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.

16 April 2015

The Classically Liberal Family: John Witte's Magisterial Defense

It's not often the case that a law review article rises to the level of a tour de force. Yet that is how I would characterize John Witte's The Nature of Family, The Family of Nature: The Surprising Liberal Defense of the Traditional Family in the Enlightenment (download here). Drawing from his abstract:
This Article shows that many Enlightenment liberals defended traditional family values and warned against the dangers of sexual libertinism and marital breakdown. While they rejected many traditional teachings in their construction of modern liberalism, Enlightenment liberals held firmly to classical and Christian teachings that exclusive and enduring monogamous marriages are the best way to ensure paternal certainty and joint parental investment in children who are born vulnerable and dependent on their parents’ mutual care.
Over the eighty-six pages that follow, Witte demonstrate that the classical liberal of the mid-sixteenth to mid-nineteenth centuries supported what today is perjoratively characterized as the traditional family (one male and one female in a legally-sanctioned relatively indissoluble union). Nor was their support off-handed and devoid of deep consideration and analysis. Writer from Hugo Grotius to Mary Wollstonecraft (and scores of others) thought deeply about marriage and came to the conclusion, "by reason alone," that it was the best way to achieve the ends of liberalism itself. 

It is also crucial to Witte's argument that many of these classical liberals reject the authority of the Bible and religious tradition. Many also eschewed  or at least failed to employ the sort of traditional natural law teleology that can be found among today's neo-Thomists. Classical liberals were not so much concerned about man's chief transcendent end as man's more limited terrestrial pursuit of happiness. They were, in other words, part of the secularizing trajectory that characterizes this age.

That there could be a liberal argument for the "traditional" family without an appeal to tradition might seem surprising. While not believers in tradition as a requisite for human flourishing, classical liberals were acute observers of the human condition:
[Their] argument ... started with three brute realities about human nature and sexual reproduction that every family law system had to address: that human adults crave sex a good deal of the time, that human children need help for a very long time, and that human beings, unlike all other animals, are capable of self-destructive and species-destructive sexual behavior that society needs somehow to deter in the interests of private and public health, safety, and welfare.
Neither appeal to God nor God's revelation nor the traditions of men like Aristotle or Aquinas were necessary to convince these writers of the importance of stable marriages to human society and common civil goods. Most, like Hugo Grotius, were "more interested in what the law of nature itself could teach us about sex, marriage, and family life independent of biblical norms and divine revelation." But those observations of the law of nature independently confirmed many--although not all--of what biblical norms and the Western tradition taught.

Witte quotes at some length the piquant observation of my favorite Enlightenment natural law writer Samuel von Pufendorf (take a look at my Consideration in the Common Law of Contract: A Biblical-Theological Critique) for the conclusion that there is an observable, rational basis for marriage as traditionally understood:
The reality of lengthy infant dependence gave humans a strong natural inclination toward exclusive and enduring marriages and a strong natural abhorrence to sex outside of marriage—even though “man is an animal always ready for the deed of love.” If natural law had not channeled this strong male sex drive toward marriage, and men were permitted to have random sex like “a cow [] in heat,” they would do nothing to help the mothers and children who need them. “[W]hat man would offer his support unless he were sure he was the father” of her child? “[W]hat man would undertake the care of any but his own offspring, whom it is not easy to pick out when such free license prevails?” Sex only within monogamous marriage was a natural necessity for mankind and a natural duty for each man ...
I will omit discussion of the multitude of other Enlightenment thinkers whose views on the nature of marriage Witte canvasses. It is useful to note that by the end of his article Witte describes how the thick, multidimensional understanding of marriage as both a private and public institution directed toward private and public goods, which characterized classical liberals, continued well into the modern era of Progressivism:
Some readers will be surprised that the Anglo-American common lawyers of the nineteenth and early twentieth centuries drew directly on this rich natural law theory in devising the idea of marriage as a valuable status that deserves to be privileged and in denouncing incest, polygamy, adultery, fornication, and easy divorce as dangerous deviations from natural and social order. 
Even if, as Witte observes, all sorts of natural law thinking are deemed old-fashioned by late-modern and post-modern thinkers and writers, it remains the case that "the basic facts of human nature and human sexuality have not changed." Thus, even with a series of cogent qualifications, Witte stands
firmly in support of the traditional marital household as a natural and necessary institution for the cultivation and preservation of the very ordered liberty and social stability that seems to be eroding today. And I believe that the natural law configuration of sex, marriage, and family life still provides enduring wisdom and instruction for a post-Christian and postmodern Western culture that remains dedicated to the liberty and equality of its citizens.
I have previously posted positively about others of Witte's works. I have also given two cheers for (classical) liberalism in my Looking for Bedrock piece. I cannot help but wish, however, that Witte had gone on to explain while the liberal view of the importance of the family as traditionally understood has so little traction today. He does, to be sure, list a variety of confounding factors ranging from artificial reproductive technology to the benefits of the modern welfare state as examples of the loss of some the material supports for marriage. And, of course, there has been the battle against unjustified vestigial forms of discrimination remaining in the liberal view of marriage. Yet, to my mind, neither of these sets of forces adequately accounts for the contemporary collapse of that view. Thus, I eagerly await Witte's promised account of the rest of the story (and what should be done).

