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Abstract:
This article is a contribution to a symposium, "I Buy Therefore I am: Consequences of the Consumer Lending Revolution." The article addresses the proliferation of credit card use by college students. Analyzing some of the basic characteristics of two major participants in this phenomenon - college student debtors and bank creditors - the authors conclude that special attributes of each, on the one hand, raise the question of whether regulatory intervention is appropriate, and, on the other hand, dictate some of the limits of such regulation. The authors survey the federal and state legislative and regulatory initiatives addressing this issue, concluding that most focus on encouraging financial education by colleges. The authors conclude by describing the financial education initiatives being pursued by the Credit Card Project of The Saint Paul Foundation, an intra-industry coalition of credit card issuers, credit bureaus and scoring agencies, nonprofit credit counselors, educators, university representatives, ethicists, regulators, students, and community activists, and the interesting results generated by these initiatives.

consumer debt, consumer law, consumer credit, credit cards, student debt, financial education, credit regulation, credit bureaus, credit counseling

Abstract:
One of the most significant factors in the persistent wage gap between men and women in the United States is the economic penalty suffered by working mothers. As a Catholic legal academic struggling with the complex issues involved in securing mothers' access to financial security, I discovered some surprising compatibilities between the Catholic Church's teachings on the importance of family and the role of women, and recent writings of feminist legal scholars. In this essay, I argue that Catholic thought could contribute to the development of an emerging theory of justice that is compatible with both Catholic and feminist theorist agendas, which in turn could facilitate the difficult work of translating Church teachings on this topic into concrete policy proposals.

Over the past decade, feminists such as Martha Fineman, Eva Feder Kittay, Robin West, and Joan Williams have argued that the dominant equality-based theory of justice needs to be replaced or supplemented by a theory of justice that incorporates the reality of dependency and the need for dependency care. An important component of this argument is a critique of the devaluation of the dependency care work mainly performed by women - primarily raising children but also caring for the old and the infirm. There are two predominant approaches to addressing this marginalization of care work - either change the fact that women do most of this kind of work, or change the fact that this work is accorded no economic value. I argue that the latter approach is the most promising, the most realistic, and, when translated into concrete policy proposals, the most consistent with the positions taken by the Catholic Church in writings such as Laborem Exercens, Familiaris Consortio, and Evangelium Vitae.

These proposals for according proper economic value to care work range from reforming welfare and tax policies to subsidize unpaid childcare work, to guaranteeing maternity leave, to more radial proposals to restructure the workplace to permit parents to care for families without undue penalties in career advancement. All of these proposals shift some of the cost of childraising from individual parents (particularly mothers) to society as a whole. I argue that Catholic thought could make significant contributions to articulating persuasive rationales for shifting these costs. Catholic teachings support feminist arguments that children are a 'public good' and that the current market structures incorporate unjust 'free-riding' on the unpaid work of mothers. More significantly, though, Catholic teachings on the role of women, particularly the powerful arguments in Mulieris Dignitatem about women's contributions to the realization of a truly humane social order, could provide support for feminist arguments for more radical restructuring of the workplace to ensure mothers' access to the public sphere. At the same time, I argue that the work of Catholic scholars on these topics could be enriched by engaging the dependency-based theories of justice being developed by the feminists, and by considering the feminist perspective that women, including mothers, have a significant role to play in the public as well as the private sphere.

feminist theory, Catholic intellectual tradition, Catholic social thought, working mothers, maternity policies, theory of justice, restructuring workplace

Abstract:
This article argues that Catholic law schools have compelling reasons to pay close attention to a largely ignored part of the controversial speech given last year by the President of Harvard University, Lawrence H. Summers, about the persistent under-representation of women on university faculties. While the press accounts of this talk focused on his speculation that there might be innate differences in aptitudes of men and women in science and math, Summers argued that a more significant cause of the under-representation of women might be the clash between the demands of high-powered jobs and the demands of family life. This article summarizes the data supporting Summer's speculation, and argues that the teachings of the Catholic Church give Catholic law schools a special responsibility to implement workplace reforms that accommodate faculty members who have children.

