16 January 2017


The backstory of the winding road to the production of Jackie is worth the read. Directed by Chilean Pablo Larrain, who had never done a biopic, filmed largely in Paris, and starring Natalie Portman instead of the originally cast Rachel Weisz, this film is a fascinating personal closeup of a significant moment in American history. More to the point, Jackie is an engaging and sometimes powerful film. Portman's hard work on the clipped, boarding school accent of Jacqueline Bouvier paid off. Whether recreating Jackie's CBS special on her refurbishing of the White House or chain smoking as she plays with "the reporter" (Billy Crudup playing Theodore White), Portman deserved an Oscar nomination as best actress.

Jackie is principally set during her interview with White with regular flashbacks to the fateful day in Dallas and the subsequent turbulent ones leading up to JFK's funeral. There are appropriately understated references to JFK's notable peccadillos. I learned a great deal about the planning of the funeral and especially Jackie's indomitable will that the funeral be an homage to the late president, filled with historical significance, and framed with her aesthetic eye.

The final point--Jackie's acute aesthetic judgment--provides a constant and subtle subtext for the film. Jackie was not merely stylish or simply a purchaser of haute couture. She was an understanding patron of the arts who set her own dying days in an aesthetic framework.

Jackie is not a great film but is a competent study of real but inconsistent human strength set in a period of American history that, because so much of it was televised, continues to cast a long shadow in American political life. We enjoyed it and recommend it.

13 January 2017

Hammers in the Air

A short time ago I posted here about the situation at Charlotte School of Law. The U.S. Department of Education cut access to federal student loans to those attending CLS. CLS seems to be trying to line up sources of private student loans but it remains to be seen it that will be enough to keep it in business.

Now you can go here to read a post by Paul Caron that lists more law schools (several owned by the same entity that operates CLS plus a few others) that are also at risk of DOE sanctions. (For a list of all schools and programs likewise at risk--and there are hundreds--go here.)

The DOE's test for these schools and program is an arcane "gainful employment" formula. Quoting Caron:
Programs fail the gainful employment standard if graduates’ annual loan payments are more than 12 percent of their total earnings, or if those payments exceed 30 percent of their discretionary income. [Programs are in the zone if graduates’ annual loan payments are 8-12 percent of their total earnings, or if those payments are 20-30 percent of their discretionary income.]
While least of all I want to see good taxpayer dollars thrown down the rat hole of substandard higher education, I am very concerned about the more extensive federal involvement in this sphere of life. One needn’t be a libertarian conspiracy theorist to wonder if federal tentacles will go ever deeper into higher education and continue to turn it into a particular form of social formation, i.e., service to the pervasive corporate-consumer state.

We see this already in the relentless shilling for classes in app development for grade-school children and STEM education for college students. Postmodern consumer capitalism, just as much as one fixated on sexual autonomy, exemplifies a society without ends, a purely secular age. (See some of my posts about the commodification of contemporary life here and here.) Such an age sees human beings as no more than ever-green consumers of ever more products, an age that may soon collapse under the weight of its inconsistencies.

12 January 2017

Thumbs Not Recommended

Warning: I'm not a criminal defense lawyer nor do I teach Criminal Procedure. Just sayin'

For anyone concerned about personal privacy, don't use your thumb print to unlock your cellphone. So far it seems that courts will order you to unlock your cellphone with your thumb (because your thumbprint is not "testimonial") but will not order you to divulge a numeric unlock code (because compelling speech is a form of testimony that is protected by the Fifth Amendment).

(H/T to a faculty candidate.)

04 January 2017

James K.A. Smith's Summary of Charles Taylor's "A Secular Age"

In fewer than 1400 words, Jamie Smith sums up Taylor's insights and explains why Taylor's sometimes-ponderous tome strikes a chord with Millennials. Sure, it's from a blog post this past November, an eon in interweb time, but go here for the read, it will be worth your while.

For some of  my less concise comments on A Secular Age go here, here, and here.

28 December 2016


A conflicted moralist of duty is how I would characterize Denzel Washington's portrayal of Troy Maxon in the film adaptation of August Wilson's play Fences. Like a stage-play, the film version of Fences has relatively little action but plenty of heart-felt (and fierce) dialogue. Denzel Washington's performance was exceptional and while he didn't carry the film alone (Viola Davis was also superb), his work was superb and merits an Oscar nomination.