14 April 2015

Taxpayer Standing in Municipal Bankruptcy: I Report, You Decide

By now you should have downloaded and read my article Who Pays the Price? The Necessity of Taxpayer Representation in Chapter 9 (download here). I argue that while taxpayers do not have the right to vote on a municipal plan of adjustment, they nonetheless have standing to be heard on the issue of the feasibility of the plan when the time comes for its confirmation. (For even more background on the nature of municipal bankruptcy read my Municipal Bankruptcy: When Doing Less Is Doing Best.)

I come to this conclusion because I do not believe taxpayers are creditors of a city. While in ordinary conversation we may say that a city owes a political debt to those who fund its operations, such a use of the word "debt" is metaphorical, not legal, and the Bankruptcy Code's definition of debt includes the legal-economic side but not the political.

Professor Christine Sgarlata Chung of Albany Law School comes to a different conclusion on this point. In her article, Municipal Bankruptcy, Essential Municipal Services, and Taxpayers' Voice, she argues that taxpayers are creditors of their municipality and thus have get to vote on the plan. Recognizing taxpayers as creditors could have a significant effect on plan confirmation. Rather than a voice at confirmation, albeit a significant one, a negative vote by taxpayers could prevent confirmation by normal means and force a city to attempt an arduous cramdown of its plan.

Professor Chung makes an impassioned argument in support of her conclusion. She takes advantage of an opening created by Judge Rhodes in the Detroit bankruptcy. Judge Rhodes used the phrase "service insolvency" to describe in part the access of the city to the relief afforded by Chapter 9. Drawing on Judge Rhodes's opinion that Detroit was indeed eligible for Chapter 9, Professor Chung provides a gut-wrenching account of the failure of Detroit to provide many of its residents with a modicum of the benefits of civil government. If insolvency encompasses anything apart from a balance sheet, Detroit was insolvent. (Of course, Detroit was insolvent in the financial sense as well.)

But can the term insolvency, defined as it is by the Bankruptcy Code, be extended from the financial to the political? In other words, is there such a state of affairs as service insolvency?

Without belaboring a blog post, suffice it to say that I considered and rejected the notion of service insolvency in my article, Who Bears the Burden: The Place for Participation of Municipal Residents in Chapter 9 (download here). The notion, as intuitively appealing as it may be, is inconsistent with the Bankruptcy Code. In addition, I believe that insuring taxpayer representation at the confirmation of a Chapter 9 plan--my conclusion-- is adequate.

In any event, I commend Professor Chung's article (as well as my own, of course) to my readers' attention. I'll let the discerning among you evaluate who has the better of this disagreement.

13 April 2015

Tessa Dysart and Robert Schuller: Two Names That Have Never Before Appeared in the Same Sentence

But for this post, colleague Tessa Dysart and the late Reverend Robert Schuller have never appeared together. With respect to Tessa, go here to read an excellent piece titled The Origination Clause, the Affordable Care Act, and Indirect Constitutional Violations, and published in the Cornell Journal of Law and Public Policy. Tessa explains how passage of what is certainly President Obama's signature piece of legislation likely violated Article I, Section 7, clause 1 of the Constitution. (In case you've forgotten, that's the one that says "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.")

Turns out that the Affordable Care Act did not so originate, at least not directly. Tessa's is not a simple argument (the bill that became the Affordable Care Act began in the House but nary a word of that bill became law after the Senate finished substituting the Affordable Care Act for what the House had sent over) but is certainly accessible to anyone interested in those "forgotten" clauses of the Constitution.

About the Reverend Schuller: I posted my thoughts on the occasion of his passing here. Two other posts are worth the read. For the point of view of sympathetic semi-insider, read Jim Schaap's post here. Jim is retired from the faculty of my undergraduate alma mater, Dordt College, and has spent many years in Sioux County, Iowa, Robert Schuller's birthplace. Schaap knows well the strengths and foibles of the breed of Dutch Calvinists who simultaneously take their religion seriously and keep their corner of Iowa running like a profitable, well-oiled machine.

