ReligiousLeftLaw.com

Five Constitutional Controversies, Five Judicial Opinions

The five constitutional controversies addressed by Justice Nemo in a paper just posted to SSRN (here) concern matters of interest to some RLL readers, including capital punishment, same-sex marriage, physician-assisted suicide, and abortion.  Here's the abstract:

In this paper, I address five controversies — controversies concerning constitutional rights — that have arisen under the constitutional law of the United States: the controversies concerning, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion. My discussion of each controversy takes the form of an opinion drafted by an imaginary justice of the Supreme Court of the United States, Justice Nemo. The five opinions by Justice Nemo serve to illustrate the implications, for the five controversies, of the theory of judicial review elaborated and defended in a paper I posted to SSRN last month: Michael J. Perry, "A Theory of Judicial Review" (2016), http://ssrn.com/abstract=2624978.

That is, Justice Nemo’s five opinions serve that illustrative function if they are truly faithful to that theory of judicial review, to which Justice Nemo professes to be committed. Are they? Justice Nemo is not always explicit in her opinions about her judicial philosophy; she nonetheless wants to draft opinions that align with her philosophy. A question to ask, then, about each of her five opinions: Has Justice Nemo succeeded in drafting an opinion faithful to the theory of judicial review to which she professes to be committed?

This paper is drawn from my new book, which will be published early next year by Cambridge University Press:  A Global Political Morality:  Human Rights, Democracy, and Constitutionalism.

When Bernie Met Francis

Vermont Senator Bernie Sanders took time off from the campaign trail on April 15 to address the Pontifical Academy of Social Sciences, a kind of think tank located at the Vatican.

How to describe the address? It will likely have little direct impact on this year’s presidential cycle. From a purely practical, tactical vantage point, Senator Sanders might have better spent his time in Albany, or Buffalo, given the impending New York primary.

Still, it is possible that we shall look back on this speech a few years hence and see within it a turning point in American political thought. For what Senator Sanders has done is return to an old source of inspiration for progressive politics and that is the social teaching of the Catholic Church.

Bernie Sanders quite properly began his speech with a nod to Pope Leo XIII’s encyclical of 1891, Rerum Novarum. That encyclical was issued in a moment of crisis for western economies. Unrestrained capitalism had wreaked untold damage on Europe and the United States. There was fear of revolution. The Pope spoke urgently of the need to find “some opportune remedy . . . for the misery and wretchedness pressing so unjustly on the majority of the working class.” With the rise of laissez faire economics, Leo went on, traditional legal restraints on capital were removed and so “by degrees it has come to pass that working men have been surrendered, isolated and helpless, to the hard-heartedness of employers and the greed of unchecked competition.”

No wonder Bernie Sanders looked to Rerum Novarum for inspiration. In many parts of the world, including the United States, we are witnessing a return to the conditions Pope Leo denounced at the end of the nineteenth century. Thus Senator Sanders, speaking at the Vatican, sounded a theme drawn straight from Rerum Novarum: “The widening gaps between the rich and the poor, the desperation of the marginalized, the power of corporations over politics, is not a phenomenon of the United States alone. The excesses of the global economy have caused even more damage in the developing countries.”

But Senator Sanders also turned to more recent papal teaching. He noted properly that Pope John Paul II in Centesimus Annus, issued in 1991, called on governments to ensure wages sufficient not only for subsistence but sufficient to support a family and even ensure some savings. And Senator Sanders eloquently endorsed Pope Francis’ description of the modern human condition: The globalization of indifference.” Emulating the Pope, Sanders pledged “to fight the economic juggernaut” and to reestablish “boundaries” around “the market economy.”

So what makes Sanders’ speech special? There is a remarkable convergence between Sanders’ criticism of the rapacity of today’s global marketplace and Pope Francis’. This should not in itself be surprising.

Beyond this convergence, however, the speech is important because of the possibility that today’s progressive movement might once again draw intellectual sustenance from Catholic social thought. From the 1930’s to the 1980’s, this was a matter of routine. And so I might recommend that progressives take a look at the Catholic Church’s teaching on the role of the state in ensuring economic justice.

