowing who has given money at this level so it can monitor elected officials to see whether they are doing special favors for such big donors.

However, most people who give to political campaigns give smaller totals.  Do I really have an interest in knowing which of my neighbors gave $500 to Barack Obama, Rudy Giuliani, Hillary Clinton, or Mike Huckabee--as I can find out in a few seconds via fundrace.huffingtonpost.com?  There is really no likelihood whatsoever that the President, or even a corrupt House member, would do special favors for such relatively small donors.  Indeed, it seems that in order to get the sort of favors that one expects from, say, the Governor of Illinois, one needs to give money at well beyond the levels permitted for federal elections--and cash in brown paper bags does not get reported to the FEC in any event.  (Illinois does not cap campaign contributions for state elections, a policy that has been working wonders for the state, corruption-wise.  But I digress.)

Meanwhile, the HuffPo map can definitely chill political contributions.  Let's say you live in an overwhelmingly Democratic neighborhood but want to support a Republican candidate, or vice-versa.  Even if you don't fear violence, intimidation or a boycott of your business from your neighbors, mere social awkwardness could lead you to think twice before writing the check.  Sure, some hardy souls will want to state their dissenting opinions openly, but many will not.

To my mind, therefore, the only decent arguments for campaign finance disclosure even for small donors are administrative ones.  The FEC lacks the staff to anonymize contribution info before putting it into the public domain, even as there is an interest in such anonymized information.  E.g., how much money for Candidate X came from suburbs versus cities?  How much came from gun owners?  Etc.  Throwing the raw donation data out into the public is a form of crowd-sourcing that allows people to run their own data analysis.  But we shouldn't kid ourselves that it's costless: The possibility of chilling pocketbook political participation is real.

The potential political twist here is that conservatives tend to be more concerned than liberals about protecting campaign contributions as a form of political speech, but conservatives are also more skeptical of the ability of government bureaucracies like the FEC to perform their task competently and in a non-partisan manner.  So conservative instincts cut both ways here.  Meanwhile, liberals who don't overly fear that disclosure will chill campaign contributions are also more inclined to think that a government agency can act as an honest broker for information.  So the stakes on each side are lower for liberals, but there is no clear answer for them either.

Bottom Line: I am somewhat uncomfortable with the disclosure of small donors' info, even as I am somewhat uncomfortable with the idea of withdrawing from the public domain the raw donation data needed to answer legitimate questions about political influence.

The Credit Card "Business"

By Mike Dorf

As various commentators have noted, the traditional business model of credit card companies is peculiar.  Here is how James Surowiecki described it in a May issue of the New Yorker:

Their best customers aren’t those who dutifully pay off their balance every month; instead, they’re the ones who charge a lot and pay only a little every month, carrying a sizable balance and racking up interest charges and late fees. These are the “revolvers,” and the credit-card business feeds on them. Credit-card companies don’t necessarily want revolvers to pay off their debts; if they did, there’d be no interest or fees to collect.
. . . The catch is that while revolvers are the companies’ best customers, they’re also more likely to default, which would make them the worst.

Accordingly, Suroewiecki and others have noted, with increasing default rates, the credit card companies have been re-thinking their business, trying to find ways to shed default risks and to make money from their regularly paying customers, or what I shall call "free riders."

Right now, I am a free rider.  I pay my balance in full on time every month, and thus I get the benefit of the float on my purchases along with the convenience of not having to carry too much cash.  For this I pay essentially nothing.  I could pay literally nothing but I use a card with a small non-zero annual fee because it enables a small percentage of my charges to go to a favorite charity; however, I doubt that the annual fee covers the credit card company's administrative costs, even when one takes account of the fees charged to merchants.

So, how could the credit card companies make money from people like me, i.e., good credit risks?  They could start charging merchants a lot more for credit card use, although the downside here would be reduced demand.  At some point, merchants would have to charge higher prices for credit than for cash (as some already do, and not just as a way of defrauding the government of sales tax), and that would in turn lead to less credit card usage by customers.

Another approach would be for credit card companies to start operating more like conventional banks, by charging all customers interest on their loans. In this model, if I make a purchase on Nov 1 and pay the bill on Dec 1, I would pay a month's worth of interest on the purchase.  The disadvantage here is that it too will reduce demand for credit cards, as consumers like myself--who use credit cards as a convenience rather than as a means of borrowing money--would switch to cash and debit cards.  Raising fees for all credit card users is another option with the same tradeoffs, although consumers could be left without real alternatives if banks start charging or raising fees for cash withdrawals and debit card use.

