21 May 2015

What Hath Corinth To Do With Charleston?

Are students creditors of their universities? Must they pay student loans incurred to attend a now-defunct college? Can they force into receivership a law school that threatens to close its doors? Questions to be answered in due course but here I will only set the stage.

First, Corinthian College, which has closed its doors after taking its students' federal and private loan money. These students are now arguing that they should not be required to pay back their loans because they will no longer be able to acquire the rich Corinthian leather college degree. Not surprisingly, Corinthian College is among the for-profit schools I've previously excoriated. The students' problem is that Corinthian is the bad guy, not the student-loan lenders. Well, okay, Corinthian is the worse of the two.

In any event, unless legislation or regulation provides otherwise, the venality of the one from whom a service is purchased does not effect a borrower's liability to repay the lender who financed the purchase. In other words, unless a "seller" like Corinthian and the lender are in cahoots, the loan must must be repaid. This is even more the case when, as Adam Levitin explains, the federal government has made the loan.

Closer to home are the students of the Charleston School of Law, another for-profit institution, who may seek to have the South Carolina Supreme Court appoint a receiver for the school. Read the news account here. The remaining owners, who have been stymied in their efforts to sell the law school, have threatened not to enroll of 1L class in the fall. I know nothing about South Carolina receivership law but am skeptical that students would have standing to seek such relief.

In any event, times continue to be turbulent in higher education.

19 May 2015

A Belated Family Christian Stores Update

Between grading and packing my office I haven't followed the Chapter 11 bankruptcy of Family Christian Stores as closely as I would like. (For earlier posts go here, here, here, and here to catch up.) You can read the latest news by reading Jim Harger's piece here.

In short, the consignors, who believe they own a large chunk of the goods for sale at the Family Christian Stores locations, and the FCS itself, have agreed to let the successful buyer at the auction coming this Thursday have their stuff. The consignors aren't giving up their claims to ownership, however. Instead, FCS is posting a bond that will pay the consignors the cash equivalent of their goods if they ultimately prevail with their claim. If they lose, the bond will be discharged and whoever is posting the collateral for the bond will get it back.

Which raises the question: Who is putting up sufficient collateral to get a bank or other financial institution to issue the bond? My guess--and it's only that, a guess--is that it's Richard Jackson. Jackson, you may remember is in effect the owner of FCS and one of its largest secured creditors. He may also be the buyer at the auction.

In any event, stay tuned. Thursday's auction will be far from the end of the FCS bankruptcy saga.

15 May 2015

Bond Insurers Bite the Dust -- Again

A few days ago I observed that San Bernardino indicated that it was about to file its Chapter 9 municipal plan of adjustment. Well, the time has come and you can read Reuters news account of the plan here. I haven't read the plan so I'll limit my comments to the obvious: like Detroit, San Bernardino plans to pay its bondholder creditors (or their insurers) a pittance while continuing to pay into the state employee retirement fund whatever CalPERS says is due. 

Such a state of affairs ultimately obtained in Detroit and Stockton. As I explained in Municipal Bankruptcy: When Doing Less is Doing Best (download here), a plan may not provide for "unfair discrimination" when it comes to creditor payouts. Lest you think that 100% to CalPERS and 1% to bondholders might be unfair, recall that CalPERS does not deem itself a creditor. In other words--its words--CalPERS is a conduit for payments to retirees. It is thus the retirees who are getting 100% of their pensions while bondholders get their pittance.

But isn't paying retirees 100% equally unfair when compared to 1% for bondholders? Perhaps, but that's not San Bernardino's position. The city asserts that it must pay current retirees to keep its current and prospective employees happy. Discrimination? Yes, but not unfair discrimination.

Judge Klein reluctantly bought this argument in the Stockton bankruptcy and there's little reason to believe Judge Jury won't go along in San Bernardino's.

14 May 2015

That Strange Silence: The Absence of Black Christianity from Legal Critical Race Studies

It's a great treat to read an article that answers a question you never raised but now wish you'd thought of. Go here to download Brandon Paradise's How Critical Race Theory Marginalizes the African American Christian Tradition. In 96 pages of careful analysis Paradise explains the post-structural nature of Critical Race Theory, demonstrates its failure to take account of the significant place traditional Christian verities had and still have in the African American community, illustrates how an uninformed CRT approach can lead to absurd results, and how CRT's invidious "religion-blindness" came to be.

For support of his final observation, Paradise draws on the anti-Christian rhetoric of the early ideological proponents of Black Power and argues that this stance, even as later modified by James Cone, dominates the intellectual apparatus of contemporary CRT scholars. This remains the case even though neither the ideology of Black Power nor James Cone's Christianized version of it had significant impact on the great majority of African Americans whose expressions of faith remained largely within traditional Christian parameters. Paradise then contrasts the silence of CRT scholars with respect to religion to work in Latina and Latino Critical Theory, which gives significant consideration to place of Catholicism.