And again, we might begin with Pope Leo, who charged the state with important functions: it must ensure that workers have regular days off and that working conditions be regulated so as to prevent injury to workers. Labor unions should be encouraged and child labor deterred if not abolished altogether.

These were responsibilities that Pope Leo placed on the state, as the ultimate guarantor of the common good. The assurance of “peace” and “good order” were among the chief duties of the state, and Leo drew from these requirements the affirmative obligation that the state must guard against class oppression (para. 36).

St. John XXIII, in his encyclical Mater et Magistra, published in 1961, developed the ideas found in Leo’s encyclical. The purpose of the state, this holy Pope wrote, is “the realization of the common good in the temporal order” (para. 20). The state must “do all in its power to promote the production of a sufficient supply of material goods.” The state must “protect the rights of all its people and particularly of its weaker members.” Taxation must be fair and just, John XXIII wrote. Education must be made available and accessible. The state must not take the place of individual initiative, St. John XXIII continued, but it must “augment . . . freedom.” John XXIII well recognized that true freedom is not lived in opposition to the state, but rather with the state ensuring the prerequisites for real human flourishing.

John Paul II, some neo-conservative commentators notwithstanding, stood firmly within this tradition in his encyclical Centesimus Annus. John Paul II endorsed the “natural human right” to form associations, including labor unions. The state, John Paul insisted, must ensure the implementation of this basic associational right. The state must also make certain that just wages are paid, and see to the protection of “the defenseless and the poor.”

I could go on, but I think the point is made. One of the most important contributions that Catholic social thought can make to today’s progressive politics is a theory of the state as guarantor of a just and fair economic playing field. Bernie Sanders and others would be well-advised to draw deeply from this tradition.

In doing so, they would find themselves at odds with the last three-plus decades of political discourse, which has been all about de-legitimizing the state. When Ronald Reagan said in 1981 that “government is the problem, not the solution,” he likely did not believe it himself. But his rhetoric was careless. And surely it stands behind much of the reckless talk and dangerous politics emanating from Donald Trump, Ted Cruz, the Tea Party fanatics, and the Ayn Rand libertarian right.

What progressives must do, in other words, is confront this toxic legacy and reinvigorate the place of the state in American politics. The state serves the common good. Only if we make that case, can we make the further case that the state should protect the panoply of economic rights that we have been talking about — from the right to organize, to the right to a living wage, to the right to enjoy a just division of the goods and material resources of society. Catholic social thought, with its robust theory of the state and its strong conception of justice, provides a rich font of ideas and progressives would be do well to consult it.

Cross-posted from: When Bernie Met Francis

Why I Will Vote for Sanders in the New York Primary

I rarely have trouble determining who to vote for, but deciding between Clinton and Sanders in the New York primary has not been easy for me. For a long time, I supported Clinton. I thought Sanders was helping the cause of the left by moving her to the left, but that he could not accomplish his goals with a Republican House. I thought she was smart, generally Progressive, more qualified, more likely to get things done, unfairly vilified, and I believed it was past time that a woman be elected President of the United States.

I still think all of that, but I am voting for Sanders. The easy reason is that Clinton will win New York, and votes for Sanders will send a message that the heart of the party is and should be moving to the left. But there is more. At the moment, the polls show that either of them would beat Donald Trump, but Sanders does better against all of the Republican candidates. Clinton has been unfairly vilified, but she is widely regarded as untrustworthy. I do not think Sanders is as authentic as his image, and I doubt he is a warm and cuddly nice guy. But he is less calculating than Clinton.

I admired his willingness to support Israel while attacking its failure in important contexts to respect the rights of Palestinians. Clinton’s reaction sounded as if it was scripted by right wing Israelis and designed to retain AIPAC dollars. Clinton’s position on fracking shows that she is tone deaf to environmental needs or responsive to campaign contributors.  And Clinton is a hawk on foreign policy.

Sanders views are my views; he has the best chance of winning in the general election; and I am grateful for his political courage. Nonetheless, his failure to get the nomination (which seems likely to me) may be a good thing for those of us who support his views. It seems clear that he would not run for a second term (he would be 78 – it would be awfully helpful to know who his Vice President would be). If he were elected, he could not possibly achieve his major goals and millions of people would be dissilutioned. There is a case to be made for the view that a person of Sanders’ views should be elected only when the House and the Senate are controlled by Democrats. Better to have a person on the left when much can be achieved. On the other hand, electable presidential candidate on the left are a rare commodity. And it is possible that Sanders would do a better job than Clinton of using the Presidency as a bully pulpit to create a political revolution against the Republican House.