Various news stories suggest that the credit card companies have been experimenting with each of the above  tactics but if my personal experience is a guide, they are also trying something else: They are trying to turn free riders like me into revolvers.  Thus I doubt that I am unusual in getting cash-advance "checks" from my credit card company roughly once a week.  And recently, I experienced what looks to be a more aggressive effort.  I received a notice in the mail that my credit card had been compromised by a third party, though no fraudulent charges had been made.  As a precaution, the company sent me a new card.  To activate it, I called the number on the card and when I keyed in my account number, instead of getting an automated menu, I was re-routed to a "customer satisfaction expert."  Here's a rough transcript of our ensuing conversation, after the preliminaries identifying my account and myself.

CSE: How may I help you today?

ME: I'd like to activate my card.

CSE: I can do that for you.  It will only take a few minutes.  [Sounding somewhere between disappointed and annoyed:] I see here that you pay off your balance in full every month.

ME:  Aha.

CSE: While we're waiting, I'd like to tell you about our exciting 0% balance transfer and checking account deposit.  What do you think you'd like to use yours for?

ME:  I'm not interested, thank you.

CSE:  You're not interested in saving money?  That's especially surprising in this economy.

ME:  Sorry.

CSE:  Okay, your card is activated.  Can I help you with anything else?

ME:  No thank you.

CSE:  Thanks for calling [credit card company].  Have a great day.

I don't know whether I was inadvertently kicked over to the CSE in the first place, but it wouldn't surprise me if this were a deliberate program to flag free riders and attempt to turn them into revolvers.  If so, this seems like a bad idea.  We free riders are free riders precisely because we understand the hazards of profligate use of credit cards, teaser rates, and so forth.  It's not that we oppose credit.  Most of us have mortgages.  Many have car loans, etc.  It's just that we realize that the whole credit card business is built upon getting people in over their heads on high-interest loans.  So I doubt very much that the sales pitch will work on other long-time free riders.

Now I certainly could be wrong about that.  After all, I'm not an expert in the credit card business or even in finance more broadly. But still, it's not as though the people in this business have been doing a very good job lately--unless you define the business as "getting bailout money from the government."  So if I am right that the plan to turn free riders into revolvers will largely fail, and if the credit card companies continue to worry that people who used to be reliable revolvers will, for the foreseeable future, continue to pose too high a risk of default, then we are likely to see the companies make greater use of the fees and interest strategies, even with the resulting decreased overall use of credit cards.

It's tempting to view such a movement as economically harmful in the short run: Credit card use generally leads to increased consumer spending, which is needed for a robust economic recovery.  But in the long run, it's hard to argue that our economy should be dependent on people taking on high-interest debt beyond their means to pay.

The Master's Tools: Religion and Taxes

Posted by Neil H. Buchanan

In a post here earlier this week, Mike Dorf continued his discussion of his colleague Steve Shiffrin's new book, The Religious Left and Church-State Relations. At the risk of over-simplifying, Mike's ultimate point was that there is at least a serious danger -- if not an extremely high probability -- that attempts by Christian liberals to engage with the Religious Right on their own terms will do more harm than good. He concluded his post: "The master's tools will never dismantle the master's house." Here, I will engage with the substance of the claim that the religious left is the "right" group to fight the Religious Right (Shiffrin's argument having been, as I understand it, that the secular left should stand aside because they cannot effectively engage with the other side).

As a minister's son who has been an atheist since roughly age 17, I should say at the outset that these arguments are very familiar and extremely salient. The rise of the Religious Right coincided with -- but in no way caused -- my departure from the church, and their arguments were always quite puzzling to me. The thing that had made it difficult to leave the church, after all, was the message of love and caring for the least among us that constituted the beauty at the core of Christianity. While it was no longer tenable to remain a member of an organization whose core notion of faith I did not share, I at least liked the idea that there were people who held that faith and who learned through that faith the importance of being loving, generous, modest, caring, etc.

The messages of hatred and exclusion that emanated from the likes of Swaggart, Falwell, et al. were thus a shock. The disconnect was stark, but over the years I simply came to accept the idea that some people were using (what I continue to believe) was an inherently liberal message for reactionary purposes. It always, therefore, seemed somewhat hopeful when a religious figure would emerge to reaffirm the message of social justice. It never seemed to change anything, but the battle seemed worth fighting.