Even here, however, Paradise observes that the "suboridinationist" mindset of all scholars working from the critical perspective makes it difficult to take religion seriously on its own terms. At this point the focus of Paradise's article drifts a bit but he brings it home in his conclusion by frankly addressing the problem and presenting a solution.

First, the problem:
If, on the one hand, accusations of anti-Christian bias among left-leaning academics are to some extent accurate, and if, on the other hand, we make the plausible assumption that scholars sympathetic to Christian-informed scholarship tend to be politically conservative, including on matters of race, then it is possible that an effort to develop a distinctively African American Christian approach to law will find itself alienated from (although for different reasons) the two groups of scholars who are most able to contribute to the project’s success.
And then the hoped-for solution:
Because of the possibility that developing an approach to law that reflects the African American Christian tradition will receive little support in the legal academy, scholars engaged in the project will have to be pioneering, prophetic voices who are willing to cut against the grain of the secular left as well as the predominantly colorblind, religious right. ... While the project may suffer marginalization within the halls of the legal academy, the Black community’s substantial identification with Christianity means that the effort to develop an African American Christian approach to law has a natural and substantial constituency outside of the ivory tower. 

All in all, How Critical Race Theory Marginalizes the African American Christian Tradition is a great piece that I highly recommend. 

11 May 2015

Municipal Bankruptcy Musings

A couple of interesting news items about one of my two favorite blog subjects: Chapter 9 municipal bankruptcy. First, at long, long last, news reports indicate that the city of San Bernardino is about to file its Chapter 9 plan of adjustment. I've previously posted about the exceptionally sad situation of San Bernardino here, here, and here. Suffice it to say that San Bernardino came into its Chapter 9 far less prepared than either Stockton or Detroit. That, plus the unrelenting debt load to its retirees and the relentless opposition to any cuts from CalPERS has put the squeeze on this small California city. Whether filing a plan actually gets San Bernardino closer to an exit from its current morass remains to be seen. For some academic thoughts about the particular problems of California cities in bankruptcy see my article Municipal Bankruptcy: When Doing Less Is Doing Best (download here).

For a state constitutional law decision, go here to read an account of the decision of the Illinois Supreme Court holding that the state's latest efforts to cut soaring pension costs was unconstitutional. I suspect the court got it right. Many state constitutions have provisions to the effect that benefits for state employees cannot be impaired after the fact. And even if a state constitution has no such limitation, the United States Constitution prohibits states from "impairing the Obligation of contract." For some earlier posts on this little-known part of the Constitution go here, here, and here. For one of my academic pieces that mentions this issue see Who Bears the Burden? The Place for Participation of Municipal Residents in Chapter 9 (download here).

One might hope that Chapter 9 would provide an out for Illinois but one would be wrong: only cities, and not states, can file under Chapter 9. Friend David Skeel has written an excellent piece (see my post about David's proposal here) advocating that Congress permit states to seek such relief but so far its members have been busy with other important tasks.

10 May 2015

"Veronika Decides to Die"

Brazilian author Paulo Coelho, better known for his novel The Alchemist, has also written Veronika Decides to Die. Subtitled A Novel of Redemption, this short novel draws heavily on Coelho's youthful conflicts with his parents over his desire to pursue the arts and his personal experiences of commitment to a mental hospital.

In Veronika Decides to Die, the title character, an apparently successful but aimless twenty-something living in Ljubljana, the capital of Slovenia, attempts suicide ostensibly in a protest over Western media ignorance of the very existence of her homeland and nation. As her story unfolds after her commitment to a mental institution, the deeper reasons for her action are traced to Veronika's submission to her parents' desires for her to live a conformist, upwardly-mobile, middle class life. Like Coelho's parents, Veronika's stifled her desire to pursue a career in the arts, in her case as a pianist.

Told by the manipulative medical director Dr. Igor that the pills she had taken to kill herself had so injured her heart that she was doomed to die in less than a week, Veronika's next days unfold in ever-increasing happiness as she frees herself from the shackles of parental and social expectations. Free for the first time as she approaches death, Veronika finally lives.

Early on I guessed that the story of her impending death was a lie; I was not disappointed. More than by its predictability, I was disappointed by Coelho's overuse of omniscient narration. Too much telling and not enough showing. And frankly I must admit that I found little sympathy for Veronika or any other of the major characters. It wasn't that I appreciated the tight limits of social conformity to which Veronika was expected to submit, it's just that the ultimate destination of her voyage of self-discovery was so, well, banal.

