21 January 2019

Compromise

Links to two previous posts on the place of compromise (here and here) that seem apropos of current political discourse. Not every hill is to die on and the majority of political judgments are matters of prudence. Even though a majority of those decisions may reflect poor judgment, they are not on that account morally evil. And, given some appropriate epistemic humility, the purveyor of poor judgment may be me.

12 January 2019

PryorPostsIndia 2.1

For those wondering what's happened since I posted PryorPostsIndia 2.0, read on.

Hurry up and wait is a bit of an overstatement but only a bit. Since arriving in Delhi shortly before midnight (IST) this past Tuesday, I've spent a fair amount of time in my hotel room. Turns out that students National Law University-Delhi, have a longer than typical Winter Break to give them time for an internship in the winter as well as the summer. A good idea, really, but one that slows arranging for a place to stay in the university's guest house because a number of administrators are also taking a break.

But not to worry. Professor Risham Garg, my colleague in my Fulbright project, has been on campus and we have met several times to discuss the research that should be done for my project as well as talk about a syllabus for a joint LL.M. course in comparative bankruptcy law. And I have spent many hours reading some of his books providing, on the one hand, a practice-oriented approach to the workings of India Bankruptcy Code (IBC) and, on the other, integrating regulations as well as administrative and judicial decisions construing the IBC. So far I've identified a number of questions to be pursued (somewhere around 40) so there's little chance of getting bored while here.

07 January 2019

PryorPostsIndia 2.0

This blog began a decade ago when this post featured an account of our delayed arrival in India. Why India? Now as then I'm heading (departing IAD at 18:30 on 7 January) to the Subcontinent as a Fulbright Scholar. This time I'm going to do research on the implementation of the new India Bankruptcy Code of 2016 (IBC).

Now as then I'll use my blog to discuss both my professional, academic work as well as personal insights on life, living, and folks I meet in India. I'll be posted to National Law University-Delhi and collaborating with Dr. Risham Garg who's focused his legal scholarship on the IBC. Several others of the NLU-D faculty were on faculty at the National Law University-Jodhpur where I taught on my first Fulbright ten years ago. It will be good to renew their acquaintance. 

Jodhpur, an Indian city of a bit over 1 million inhabitants, is small change compared to Delhi (a large metropolis of about 19 million souls). Navigating life in such a large (and polluted) city will present challenges.

I won't be changing the name of the blog but for most purposes it will be pryorpostsindia again.

06 January 2019

The Museum of the Bible

I returned to the Museum of the Bible for a second visit in two weeks. With my family I had spent about four hours moving through all of the exhibits except for the floor devoted to the "History of the Bible." Today I finished with several hours looking at the museum's collection of manuscripts and large number of early printed Bibles. As with each of the other presentations, the museum's curators have done an exceptional job of mixing artifacts with audio explanations and engaging video first-personal enactments and discussions.

Even before it opened some critics were ready to pronounce anathema on the Museum. It's heresy? One of the greatest bugaboos of identity-driven politics of: proselytization. After all, what else would one expect from something funded in large part by the family that owns Hobby Lobby? More thoughtful observers demurred. And so do I. 

The Museum of the Bible is just that. Its exhibits show rather than tell how the text of the Bible came to be, how it has been preserved, and the extraordinary effects it has had. The museum espouses no theory of biblical inspiration or even biblical authority. Instead, it presents the way of living in which the events described in the Bible took place and how it has been used for good and not-so-good in the ensuing millennia.

I was surprised at the scope of perspectives featured in the Museum of the Bible. Several exhibits were prepared or at least strongly influenced by Jewish scholars. Although the Green family are part of the American Evangelical tradition, the Vatican Library has space for an exhibit and some Protestant canards about the Medieval Church's opposition to vernacular translations are laid to rest.

In sum, the Museum of the Bible is not didactic. Instead, it demonstrates how thoroughly the Bible was (and to a significant extent still is) one of the primary threads of the Western tradition. Whatever may be your position with respect to the message of the Bible, this museum will enrich your understanding of Western art, society, and culture.

(For a more in-depth consideration of the Museum of the Bible and its early critics go here to read a good piece by Glenn Moots.)