In 2002, a tax law professor made national news by arguing that Judeo-Christian ethics required a progressive tax code. Susan Pace Hamill, who serves on the faculty of the University of Alabama School of Law and who is a committed Christian, had spent her sabbatical at a seminary studying and writing about Christian social justice. She took aim in particular at Alabama's state tax system, which was (and -- spoiler alert! -- still is) one of the most regressive in the country.

Hamill's work gained the attention of Alabama's Republican governor, who aggressively campaigned to have the state's tax laws brought more closely into line with what he and Hamill agreed would be an approximation of Christian justice. Hamill also traveled the state, preaching in church after church her scripture-based view that all good Christians had no choice but to agree that Jesus would want Alabama to have a progressive tax system.

The result was a crushing defeat for the progressive forces. As I recall, the final vote statewide was something like 65-35 against. Even the poor had voted against the measure. The governor was also defeated for re-election. (My memory is somewhat faulty here, because I cannot recall whether he was defeated in the same election or the subsequent one.)

It was, of course, possible to draw from that defeat only tactical lessons. Maybe the measure was too ambitious and should have been passed in smaller doses. Maybe the change in rates should have been the focus, rather than also increasing overall revenue to cover a budget deficit. Maybe there was no way to defeat the national anti-tax Republicans who targeted the election. Still, explaining away a landslide is no easy task. When one considers that Alabama is one of the most religious states in the country, moreover, the state should have been fertile ground for an argument like Hamill's.

Even so, it is undeniably true that such a tax proposal never would have had a chance in Alabama if it had been pushed by a secular liberal on non-religious grounds. Shiffrin's argument thus at least gains some support from this incident, because a few (too few, alas) hearts and minds were won over by Hamill's scriptural arguments. (I should note that Shiffrin limits his argument to church/state relations, so it is probably more accurate to describe this as "Dorf's expansion of Shiffrin's argument.")

In addition, this might be a particularly bad example to use as a test of Mike's thesis regarding the master's tools. Using religious arguments in Alabama to push a point that secular leftists endorse runs very little risk of making the state even more prone to religiously-based political posturing, after all.

Nevertheless, the very reason I (and, I suspect, many readers of this blog) am aware of this otherwise-local story is precisely because it was a very prominent attempt to use religious arguments to make a left-friendly political point. It was not just the fervent churchgoers in Alabama who heard this message. The entire nation was told, in essence, that Christianity-based arguments are not only useful but correct. Mike's concern, which I obviously share, is that this ultimately bolsters the public's view that Christianity is the best -- if not the only -- way to view issues of public policy.

At the very least, it did not do much to make atheists more welcome in the public square.

[Meanwhile, I am off to Edinburgh, Scotland, tomorrow. "The Vatican of Presbyterians" awaits.]

A Polyvocal Legal Future for France and Europe?

By Mike Dorf

In another Cornell Law School celebration of a recent faculty book, last week we examined Mitch Lasser's new book, Judicial Transformations: The Rights Revolution in the Courts of Europe.   I was one of four panelists, along with French Justice Guy Canivet, Yale Law professor Alec Stone Sweet, and Syracuse Law professor Juscelino Colares.  Here I want to say a few words about the book and about the larger question of legal pluralism that it raises.

Lasser begins by explaining the traditional understanding of constitutionalism in France, which is, to paint with a broad brush, Rousseauian rather than liberal.  Believing in the existence of a general will best expressed through the legislature, relative to American constitutionalism, the French were oriented towards legislative supremacy.  They had a form of constitutional review in the Conseil Constitutionnel but only prospectively and in the abstract.  The Conseil did not, until very recently, entertain concrete cases of rights.  Meanwhile, two other judicial/quasi-judicial bodies--the Cour de Cassation and the Conseil d'Etat--were responsible for concrete cases but the latter especially followed procedures that emphasized the primacy of the state rather than litigants.

That system has been under considerable pressure, as Lasser notes, from the European Court of Human Rights (ECHR), and over the last several decades, French courts--especially the Cour de Cassation under the leadership of Justice Canivet (now on the Conseil Constitutionnel)--have haltingly but clearly responded to the pressure by moving France firmly in the liberal direction.  Thus today French jurists talk the language of fundamental rights in much the same way as the ECHR and constitutional courts the world over.  Lasser's book does an elegant job of showing what a dramatic transformation that represents.

