06 October 2015

Hugo Grotius On International Law: Not A Secularist After All

Dutchman Hugo Grotius is widely acknowledged as the "father of public international law." His most famous work, De Jure Belli ac Pacis (1646) contains an infamous sentence:
What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him.
According to many scholars of the past two centuries, it is Grotius we have to thank for freeing public international law from the bounds of Christianity and Christian theology. Of course, what we have in its place is little more than moral intuitionism writ large. For my thoughts on this you can read Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition

I've always found this account of Grotius's role to be overly simple. After all, how could a man who also wrote one of the most significant accounts of the theological meaning of Christ's atonement have intended to insulate God from law?

Indeed, he did not. For a clear and cogent account of the distinctively Christian anthropological underpinnings of Grotius's theory of international law read Janne Nijman's Grotius' Imago Dei Anthropology: Grounding Ius Naturae et Gentium. You can download it here.

A brief quote states Nijman's thesis:
For Grotius and his contemporaries – whether scholastic or humanist scholars - the imago Dei doctrine provided the inevitable starting point for thinking about humanity and human nature. [T]he imago Dei doctrine played a significant role in the background of many theological and moral philosophical controversies at the time of the Reformation. ... Section 2 relates the concept of the imago Dei briefly to these early seventeenth-century theological and political debates in the Dutch Republic. ... This chapter claims that the Arminian imago Dei anthropology is foundational to Grotius’ theory of the law of nature and nations in (at least) three ways ...
A good work which goes a long way toward deflating the pretensions of the secularization thesis.

01 October 2015

More About Bar Exams

Go here to read a valuable piece explaining why the falling pass rates on Multi State Bar exam do not mean the test is getting harder. Instead, as should be obvious to anyone who's been paying attention, law students, and hence law school graduates, are not as bright as they used to be. Thus, until the demand for legal education increases or the supply decreases, we should expect that MBE scores will remain depressed.

This begs the question of what a bar exam is for. If you want to know what I think, go here to read one of my posts from over five years ago. In short: "No matter how bar examiners characterize the bar exam, its purpose can be no more than to weed out the incompetent."

Most people (including bar examiners) believe the exam measures a minimal level of competence. I think rather it tests the maximal level of incompetence.

Thus, I am less concerned about falling pass rates nationwide than some. Given what the bar exam actually measures--and excepting the possibility a  state bar association could be acting for an illegitimate anti-competitive purpose--more failures is a good thing.

30 September 2015

No Bankruptcy For You

... if you're a licensed medical marijuana dispensary in Arizona.

Today's bankruptcy news update for the American Bankruptcy Institute included a note about the dismissal of an involuntary bankruptcy cased filed by three creditors against Medpoint Management, which manages the retail business operations of Arizona's Nature Wellness. ANW holds a license issued by the state of Arizona to sell marijuana.

The bankruptcy court dismissed the case at ANW's request because selling marijuana remains illegal under federal law. In other words, no federal remedies for a business that violates federal law.

One wonders what would have happened if ANW had not opposed the involuntary bankruptcy. I assume the United States Trustee would have moved to dismiss but I don't know that would be the case.

21 September 2015

Crowdfunding Redux

Readers with long memories may recall that I posted links to a couple of podcasts from the days when I was Resident Scholar at the American Bankruptcy Institute. You can go here to listen to my interview of David McGrail author of "Crowdfunding a Chapter 11 Plan" and here when I talked to Daniel Gorfine and Ben Miller about issues surrounding crowdfunding and its regulation by the Securities and Exchange Commission. For more recent developments on the regulatory side you can read my blog post here.

All of this is a roundabout way to let folks know about this fall's Campbell Law Review Symposium: Nothing Ventured, Nothing Gained: The Evolving Impact of Investment Crowdfunding on Modern Legal Markets. you can read more about the symposium here.

You can register now--it's free--and come to Campbell law school for a full day of panel discussions on Friday, October 16. I expect this will be an excellent opportunity to learn more about an area that's developing rapidly.