20 December 2018

Greatest Hits of Student Loans

A few days ago a reader wondered if I could collate and summarize my multitude of posts on the topic of student loans. Anything for an interested follower!

Subsidizing all higher education here.

Subsidizing for-profit pseudo-education here.

Undoing the subsidy for private student lenders here and here.

One size does not fit all: pricing risk into student loans here and here.

Student loans can be discharged herehere, and here.

How to make money from deadbeat students here.

Is there really a student loan crisis here?

Of course there are more posts but this should be enough to keep folks busy for awhile.

But what about a fundamental question of policy: Wouldn't permitting student loans to be freely discharged in bankruptcy invite impecunious students to walk away from college with their enhanced "human capital" and shift the cost to hapless lenders (or taxpayers)? In other words, wouldn't they have their cake and eat it too?

Four thoughts. First, student loans were freely dischargeable in bankruptcy before 1979 and the earth didn't stop turning on its axis. Of course, much has changed over the past forty years so perhaps we should not look to history for guidance.

Second, there are long-term costs associated with bankruptcy that even today dissuade many folks who are otherwise eligible from seeking bankruptcy relief. Two that stand out are social stigma and the increased cost of credit down the road.

Next, many students are not actually repaying their student loans as it is. There's not as much downside risk as many folks believe in permitting students to discharge debt they aren't likely to pay anyway. Related to this point is the possibility that permitting the discharge of student loans might actually increase economic activity by letting those former students borrow money for more productive things like houses and consumer goods.

Fourth, combining bankruptcy dischargeability with risk-base pricing could have a deflationary effect on the cost of higher education. Without an unending pipeline of tuition dollars, colleges and universities might refocus their activities on the mission of education (or at least training) without the cruise-ship frills and administrative bloat that we have also seen over the past forty years.

Anyway, there are some rainy-afternoon thoughts on an always interesting topic.

11 December 2018

"The Peril and Promise of Christian Liberty"

No matter how little I enjoy marking final exams, and no matter how many "breaks" I manage to find for myself, I'm not up for doing a full-on review of "The Peril and Promise of Christian Liberty: Richard Hooker, the Puritans, and Protestant Political Philosophy" by W. Bradford Littlejohn (Eerdmans 2017). But I can give my readers some reasons why they might want to read it.

The Peril and Promise of Christian Liberty: Richard Hooker, the Puritans, and Protestant Political Theology (Emory University Studies in Law and Religion)
Littlejohn does an excellent job of summarizing how a combination of the material ground of the Protestant Reformation (justification by faith alone) and its formal ground (solā scripturā) entailed (and entail) a certain liberty of conscience. No news here. Standard Protestant fare.

Littlejohn's contribution lies in closely examining the late sixteenth-century debates between Richard Hooker and his Puritan adversaries over what to do about the rest of life. In other words, if God alone speaking through his written Word is Lord of the conscience, who decides (1) what his Word says (its application), (2) how far his Word extends (its scope), and (3) what who (and how) does anyone have legitimate authority over whatever is outside the scope of God's written Word? With the Reformation, liberty of conscience became a very important matter (potentially one of eternal life and death) and it became all the more important in civil affairs with the rise of the Liberal political order. (For whether and how liberty (now freedom) of conscience will subsist in a post-Liberal world remains to be seen.)

After carefully weighing the details of Hooker's Lawes of Ecclesiastical Polity and concluding that there is ample room for prudential reason and ample scope for its deployment--in other words, much of life is adiaphora--Littlejohn goes on to ask how the insights of Richard Hooker play out in a world that has made each person, rather than God, Lord of his or her individual conscience.

I won't go into the details of Littlejohn's work with Hooker or contemporary critics of liberalism but will say that his book, while a bit dense, rewards its close reading.

10 December 2018

Nonsense on Stilts: Human Rights Without God

Years ago, on my visit to Campbell Law School I published a short piece titled Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here or here). Nothing earth shattering about it but in it I concluded that the "Christian doctrine of humanity's creation in the image of God provides a foundation for human dignity." And it's the well-nigh universal invocation of "dignity" that undergirds the contemporary human rights movement. Without pursuing the various strands of non-Christian foundations for the notion of human dignity, it will suffice to say here that I found all of them wanting.