Lasser also pays some attention to another, seemingly quite odd, feature of the rights revolution in France and Europe: The lack of a clear hierarchy.  Here I want to spin it out a bit more.  To oversimplify:

1) At the European level, the ECHR competes for supremacy with the European Court of Justice (ECJ), the highest judicial organ of the EU.  With substantially but not entirely overlapping geographic jurisdictions and no ability of parties to appeal the decisions of the ECJ to the ECHR or vice-versa, it is not clear who has the final say with respect to rights in Europe.

2) There is a similar institutional competition within France among the Cour de Cassation, the Conseil d'Etat, and the Conseil Constitutionnel.

3) The lines of authority between European courts and national constitutional courts are likewise unclear.  The European bodies have clearly said that European norms trump national ones, and that national courts must accept EU and ECHR interpretations (as well as give them direct effect), but meanwhile, national constitutional courts have sometimes said that European norms, as creatures of treaty obligations, are subordinate to national constitutional norms.

Thus, in a country like France, there are arguably five different "final" authorities with respect to various fundamental rights, each with a legitimate claim to supremacy over the others in particular contexts.  During his comments, Stone Sweet said of France in particular that this situation means that there is no legal order in France.

I disagreed and continue to disagree.  It's true that there is no strictly hierarchical legal order, but there is a polyvocal legal order in France and Europe.  Perhaps we are in a transitional period--much in the way that it took the U.S. Supreme Court some years to establish its authority over state courts with respect to federal law, a feat accomplished in 1816 in Martin v. Hunter's Lessee.  If so, then eventually one of the European courts will ultimately prevail or national courts will treat the decisions of European courts as effective only subject to their own approval, with a showdown leading to one "Supremest" Court in France.

But that is not the only logical possibility.  Instead, we could have competing interpretive power centers indefinitely.  Yes, this would lead to some confusion about the state of the law when the various "supreme" courts disagree, but informal mechanisms would arise to deal with such disagreements.  In the U.S., for example, circuit splits often persist for years and some legal questions never seem to be answered by any court. Meanwhile, polyvocalism could lead to a "race to the top" in the definition of fundamental rights, or at least to inter-court dialogue.  Ultimately, if one takes the view--as I do--that courts typically define rights (and other legal constructs) largely in response to social forces, then the convergence of social pressures on multiple courts should keep their respective jurisprudences within shouting distance of one another.  Legal pluralism, in this view, could last indefinitely.

A Tale of Two 'Marriages'

By Bob Hockett

Martha Nussbaum gave an interesting talk at Cornell this past Friday on the subject of same-sex marriage, a subject which figures into her forthcoming book on 'the politics of disgust.' (This was the endowed Stevens Lecture, named for the same distinguished former Dean for whom Mike’s professorship is named.) The talk afforded a nice opportunity to raise a question that often has struck me, and that might be worth raising here too.

Begin with this observation: Much of the rancor that surrounds present-day argumentation and politicking over same-sex marriage looks as though it might be traceable to a tendency, when speaking informally about marriage, to run together two distinct categories. I’ll call these ‘civil’ marriage on the one hand, and ‘sacramental’ marriage on the other.

In ordinary parlance, I think we tend to have both categories vaguely and simultaneously in mind when we use the word ‘marriage.’ But in a pluralistic polity where church and state both are and must be kept formally distinct, the conflation gives rise to needless conundrums and avoidable ‘culture wars’ disputation – disputation that might be avoidable only by keeping the two senses of ‘marriage’ just as distinct.

Now, what are these two senses of the word? I think they are these:

So far as state functions are concerned, 'marriage' seems to have only a very thin meaning. It seems to mean, more or less, 'civil union.' That is presumably part of why we often employ the terms ‘civil union,’ ‘civil marriage,’ ‘civil wedding,’ and cognates almost interchangeably when speaking of marriage under the aspect of state functions. And most such talk about civil marriage, for its part, understandably treats the phenomenon in question as a matter of the benefits conferred upon society by the prevalence of committed relations and stable households, and of the state's accordingly having reason to facilitate or at any rate not hinder the formation of such relations and households. Against this quite minimal backdrop, it’s hard to see what objection anyone could have to consenting adults’ deciding their partners-in-union for themselves, without interference from others purporting to ‘defend’ marriage.

