Worthy Reads for Feb 2022: Elite Rule

Long overdue, so let's see how many links in my file are still cool.

Retweets are not endorsements! I found these articles thought-provoking. There’s a good chance I agreed with something important in each, but maybe not, and, in any case, I absolutely do not endorse each and every claim made in each and every article.

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“The USCCB Wouldn’t Let Me Share the Catechism,” by Chris Damian:

A… large issue is the Church’s approach to civil law. In 2004, The National Review Board for the Protection of Children and Young People released a report on the crisis of the Catholic Church in the United States. As part of the report, the NRB listed an inappropriate overreliance on civil lawyers as a key problem driving the crisis. Church leaders “relied too heavily on the advice of attorneys whose tactics often were inappropriate for the Church, and which tended to compound the effects of the abuse that already had been inflicted.” […]

One sees the same problem with copyrights. Rather than having a legal strategy for copyrights which serves the Church’s interests in lay participation and evangelization, the current approach is an over-protective approach which seeks to maximize the legal rights of the USCCB and minimize the legal rights of others. This is a situation where the Church’s attorneys, once again, get in the way of the Church’s pastoral mission.

This is also related to the issue of clericalism. Matt Warner wasn’t allowed to present the Catechism in a Year, but Father Mike Schmitz is allowed. Many might hear the announcement of Father Schmitz’s new Catechism project and think, “Wow! Why didn’t anyone else think of something like this?” Well… someone did. Ten years ago. But the USCCB sent him a cease and desist letter.

If you’re one of my secular readers, this is infuriating because it’s bonkers that a 30-year-old book, which purports to be merely a synthesis of religious teachings that are two thousand years old, is somehow still protected under copyright. The Catechism was published by a sovereign state, the Vatican. Its moral laws are supposedly binding on a billion Catholics around the world. It’s like if the United States of America passed laws, but sued you if you tried to make a copy of those laws, write commentaries on them, or put them online. (Like all sensible sovereigns, the United States expressly places all works created by the U.S. government immediately into the public domain.)

If you’re one of my Catholic readers, this is infuriating for a whole host of other reasons, from the stifling abuse of canonical censorship powers to the grim particulars of Chris’s interactions with the U.S. Council of Catholic Bishops. “Yes, let’s have a New Evangelism!” said the bishops, slamming the door on the face of the New Evangelists while plugging their ears and crying “la la la la” when confronted with all the ways their arguments are intellectually, legally, and morally bankrupt. The institutional Church is broken beyond human repair.

And, yes, I subscribe to Chris’s Substack.

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“The Influence of the Areeda-Hovenkamp Treatise in the Lower Courts and What it Means for Institutional Reform in Antitrust,” by Rebecca Haw Allensworth:

[T]he treatise does seem to drive, and not merely predict, antitrust law at the Supreme Court. In the few antitrust cases decided by the Supreme Court, the treatise plays as large a role-if not larger-than it does in the lower courts. [People] assume… that the Supreme Court and the agencies can and do eventually act to ratify or clarify the treatise's position on important antitrust debates. In fact, the Court decides too few cases, and the agencies exercise too few opportunities to express a position on antitrust rules, to confer democratic legitimacy to the pervasive use of the treatise in the lower courts.

Look, I know, this looks like the actual most boring thing ever written by man.¹ It’s a law review article (boring) about how lower-court legal precedents (borrring) in the field of antitrust (boring and complicated!) are shaped by a fourteen-volume treatise written by a Harvard Law professor, which you can purchase today for the low, low price of $5,362 (zzzzzzzzzzz).

But here’s the throughline, which should, I think, hold your attention:

The most important business decisions in the United States—especially decisions that lead to mass layoffs, small business closures, the erosion of the middle class, and the slow decay in service and quality we’ve all come to accept—are not made mainly by individual businesses, but first and foremost by antitrust law. Antitrust law sets the rules and incentives for the entire marketplace. Individual businesses often have no choice but to do whatever antitrust law allows… or be destroyed.

This paper demonstrates how the actual antitrust law that actually controls business decisions in America today is not written by Congress. It is not written by the Federal Trade Commission. It is not even written by the courts.

Antitrust law today is written by a kindly-looking fellow named Professor Herbert Hovenkamp. He was neither elected, nor appointed, nor accountable to, any democratic body—yet you could make the argument that, since the U.S. economy is the most powerful political issue on Earth, and antitrust law the most important factor shaping the economy, Herbert Hovenkamp is the most powerful man alive.²

Reactionaries and radicals alike often accuse our government of being run by Harvard elites rather than by The People, but usually the accusation is pretty broad and vague. Well, here’s a smoking gun! As Justice Stephen Breyer once said:

Most [antitrust] practitioners would prefer to have two paragraphs of [the Areeda-Hovenkamp Treatise] on their side than three Courts of Appeals or four Supreme Court Justices.

That’s a breathtaking concession by a sitting Supreme Court Justice who has been deeply involved in antitrust law these past forty years.

Of course it’s boring! The extremely wealthy corporatists who benefit from the current shape of antitrust law wouldn’t want it any other way!

(I should mention that Hovenkamp is, by all accounts, a perfectly decent chap who stumbled into this position of immense power without ambition or connivance.)

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“My Correct Views on the Last Jedi,” by Ross Douthat:

But these arguments mostly circle around the core failure of the movie. The problem with The Last Jedi isn’t Johnson’s desire to move on from the prior Star Wars arc, but rather his inability to figure out how to accomplish that escape within the constraints imposed by some combination of studio demands, what J.J. Abrams handed him with The Force Awakens, and his own artistic imagination. So the movie ended up being iconoclastic to no real purpose, undercutting the heroic deeds of the original movie and undermining the coherence of its universe while being pulled back into its own form of disappointing repetition.

…[D]ramatically, artistically, all the good and interesting choices that Johnson makes in The Last Jedi point toward Rey taking Kylo’s hand.

I’ve just finished watching the Star Wars saga with my youngest (she’s three and way more excited about lightsabers than she is about Star Trek, alas).

[This is where the paywall hits. Sorry, free subscribers, you are all beautiful people, but De Civitate’s paying subscribers deserve some reward. Namely, the rest of this item plus five more items after it.]