Despite popular characterizations of the Catholic Church as hostile toward feminism, careful analysis of the Church's teachings on the family and women reveals a consistent record of support for many significant items on secular feminist platforms. In particular, there is a profound convergence of Church teachings, on the one hand, and writings of a strand of feminism known as care feminism or relational feminism, on the other hand, around the need for a social revaluation of the largely unpaid, largely female, work of caring for family members. Less commonly acknowledged, though, is the convergence between Church and feminist arguments for restructuring the workplace to accommodate women who are mothers. This article describes the relevant Church teachings and their convergence with feminist arguments.

Recent research demonstrates that motherhood, rather than gender, is the most significant barrier to career advancement by women in the United States, including women in academia. This article summarizes that research, and analyzes faculty composition data for Catholic law schools over the past four years. The data demonstrates that gender ratios of Catholic law schools are essentially identical to those of other law schools. However, the special charge to Catholic universities set forth in Ex Corde Ecclesiae, The Apostolic Constitution on Catholic Universities - to be both the intellectual vehicle by which Catholic ideals are brought to bear on the pressing problems of our time and a practical model for an institution structured around these same Catholic ideals - demands that Catholic universities seriously consider proposals for restructuring the academic workplace to accommodate motherhood.

Women and the law, motherhood, feminist legal theory, employment law, Catholic social thought, Catholic legal education, women in academia

Abstract:
Recent dramatic growth in predatory lending practices has reinvigorated calls for more effective regulation of consumer credit, primarily at the state level. This paper argues that a banking law principle known as the Exportation Doctrine has rendered individual state laws largely ineffectual in curbing predatory lending. However, this paper concludes that the expanded Exportation Doctrine, with a little bit of tweaking, could be shaped into a potent legal tool for regulating predatory lending, more effective than individual state legislation currently under consideration.

The Exportation Doctrine has evolved from a discrete statutory privilege enacted during the Civil War to promote the national bank system, to an expansive legal doctrine allowing almost any type of corporate entity to establish a nationwide consumer lending program unrestrained by individual state consumer credit laws. This evolution was the result of a confluence of forces, including: individual depository institutions challenging various banking regulations; banking regulatory agencies accommodating their constituencies; power plays among the federal banking agencies, as well as among the state and the federal banking agencies; occasional Congressional actions in discrete, often seemingly unrelated areas of banking law; and courts almost uniformly deferring to the judgments of the federal banking agencies in issues related to the regulation of financial institutions.

The Doctrine originated in a federal banking law permitting national banks to charge interest at the rate allowed under the laws of the state where the bank is located (12 U.S.C. Section 85). This paper traces the historical expansion of the Exportation Doctrine along three distinct dimensions. First, the geographic reach of the Doctrine was expanded, to transform the "location" of a bank from a meaningful restrictive concept to matter of choice. Second, the substantive scope of the Doctrine was expanded, as the term "interest" was interpreted to include not just numerical interest rates, but all credit terms "material to the determination of the interest rate." Third, the orbit of the beneficiaries of the Doctrine was expanded, initially to include state banks and savings and loan associations, and, more recently, to include nonbank corporate entities acquiring "nonbank banks" (such as credit card banks, unitary thrifts, or industrial loan companies) or entering into contractual arrangements with banks to offer products such as cobranded credit cards, refund anticipation loans, and payday loans.

After describing the evolution of the Doctrine, this paper analyzes whether the various dimensions of the expansion are justified under basic principles of banking law. The paper concludes that the expansion of the geographic reach and substantive scope of the Doctrine is compatible with banking law doctrine and probably not susceptible to legal challenge. However, the expansion of the orbit of the beneficiaries of the Doctrine is incompatible with the separation of banking and commerce, and thus susceptible to legal challenge. Nevertheless, after examining the recent actions of the federal banking regulators in curbing predatory lending practices conducted by depositary institutions, this paper concludes that a robust Exportation Doctrine might be the most effective legal mechanism that exists for curbing predatory lending practices.

Abstract:
In Watters v. Wachovia, 127 S. Ct. 1559 (2007), the Supreme Court reversed two presumptions about federal preemption of state law that historically have guided the delicate balance between state and federal authority over consumer protection in banking services - the presumption that issues involving consumer protection are quintessentially matters of state rather than federal prerogative and the presumption that national banks are subject to nondiscriminatory laws of the states where they are located, except where federal law expressly preempts such law.