Veronika's personal and sexual enlightenment seemed straight out of the American 1960s. Perhaps the sexual revolution came later to Brazil and even later to the former Soviet bloc countries but still, I would hope that an insightful novelist would be able to see the rat-hole down which pursuit of individual personal autonomy has lead us.

Well, okay, maybe my last sentence was ironic. After all, the West is doubling down on autonomy notwithstanding the social disintegration it leaves in its wake. Which, perhaps, explains why books like Veronika Decides to Die are popular.

04 May 2015

More on Bonhoeffer, Ethics, and Law

Long ago I posted here about an article by then-colleague Kenny Ching, Would Jesus Kill Hitler: Bonhoeffer, Church, and State . In my opinion, one of the all-time best titles for a law review article. For a much more lengthy analysis of Dietrich Bonhoeffer's theological ethics go here to download Jordan Ballor's dissertation: The End of Natural Law: Dietrich Bonhoeffer's Christological Ethics. Cribbing from Ballor's abstract:
Dietrich Bonhoeffer (1906-1945) has often been understood as articulating an occasionalistic, divine-command theory of ethics. In this regard, he is often seen as aligned with Karl Barth (1886-1968). This study challenges this view by demonstrating that Bonhoeffer’s own ethical project was aimed at resuscitating and reviving a distinctively Protestant form of natural-law thinking. Bonhoeffer’s approach was characterized by an emphasis on the origin, formation, and goal of natural mandates in, by, and toward Jesus Christ. Bonhoeffer’s early teaching concerning orders of preservation and laws of life was developed into a mature doctrine of divine mandates in his Ethics, which are best understood as Christologically defined manifestations of natural law. Christ is the “end” or telos of the natural law for Bonhoeffer, and in this way Bonhoeffer attempts to rehabilitate the concept of the “natural” for Protestant ethics. . . . His efforts are instructive for contemporary debates and problems, and under each of Bonhoeffer’s four mandates (family and marriage, culture and work, church, and government), this study takes up specific contemporary issues in an attempt to constructively engage and apply Bonhoeffer’s insights today.

03 May 2015

"East of Eden"

Who's up for resisting the importunings of one's pastor? Not me, at least not when in two or three sermons there was a suggestion that we should all read John Steinbeck's magnum opus, East of Eden. East of Eden is one of those books I've long known I should have read but never did. I suppose its length, over 600 pages, had a lot to do with decades of procrastination. But better late than never so I ordered it a little over a month ago and now have finished it.

You can find a multitude of reviews and in-depth analyses of East of Eden on the internet or your local library so I'll make only three short comments.

First, one wonders whether readers will understand the title and much of the structure and symbolism of East of Eden in this age of biblical illiteracy. Sure, anthologies with excerpts of the novel will provide footnotes that will explain the story of Cain and Abel but that's hardly the same as appreciating on one's own Steinbeck's masterful reworking of the source text.

Second, Steinbeck's descriptions of the the natural world  in East of Eden are exquisite. For example:
I remember the five-fingered ferns growing under little waterfalls, bobbing their green fingers as the droplets struck them. And I remember the smells of the hills, wild azalea and a very distant skunk and the sweet cloy of lupin and horse sweat on harness. I remember the sweeping lovely dance of high buzzards against the sky and Tom looking long up at them ...  I remember the smell of crushed ferns in the creel and the delicate sweet odor of fresh damp rainbow trout lying so prettily on the green bed. 
I know only a few people as observant as Steinbeck was and none of them could put her observations into words like his. (His descriptions of human experience were also top-notch: "When angered she had a terrible eye which could blanch the skin off a bad child as easily as if he were a boiled almond.")

Third, Steinbeck's initial literary exegesis of the story of Cain and Abel Genesis 4 struck me as correct. It's only when he has one of his main characters go off and learn Hebrew that he makes that mistake common to those who know just enough to get themselves into trouble--the mistake of confusing word study with exegesis. Even so, Steinbeck's theme of the absolute freedom of human choice, even if overstated (moral agency is a better notion), is a refreshing cold drink in a day characterized by the soft determinism of heredity and social constructivism. 

Steinbeck's re-expressions in the lives of the novel's characters of Cain's sacrifice and the deep anguish Cain felt at God's rejection should ring true for all people at all times. What Steinbeck fails to see, however, is that our moral agency, our freedom to do right even after doing wrong, is not always enough to regain a shattered fellowship. Even so, his accounts of sacrifice, rejection, forgiveness, and reconciliation--our common lot in life east of Eden--were powerfully evocative.