Within most if not all of our nation's many religious traditions, on the other hand, 'marriage' of course carries a thicker set of meanings – meanings that typically reach back into religious and ethnic history, and even today often attempt to reach well beyond here and now. The fact that marriage in fact is a full-blown sacrament within some traditions is illustrative of how fraught with transcendent importance, hence how 'rich' in cultural and even ‘metaphysical’ meaning, what I am calling sacramental marriage as distinguished from civil union tends to be.

Now the more I reflect on these differences, the more I find myself wondering why it is that the same word – ‘marriage’ – is used for the civil and the sacramental cases alike. Is it perhaps simply a holdover from earlier, less pluralist times, when church and state, though formally distinct, were pragmatically speaking a bit less so? Or does it perhaps reflect some ‘deep’ truth in the ‘communitarian’ case against liberal ‘compartmentalization’? (I hope not! But more of that momentarily.)

Then when I further reflect upon how running these apparently formally distinct categories together might also underlie much of the distasteful 'culture war' lather that always foams up around 'the debate over same sex marriage,' I find myself wondering as well whether it wouldn't be salutary simply to purge the word ‘marriage’ itself, as distinguished from ‘civil union,’ from state offices altogether.

Why not, in other words, treat marriage in its civil aspect as some economists and ‘advanced bus orgs’ profs do – as a sort of ‘business organization,’ vide ‘domestic partnership’ – and reserve the concept (and word) in its sacramental aspect to synagogue, church, mosque, or functionally equivalent sacramental office?  In such case we would assign the proverbial 'justice of the peace' the task of conferring official recognition upon civil unions alone – when certain criteria that speak to matters of legitimate state concern are met, of course. And we would reserve the function of ‘marrying’ people to the synagogue, church, mosque or equivalent, of which there are more and more wondrous varieties each year, and which all have criteria of their own.

I should perhaps add that I am not here actually advocating these things, so much as wondering about and ‘Gedankenexperimenting’ with them. I am wondering whether such changes would be feasible, and whether they would be desirable if so.

One objection I can imagine would be that matters of political life on the one hand, and of culture on the other, are not as readily disentangled in our lives and self-conceptions as what I envisage here would require. A related objection might be that we – on some relevant understanding of who the 'we' here are – would not want to work such a separation even if we could, in that it would force a sort of multiple schizophrenia or 'compartmentalization' upon us that just wouldn't be good for our mental health or our persons. These would be ‘communitarian’-style objections, I suppose, and I suspect they would mainly come from the right (though of course they might come from the left or the center as well).

A third objection I can imagine might be thought communitarian-reminiscent, but would perhaps be more apt to come unambiguously from the center or left. It would be that if the change I am contemplating came in apparent response to attempted ‘Defense of Marriage Act’-type manouevering, its social meaning would be tainted with a whiff of recognition-denial effectively vindicating contempt. (Dr. Nussbaum brought a related point out nicely in response to my question after her lecture.) Just when a long-subordinated group is poised to gain some public recognition of the dignity of unions formed within it, the objection would run, this proposal would allow the taking of it away from them through a taking of it from all – a sort of cutting off of the nose to spite the face.

I am of course sympathetic to these possible objections, especially the third. But because so much of modern life, especially in a pluralist polity, involves so much 'compartmentalization' already, it isn't altogether clear to me that simply disaggregating currently muddled 'marriage' into state domestic partnership and ecclesial marriage components reserved to their respective spheres would appreciably increase the degree to which we already fall short of 'seamlessness' in our 'modern' lives. It also seems to me that we could easily enough take measures to make clear that the disaggregation is meant to afford long-overdue and now unavoidable recognition to church/state separation in the realm of domestic relations, rather than to afford state sanction to bigotry. But again these thoughts are tentative.

Perhaps I can make these points less abstractly by reference to a respectful email message I recently received from someone I do not know. He charged me with holding a ‘watered down’ conception of civil marriage, and went on to write:

Civil marriage is an institution derived from the complementarity of the sexes that exists when one man and one woman commit themselves, before the community, to each other and the possibility of children. Because the institution is rooted in the community and serves as the basis of the family, it is an essential component of the common good. The State has legitimate, indeed compelling, interests in ensuring a stable legal and societal framework for the creation of healthy families, providing a suitable environment for the development of children and in promoting social investment in the community.