This article analyzes the dramatic impact of Watters' reversal on two different areas - consumer protection in banking services and the continued vitality of the uniquely American dual banking system. The first part of the article traces the evolution of consumer protection law in the banking industry through three stages. The first was the gradual expansion of the preemptive effect of a particular federal usury statute for national banks through a combination of action by federal banking agencies and case law. The second stage was the assertion by federal banking regulators of a broad theoretical framework for federal preemption of state banking law based not on any particular federal statute, but rather on a theory of congressional intent to permit national banks to provide consistent banking services nationwide. The third stage was the validation of that broad conflict preemption theory by the Supreme Court in Watters. The article demonstrates how the reversal of the historic presumption has recently played itself out in the preemption of state laws governing bank-issued gift cards, culminating in the first citation of Watters in SPGGC, LLC v. Ayotte, 488 F.3d 525 (2nd Cir. 2007).

While challenging the proposition reflected in most recent scholarship in this area that federalization of consumer protection law necessarily entails deregulation, in this article I nevertheless conclude that Watters will have a significant adverse effect on the continued vitality of the dual banking system. Arguments for preserving the "dual banking system" arise out of our nation's fundamentally federalist sensibilities. From that perspective, a recent shift in the tenor of arguments for the preserving the dual banking system from the benefits of competition (states as laboratories of reform) to arguments based on the principle of subsidiarity (states as more responsive units of government where democratic ideals are more fully realized) can be observed. I argue that the subsidiarity arguments are likely to be more persuasive in convincing Congress to intervene to address the imbalance between the state and national banking system exacerbated by the Watters decision. I conclude by proposing that Congress partially reverse Watters by validating a recent proposal by the primary federal regulator of state banks to extend preemption authority to state banks, thus preserving to states the authority to offer a meaningful alternative to the national banking system on the level of consumer protection.

banking law, consumer protection, state banking law, federal preemption, financial services, financial regulation, subsidiarity

Abstract:
In recent decades, proponents of a strand of feminist theory variously referred to as care feminism, cultural feminism, or relational feminism have been arguing for a social re-evaluation of what has traditionally been regarded as women's work - the care of dependents, such as children and elderly or disabled family members. As part of that project, a number of feminists have suggested that the traditional liberal theory of justice, based on the ideal of autonomous, independent actors, should be rejected, or at least revised, to reflect the reality of dependency in the life of every individual.

A number of writers have begun to explore the application of a dependency-based theory of justice in other contexts. In her recent book, Re-Imagining Justice (2001), legal scholar Robin West placed the dependency-based theory into a more general theory of justice with applications that extend beyond the concerns of women engaging in caregiving. The philosopher Alisdair MacIntyre, in Dependent Rational Animals (1999), after acknowledging his debt to the feminist writers, went on to apply their insight to general systems of moral philosophy. He argued that a recognition of the inevitability of periods of dependency in all human lives necessitates political and social structures that protect all members of society unable to advocate for themselves due to various conditions of dependency - children, people with disabilities, and the aged.

I have argued elsewhere that the writings of Pope John Paul II on women are in many significant ways compatible with much of this emerging strand of feminist theory. In this article, I explore the extent to which his writings support a general dependency-based theory of justice, such as those being developed by West and MacIntyre.

I conclude that the writings of John Paul not only support, but significantly advance, the project of articulating a general dependency-based theory of justice, with applications beyond the context of supporting motherhood. Even proponents of a dependency-based theory of justice who are not comfortable with the vocabulary of faith used by John Paul might borrow from him certain concepts that could be translated into secular vocabulary that would strengthen their arguments: acceptance of gender-based distinctions in gifts and perspectives that support arguments to restructure the workplace to allow fuller participation of women; a recognition of the full spectrum of human dependency conditions entitled to protection under this theory; and acknowledgment that the human condition of dependency might justify a right of dependents to receive care, as well as a right of care givers to provide care. At the same time, proponents of a dependency-based theory of justice who are motivated by faith convictions must acknowledge the persuasive power of many of the arguments presented by dependency-based theorists in purely secular terms such as those of West and MacIntyre.