Authenticity is an overworked term (and meaningless as a virtue) but is appropriate to describe the hard and angry as well as dutiful and caring Troy Maxon. Growing up without a mother under the brutal oppression of a sharecropping father, leaving home aged 14 unable to read, being born "too early" as an African-American to play major league baseball, fathering a son by a woman who left him after he went to prison, working hard--very hard--after his release to provide for his wife and second son but straying and fathering a daughter by another woman who then died in childbirth, all combine to reveal an "authentic" character. While the particulars of Troy's life ring true to the world of many African-Americans, his resolve to succeed--and his failures--are consistent with Americans of all ethnicities.

A few bits of dialogue didn't ring true and the ending seemed a bit Oprah-esque but Fences nonetheless fairly depicts the hard times and hard life of a hardened man, and the hard effects he had on those around him. By turns a supportive and philandering husband, a loving and conniving brother, a good friend, and a caring but unloving father, like so many American men Troy Maxon resists reliance on all resources but his own. He faces death squarely and he goes down swinging but without hope.

Fences is an excellent film that because of its language could perhaps be rated R but should nonetheless be seen by many.

20 December 2016

What's Wrong With Rights? Part 4

I thought I was done with this topic for awhile when I posted Part 3 here. (You can read Part 1 here and Part 2 here.) But props to reader and friend Ruben Alvarado for directing me to his translation of the works of Friedrich Julius Stahl. (Wikipedia has a stub entry on Stahl here.)

Some historical context: Stahl influenced Dutchman Abraham Kuyper via Kuyper's mentor, Guillaume Groen Van Prinsterer. As a committed Lutheran and legal philosopher active in Germany in the middle of the 19th century, Stahl occupied a space between a revolutionary Liberalism and a paleo-conservative Christian revanchism. He appreciated Liberalism's respect for the individual but not its rejection of a divinely ordered social reality. In other words, he believed in subjective rights (contra Oliver O'Donovan) and an objective right order (contra Nicholas Wolterstorff).

What does Stahl say? Some representative quotes beginning with the foundation for subjective rights:
Being a person, man is an original, independent and thus absolute end [goal] of creation and the world-plan: not mankind, not the concept of man, but the individual, each individual person. The law must conceive him as such. The individual person is condequently an absolute end in the legal order. ... The content of this [innate] right therefore comprises the things belonging to the existence of the person: integrity, freedom, honor, legal capacity, protection in acquired rights. (The Philosophy of Law, Book III at 3)
On the other hand, with regard to right order:
The purpose of law is the preservation of God's world order, albeit in independent and free human implementation. Its first priority is therefore God's commands; its other is rights. ... The efficacy of law therefore consists in this, that it establish and secure on the one hand a definite range of inviolable validity for divine commandments in human common life [right order], on the other a definite sphere of existence and power for men, that is, [subjective] right. (The Philosophy of Law, Book II at 15)
How are the twin aspects of the divine world order related? In short, the fear of God:
The fear of God and full humanity are the twin poles of the ethical world order. The fear of God puts the seal of majesty on the individual man and the public condition. ... For the public order, humanity freed from the fear of God leads on the one hand to fanaticism, as in the [French] Revolution when the rights of man were imposed through the guillotine, and on the other hand, because human society can only be held together through God's ordinances, first to the slackening and then the dissolution of society. (The Philosophy of Law, Book III at 39-40)
Drawing on what Shahl wrote over 150 years ago, perhaps I have discovered my "missing perspective." In Part 3 of What's Wrong With Rights I concluded with the following:
What is the solution to the problem of justice if neither right order nor subjective rights are free from deforming effects? Of little surprise to those who know my work I believe the answer is in a principled combination of the two accounts of justice. ... On my typical three-fold platform of normative, situational, and existential, the latter two perspectives would encompass right-order and subjective rights. For now the third perspective on justice eludes me but I hope to work it out soon.
In other words, the fear of God is what unites the competing accounts of justice--subjective rights and right order. The fear of God entails a "fear" for individuals created in His image. And the fear of God justifies a "right" social and political order that provides a framework within which the rights of those image bearers can subsist.

19 December 2016

Charlotte School of Law: A Hammer Falls

Go here to read a press release from the US Department of Education. The DOE has announced that as of the end of this year students attending Charlotte School of Law will no longer be able to get federal student loans. Without such loans, virtually no one would attend the law school. (There are also private student loans (here) but in fact many would not attend any law school without federal student loans.)