17 September 2015

"A Walk in the Woods"

We went to see A Walk in the Woods the other night. Based on a nonfiction account by Bill Bryson and starring a 79-year old Robert Redford (who doesn't look a day over 70) as Bryson and Nick Nolte, who looked older than his 74 years, as Stephen Katz, Bryson's knock-about friend from many years before, the film portrays two aging men as they progress along the 2000-mile hike of the Appalachian Trail. A bit heavy-handed at times, the film uses the notion of a long hike as a metaphor for life: up and down with plenty of problems and disagreements. The decision of Bryson and Katz to quit short of the destination of Mount Katahdin, satisfactory but not perfectly complete, aptly symbolizes the course of most of our lives.

As many reviewers have noted, A Walk in the Woods plods along. I'm not so sure that's a defect. After all, how many of our lives zip and zoom? There were, however, enough gaps to be annoying. Thus, at a family-run hotel the mother of the operator seemed to have some sort of dementia. Sitting at the front desk without apparent comprehension she reached for and tightly held the hand of Katz as he and Bryson checked in. At her daughter's urging, mom eventually let go. But in subsequent conversations with the daughter nothing about mom was asked or discussed. A missed opportunity and a noticeable oversight.

Katz's exceptionally profane manner of speech probably accounts for the film's R rating. One assumes the screenplay reflects Bryson's book and it in turn Katz's patterns of everyday conversation. Viewers might nonetheless wish to know that his vulgarity level is quite high.

Both lead characters demonstrate development. Bryson's level of pretension falls and Katz's level of self-awareness increases. By the time they quit the hike both feel free to return home without regret. Being satisfied with home and ultimately with the life we've lead is the film's theme. Satisfaction with one's efforts and the process of life, not social or professional success, is the key to happiness.

We thought A Walk in the Woods was worthwhile and with the foregoing cautionary notes recommend it to others.

15 September 2015

Not So Fast: The "Right Side of History" May Be Wrong

Much of the cultural subtext of the contemporary move toward radical (i.e., the root) autonomy, especially sexual, is the faith of the secular cultural elites in detecting and riding history toward its polyamorous future. In other words, the goal of law and the state should be to enhance self-defining individuals in their pursuit of whatever pleases them free from the constraints of the laws of nature or nature's God. Because, after all, there is no "nature" and certainly there's no God. And what gives the elites their evangelistic confidence? "We're winning!"

By ways of examples, I have posted about the travails of the Canadian Trinity Western University here and here and about the shortcoming of libertarianism as a social philosophy here. For the elites and those who have learned from them, the alternative of a common-law conservatism--rooted in the wisdom of the historical past to which the constituents of the immediate present owe their very lives--is rejected as a form of aggression.

To say the least, secularists' childlike faith in the march of history toward democracy, autonomy, welfare-capitalism, and ever-increasing satisfaction of subjective wants is tendentious. As Charles Taylor has observed, secularism--understood as a presuppositional commitment to an entirely immanent and material understanding of reality, including human nature--is unsustainable. Look here and here for some posts about Taylor's magnum opus. Metaphysics or some ersatz religion will pop up no matter how often we're taught that there's nothing to see behind the curtain of experience.

Perhaps reality is beginning to reveal some gaps in the "march of history" argument. Go here to read a short piece from Sunday's New York Times by Steven Erlanger: "Are Western Values Losing Their Sway?" Pointing to capitalist but totalitarian China, revanchist Russia, and the concerns of Eastern European members of the EU about the massive influx of refugees from the Middle East, Erlanger wonders about the fture of the current faith that the future will be better and better in every way. According to Ivan Kratev as quoted by Erlanger:
[1998] seemed to many in Asia and Africa to be the end of Western ideological supremacy, given that liberalism and Communism are both Western creations with universal ambitions. After all, Mr. Krastev noted, “both liberalism and Communism were dominated and shaped by the West — but who is the legitimate son of the Enlightenment and who is the bastard one?”
Erlanger goes on to lump "Judeo-Christian" values together with the Enlightenment and thus wonders aloud about the continued viability of their universal claims. As I argued in Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here), contemporary purely secular accounts of human rights  have no foundation and thus cannot be expected to carry the day when confronted by ideologies or religions that reject the contemporary Western insistence on sexual autonomy uber alles.