I end the article with some preliminary thoughts about how the dependency based theory of justice might be applied to two concrete areas of law - disability rights and consumer protection.

moral philosophy, feminism, feminist theory, theories of justice, dependency-based theory, disability rights, consumer protection

Abstract:
This foreword to the symposium edition of the University of St. Thomas Law Journal's March 2007 conference on "Workplace Restructuring to Accommodate Family Life" summarizes the contributions of the authors and places them in the context of the overall symposium agenda. The symposium explores both some convergences and some tensions among arguments being made by secular feminists and by scholars writing from Catholic and other faith traditions on issues of feminism, family and workplace restructuring. The issue of workplace restructuring is analyzed from the perspectives of diverse disciplines by legal scholars Joan Williams, Susan Stabile, Marie Failinger, Michael Scaperlanda, Kirsten Davis, Michael Selmi, and Kathleen Baker; by philosophers Sr. Prudence Allen and Eva Feder Kittay; by economist Gregory Acs; and by historian and social critic Allan Carlson.

Abstract:
This article is based on a presentation given at the Conference Commemorating the 20th Anniversary of Mulieris Dignitatum: On the Dignity and Vocation of Women, co-sponsored by The Catholic University of America's Columbus School of Law and Ave Maria Law School, Washington, DC on October 3, 2008.

One of the most significant features of Catholic feminism, setting it apart from more conventional secular feminism, is its conviction that there are fundamental differences between men and women that are not simply biological and that are not simply socially constructed. This conviction finds expression in a theory of gender identity known as "complementarity." Complementarity is a theory of gender identity that embraces both significant differentiation and fundamental equality among men and women. Despite its sound theological and philosophical pedigree, the concept of complementarity is not unproblematic for a Catholic feminist. This challenge of giving enough substantive content to the meaning of the term the "genius of women" to prevent complementarity from being used either as an instrument of inequality between the genders or as a stumbling block to acceptance of Church doctrine on issues such as male priesthood is one of the most important and challenging aspects of the charge that John Paul II imposed upon women in 99 of Evangelium Vitae - the challenge of articulating a "new feminism."

This article explores some of the lessons that the life of the most important woman in Jesus' life, Mary, might offer for women looking for guidance on the "feminine genius." This article does not argue that any aspect of the feminine genius may not be also shared by many men. Nor does it argue that any aspect of the feminine genius is something that all women share. Rather, this article is an exploratory attempt to identify particular aptitudes that may be displayed by more women than men, that may have been historically undervalued by society due to the prevailing social roles of women and men, and that John Paul II has suggested must be revaluated and promoted, in order to transform our culture. The development of these attributes is not something that should be limited to women, but it may be part of a particularly feminine vocation to foster and promote the display of these attributes by all.

The article explores four particular features of the uniquely feminine vocation arguably could be illustrated by the life of Jesus' mother, Mary. Two of these are illuminated by focusing on the Christological question of the significance of Mary's role in the Incarnation, and two are illuminated by focusing on the ecclesiological question of the significance of Mary in the establishment and ongoing life of the Catholic Church. These four are capacities for: (1) teaching and guiding; (2) service to and speaking for the vulnerable; (3) mothering - as opposed to fathering - which entails a unique capacity to foster trust; and (4) prophesy. The article concludes with some preliminary thoughts about how these particular capacities could, if consciously recognized, promoted, and protected, effect changes in our laws that would bring us closer to realizing the "civilization of love" towards which the Catholic Church asks us to strive.

women and the law, feminisim, Catholic feminism, Mulieris Dignitatum, Marian theology, complementarity

Abstract:
This chapter in a forthcoming book (Women, Sex, and the Church, ed. Erika Bachiochi (Boston: Pauline Books & Media 2010) argues that the work-life balance issues often characterized as “women’s issues” in discussions of social phenomena with labels like “the opt-out revolution” or the “Mommy wars” should be understood more broadly as manifestations of the tensions inherent in the precarious balance between the private vocation and the public vocation to which each of us, whether male or female, a parent or childless, is called.

By our private vocation, I mean our calling to live according to a Christian understanding of the web of relationships into which we are all personally imbedded. The most significant of these relationships is typically the relationship we have with our spouse and then the other members of our family, but they extend to relationships with our co-workers, fellow-parishioners, neighbors, the members of any religious orders to which we might belong and, most importantly, to God. By our public vocation, I mean our responsibilities to live and witness as Christians in and to the various social institutions to which we belong – the Church, our local communities, our places of employment, our country, and our world.