I'm not an administrative law geek but I suspect there's a process of appeal within the structure of the DOE. Charlotte will certainly pursue that line of defense while also litigating in the courts. I'm also reasonably confident that this decision of the DOE will be stayed during the process of litigation. In other words, the law school won't shut down as of January 1. Nonetheless, the short-term effect of this decision, even if stayed, can be expected to have a substantial impact on the new class of law students that Charlotte would expect to enroll in the fall of 2017.

(For a few of my earlier comments on the effects of federal subsidies on the cost of higher education go here and on the world of for-profit higher education in general go here.)

15 December 2016

Liberalism or Pluralism? Part 2

You can read my initial thoughts on this topic here. Even more so than my previous post, this one stands as a work in progress.

Liberalism, which began with faith that Reason apart from a reasoning tradition could supply the foundation for a society free from overpowering internal conflict, has managed to maintain its hegemony in the West by truncating affairs of state to the twin goals of maximal individual autonomy and efficiency. By limiting public debate to means rather than ends, Liberalism has proved unable to deal--at least forthrightly--with contested notions of human nature. Liberalism's unofficial creed is that of the well-known American jurist Richard Posner: man is [nothing more than] a wealth-maximizing animal. Thus the only debates are whether we want to maximize the wealth of individuals or of the whole society. This debate, however, can never be resolved on Liberalism's terms. If there is no human nature, there is no end or purpose for individuals or society. The debate over contractual boilerplate will continue to roil contracts scholars interminably.

Abraham Kuyper recognized Liberalism's gains vis-a-vis the ancien regime as well as its threat to members of living traditions where belief in human nature and human ends remained viable. Perhaps, he thought, he could preserve the best of both worlds by having a tiny liberal state over a "pillarized" Dutch society. Verzuiling would permit the members of the leading traditions extant in the Netherlands of the early 20th century to continue their traditional inquires over the Good with separate schools, political parties, labor union, private societies, publishing houses, newspapers, etc.

The balance of the 20th century saw several factors eviscerate two of the three most significant pillars, Reformed Protestantism and Roman Catholicism. Issues of overreach within the denomination founded by Kuyper weakened the Reformed from within and years of brutal Nazi occupation wearied both Christian traditions from without. But more significant than either of these factors was the relentless homogenization wrought by economic Liberalism. Notwithstanding social pillarization, economic unification proved irresistible. (For some background take a look at my post titled "Markets and Capitalismshere.)*

I thus continue to be unable to see a viable way out. As legitimate an alternative as pillarization was to a unitary political Liberalism, it proved inadequate to fend off the effects of an atomizing economic Liberalism. I'm neither a prophet nor the son of a prophet. My darkening view of the immediate future is more of the same: ever-limited space (public or private) for valorization of the Good but ever-more toys to divert us.

*James Bratt's biography of Kuyper hints at this:
The logic Kuyper saw at work is endorsed by the neo-Marxian Eric Hobsbawm's observation that by 1870, under the convergence of two Revolutions--French and Industrial--a Liberal capitalist system was beginning to standardize the world so that, for all the era's movements of national unification, there wre diminishing prospects of genuine national distinctiveness.

14 December 2016

Student Loans: Jealousy or Hypocrisy?

You can read a report from The Wall Street Journal here about the anger of some loan borrowers. Those who have dutifully paid are upset about the expansion of income-driven repayment plans. (Some of my earlier comments about IDRs here.)
“I don’t think it’s fair that some people would get forgiven and not us,” said Mrs. Reed, a retired hair stylist whose husband still works long hours as an electrical engineer. “We did everything right.”
Three thoughts. First, IDRs have been around for a long time. The article doesn't explain why the Reeds didn't take advantage of one years ago. First-and-a-half, most IDRs will saddle the borrowers whose loan are forgiven with a large tax bill at the end.

Second, the issue is one of public policy, not justice. Forgiveness is never "just." Perhaps the disgruntled among student loan borrowers should consider the words of Jesus about the full-day laborers who were angry about the equal pay given to the short-timers. (Matthew 20.)

Finally, unchecked expansion of student loan forgiveness is a function of the runaway federally-subsidized loan programThis is the fundamental problem and one that no one at the federal level is going to address because too many voters like it.

13 December 2016

Smith Or Dillon?

A few folks criticized Patti Smith's Nobel version of A Hard Rain's A-Gonna Fall but it compares well with Dillon's own 1964 performance. Seventy years of life adds timbre and gravitas to a song as substantial as this one.