Here are my tentative reactions:

On the one hand, the points are well taken, at least in relation to where American society seems largely (though as I’ll observe in a moment far from universally) to have stood in times not all that distant. It feels so familiar, and even comforting, to read these words; for they seem to close a breach that we generally experience as members of cultural or religious groups on the one hand, and citizens of a vast, polyphonic and secular polity on another.

But one riposte I am tempted to make is that as a political society the U.S. simply no longer has (assuming it ever had) that form of ‘unity’ upon which is predicated any ‘community’ that can reasonably be expected to share a thick, non-watered-down conception of civil marriage, and it is hard to see how we might make things otherwise without subordinating fellow citizens and ignoring our own constitutional values. The man/woman complementarity and possibility-of-children understandings, for example, might be thought by some to exclude marriage between people too old to bear children, while permitting committed polygamy of the Biblical variety. Yet U.S. law seems never to have been less than friendly to marriage between people with no intention of bearing children, while also being markedly hostile to Biblical-style polygamy. (As Sally Gordon, who spoke here recently in connection with Steve Shiffrin’s new book about which Mike has here written, has very well documented.)

I remain a bit less than certain, then, that civil marriage in the U.S. ever has been other than either watered down or expressive of the sacramental conceptions of some (principally mainline Protestant) religious traditions, at the frequent expense of other, quite venerable religious and philosophic traditions. And so it’s not clear to me that it wouldn’t be both politically preferable, and truer to our constitutional values, simply to recognize that as a civil category marriage is no legitimately thicker, values-wise, than domestic partnership, while all additional thickness that marriage bears is supplied by the married parties themselves and the ethical, religious, or cultural meanings they elect to invoke.

It might just be that a contemporary, more even-handed American society that’s true to its constitution would be more aptly characterized less as a ‘community’ than as a sort of confederation of communities (a Rawlsian ‘union of social unions’?), each of which is founded upon an ecclesial or other ethical subculture which speaks to those matters of heart, mind and spirit that are often – but not exclusively – the province of our religious traditions. In such case that which would unite our multiple communities would be a shared core of values of mutual respect, with which values many differing views of sacramental marriage, but only a fairly thin view of civil union, might be consistent. We could ritualize civil events in a manner reflective of the august dignity of our polity of equals, perhaps along lines suggested by Rousseau in his advocacy of a sort of ‘civil religion.’ But this would have to be a liturgical rather than doctrinal ‘religion.’

On that Rousseauvian note, let me close with an anecdote, from which the title of this post derives. The anecdote for its part derives in a sense from a sequence of historical events inspired in part by Rousseau, and narrated in the Dickens novel on whose title I’m riffing with the title of this post: the French Revolution, which serves as backdrop to Dickens’s Tale of Two Cities.

By a strange quirk of fate, I’ve been in attendance at a large number of weddings in France. And as many of our readers will know, French weddings since monarchy’s end typically come in two parts: First there is a civil ceremony, where a minister of state wearing a business suit and an impressive red sash unites the couple for purposes of the state. Here’s a clip from a favorite film that affords some indication of the setting for a civil ceremony:



Then there is an ecclesial ceremony, where a minister (or ministers) of synagogue, church, mosque or what-have-you perform(s) the appointed ecclesial rites.

Now as it happens, one of the French weddings I have attended was for ecclesial purposes (sort of) an ‘interfaith’ wedding between one of my two oldest and closest friends, who is American and secularly Jewish, and his fiancee, who is French and more or less secularly Catholic. (Do not let it be thought that I hold any attitude about their being secular. The fact is relevant only to what I shall presently relate of the ecclesial ceremony, and I am quite certain, in case it’s of interest, that my wonderful friends stand much greater chance of entry into any next world than I do.)

Now the ecclesial wedding ceremony for my friends, at which I read, was a somewhat awkward affair in the sort of embarrassed half-heartedness with which Rabbi, Priest, bride, groom, and most of their families recited the appointed texts. Not even the great antiquity of the impressive cathedral quite managed to dissipate the feeling of ‘dry ritual’ that pervaded the affair. I found myself almost wishing my friends had composed their own ritual, as many other friends of mine have done with great care and beauty.