Speaking of profitable, well-oiled machines, go here to read The Economist's obituary for Robert Schuller. The Economist's are among the best obits in English and this one takes a rather different tack on Schuller, whom it aptly characterizes as a "pastorpreneur," and the ultimate downfall of the Crystal Cathedral:
Mr Schuller, who died on April 2nd, was the leading example of a very American breed of businessperson: the pastorpreneur. He succeeded by applying the principles of business to religion. However, in his later years, a religious empire that had grown huge by embracing economies of scale and customer focus fell victim to two familiar causes of business failure: poor succession planning, and a failure to react to dynamic new competitors.
Live by the market, die by the market, I guess. Although such a truncated view of Schuller does not do him justice, it does identify one of the besetting problems of American evangelicalism generally: its consumer-driven mentality. Following one step behind the world is not going to change the world. Something about salt loosing its savor comes to mind.

12 April 2015

In Memoriam: Helen Pryor

I've recently discovered that several religious traditions take care to commemorate the date of the death of a loved one. Helen K. Pryor, my mother, died on this date in 2007. Below you can read from her obituary:

Helen K. (Knepper) Pryor, 86, passed away on Thursday, April 12, 2007 at Sentara Nursing Center in Virginia Beach, Virginia.
Helen was born on November 24, 1920, just a few minutes before midnight and thus a day before her twin sister Harriet, who arrived 20 minutes later. She was born at home on the farm of her parents, Charles and Florence (Shaver) Knepper, in rural Fulton County, Pennsylvania. Helen grew up on the farm and helped her older brothers, Ned, Joel, David, Don, and Robert, with milking and other farm work. Her mother passed away when Helen was quite young and her older sisters, Anita, Edyth, and Phyllis, did much to raise her before her father remarried. Helen graduated from Hustontown High School in the spring of 1938 and later that year moved to the Radnor [Pennsylvania] area, where she lived with her older sister Phyllis and went to the Homewood Training School for Nurses. During World War II she was involved with the USO with Horace Pryor's stepmother, through whom she met her future husband. Helen and Horace were married on June 1, 1946, and lived in or around Radnor until 2005. They moved to Virginia Beach in May of 2006.
During her married life Helen was a homemaker, mother of two children, bookkeeper, and all-around office manager for Horace's businesses. Helen and Horace owned the Horace Pryor Co. in Wayne until they retired. They were very involved with several Presbyterian churches over the course of their lives and joined Proclamation Presbyterian Church in Bryn Mawr shortly after its inception. Helen enjoyed growing houseplants, watching birds, and combing the beach for interesting shells at their place on the Gulf Coast of Florida. Nothing delighted her more than watching her grandchildren. She experienced many of the typical infirmities of growing older but remained mentally sharp by working crossword puzzles and reading novels. Her health took a turn for the worse in early January 2007 and she passed away peacefully on the afternoon of April 12.

09 April 2015

Some Funerary Observations

I've previously posted about the propriety of keeping the dead--that is, their graves--in closer proximity to the living. I expressed my thoughts in terms of the the Creed's confession that Christians believe in the communion of the saints. Check here and here.

Those who find my take on the subject of interest would do well to go here and read Susan Fiske's post The Death of the Funeral. Fiske, in turn, draws many of her observations from a book by Caitlin Doughty, "Smoke Gets in Your Eyes: And Other Lessons From the Crematory." I haven't read Doughty's book but by Fiske's account (and many others, as well) it's worth reading.

Backing up one step from my goal of restoring graveyards to churchyards, Fiske observes that
In our culture, it’s easy to avoid dead bodies. Internet cremation services will dispose of Uncle Joe without inconvenience. Out of sight and out of mind — that’s the way most of us prefer death. We pursue immortality by spending billions on anti-aging products, bingeing on exercise and diets, and surgically altering even the most innocuous body parts. Now, even the way we deal with dead bodies enables our denial of the inevitable. In order to avoid death, we have killed the funeral.
In short, as she piquantly puts it, "The dead are playing hooky from their own funerals." The American fear of death on the one hand causes us to spend billions on extending our lives by a few years and on the other to pay someone to whisk away the body of the deceased and "eliminate" it as far out of sight and mind as possible.

Death is not pleasant; it is fundamentally at odds with the nature of the universe created by the living God. But for Christians to run away from it as fast as those who have no hope is yet another demonstration of their cultural captivity.