Sanders is right. The system is corrupt. It was corrupt before Citizens United. Corruption triggers a backlash. His candidacy is a product of that backlash, and the forces that have made him a popular candidate will not go away.

Religious Freedom and the Contraception Mandate: The Court's New Order

The cases involving religious freedom and the contraception mandate took an interesting turn last week. Aside from arguments about a perceived lack of justification for exempting some groups and not others from the mandate, the main arguments of the religious employer claimants were that if government required the insurance companies selected by the employers to provide contraceptives over the employers’ objection, this would constitute a high jacking of the employer’s insurance program and would make the employer complicit with the provision of contraceptives. This is a rather extravagant view of moral complicity particularly given the public moral objection to its provision. It is at odds with standard Catholic teaching on moral complicity as the discussion by Cathleen Kaveny makes clear (cited by Michael Perry on this site here). The claim of the Little Sisters of the Poor might be more attractively stated if it argued that it had religious objections to associating with companies that offer protection for contraceptives. Even so, this contention would not fit with Catholic teaching. I also wonder whether the Little Sisters of the Poor actually refuse to associate with companies that engage in sin from the Catholic perspective. For example, are the companies in its pension plans squeaky clean? Its suppliers? Admittedly, the government conceded sincerity, but I wonder if legitimate questions could be raised about their practices from their own perspective.

The Little Sisters and other litigants also objected to the notice required by the government. The government required that the litigants inform the government that they objected to providing contraceptives and that they include the names of the insurance companies. At oral argument, counsel for the Little Sisters said they were not objecting to the objection requirement, they were objecting to naming the insurance company. I can see how the latter raises complicity concerns on their part. Their naming of the insurance company helps the government enforce the contraception mandate.

So here came the interesting turn last week, a turn that has been discussed from many perspectives including that of my colleague Michael Dorf here. The Court asked for briefing on the question whether contraceptives could be provided to employees through the employer’s insurance with no notice to the government, but with communication by the employer to the insurance company that it did not want the plan to cover contraceptives because it objected on religious grounds. Reading through the lines, it appears that the Court will not accept the high jacking argument, but is at least sensitive to the claim that an employer should not have to tell the government who its insurance company is. To me, assuming the high jacking issue is off the table, it is not clear to me why the Little Sisters need to be legally obliged to provide notice. I am no expert on the workings of this, but it seems that if institutions like Little Sisters say nothing to anyone, the insurance company will be obliged under the mandate to provide contraception insurance. If Little Sisters wants to distance themselves from the coverage, they would have to tell the insurance company. No government regulation is needed except to make sure that when objections are made that the insurance company is required to provide contraception coverage.

I do not know if current regulations would yet pose such an obligation on insurance companies with no notice requirements or new notice requirement.  If they are not in place, and if Hobby Lobby is followed on this point, women will be denied coverage until a new regulation is in place. Justice Alito claimed in Hobby Lobby that there would be zero effect on women. Because of the time lag for new regulations, this assurance was betrayed. Hopefully, that will not happen here.

Katrina, Climate Justice and Fish Dinners: Social Justice Lawyer Colette Pichon Battle

Colette Pichon Battle gave up a great job working as a corporate immigration lawyer in Washington DC to live in a tent in front of her flooded family home 50 miles from downtown New Orleans.  She is now a much honored director of a small but powerful non-profit climate justice human rights firm advocating all along the Gulf Coast.  Why the big change in her life?  Katrina, climate justice and fish dinners.

Bayou Vincent

Pichon Battle’s extensive South Louisiana French Creole Catholic family live in Slidell along Bayou Vincent, which connects directly to Lake Ponchartrain.  Free people of color, on her mother’s side, who have lived there since the 1700s they can trace their roots back to France.  Many in the community still spoke French when she was growing up.  Their roots include people from the Chocktaw Nation.  In the past they farmed tiny plots, fished and trapped, and later became master carpenters and craftsmen.  Her grandfather actually built the home she and her mom grew up in.   