I don't know if Dillon was the best choice the Nobel prize for literature but the committee could have done worse.

12 December 2016

Liberalism or Pluralism? Part 1

(Trigger warning: undefined terms; very much thinking out loud.)

A couple of days ago I posted here about Kenny Chings new article Liberalism's Fine Print: Boilerplate's Allusion to Human Nature. Drawing on the work of Alasdair MacIntyre, Ching concluded that the ever-inconclusive arguments about the legitimacy of contractual boilerplate was consistent with the Liberal tradition in which autonomy and efficiency (freedom vs. net gains in social welfare) are played off against each other. Indeed, Ching argued, the contemporary debates over whether boilerplate generates net consumer gains or instead amounts to a degradation of democratic values was rational as Liberalism defines rationality. 

Initially I thought Ching's conclusion was absurd: how could an interminable debate between autonomy and efficiency be rational? Isn't the point of reasoning to arrive at the truth of a matter? Well, as it turns out, not necessarily.

By excluding from its version of rational discourse any discussion of human nature (anthropology) and human ends (teleology), Liberalism renders impossible any conclusion to the argument about boilerplate. In other words, per MacIntyre, Liberal reasoning is not designed to get us to the truth but rather to keep us occupied while we buy stuff.

At this point I could continue about the weaknesses of MacIntyre's conception of tradition-bound notions of rationality and his tendentiously prolix prose. But I won't. Instead, I'll pick up with something about which MacIntyre writes in the final chapter of Whose Justice? Which Rationality? that has helped me clarify the difference between Liberalism and the pluralism of the sort advocated by Abraham Kuyper.

MacIntyre's account of Liberalism finds in that 17th century phenomenon an impetus to set forth a neutrally rational account of human social and political life. Forgoing appeals to the Classical and Christian traditions, Liberalism sought an Archimedean point by which to establish forms of human life (e.g., justice) and thought (i.e., rationality) that would overcome the problems apparent in the leading 17th century alternatives.

Purporting to embody neutral reason, one not in service of a tradition-based teleology, Liberalism started off strong but has ultimately found it impossible to resolve its internal--and unending--antinomies such as the priority of autonomy or efficiency, freedom or welfare. Rather than admitting that Liberalism itself is no more than another tradition, Liberalism inculcates a political order where appeals to a specific conception of the human good are recharacterized as expressions of attitude and feeling rather than as subjects of argument and counterargument. A conception of the human good, which might resolve the problem of autonomy vs. efficiency, is thus the only resource to which appeal cannot be made in the world of academic discourse.

By reducing principals to preferences, Liberalism places all its participants in a Matrix-like world of shadowy appearances. Liberalism forces followers of other traditions to keep their thoughts to themselves or face exclusion from public discourse by forcefully bracketing questions of human nature and human good from rational discourse. Liberalism's economic order, market capitalism, teaches us the same; everything we want is an irreducible and irrational preference (and that the more we want, the better)

But it's important to recall that the Liberal tradition wasn't imposed on the West by an alien conqueror. Other traditions had dominated life and thinking (i.e., justice and rationality) for thousands of years. MacIntyre spends much ink explaining why Liberalism largely supplanted its Western rivals but certainly among them was failure of the Medieval and early-modern Christian synthesis of Classical thought and practice to deal with the rise of technology, the market economy, and intense inter-national violence. As MacIntyre observes:
What most profoundly finally moved the largest part of Europe's educated classes to reject Aristotelianism [as synthesized in both Catholicism and Protestantism] as a framework for understanding moral and social life was the gradual discovery during and after the savage and persistent conflicts of the age was that no appeal to any agreed conception of the good, either at the level of practice or of theory, was now possible.
Fast-forward to the turn of the 20th century. Dutch theologian and politician Abraham Kuyper believed that repristinating a pre-Revolutionary (i.e., pre-Liberal) Dutch society was out of the question. By the late 19th century it was too late to reverse the effects of either the Right-Liberal (market-oriented) form of economic life or the Left-Liberal (socialist) response. With his program of verzuiling ("pillarization"), Kuyper sought an alternative form of social life in which there was neither a single, national, agreed-upon conception of the good nor sublimation of individual conceptions of the good to a pretense of a singular conception of rationality. In pillarization Kuyper anticipated what he thought was a non-Liberal answer to the question McIntyre would later ask:
What kind of principles can require and secure allegiance in and to a form of social order in which individuals who are pursuing diverse and often incompatible conceptions of the good can live together without the disruptions of rebellion and internal war?
Kuyper's approach stipulated that substantial numbers of citizens in any modern nation state would have different understandings of what it means to be human and thus different forms of practical reasoning about subjects like justice. They would, in other words, be participants in various traditions. But rather than forcing into a single straitjacket all such incompatible forms of thought and practice, each would instead be allowed its own "pillar" within which to live according to its own forms of rationality and, to the extent possible, its particular understanding of justice.

