This afternoon, I have the pleasure of introducing the conference keynote speaker, Geoffrey Miller of NYU. Geoff’s talk, “Law and Economics versus Economic Analysis of Law,” distinguishes the former discipline from the latter, using Robert Aumann’s famous economic analysis of Talmudic law as an example. Geoff argues that the economic analysis of law offers elegance, but that law and economics offers a rich understanding of complex real-world institutions like courts and legal systems. Taken together, the two disciplines offer “complementary means for obtaining information about the social world.” — MLM
Here for the second panel, which kicks off with Professor Haider Hamoudi’s discussion of why bankruptcy law has been relatively irrelevant to Islamic law, that is, Sharia law. Hamoudi says: Read more
I am at the St. John’s Religion and Bankruptcy Conference this morning, and I thought to report on some of the papers and discussion going on right now.
The first presentation was by Professor Theresa Radwan of Stetson University School of Law, dealing with the use of tithing to establish the non-dischargeability of debt following the Religious Liberties and Charitable Protection Act and the Religious Freedom Restoration Act.
The issue is whether post-petition tithing can operate to shield the debtor from creditors. RFRA reinstituted the substantial burden/compelling state interest of Sherbert v. Verner, and the panelists are now talking about whether that test means that the state is appropriately reluctant to judge whether and how the “undue hardship” standard in the discharge of student loan debts interacts with the substantial burden component of RFRA.
Theresa J. Pulley Radwan (Stetson University College of Law) presents her paper “Sword or Shield: Use of Tithing to Establish Nondischargeability of Debt Following Enactment of the Religious Liberties and Charitable Donation Protection Act,” at the Symposium hosted by the ABI Law Review, Center for Bankruptcy Studies and CLR.
Also presenting, Thomas L. Shriner Jr. (Foley & Lardner LLP).
Moderating, G. Ray Warner (St. John’s School of Law)
Starting today, Catholic bishops in England and Wales have restored the centuries-old tradition of asking believers to abstain from meat and offer prayers on Fridays as an act of common penance. The bishops argue that abstaining and praying in a communal way will encourage penitence and solidarity with the suffering and also serve as a mark of Catholic identity in the wider society. The bishops’ explanation of the new policy, first announced last spring, is here.
There are many angles to this story – theological, sociological, even political – but CLR Forum readers will likely find the legal aspects most interesting. As a legal matter, the bishops’ reasoning goes like this. The canon law of the Catholic Church provides that, for Latin-Rite Catholics, “[a]ll Fridays through the year … are penitential days … throughout the entire Church” (Canon 1250). Particular forms of Friday penance are prescribed by local bishops (Canon 1251). For centuries, the bishops had prescribed meatless Fridays as the form penance should take, but in 1985 they decided to allow Catholics to substitute other forms of penance. The bishops’ new decision, which that takes effect today, restores the earlier practice. – MLM
In light of some recent perplexing commentary, it seemed like an appropriate moment to commend the definitive book about the historical origins of the famous metaphor of the “wall of separation” between church and state, as well as its use in constitutional law beginning at the turn of the 20th century and especially since the famous Everson decision: Philip Hamburger’s Separation of Church and State (HUP 2002).
And just in brief response to the post by Sarah Posner above, it seems to me that both constitutional conservatives and constitutional progressives do not, today, differ on the viability of separation as a principle of religious liberty per se, so much as they differ on the nature and scope of the principle of separationism. The question, to my mind, is not whether the idea of separationism is “a myth.” An important variety of separation between ecclesiastical and temporal authority is bedrock — indeed, it was the Catholic Church itself which played a key role in initiating this separation. The question is instead what the particular contours of the principle should be today — one which thoughtful constitutional conservatives and constitutional progressives can debate without resorting to caricature. — MOD