Pichon Battle always knew she was going to become a lawyer.  “I was known as Coco in my family and Coco was always going to be a lawyer,” she said.  A family reunion questionnaire asked 8 year old Coco what she wanted to be when she grew up and her response was a lawyer!  Her interest in becoming a lawyer was fueled by reading about Thurgood Marshall and watching Clair Huxtable.

Mom was her biggest inspiration.  Mom attended segregated public schools before graduating from Southern University at New Orleans.  Mom was one of the first African Americans in the Peace Corps where she spent years teaching in Morocco.   As a French teacher, she took students to France nearly every year.  “She wanted us to understand the world is bigger than the bayou and to be proud of our African and French heritage.” Dad played football for Southern University, the New Orleans Saints and the Cleveland Browns.  His family roots include members of the Caddo Tribe.

Colette Pichon Battle attended a majority white public high school, where she excelled academically and athletically.  There were plenty of racial tensions inside and outside her school.  Racial profiling was common, as was over policing and racial violence.  She played sports year round and her volleyball team were state champs.  She was one of few blacks in honors programs and was homecoming queen senior year.   She was able to maneuver the various race worlds but it was hard.

Going to college was never the question.  Where she was going was left up to her.  The family had no money for college so she had to get a scholarship.  She wanted to leave the race problems of the South so she applied all over, even Alaska, and won a great scholarship to attend Kenyon College in Ohio.  “I wanted to get away from the race tensions.  I thought if I left the South they would go away.  Little did I know!”

Though the scholarship paid for her schooling, she still needed to get there and back.  Her extended family stepped up and put on fish dinners to pay for her airfare to and from Ohio.  Pichon Battle did work study all four years and other side jobs for spending money.  It was challenging.  “You have to compete with the best even while most of your time is spent working.”

Kenyon was smaller than her high school and there were even fewer black students.  She majored in international studies and world religions.  There she was exposed to human rights coursework.  It was tough academically at first because most of the students had attended much more academically rigorous private high schools, but she found her way and succeeded.  She played volleyball for a couple of years. 

Africa

Now interested in becoming an international human rights lawyer, maybe becoming a prosecutor at The International Court of Justice at the Hague, Pichon Battle’s international studies took her for a transformative semester of study in Morocco. 

In Rabat, Morocco, she was assigned to live with a local family, who was delighted they got the “black girl.” “I was excited by that.  It was the breath I needed at that time.”  The language was French so she spoke a lot of French, and studied Arabic, religion and anthropology.  “Walking in the streets every day surrounded by brown people was terrific! For the first time in my life I was surrounded by people who looked like me,” said Pichon Battle.  “For the first time I blended in the majority culture.  For the first time in my life I did not always have to represent black people! I was invisible until I opened my mouth.  It never occurred to me what it was like to be in the majority.”

“I studied women in Moroccan politics.  I was prepared to be very righteous based on how Africa or Islam is presented to us in US culture.  But I found great similarities between the challenges for women in Morocco and the US.   My view of the world changed.”

She returned to Kenyon for her senior year where she was elected class president and graduated in 1997. 

During senior year she was awarded a post-graduate Thomas J. Watson Fellowship to spend a year in Africa.   So she returned to study a full year in Africa.  She lived and studied in Mauritania, Morocco and Senegal studying religious culture and practices in North and West Africa.  “I stopped and studied people and rituals.  I was even in full veil for three months in the desert. It was beautiful.”

Becoming a Lawyer

While in Africa, Pichon Battle applied to and was admitted by a number of Louisiana law schools.  Her mom suggested that if she wanted to be well rounded person she should consider a historically black institution.  Southern University Law Center gave her the most generous scholarship offer so she went there.  It was a tough three years.  She found it a vivid contrast to the private white well-resourced Kenyon College but she again did well.  She learned the law while she worked two jobs, one at the library and in a women’s clothing store in the mall.  She graduated in 2002.   When it was time for the Louisiana bar, her family put on more fish dinners to pay the fees and costs. 

Her first job after completing law school was in immigration for a private Florida law firm defending Haitian immigrants and trafficked Eastern European women.  Later, she moved to DC and worked in Baltimore as a program director in an entrepreneurship program for minority and immigrant women.