My friends’ civil ceremony, on the other hand, seemed much more dignified than the ecclesial, if for no other reason than that there was no ‘just going through the motions’ involved. (And the sash was very impressive!) For these two close friends of mine, it was their deep personal commitment, and the French state’s constitutionalization of equal respect for persons irrespective of ecclesial affiliation or background, that mattered most. And the civil ceremony, though not associated with any thick conception of marriage as distinguished from civil union, was accordingly rich and liturgically meaningful in its own right – much more so in this case, I thought, than the ecclesial ceremony, which felt simply vestigial. Moreover, had my friends both been women, or both men, it would have been identically dignified – as would any ecclesial ceremony, I reckon, in a faith tradition that recognized same-sex unions.

Intriguingly, my other oldest best friend, who also is American and (Reform) Jewish but is practicing, also took part in an interfaith wedding – just this past summer, with his practicing Episcopalian fiancee. This wedding was officiated jointly by my friend's Israeli Rabbi and his fiancee's mother, who is an Episcopal priest.

The earnestness with which all parties in this case approached their appointed tasks, and the eagerly, even anxiously helpful efforts each officiant made to explain the meanings and histories and traditions of all liturgical elements contributed by each to this beautifully thought-out, ‘custom made’ yet tradition-redolent ceremony, were profoundly moving. Godliness seemed to be present at this beautiful wedding with a fullness I've rarely experienced. The civil ceremony, by contrast, was altogether bureaucratic.

And there, perhaps, you have in a nutshell the difference between paired church/state marriage ceremonies in pluralistic America on the one hand, and once monistic France on the other! Why not combine the best of both by according august but minimalist meaning to the civil unions available to all citizens, and recognizing privately adopted, synthesized, or even fresh-formulated meanings assigned by the parties themselves to more sacramental marriages?

Bone Marrow Transplants and Abortion

Posted by Sherry Colb

In my column this week, located here, I discuss a case in which plaintiffs challenge the constitutionality of a federal criminal law that prohibits the provision of compensation to bone marrow donors.  I consider the arguments for prohibiting markets in various zones of life and how the general arguments fare in the particular context of bone marrow donation.

In this post, I want to consider a very different question that transplantion cases always raise in my mind:  what would it take for me to become "pro-life"?  That is, under what circumstances would I be persuaded that the law would appropriately intervene forcibly in a woman's decision about whether or not to continue a pregnancy.

I would define "pro-life" for purposes of this reflection as agreeing with the proposition that at some stage of pregnancy (which might not be conception, even though the current pro-life movement in the United States has selected that stage), the right of the embryo or fetus to continue living trumps the right of the pregnant woman to stop being pregnant, that is, to remove the embryo or fetus from inside her body.  For a nonviable fetus, of course, removal will result in death, but the right of abortion is -- in my view -- primarily a right to bodily integrity rather than a right to kill the fetus (and therefore would not extend to a fetus in an incubator).

My first reaction to the question (which I have, on occasion, encountered) is to say that so long as the embryo or fetus is not sentient, I do not believe that its right to continue living should trump the pregnant woman's right to stop being pregnant.  We do not currently know precisely when a fetus begins to experience sensations, but at a point prior to that, I am convinced that a woman should have complete autonomy to decide how to proceed.

But what about after sentience?  At this point, I share the belief of many that abortion becomes morally difficult.  That is, an abortion in the first few weeks is qualitatively distinct from an abortion in the later stages of pregnancy.  Once a fetus is sentient, remaining pregnant becomes less like creating a new person and more like providing life-support to one that already exists.  In other words, to remain pregnant becomes like tissue donation, in which one's body is used to give life-saving assistance to another.

When the being inside a woman is sentient already, a legal requirement that she remain pregnant is, in my view, tolerable only if every person who needs blood or tissue donation has legally protected access to such materials too, just as the fetus does.  Stated differently, a fetus should not have the right to use a woman for life support unless everyone (not only women and not only pregnant women) are "on deck" to provide biologically invasive life-support if needed as well.

Such a world would mean that we would not need to have a debate about compensating bone marrow donors (or donors of organs after death).  Availability for such donation would be mandatory and uncompensated.  Whenever anyone needed blood, bone marrow, or another renewable bodily tissue, for example, the next biologically compatible person on the list (with an exclusion for the currently pregnant) would be contacted, screened, and made to donate.