Erlanger misses the mark when he identifies the Christian tradition with Enlightenment. One preceded the other and certainly the theological and metaphysical conclusions of Medieval and early-modern Western Christianity permeated Enlightenment "reason"-generated values but rejection of the latter doesn't entail rejection of the former. Even though many Western Christians have tried to take credit for the "march of history," the relationship between Christianity and Enlightenment universal reason is not one of identity. Thus, we should not be surprised that secularized Western values lack traction outside the Western context. Thus, contemporary Christians Western should not feel despair at the current triumphs of the secular elites but should work, however, to increase the penetration of modest Christian principles across the globe.

14 September 2015

"Brownie Points"

After a delicious dinner with friends at Pulcinella Italian Restaurant we went to watch the first production of the 2015-2016 season Regent University theater. Regent's is only the fourth production of "Brownie Points" by Janece Shaffer. In other words, very few who are reading this post has seen it.

Five mothers of girls in Brownie troop hosted based at an exclusive private school in Atlanta are trapped at a cabin in the woods when a severe storm knocks down a tree that blocks their only way out. Three white women, one of whom is Jewish, and two African-American moms are thus forced to confront issues of race, class, wealth, marriage (and divorce), and parenthood. The show runs 85 minutes without an intermission.

I thought the first half was excessively didactic if not preachy. The depth of the characters became more evident in the second half. We were especially pleased to have stayed after the show was over to hear not only from the cast and director but also from the playwright herself. Their discussion of the motivations of characters and the "original intent" of the playwright added a great deal to our appreciation.

Brownie Points will be showing next weekend and I would encourage folks in Tidewater to take it in.

10 September 2015

Coming Soon: 14th Annual Advocates Asia Conference

I paid my first visit to India in 2006 to attend the Fifth Annual Advocates Asia Conference (a brief post here). That initial trip ultimately lead to my Fulbright Scholarship to teach at the National Law University in Jodhpur, as well as several subsequent trips to the subcontinent.

Meeting Christian lawyers from India and Pakistan (as well as many other nations) was a highlight of my experience. The conference included a range of speakers on the state of religious freedom in various countries in Asia and a moot in which law students from a variety of universities participated. There was also great food and lots to see.

2015 brings us to the 14th Annual Conference, which will take place October 22-24 in Dwarka, a suburb of New Delhi. The promo for the conference reads as follows:
The purpose of this conference is to provide fellowship and to bring lawyers, judges, jurists and law students from South East Asia, to a common platform, presenting opportunities to partner and network together across regions and nationalities. The main focus would be on integrity and rule of law.
If you're on Facebook, you can learn more about the conference here.
I greatly regret that I will not be able to attend but I urge anyone who is interested to make this conference a priority.

01 September 2015

In Memoriam: Vedantam Shashiah Shasthri

It was, to say the least, a great shock to begin reading Monday morning the many tributes to my good friend V.S. Shasthri. We came to know Shasthriji in late December, 2008, as I began my service to the National Law University-Jodhpur as part of my Fulbright Scholarship. Shasthri and his wife Leela were both on faculty at NLU-Jodhpur, Shasthri in law and Leela in economics. Shasthri was also dean of the faculty and arranged for my placement as co-teacher in Contracts for the LL.B. students and commercial law in the LL.M. program.

Almost every afternoon Shasthri would invite me to his office for tea. We would discuss everything under the sun from law to politics to religion to culture. I regret that opportunities for such collegiality are far more rare in American universities.