Pichon Battle always wanted to live in Washington DC.   “I had the romantic idea that DC was where black dreams come true.  Every black professional that I knew who made it out of our area ended up in Washington DC.  I wanted to be a black intellectual there.”  She got her chance in 2004 when she joined a Northern Virginia law firm that did business immigration work for high profile internet and tech companies.  “I had a good boss and was on a good team.  We worked hard on labor certifications and all kinds of visas for the US and other countries around the globe.”  She enjoyed living and working there and was learning a lot.

Katrina

Then in August of 2005, Katrina hit the Gulf Coast.

In DC, she watched with horror as her home town was hit with storm surges of twenty feet totally flooding the town. 

She started hearing from family members.  “I got text messages about people being cut out of their roofs and others spending eight hours in water. Some held onto trees until the water receded. Some could not hold on,” she recalled.

Pichon Battle immediately started organizing help for her family, her community, and for people in the four states hammered by the hurricane.  She organized food drives and recruited volunteers from churches and colleges to go help people gut their homes.

When she returned home after the hurricane, Pichon Battle went to see her childhood home, the home her grandfather built.  “The 1930s shotgun-style house remained on its foundation, but barely.  It sat eerily amid an acre and a half of downed trees. Its wood siding was warped and covered in mud and its tin roof was peeling off. The air inside smelled damp and foul, and a giant X on the front door meant that the military had searched the premises for survivors.”  "I was raised in this house, the same house my mother was born in.  There it was, gutted by the storm."

“When I came back people said “Oh great Coco is home, maybe she can help us with all these papers.”  I did not know disasters generated so much paper.  And when I looked at the papers I could tell they were written by lawyers.  People were being asked, in the middle of trauma, to sign away rights and legal documents on property and your land that are going to have ramifications for generations.   They needed help reading and understanding the papers.  People knew I could read because as a child, I would go to church before 6 o’clock mass and read the newspaper to the elderly.  There are few lawyers in my community.  I am the only woman lawyer in generations from our community. 

Not enough was being done.  “Whoever was in charge was not taking care of people that looked like me,” she remembers.  She wanted to represent her community and fight against the apparent lack of concern for her neighbors and the French Creole community that had supported her from childhood. “I’d heard about volunteers discriminating against the elderly and African Americans, I was getting reports about police brutality, I had seen my family go through the ridiculous FEMA processes.”

Her Bayou Vincent community needed assistance not only with complex legal issues but also with everyday tasks that a D.C. lawyer would take for granted. She organized a conference call between people who had been displaced from Bayou Vincent, people who still had no idea of their family and community members’ whereabouts. The call opened with older members of the community praying in Creole French, something that many younger Bayou Vincent natives had not heard. Parents and frail elders were finally put in touch with their children. “They began to thank me and cry. It was just setting up a conference call. . . . It was then I knew that the community that had bought fish dinners to send me to college and law school now needed me to bring back the things I had learned.”

“They invested in me and in my education and my ability to connect to the rest of the world.  I felt a loving obligation to come home and help.”

“My biggest heartbreak was watching my community be silenced.  People were powerless over important parts of their lives.  It dawned on me, I am part of the legal system which is being used as a tool of oppression and a barrier stopping people from progressing to another level.  I believe in this system and I believe we have to change it.” 

Moving Back Home

So in 2006, Pichon Battle moved back home to help out for a while.  For the first two months, she lived in a tent on the front lawn of her family home.  Then she moved into her family’s 240 square foot FEMA trailer in Slidell.  She started a non-profit law firm, Moving Forward Gulf Coast, dedicated to informing people about their rights and helping them protect them.  That trailer was her home for the next 24 months. 

Moving Forward Gulf Coast provided direct disaster assistance, community development and community advocacy in Alabama, Mississippi and Louisiana.   They worked with African American, immigrant and elderly populations on voting rights, renter’s rights, immigration and FEMA appeals in addition to coordinating direct services in house gutting and rebuilding.