The flashpoint in most discussions of the tensions between our private and public vocations is typically the conflict between our responsibilities to our families and to our professional – paid – work. These two vocations are clearly, at this point in the world’s history, at a particularly tenuous balance. The market for paid work, as currently structured, makes demands on many of us that are not particularly conducive to living out our private vocations as primary caregivers of children or elderly parents. But our private vocations also include our relationships to God and others in our lives. And our public vocations also include our commitments to institutions and enterprises other than our paying jobs, such as volunteer work, apostolic activity, and social and political advocacy.

In this article, I argue that the teaching of the Catholic Church offer many resources for understanding and navigating the tensions between our private and public vocations. Using the controversial 2005 American Prospect article by Linda Hirshman (Homeward Bound) as an example of common contemporary feminists understandings of the issues at stake in these tensions, I first explore the commonalities between the positions of many of these feminists and that of the Church regarding the need to construct social policies that facilitate women’s participation in the workforce. Then, again using Hirshman’s article as an example, I explore the points at which the Church’s conception of family, work, and human flourishing diverges from that held by many – but not all – secular feminists. I will conclude that the Church’s conception of family, work, and flourishing offers Catholics a set of extremely useful tools for navigating not just the tensions between our family responsibilities and our paid work, but also the broader tensions between our private and our public vocations.

woman and the law, law and religion, women and the church, life balance, family, feminism, new feminism, vocation, professions

Abstract:
In his recent encyclical Caritas in Veritate, Pope Benedict XVI grapples with one of the most vexing paradoxes of the current global economic crisis: that a systemic global financial crisis was rooted in uniquely local transactions: loans to individual consumers tied to unique, unmovable parcels of residential real estate. This paradox raises some tricky questions about the “architecture” of the regulatory response to the crisis. Does the scope of the problem demand the efficiencies of broad-brush uniform regulation, or does the origin of the problem require more differentiated local responses?

In one sense, the question of whether a global or a local response is most appropriate is largely academic, since there is no global authority with the power to implement any response. But on a smaller scale, this question is the subject of active debate in two significant political arenas – the U.S. and the E.U. In the U.S., the battle over whether consumer credit should be regulated on the local (state) level or on the federal level has been raging in banking circles and federal courts for years. Proposals to tinker with the balance of federal and state authority over consumer credit laws are part of every version of financial reform legislation currently under consideration in Congress. This same question is also being raised in the E.U., which is currently considering a European directive on consumer rights that would diminish the authority of national governments to regulate consumer credit locally, while increasing the authority of the E.U. to impose uniform standards across member states.

In Caritas, Pope Benedict portrays the current global economic crisis as a crisis of world development. He argues that the globalization of the world economy leading to the current crisis has exposed inadequacies in our views of the authority of existing political structures and the authority of the market. Our conception of the state as an institution capable of fostering human development is flawed because the authority of states ends at their borders, while markets cross borders. Our conception of the market as an institution capable of fostering human development is flawed because it does not incorporate the essential insights of the principle of gratuitousness – the internalization of solidarity and mutual trust necessary for the human subjects of market transactions to be recognized as members of the same human community. Our current views of the structures of political and economic authority are flawed because they are rigidly, but unrealistically, dualistic. They fail to acknowledge the multiplicity of values at stake in the various spheres of human activity. Benedict thus concludes that both political and economic authority has to be articulated. There will be different levels at which governmental and market forces can most effectively act to protect the different values at stake.

This article first describes how the tension between a local or a nonlocal approach plays out in the debates about the appropriate regulatory scheme for consumer credit in the U.S. and the E.U. In both jurisdictions, the primary motivation for the increasingly predominant uniform, nonlocal approach has been economic efficiency. Next, the article explores Pope Benedict’s arguments in Caritas for why only an articulated response to the root causes of the global economic crisis protects the multiplicity of values required to achieve an authentically humane global economy. Finally, it applies Pope Benedict’s general framework to the debates in the U.S. and the E.U. It concludes that, while this framework does not reject entirely the value of economic efficiency that supports some uniform nonlocal regulation, it also counsels for the preservation of the possibility of some differentiated, inefficient, local regulation of consumer credit. The most effective regulatory responses to the current crisis, therefore, will be those that support an ongoing dynamic balancing of the competing claims of local and nonlocal interests.

consumer credit, financial crisis, Catholic legal thought, Catholic legal theory, law and religion, Pope Benedict, Caritas in Veritate, financial reform