Shasthri also invited me to attend his classes in jurisprudence in which he demanded as much in reading of original sources as that in most if not all American J.D. programs. His classroom discussions were intense and if students were not prepared, they were well-advised advised not to speak. They were also animated. The intensity of the discussions went both ways even though Shasthri was always careful to engage only on the substance of the jurisprudential question. He even honored me by giving me his classroom hours a day he was off campus so I could present my Christian perspective on jurisprudence.

Shasthri and Leela also took us to see various sites in the vicinity of Jodhpur and we enjoyed many long conversations with the two of them.

We were also pleased to have introduced Shasthri and Leela to the work of the Lav-Kush Orphanage in Jodhpur from which they later adopted little Bhavani into their family. When I visited a year later, Shasthri's adoration for his daughter was immediately evident.

Shasthri and Bhavani
The outpouring of emotion on Shasthri's passing is a testimony to his character and diligence as a teacher, administrator, and mentor to many. To us, however, he was a friend. And he will be missed.

26 August 2015

Latest News From Milwaukee: The Archdiocese Moves Closer to Confirming a Plan

It's been a long time (over a year, in fact) since I've posted about the seemingly never-ending Chapter 11 bankruptcy of the Roman Catholic Archdiocese of Milwaukee. For those whose memories are a bit hazy, go here, here, and here to catch up.

Matters have moved forward with an Amended Plan of Reorganization and its Third Amended Disclosure Statement. News reports suggest that the Archdiocese and its nemesis Creditors' Committee (locally represented by my former firm), which advocates for the victims of sexual abuse, have reached a deal. Read about it here.

From a legal perspective the disposition of the cemetery trust has piqued my interest. Buried in the 399-page disclosure statement is the description of the facts surrounding the creation and management of a trust to maintain the thousands of graves of Catholics buried in the the cemeteries maintained by the trust:
Since at least 1911 , the Archdiocese accepted money to be held in trust for the care of grave sites. For several decades, the Archdiocese told buyers of grave sites that it would put money aside for perpetual care. Buyers of grave sites were assured that funds had been set aside for that purpose. Consistent with that promise, the Archdiocese put a portion of the money from grave site sales into a separate account segregated from the Archdiocese’s general funds. There was a regular and separate audit of the trust fund each year by an independent auditor, and the money was invested by a separate group of outside investment managers. Because the funds were held in trust, special attention was given to ensuring that the funds were separated from the Archdiocese’s general funds and ensuring that these perpetual care funds would be there for their intended and pledged purpose --the care for the resting places of the departed. Perpetual care has important meaning in the Catholic faith. It is to protect the sanctity of the body so that it can one day be reunited with the soul. Catholic cemeteries are sacred places maintained in a way that helps to fulfill God’s promise about death and resurrection. In 2008, the Archdiocese transferred the funds, which at the time were still held in trust in the separate account, to a new formal trust. (Emphasis added.)

Thus, not until three years before it filed its Chapter 11 did the Archdiocese create a formal trust, an event that the victims of abuse assert was to defraud them of a substantial resource for payment of their claims. The Archdiocese (and the cemetery trustees) claim that the history of the administration of the cemetery trust assets demonstrates that the Archdiocese never actually owned the funds even though no formal trust existed.

I have several times remarked on the importance to Christians of demonstrating in a tangible way their belief in the communion of the saints. In other words, the graves of the saints in heaven should be in proximity to the living worshippers. See here and here.

This does not, of course, answer the question of whether the funds in the cemetery trust of the Milwaukee Archdiocese are or should be available to pay the claims of living victim-creditors. It does, however, explain why the Archdiocese and trustees of the cemetery trust fought hard to keeps the trust's assets out of the property of the Archdiocese's bankruptcy estate.

The settlement provides that
The Cemetery Trust agrees to:
(i) reimburse the Archdiocese for past perpetual care expenses that had not previously been reimbursed by the Cemetery Trust;
(ii) contribute $8 million to the Plan Trust;
(iii) lend up to $3 million to the Archdiocese secured by Archdiocesan real estate assets; and
(iv) commit to reimburse the Archdiocese at least $1.95 million per year for costs incurred in maintaining the Milwaukee Catholic Cemeteries for as long as the loan is outstanding. In exchange, the Cemetery Trust will receive a global release of all claims against the Cemetery Trust.