Pichon Battle was still living in that trailer when she was recognized by the American Bar Association in 2006 as one of the “Lawyers Who Made a Difference.”   When the ABA asked what kept her going, Pichon Battle replied that she felt a duty to fight, despite the uncertainty whether she was actually getting people the assistance they need and deserve.  Access to justice in the post-Katrina Gulf Coast did not always mean getting people lawyers and filing motions in court. “Every day that I wake up, I realize that this battle is almost impossible to win,” she said about her work at Moving Forward Gulf Coast. While some lawyers fought for the government to remedy violations of storm victims’ rights, Pichon Battle took the first step of educating citizens of their rights as storm victims. She advised that in her new line of work, “success is measured in thank-you cards and 7 a.m. visits at my FEMA trailer with people from my community, who are known to not trust anyone, trusting me to handle their affairs.”

In 2006 and 2007, Pichon Battle helped train and place law student volunteers as one of the steering committee of the Match Makers for Justice Program of the Student Hurricane Network. 

Her work took her across Texas, Louisiana, Mississippi and Alabama as Program Director of the Gulf Coast Fellowship for Community Transformation which trained community members and groups across the Gulf in organizing, advocacy, and leadership.  She worked with many groups including Oxfam, the Deep South Center for Environmental Justice, and other organizations.   For Oxfam, she did policy lobbying in Louisiana and Mississippi and helped communities develop multi-racial, cross regional campaigns for low-wage workers and immigrants.  

Pichon Battle continued her Katrina work for five years, always planning to return to DC. 

BP Oil Spill April 20, 2010

 “Five years after Katrina, I was ready to move back to DC.  But then the BP disaster happened.  I knew Katrina was a government responsibility but BP was going to be a legal fight.  I knew this meant triple the amount of paperwork to the same communities that were just recovering from Katrina.  That was the moment I decided to stay.

“It dawned on me that we are going to keep having these storms because the climate was changing and they are going to keep extracting oil and gas and from deeper and more dangerous places so these things are going to keep happening.”

Now Director of Gulf Coast Center for Law and Policy (GCCLP), a nonprofit public interest law firm and justice center, Pichon Battle is still living in her community.  GCCLP has a mission to build, serve, and advocate for structural shifts that promote equity for Gulf Coast communities on the frontlines of climate change. Through human rights-based legal services, community training, local leadership development, and grassroots advocacy, GCCLP works to create structural balance in policies and practices that produce disparate impacts on communities of color.  The organization contributes a southern perspective on issues that have national impact and global influence. 

The focus is climate justice for the most overlooked coastal communities across the Gulf: rural communities; African American communities; Native American communities; Latino and Vietnamese communities; women and young adults.   

Over the years, her extraordinary advocacy was recognized repeatedly.  In 2012 she was named an “Expert of Color” by the Insight Center for Community Economic Development on issues that surround the U.S. racial wealth divide for her training in climate justice for Louisiana officials of color.   In 2014 Colette was selected for the Young Climate Justice National Fellowship based on her work with coastal communities of color.  In 2015, she addressed Law for Black Lives convening in NYC.  She was awarded US Human Rights Movement Builders Award in 2015.  And also in 2015 she was named an Echoing Green Climate Fellow for her work promoting “equity in Gulf Coast communities of color most affected by climate change by providing community stabilizing legal services and ecological equity training and support for civic participation.”

Pichon Battle also serves a lead coordinator for Gulf South Rising, a regional initiative around climate justice in the South.  “The Seas Are Rising and So Are We!”  They organized community events in five Gulf States on the fifth anniversary of the BP oil spill and on the 10^th anniversary of Katrina.  "Front line communities are standing up to say it's time to tell the truth, it's time to pay up," she said of BP.  On the 10 year anniversary of Katrina, Pichon Battle cautioned against slapping too happy a face on New Orleans, saying "rebuilding since the storm favors privileged private enterprise and this illusion of recovery is not progress."

Gulf South Rising organized a 33 person delegation to go to Paris to participate in the United Nations Framework Convention on Climate Change in late 2015.  Delegation participants came from the Gulf States of Texas, Louisiana, Mississippi, Alabama and Florida.   “Our hope,” said Pichon Battle, “is that leaders of Gulf South recognize they have not only remedies within the U.S. legal system and justice system, but ... internationally.  We’re part of a global South dealing with impacts of extraction. We need to broaden our viewpoint.”