For a short blog post that focuses on the atheist delusions of a foundation for human rights you can read Who Created Human Rights (And Why It's a Problem for Atheists). In a more pungent vein, Andy Bannister surveys some recent books and debates on the foundation for human rights. And he, like me, conclude that the materialist metaphysics that pervades elite forms of contemporary secularism provides thin gruel for human dignity and thus human rights.

A reasonable response to Bannister and me might be: So what? Why do we need a foundation for something to which "everyone" gives assent? A couple of simple observations. First, "everyone" turns out to be no more than a modest slice of of the human population, and and an even smaller slice of those wielding power in many current states. Second, without some tether to the transcendent, blind faith in the moral high ground assumed in connection with human rights runs the risk of being no more than a will-o'-the-wisp in even the medium term of human existence.The relentless grind (or distraction, take your pick) of late-modern capitalisms in either their individualistic or social-democratic forms may soon render belief in human dignity as implausible as belief in fairies.

As Brad LIttlejohn concludes in "The Peril and Promise of Christian Liberty" (2017):
To be sure, one can do the right thing without knowing knowing why it is the right thing, but not forever. Likewise, there is no doubt that the liberal order of neighbor-love can long survive without conscious public recognition of the love of God that orders it. But how long? ... At some point, it will start to crumble.

26 November 2018

If You Can't Beat 'Em, Change the Rules: Omri Ben-Zvi Scores a Bull's Eye on a Straw Man

No, this is not about the recent rules changes in the NFL. But it does bring to mind a humorous story. Humorous to me, anyway.

Many years ago I stopped in the courtroom of Milwaukee Circuit Judge Leah Lampone to kill a few minutes watching a fellow associate (who shall remain nameless), lose an uncontested motion for default judgment. In other words, even though the defendant had been served with legal process by a deputy sheriff, had failed to answer in the permitted time, had also received notion of the motion for default judgment in the mail, and still failed to show up--the judge denied the motion. And, because I could report on what had happened, what might have remained a private irritant became a source of intra-firm teasing for months.

Of course, it's nonetheless much easier to win when the other party isn't present.

But what if the other party is present? And what if the other party has  some at least plausible reasons why he or she should prevail. What can opposing counsel do? Well, making a better argument comes to mind but how about getting the court to exclude the very arguments that opposing counsel most fears? After all, merely showing up doesn't do much good if a party is silenced.

So far, at least, this sort of end-around due process doesn't work but how about in the broader, political sphere? In a modern, liberal state can the opponents of certain political points of view be forbidden to argue theirs because it mentions, oh, I don't know, God? The answer to that question, according to Omri Ben-Zvi in The Unavailability of Religious Arguments (download here).

Cribbing from his abstract:
Religious arguments, i.e. normative arguments that rely on premises regarding God's commands, routinely figure in legal and public debates. For example, they recently played a public role in the debate on same-sex marriage that ensued after the Supreme Court's decision in Obergefell v. Hodges. ... I offer a novel rationale for excluding several prominent sub-groups of religious arguments from the public sphere, including from legal argumentation. ... I develop an account of religious arguments that draws on theories of practical reasoning. The Article argues that, appearances notwithstanding, many types of religious arguments do not provide standard, run-of-the-mill reasons for action in the same way that (for example) utilitarian or deontological arguments do.... The Article thus shifts attention away from political philosophy ... and focuses instead on practical reasoning theories. Analyzing religious arguments in this way shows that there is a fundamental tension between religious argumentation and the way we conduct practical and legal reasoning. This tension makes it hard to take religious arguments seriously qua arguments and consider them in a political or legal scenario. The upshot is that many religious arguments are revealed to be internally incoherent, and therefore unavailable to participants in legal and policy discussions.
A brief observation. Ben-Zvi takes it to be necessarily true that religious arguments partake of "Divine-Command Morality" (DCM) such that that "God's commands both constitute and exhaust our reasons for action, and settle our practical dilemmas completely." Is Ben-Zvi's characterization of Christian religious arguments correct? In a word, no. For most of Western history, divine commands did not exhaust reasons for action.* Heck, even in the Bible divine commands regularly fail to exhaust reasons for action. Take a look at all the "practical" reasons for obedience given in connection with many commands in Torah, not to mention Proverbs and psalms like 19.