With Fiske, I fully agree that a funeral should not elide the reality of death. I concur that a person's death should be situated in the context of sin, salvation, and ultimate redemption. And I certainly urge that we call the ritual gatherings that mark the passing of life "funerals" and not the oh-so-upbeat-American euphemism "celebration of life."

But I would not go so far as to eliminate from the funeral--as Fiske seems to suggest--memorials of the deceased. That is, photographs, videos, and the like showing loved ones full of vibrant life, when contrasted with the present--and visual--reality of their death can contribute to the felt reality of our own mortality.

08 April 2015

Family Christian Stores Back on the Block

I previously posted here and here about the Chapter 11 bankruptcy of Family Christian Stores. FCS does not propose to reorganize its debts; rather, it plans to sell virtually all of its assets to a new entity who will continue business as usual albeit with a much smaller debt load.

Many of the creditors objected to the proposed sale because the "stalking horse" buyer initially proposed at the outset of the bankruptcy case was controlled by the same fellow, Richard L. Jackson, who had bought FCS in 2012 (and given it to a non-profit holding company) and who immediately before bankruptcy had purchased a large piece of the secured debt of FCS. Many of the same creditors argued that Jackson was wearing one or two hats too many and, on top of that, FCS didn't really own its inventory because the creditors had consigned it to the company. (Read the technical legal arguments about that issue here.)

All of this is a long way of saying that FCS eventually withdrew its motion to sell to Jackson.

. . . Only to file a new motion on March 30 to sell the company with, it is claimed, "significant support from interested parties." So, what happened?

First, Jackson is no longer the stalking horse bidder. All any potential buyer need do is fill in the blanks on the 75-page asset purchase agreement and the one with the highest number wins. Jackson may still be the highest bidder but he is no longer running on the inside track.

Second, Schedule 4.5 to the asset purchase agreement lists all of the asserted consignment interests in inventory. FCS is not agreeing that its inventory really is consigned but only that these many vendors claim to own the consigned inventory. For the reason noted below, the issues of whether there were "true" consignments or whether there were "consignments in the nature of security" or whether the creditors of FCS "generally knew" FCS was in the business of selling other people's stuff will be settled.

But, you might wonder, who would buy the assets of FCS if they don't know what those assets are? In other words, how much would anyone bid if around $20 million of inventory belongs to a variety of other folks? Or, from the perspective of the consignors, why would they permit FCS to sell their stuff to someone else?

In short, the consignors don't want their stuff back. They would prefer to have someone take over all the FCS stores and sell the books, gift items, and kitsch to retail customers. Sure, the consignors want to get paid in full for what they've delivered but they are, by and large, willing to work on that problem with the successful buyer. In fact, any possible buyer will work a deal with the most important consignment vendors before submitting a bid.

Settlement is in the air when commercial disputes come down to dividing a limited pot of money. I believe the consigning vendors would have had a stronger settlement posture had they filed the "cheap insurance" of a UCC-1 financial statement but that's water over the dam and now it's about sharing the pain. No one will get paid in full and hope in the recovery of print media businesses seems to spring eternal.

07 April 2015

What's Worse Than a City in Chapter 9 Municipal Bankruptcy?

A city that's kicked out of Chapter 9.

Last year I posted about hapless San Bernardino here and here but go yet here to read an insightful piece by Frank Shafroth about the Twilight-Zone possibilities that await the city if it doesn't get its act together and file a Chapter 9 plan by the end of May. Frank was another of the panelists at the Widener Law Journal's April 2014 symposium on Chapter 9 bankruptcy where I also spoke.

Frank's piece makes a number of interesting points but this one is crucial:
U.S. Bankruptcy Judge Thomas Bennett [who handled the Jefferson County, Alabama Chapter 9 bankruptcy] told me that one of his greatest concerns in the Jefferson County, Ala., case was the absence of the county's taxpayers from a key role in helping it put together its exit plan. That isn't going to be the case in San Bernardino. But involving the public in the creation of San Bernardino's plan to exit bankruptcy is likely to be a messy process.
My panel topic at the Widener symposium was the necessity of taxpayer involvement in the Chapter 9 plan process. Many might be surprised that the Bankruptcy Code spells out no specific role for taxpayers, which seems odd since ultimately they'll be footing the bill. My comments turned into an article that the Widener Law Journal published. You can download and read my piece, Who Pays the Price? The Necessity of Taxpayer Representation in Chapter 9 by going here.

But taxpayers do not constitute the entire public whose interests are at stake in a municipal bankruptcy. All of a city's citizens are recipients of some city services ranging from police and fire protection to libraries to developer-friendly convention centers. Many municipal residents do not pay direct taxes and some taxpayers are not residents. Thus, I argued in Who Bears the Burden? The Place for Participation of Municipal Residents in Chapter 9 (download here) that in appropriate cases municipal residents should be heard on the "feasibility" of a proposed plan of adjustment.