Her organization provides community legal clinics which share legal assistance in areas such as immigration, business development, expungements, FEMA, BP damages issues, and DACA (Deferred Action for Childhood Arrivals).  She puts on trainings in racial justice and human rights for local elected black officials and school boards.  She recently partnered with the Alabama Coalition for Immigrant Justice to put on a DACA clinic in rural Alabama that attracted over 250 agricultural workers.  She does combination expungement and DACA clinics with the Vietnamese community partners like VAYLA.

Her theory of change is that “justice seekers must first be of service to the most rejected of our society.  Then we can help develop leaders.  Then we can help them develop strategies.  Then support their actions to bring about better policies and laws.  We need to help people take their power back.  Helping them do that is not charity.”

Pichon Battle admits to being challenged by the constant search for funding.  The contrast from private firm work to non-profit was dramatic.   “You have to do the same services but you have no support staff, no up to the minute software, no resources, no real library of up to date books!”  The organization asks people who can to pay a little bit for some of their services.  She maintains a small private practice that helps fund part of the organization.  But running a non-profit is tough.  “Begging for money is horrendous.  It is a terrible thing to have to beg for your life.  Fundraising with grants has tremendous challenges if you are not part of the usual groups funded.” 

Despite the challenges, the work still satisfies. “I do this work because of calls like the one I got last night.  A person from the Houma Nation called me up.  He had a child in jail and the Chief told him to call Coco.  The Chief told him to trust what Coco said.  We discussed what was going on and I gave him my advice.  Then, as the call was ending, the man told me he loved me.”

All this is stressful.  “I didn’t really plan to live in the non-profit world.   I have a lot of work to do in order to live a more balanced life.  When I can, I swim.  I love to laugh.  I love to be with other people.  I make friends easily.  Everyone will tell you I am very social person, the best bar buddy anyone could ask for!  My community is my family and my close friends include many other great women across the south.”

Her advice to law students?  “One, it is never too late to start the work of justice.  Two, everything you have been through is helpful to where you are going.  Three, have courage.  Four, understand that winning cases is not the same as getting justice for people.  Five, start in your own community.  I always thought I would end up going to Africa to help people, but Katrina showed me I have to focus on my own community.  Six, watch out for privilege in the social justice community.  If there is no accountability to the communities we serve, it builds resentment instead of alliance.  Seven, love the legal system, it is fantastic.  For all its flaws it is a good profession.  But make sure to love it enough to change it to make it fair!” 

Conclusion

Pichon Battle is standing up for and with her community in the fight for climate justice.  “I come from a strong line of south Louisiana women who love the land and the water and the birds and the sky and the trees.  We understand our entire existence requires a balance on this earth.  I’d like to make sure that legacy is there when I’m gone.

J.S. Mill, John Rawls, and G.A. Cohen: The Contingent Nature of Capitalist Incentives

Sierra Leone’s government welcomes the 165 Cuban health-care workers who came to fight Ebola. (Glenna Gordon for The Wall Street Journal)