Would such a society be a desirable one in which to live?  For many, the answer is obviously no.  If a person is healthy and happy, he probably prefers not to be "on call" in this way for sick people.  Indeed, it seems, many people oppose even the minimal "on call" feature of mandatory health insurance, in which the healthy must contribute to the pool of money available to care for those who are or do become sick.  A mandatory tissue donation system smacks of totalitarian socialism, in which what is yours presumptively belongs to the collective, and the collective can confiscate it at will and through violence, if necessary.

In such a society, it would seem to me acceptable (to the extent that any of it is acceptable) to require women to carry pregnancies to term after a fetus becomes sentient, if the woman's life or health is not in danger (just as only tissue but not organ donation is part of the system I describe above).  Such a system is, of course, utterly alien to our current law, which -- rather than compelling marrow donation -- impedes patients' access to willing donors who want to be compensated for their trouble.  The only context in which prohibitions against abortion would be something other than a denial of equality, then, would be a context in which everyone -- not just fertile women who become pregnant -- is a vehicle through which the collective preserves existing lives, by force, if necessary.

Funding Abortions, Wars and Churches

By Mike Dorf

Now that the House has approved the Stupak Amendment--which forbids health insurance plans that will receive federal funding under the reformed American health care system from covering abortions--it's worth reflecting on why, exactly, this sort of legislative provision is considered permissible even by an otherwise (mostly) pro-choice country.  The core of the argument goes like this: The law permits abortion on grounds of personal choice, but many people regard abortion as immoral, and they should not be made to subsidize conduct they regard as immoral.  That is, more or less, the principle on which rest the Supreme Court decisions allowing rather severe restrictions on government funding for abortion.  And it is also the principle one typically hears in public debate.

To be sure, the principle is often invoked by people who would go much further.  Most of the legislators who oppose government funding of abortion would also favor making abortion illegal were constitutional doctrine not (currently) an obstacle to that approach.  Congressman Stupak himself, for example, is "pro-life" rather than "pro-choice-but-anti-subsidization."  But let's put that point aside.  It is possible to think that some activities ought to be a matter of choice but that others shouldn't have to subsidize them.  The government cannot forbid bumper stickers proclaiming that "smoking is cool," but it can choose to subsidize anti-smoking rather than pro-smoking speech. And quite rightly so.

Is selective subsidization a compelling principle of politics more generally?  Maybe not.  Certainly there is no general rule that the government may not spend money on anything that a substantial number of people oppose.  Quakers are required to pay taxes that support wars.  Vegans are required to pay taxes that subsidize factory farming.  And so on.  Of course, in these cases, the majority thinks that the subsidy does not go to immoral activity, regarding wars as (at least sometimes) justified and animal agriculture as morally neutral to beneficial.  In the case of abortion, what does the majority of the House think?  As noted in the previous paragraph, I suspect that most of the House members who voted for the Stupak Amendment think abortion is immoral.  I also suspect that at least some of the supporters think that, whatever the right choice of any particular woman deciding whether to have an abortion, people who are morally opposed to abortion shouldn't have to support it, but because of the impracticality of rebating tax funds to abortion opponents only, the government simply shouldn't subsidize abortion at all.

But if that is the middle ground here--between legal abortion with government funding and illegal abortion--then there is a substantial difficulty: We do not ordinarily regard everything that recipients of public funds do with those funds as implicating the public in their conduct.  The Supreme Court's Establishment Clause jurisprudence is noteworthy in this regard.  Although the government could not appropriate funds directly to subsidize various sectarian activities, in a variety of contexts, the Court has upheld programs that appropriate general funds which individuals can then choose to use for partly religious purposes.  This principle is sound, and was unanimously adopted by liberals and conservatives alike in the Witters case in 1986--holding that there was no Establishment Clause violation when a blind student sought to use vocational services at a sectarian Bible College for ministerial training.  Later cases exposed rifts over the extent and scope of the principle but its core is easy to defend: The student, not the government, directed funds to the Bible College.

Likewise with respect to health care, there would seem to be a substantial difference between, on one hand, direct government funding of stand-alone abortion clinics, and, on the other hand, government's failure to re-write health insurance policies of all persons who receive any government subsidy so as to remove abortion coverage from those policies. The Stupak Amendment takes aim at the latter sort of subsidy.  It treats a private choice to have an abortion that is covered largely out of the woman's premiums to her insurer as implicating all taxpayers, no matter how small the government subsidy is relative to those premiums.  That looks a lot like, to use a much-abused phrase, a government takeover of health care.