Steinbeck didn't get a Nobel prize for nothing. East of Eden is indeed a great book. A bit long for some tastes but my attention certainly never flagged. I can only echo pastor Ruffin Alphin: read it.

30 April 2015

More on Human Rights Theory

I've previously posted here about the fine work that Michael Perry does in trying to get to some sort of warrant for human rights. I used Perry's earlier work in my 2010 article Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).

You can go here and here to download Perry's latest two-fer, Human Rights Theory, 1: What Are "Human Rights"? Against the "Orthodox" View and Human Rights Theory, 2: What Reason Do We Have, If Any, to Take Human Rights Seriously? Beyond "Human Dignity"?

The first article surveys the field in an attempt to discern what is the referent of today's ubiquitous "human rights talk." His second article, which is closer to my interests, looks behind the chimera of "human dignity" to document that there is no "there" there, at least for philosophical naturalists. As Perry frames the question,
The dignity ... claim coheres well with some theistic worldviews, including the Christian worldview. But does the claim also cohere, as well or at all, with any secular worldview? By a "secular" worldview I mean, here, a worldview that either denies or is agnostic about the existence of a "transcendent" reality--a reality of the sort that often (but not invariably) referred to as "God"--as distinct from the reality that is or could be the object of scientific inquiry.
In a more in-depth manner than I mustered in Looking for Bedrock, Perry argues for the negative. Because his Human Rights Theory, 2 is only the second in a three-part series, he does not reach a conclusion. Perry does, however, undermine many securitized accounts for the notion of dignity.

Tucked away in a footnote Perry refers to Brian Leiter who I take to be the foremost pragmatist and thorough-going philosophical naturalist among legal scholars today. Leiter takes a rather insouciant view of the challenges faced by naturalism when it comes to providing accounts of fundamental notions like human dignity. Indeed, Leiter makes what he conceives to be a rebuttal to the challenge of the naturalistic fallacy in Normativity for Naturalists (download here).

I look forward to reading Perry's response as he progresses into Human Rights Theory, 3. (For what it's worth, I do not find Leiter's argument convincing. Grounding norms in "workability" strikes me as no "grounding" at all. Yet, it seems to be adequate for Leiter and other naturalists.)

In any event, I recommend Perry's articles to folks who want an expanded and updated version of the one I set forth in Looking for Bedrock.

26 April 2015

"Big River"

Seven of us went to see the Regent University Theatre production of the Broadway musical Big River: The Adventures of Huckleberry Finn Saturday night. Although it may seem repetitive to say so, Big River was another excellent production. The staging (how did they get the raft to move?) but especially the singing were at the top.

Zach Phaneuf, who played Huckleberry Finn, is only an undergraduate senior but his acting, singing, and general stage presence were excellent. Keep an eye on him if he pursues graduate studies in Regent's MFA program. As good as Zach was, however, Theodore Holmes, III as Jim was great. A third-year MFA student, the maturity and timbre of Theodore's voice stood out in a way no other vocalist could match. Able to convey pathos and pride, Theodore's vocal performance as Jim should not be missed.

As a musical, Big River did not attempt to convey much of the dark side of Mark Twain's book. There were only hints at the discouragement Twain revealed as he moved from the earlier optimism of Tom Sawyer. But don't let the upbeat nature of the musical discourage you from seeing it. Big River will show April 26 and May 3. Go see it for a greatly enjoyable three hours. 

23 April 2015

A Tasty Send-Off

My Contracts students surprised me at this morning's review session with a delicious cake.


They were a great bunch and I hope to return to Regent in due course for their commissioning.

Blessings to you all.


20 April 2015

Something I Know Nothing About

A constitutional right to homeschool one's children, that is. In fact, except for the Article I's Contracts Clause and Bankruptcy Clause plus a smidgen about the Judicial Power in Article III, I shy away from the Constitutional Law. (Something about neither constitutional nor law comes to mind.) And my goodness, had we homeschooled our children, by now we'd either be childless or our children orphans.

If not me, then who does? Friend and research scholar David Wagner, that's who.

Go here to read David's article Homeschooling as a Constitutional Right: A Close Look at Meyer and Pierce and the Lochner-Based Assumptions They Made About State Regulatory Power, published last year in volume 39 of the Oklahoma City University Law Review. Don't let the unwieldy title discourage you. David is a fluid writer and his argument, while hewing close to the texts of several Supreme Court cases, is straightforward and understandable. David's conclusion (which you'll need to read the article to discover) is precise and lawyerly. 

In short, while the full conclusion of Homeschooling as a Constitutional Right cannot be summarized in a soundbite, it should give comfort to those who recall that the family preceded the State and who hope that the Constitution need not be read in a way that precludes recognition of the rights of the family.

A fine piece by a fine fellow.