This represents a substantial contribution from the cemetery trust, which in turn suggests that its trustees perceived a real possibility of losing. In any event, with these additional funds it appears this case is finally on the road to resolution.

21 August 2015

Detroit's Not The Last!

As a follower of Chapter 9 municipal bankruptcy, the conclusion of Detroit's mega-case left me a bit dispirited. Sure, I posted a few follow-up comments here and here but it simply wasn't the same.

I was thus excited to read of a new municipal bankruptcy filing, this time by the "city" of Hillview, Kentucky. Read the Bloomberg report here. Sadly, however, Hillview, with its population of 8,000, promises not to provide nearly the level of legal and political excitement as had Detroit. Indeed, Hillview has only one large and problematic creditor, Truck America Training, which recently received a judgment for breach of contract for $11.4 million.

Interest on the judgment is clicking along at $3,700 per day, which works out to $168 per resident per year. Of course, even keeping current with the interest does nothing to pay off the principal amount of the judgment, which would cost each resident $1425. The only ways the city could plausibly expect to pay would be to cut current expenditures drastically. Simultaneously paying other municipal creditors means that many municipal services would be eliminated or curtailed, a topic I addressed in Who Bears the Burden? The Place for Participation of Municipal Residents in Chapter 9. Alternatively, tax rates would be raised to a point where the net result might be a reduction in tax revenue, which I discussed in Who Pays the Price The Necessity of Taxpayer Participation in Chapter 9.

The evident inability of Hillview to pay this judgment in full makes one wonder why the city and  Truck America weren't able to cut a deal before the city filed for relief under Chapter 9. As I described in yet another article about municipal bankruptcy, Municipal Bankruptcy: When Doing Less Is Doing Best, a city has the power to "cram down" a recalcitrant creditor without concern for complying with the roadblock of the absolute priority rule that commercial or individual creditors face.

I'm sure there's more to this story and I'll let folks know what I find out.

17 August 2015

It's Coming South

For some time I've been posting about the challenges to the the ability of Trinity Western University of Vancouver, British Columbia, to add a degree in law to its program offerings. Turns out that TWU has a code of student conduct that limits licit sexual activity to folks who are married to each other, with a commonsensical definition of marriage as between a man and a woman. For a brief survey of my posts go here, here, and here.

Faced with the prospect of members of the bar who had read the law at such a university, several of Canada's bar councils have voted peremptorily to ban graduates of TWU from pursuing their vocation in their provinces.

TWU has filed legal actions to reverse such discriminatory actions and has met with mixed success. See here (my post about the legal proceedings in Nova Scotia) and here (about those in Ontario).

More recently, since the decision of the U.S. Supreme Court in Obergefell, I wondered how long it would take before totalitarian efforts made their way from north of the 49th parallel to the United States. The short answer is, not long at all.

This past Friday saw the Council on Legal Education of the American Bar Association--the organization that accredits law schools in the U.S.--give notice that it had initiated review of Standards 205 ("Non-Discrimination and Equality of Opportunity") 206 ("Diversity and Inclusion"). Standard 205 currently provides a religious exemption, which, however, has its limits:

This Standard permits religious affiliation or purpose policies as to admission, retention, and employment only to the extent that these policies are protected by the United States Constitution. It is administered as though the First Amendment of the United States Constitution governs its application. (Emphasis added.)
The import of such reviews is obvious. The result of these reviews are not certain but the pressure to force law schools to abandon any standards of conduct for students or faculty to the extent those standards impinge on sexual autonomy will quickly increase

It may be a matter of time before the totalitarian remaking of reality overcomes all resistance. Assimilate or close is the goal, and the wheels of bureaucratic compliance will grind to dust all who stand in the way.