Of course, occasionally Christians do offer divine commands as the sole reason for a particular moral/legal action but so do some utilitarians. In Ben-Zvi's world, however, a utilitarian-minded zealot gets a pass. Why? Because her conclusion may be correct even if her particular utilitarian calculus is wrong. But might not the same be said for the conclusion of the religious zealot? No, according to Ben-Zvi, because her conclusion falls with the inadmissibility of her DCM premise and that falls because contemporary liberalism in a religiously pluralistic political world cannot tolerate such an outside-the-political standard of judgment.

All of which is to conclude by way of a brief review that Ben-Zvi's argument is exceptionally weak, which isn't to say that it will prove to be unhelpful in what passes for political debate nowadays. Ben-Zvi's utilization of a straw man to raise and then dismiss one aspect of contemporary political discourse is certainly consistent with the interests of some parties to those debates. And, notwithstanding my associate's loss in court years ago, silencing your opponent is almost always one step toward victory.



* For an explanation of why DCM is a-typical for Christian moral arguments you can read my blog post here. If you don't believe me channeling Nicholas Wolterstorff, then perhaps Ben-Zvi should read just about any natural law account of moral (and political and legal) judgment written before the late twentieth century. Or, one might listen to Oliver O'Donovan's lecture at Baylor University here. Or read about Richard Hooker's sophisticated understanding of the nature and relationship of biblical revelation and natural reason in Bradford Littlejohn's "The Peril and Promise of Christian Liberty" (2017).

13 November 2018

Back to India

Many years ago this blog began as PryorPostsIndia. In my initial forays into the world of blogging I posted about my experiences on my Spring 2009 Fulbright grant to teach at the National Law University in Jodhpur. You can read one of my early ones here.

As the well-wishes from Donald and Melania attest, I'll be heading back to India on a second Fulbright in Spring 2019. This time I'm traveling under a research grant to study the implementation of the Indian Insolvency and Bankruptcy Code of 2016. While my choice of topics might strike many as painfully dull, it's important to remember that functioning market economies require a system (and corresponding institutions) to deal with market failure.

I first posted on this subject in 2010 and thereafter (here, here, and here) continued to urge the Government of India to move toward a comprehensive bankruptcy law. While I am confident my blogging had nothing to do with what ultimately happened, I think it's important to understand the what's and the how's of this law. After all, in the not too-distant future an Indian firm subject to this statute will seek to administer assets in the United States and Chapter 15 of the U.S. Bankruptcy Code requires that American bankruptcy courts recognize the priority of Indian case and apply the Indian Bankruptcy Code to the extent it does not conflict with U.S. law.

I expect to post from India next year so stay tuned.


25 October 2018

Penultimate Law

In The Christian Theory of Law: An Introduction (here starting on page 4) Eric Enlow practices what he preaches.

While a good introduction catches our attention, gives us reason to trust the speaker, and hints at the argument to come ... it is not the argument. Confusing the bud with the flower, the child with the adult, the law with righteousness, or even justice with blessedness has proved a recurrent human error. Enlow's painstaking and painful introduction makes the point: good is not the Good and the Good is not God. What comes thereafter--the argument--orients us to and then from the Law to its Crown and Glory.

But read it for yourself. You'll see.

22 October 2018

Burgeoning Originalism (Slightly Expanded)

[New matter: For a delightful explanation of why we should believe that the U.S. Constitution (like Acts of Parliament) came embedded in a long-standing manner of thinking about the nature and sources of law (including rules of construction) go here to read the recent sermon by Sir Roger Scruton to the assembled lawyers at the Temple Church in London.]


Back in my law school days no one mentioned what is today the leading school of constitutional interpretation: originalism. This shouldn't be surprising because it really didn't exist in the late 1970's. Today, finding one's constitutional starting point by discerning the original public meaning of the constitutional text seems almost commonsense but back then it was simply not done. Rather, constitutional litigation was conducted in terms of an amalgam of snippets of text, precedent, and policy, not necessarily in that order.

I won't belabor the ongoing legal realist objection to originalism that relentlessly (if not tendentiously) argues that the quest for historical meaning is no more than a pretext for [fill in the blank, all of it bad*]. I won't belabor legal realism because, notwithstanding the reams of articles published in its name, it remains only a pretense of philosophical inquiry. As the step-child of American pragmatism, legal realism can claim neither originality nor depth of understanding.