The Dutch experiment with pluralism permitted secular liberals, Reformed Protestant Christians, and Roman Catholics each to have its own system of education and non-governmental social organizations. By combining pluralism and subsidiarity at the local levels, Dutch political Liberalism functioned only at the highest level of the state. For a while, anyway.

Dutch pillarization largely collapsed over the course of the second half of the twentieth century. Notwithstanding pillarization, Liberalism has worked its leaven throughout Dutch society.

Next time some thoughts on whether the collapse of pillarization was inevitable and what might be done to limit Liberalism's reach without returning to the 17th century wars of religion.

08 December 2016

The Irrepressible Kenny Ching

Earlier this year former Regent Law School colleague Kenny Ching published a new piece in the Marquette Law Review: Liberalism's Fine Print: Boilerplate's Allusion to Human Nature (download here). You can read my comments on his earlier draft here.

Boilerplate are the rarely-read and seemingly interminable contractual terms presented to consumers without an opportunity for negotiation. For example, raise your hand if you've ever read the "terms and conditions" provided in connection with software or an app that you've downloaded. A print-out might run over a dozen pages and virtually no one reads them, and the website or app developer knows that. As Ching explains,
"Boilerplate" refers to contracts of adhesion in which there is a significant disparity in bargaining power between the parties, the offeror offers terms on a "take it or leave it" basis, and the contract is formed after little or no negotiation.
Whatever contracts might really be, the myth that carries them along as a central tool of social ordering in the modern world is that contracts represent the will of the parties. Yet boilerplate seems by its unnegotiated and unread nature to lie outside this justifying account for the legitimacy of contracts.

Boilerplate is thus the subject of interminable debate in the legal academy (see my posts herehere, and here for some examples). To frame the argument: Does the pervasive phenomenon of boilerplate contracts violate the notion of individual freedom we take to characterize modernity? Or is boilerplate a means of maximizing consumer welfare which we also take to characterize modernity?

Kenny does a deft job of describing the opposing and oscillating poles of the political self-understanding of modernity, Liberalism. On the one hand,
[LIberal] Libertarians believe people have natural rights such as life, liberty, property, and freedom of thought and contract.
On the other hand,
[Liberal] Progressives believe that rights are created and defined by society; rights are to limited or extended based on the benefit provided to society as a whole. 
With the demise of the Medieval synthesis ostensibly grounded in a transcendent reality, modern folks (at least in the West) have dashed from one pole--freedom or utility--to the other as their self and group interests have collided with an excess of the deforming effects of the other pole. (Kenny's discussion of the continuing conflict between the freedom and utility bears some resemblance to my recent discussion of the conflict between two competing accounts of justice: subjective rights vs. objective right-order. Check herehere, and here. But we're not talking about quite the same issue.)

Of the contemporary critics of modernity and Liberalism (in both of its Libertarian and Progressive flavors) Alasdair MacIntyre stands out. Ching makes use of MacIntyre's After Virtue to describe Liberalism's failure to give rational grounds for its moral judgments. In other words, Liberalism cannot adjudicate between its Libertarian and Progressive understandings of freedom and efficiency because each is simply a given of the Liberal project. Yet, this situation presents no fundamental problem from the internal Liberal perspective because Liberalism eschews any account of human nature and thus consciously (or at least semi-consciously) deprives itself of any rational ground by which to order the relative importance of these opposing poles. In other words, the race between Libertarian and Progressive evaluations of boilerplate will never end because there's no finish line.

Can we call such a state of affairs "rational." Drawing from After Virtue Ching believes the answer is yes. But After Virtue isn't MacIntyre's final word on the rationality of the Liberal tradition. Nor is MacIntyre's subsequent Whose Justice? Which Rationality? the last word, either. What might cause an irreparable rupture in the Liberal tradition remains to be seen but its bracketing of questions of human nature doesn't mean there is no such thing as human nature which will at some point cause the screw to turn again.