“While we repudiated with the greatest energy that tyranny of society over the individual which most Socialistic systems are supposed to involve, we yet looked forward to a time when society will no longer be divided into the idle and the industrious; when the rule that they who do not work shall not eat, will be applied not to paupers only, but impartially to all; when the division of the produce of labour, instead of depending, as in so great a degree it now does, on the accident of birth, will be made by concert on an acknowledged principle of justice; and when it will no longer either be, or be thought to be, impossible for human beings to exert themselves strenuously in procuring benefits which are not to be exclusively their own, but to be shared with the society they belong to. The social problem of the future we considered to be, how to unite the greatest individual liberty of action, with a common ownership in the raw material of the globe, and an equal participation of all in the benefits of combined labour. We had not the presumption to suppose that we could already foresee, by what precise form of institutions these objects could most effectually be attained, or at how near or how distant a period they would become practicable. We saw clearly that to render any such social transformation either possible or desirable, an equivalent change of character must take place both in the uncultivated herd who now compose the labouring masses, and in the immense majority of their employers. Both these classes must learn by practice to labour and combine for generous, or at all events for public and social purposes, and not, as hitherto, solely for narrowly interested ones. But the capacity to do this has always existed in mankind, and is not, nor is ever likely to be, extinct. Education, habit, and the cultivation of the sentiments, will make a common man dig or weave for his country, as readily as fight for his country. True enough, it is only by slow degrees, and a system of culture prolonged through successive generations, that men in general can be brought up to this point. But the hindrance is not in the essential constitution of human nature. Interest in the common good is at present so weak a motive in the generality not because it can never be otherwise, but because the mind is not accustomed to dwell on it as it dwells from morning till night on things which tend only to personal advantage. When called into activity, as only self-interest now is, by the daily course of life, and spurred from behind by the love of distinction and the fear of shame, it is capable of producing, even in common men, the most strenuous exertions as well as the most heroic sacrifices. The deep-rooted selfishness which forms the general character of the existing state of society, is so deeply rooted, only because the whole course of existing institutions tends to foster it; and modern institutions in some respects more than ancient, since the occasions on which the individual is called on to do anything for the public without receiving its pay, are far less frequent in modern life, than the smaller commonwealths of antiquity. These considerations did not make us overlook the folly of premature attempts to dispense with the inducements of private interest in social affairs, while no substitute for them has been or can be provided: but we regarded all existing institutions and social arrangements as being (in a phrase I once heard from Austin) ‘merely provisional,’ and we welcomed with the greatest pleasure and interest all socialistic experiments by select individuals (such as the Co-operative Societies), which, whether they succeeded or failed, could not but operate as a most useful education of those who took part in them, by cultivating their capacity of acting upon motives pointing directly to the general good, or making them aware of the defects which render them and others incapable of doing so.”

—From John Stuart Mill’s Autobiography (1873). Part of this passage was quoted at the end of G.A. Cohen’s chapter on “The Incentives Argument,” in his book, Rescuing Justice and Equality (Harvard University Press, 2008). I was reading afresh the section on the “lax” and “strict” interpretations of Rawls’s “difference principle,”[1] which has to do with the incentives of market-maximizing “high fliers” (like doctors in the U.S., say, in contrast with Cuban doctors, a salient comparison highlighted by the fact that Cuba provides ‘more medical personnel to the developing world than all the G8 countries combined’[2]). As Cohen writes in the conclusion to his chapter, “Rawls’s lax application of his difference principle [which is nonetheless justified in some policy contexts] means ‘giving to those who have.’ He presents the incentive policy as a feature of the just society, whereas it is in fact, and as Mill says, just ‘highly expedient’ in society as we know it, a sober ‘compromise with the selfish type of character’ formed by capitalism. Philosophers in search of justice should not be content with an expedient compromise. To call expediency justice goes against the regeneration to which Mill looked forward at the end of this fine passage.” In other words: “high fliers would forgo incentives properly so-called in a full compliance society governed by the difference principle [i.e., on a strict reading thereof] and characterized by fraternity and universal dignity.”

Cuban doctor in Haiti

Notes:

[1] In one of its formulations, the principle states “that inequalities are just if and only if they are necessary to make the worst off people in society better than they would otherwise be.” Cohen “disagree[s] sharply with Rawls on the matter of which inequalities pass the test for justifying inequality it sets and, therefore, about how much inequality passes the test.” The kernel of Cohen’s critique of Rawls on this score is that he does not apply the difference principle “in censure of the self-seeking choices of high-flying marketeers, choices which induce an inequality that...is harmful to the badly off.” See, in addition to the more thorough treatment in Rescuing Justice and Inequality (2008), the (rhetorically) accessible analysis provided in Cohen’s Gifford Lectures (1996) and published in his book, If You’re an Egalitarian, How Come You’re So Rich (Harvard University Press, 2000): 117-133.

[2] See, for example, John M. Kirk and H. Michael Erisman, Cuban Medical Internationalism: Origins, Evolution, and Goals (Palgrave Macmillan, 2009), and Steve Brouwer, “The Cuban Revolutionary Doctor: The Ultimate Weapon of Solidarity,” Monthly Review, January 2009 (Vol. 60, No. 8).

"The Case of the Little Sisters of the Poor"

Cathleen Kaveny, the Darald and Juliet Libby Professor at Boston College--holding appointments both in the School of Law and in the Department of Theology--has just posted to SSRN an excellent paper:  Law, Religion, and Conscience in a Pluralistic Society:  The Case of the Little Sisters of the Poor.  You can download the paper here.