In any event, Originalism 1.0 has matured as scholars concerned about the Constitution as an authoritative text have worked to expand the concepts and tools relevant to identifying its meaning. But original public meaning isn't limited to the meaning of specific textual terms. It includes, or so Randy Barnett and Evan Bernick argue, original rules of construction. Construction, as my Contracts II students will learn, is the process of determining the legal meaning of text when the text is uncertain or unclear with respect to a particular question. No text can specify the result in every conceivable circumstance. Thus, when confronting a textual hiatus, interpreters of an authoritative text must either throw up their hands and admit defeat or apply a principled "rule of construction" to extend the text to the unaddressed situation. What they should not do is decide on their own initiative and in their own judgment what the answer should be. After all, it's the parties' contract, not a judge's.

In The Letter and the Spirit: A Unified Theory of Originalism (download here), Barnett and Bernick assert and argue for the conclusion that the original public meaning of the Constitution would have included a robust set of rules of construction. Such a conclusion doesn't surprise me because there were certainly a substantial set of rules of construction for contracts deeply embedded in the English common law of the time.

Without using the term, I utilized the concept of a constitutional rule of construction when I argued here and here for a legitimate place for the authority of precedent in subsequent constitutional adjudication. Barnett and Bernick, of course, develop the historical and political warrant for such rules in depth and so it is to their work I heartily direct my readers' attention.

* For an exploration of why the Progressive misreading of originalism is just that--a misreading--see Lawrence Solum, Surprising Originalism (download here).

17 October 2018

Unconscionability Part 5

(Part 1, Part 2, Part 3, and Part 4.)

In the course of less than a century--the nineteenth--unconscionability died in the United States. Notwithstanding its venerable history and theological grounding, unconscionability fell prey to an increasingly utilitarian, market-oriented frame of reference that overwhelmed the tenuous connection between virtue and law. As I observed in my chapter Unconscionability: Reciprocity and Justice (download here):
"By 1820 . . . [American] law was no longer conceived of as an eternal set of principles expressed in custom and derived from natural law.” Substituting policy in place of a formal connection to justice, American courts and jurists found no warrant for the principle of fairness in exchange apart from grants of equitable relief.
But then ... came Article 2 of the Uniform Commercial Code, which has become the law for the sale of goods in every state (except Louisiana) in the United States. UCC 2-302 provides that 
(1) If the court as a matter of law finds the contract or any clause thereof to have been unconscionable at the time it was made the court may refuse to enforce the contract, of it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
One might have expected the drafters of this provision to define an important word like "unconscionability" given its virtual absence from the preceding 100 years of the law of contracts. Alas, they did not, which has caused courts to scramble to define it on their own. I won't trouble my readers with the varieties of judicial understandings of unconscionability but notwithstanding its undefined state, "unconscionability has provided twentieth- and twenty-first-century contract parties with mixed success. That success, however, has not come with clarity or predictability." Without a tether to the long-standing Christian tradition of virtue in law "legal opinions applying unconscionability have had a difficult time explaining it."

Five hundred-plus years of the Western legal tradition, drawing on biblical, Roman law, and Aristotelian insights, provided a clear understanding of unconscionability. Avoiding sales for double the market (or purchases for less than half) price gave the market enough space but couldn't address collateral contract terms. Yet, such a straightforward rule enjoyed the benefits of clarity and predictability. Quoting my conclusion, 
This genealogy of the birth, growth, blight, and revitalization of unconscionability demonstrates at least two truths. First, no matter its current configuration, unconscionability is an unmistakably Christian doctrine of law. ... Second, shorn of any recollection of its historical roots, contemporary legal thought finds itself the heir of a rule of contract law without any clear idea of why the law should be or how it can be applied.
Finally, I'll end here as I ended there:
Tracing the history and lineaments of unconscionability should give those who acknowledge the truths of God’s revelation in Scripture, as well as in keen observations of the world, confidence to assert the doctrine of unconscionability when the occasion demands. ... The struggle for contractual justice was and is a real one and that the classical Christian tradition provides a powerful platform from which to seek the just result.