All of this will be meaningless if San Bernardino's case is dismissed. From an outside perspective, what becomes of the claims of the city's many creditors would be an interesting case study. From the perspective of the city's taxpayers and residents, however, dismissal would represent a loss of money and time and perhaps much more.

06 April 2015

"American Caesar"

It took me a while but I finished William Manchester's "American Caesar: Douglas MacArthur 1880-1964." I grew up in a household where Douglas MacArthur was remembered fondly, probably more for political than military reasons. After reading Manchester's 1978 biography of the man, I much better understand why those who served under him either loved him or loathed him. His military genius--until nearly the end--exceeded that of all other Allied generals during WW II, as did his hauteur.

MacArthur was a man born out of time. He was a patrician, a Victorian liberal to a greater extent than even his older contemporaries like Pershing. Only Franklin Roosevelt matched MacArthur's sense of a superior's noblesse oblige, and Roosevelt knew how to disguise his.

MacArthur's tumultuous personal life was entirely new to me. No one I knew talked about his first short-lived marriage or the woman he "kept" in a Washington, DC hotel while he was the Army Chief of Staff. I had known, on the one hand, that during the Korean War MacArthur had urged "salting" the North Korea-China border with radioactive waste, and on the other, that he had urged both John F. Kennedy and Lyndon Johnson to stay out of Vietnam.

In any event, I won't try to summarize Manchester's 709 pages of well-documented prose. I will instead end with one quote that especially hit home for a Vietnam-era American male (the year of whose 18th birthday coincided with the abolition of the draft):
The President [Franklin Roosevelt] wanted some reassurance on that point [that MacArthur's proposed invasion of the Philippines would be less costly in American lives than the Navy's proposal to invade Formosa]. Casualty lists were lengthening that summer [of 1944]; among those recently killed in action were Joseph P. Kennedy, Jr., a flier, and the sons of Harry Hopkins [one of Roosevelt's closest advisers] and Leverett Saltonstall [a prominent Republican politician], both enlisted men in the Marine Corps. The war was being driven home to public men as the Vietnam War would never be.
 So remains the case today.

04 April 2015

Holy Saturday

Somewhere on the Internet today--I can't remember where--I read two verses from Psalm 88:
I spread out my hands to you /  Do you work wonders for the dead? /  Do the departed rise up to praise you?    Selah    //  Is your steadfast love declared in the grave, / or your faithfulness in Abaddon?     
A text in its tone of despair that is appropriate for Holy Saturday, the day in which the uncomprehending followers of Jesus felt that and little else. You can read the entirety of Psalm 88 here. The verses quoted above aren't out of place for there is no resolution to the theme of lament.

Go here to listen to a sung version of Psalm 88. It may not be quite doleful enough for the text but it gives some sense of the meaning of the words.

I doubt that I've sung Psalm 88 in a worship service. Indeed, I suspect very few have, Yet it's crucial to remember that what passes for Christian worship today, at least in the American evangelical version of worship, is woefully incomplete. Penitence and lament are as much of the fullness of human life today as they were over 2000 years ago.

03 April 2015

Be Careful What You Wish For: A New Private Student Loan Lender Joins the Market And ...

... The Feds Slowly Reveal Deadbeat Colleges

The federal government makes the overwhelming majority of student loans and, as if that's not enough, with its Parent Plus program, the feds also make loans to parents of students. If you're a parent who wants to borrow on slightly better terms go here to read in the Washington Post about a private lender, Citizens Bank, that will lend at a lower interest rate and without the fees the feds charge.

A lower rate of interest is certainly good news but these loans, like direct student loans, are not dischargeable in bankruptcy. Even worse, loans to parents are not eligible for the income-based repayment or pay-as-you-earn loan reduction programs that are available to students. Student loans to parents explain the creepy phenomenon that more and more folks are dying with unpaid student debt. At least death, even when the decedent's estate is insolvent, does discharge the remaining balance. At least I think so.

On another half-way bright note, the federal Department of Education has at last published the list of some of the schools of "higher" education that are on its Watch List for financial insolvency. Go here to read the list and here to read a good editorial in the New York Times arguing for complete disclosure of all of the schools that might be in financial distress.

Why is complete disclosure important? Imagine this worst-of-all-worlds scenario: both students and their parents borrow to the max only to have the school that receives the students loans go out of business. No education and nondischargeable debts all around. Not likely, you say? Read my earlier post about the Corinthian College students here.