Bill Stuntz

The passing of Bill Stuntz has been noted here, here, here, and here, and I'm certain many more places by now. Bill's intellectual company was impressive. He was on the faculties of law of the University of Virginia and Harvard. His openly evangelical Christian testimony, however, testified to three things, each important.

First, it's no longer the case that someone committed to the traditional Christian faith will be excluded from the academy. The wall of reigning aggressive secularism has been breached, at least in certain fields. Law schools may be more open minded that some of the humanities but evangelicals can no longer blame their lack of opportunities in the academy solely on discrimination against their religious beliefs.

Second, Bill's published work in criminal law and procedure showed the kind of work that someone committed to the Christian faith should be doing. In other words, we should be thankful that Bill did not devote his scholarship to a stereotypical evangelical hot topic like religious liberty. In that he was an encouragement to my work in topics like contracts, bankruptcy, and secured transactions.

Finally, Bill's popular work like this piece published over a decade ago in First Things demonstrated a supple grasp of the big picture. Law and the Christian Story transparently connects the law of bankruptcy to the biblical account of redemption. Discharge of indebtedness demonstrates on the limited, financial plain what God has done for us broad, existential one.

For these reasons and I'm confident many more, we can mourn the loss of Bill Stuntz even as he enters into eternal glory.

Retraction

While hardly up to the measure of Augustine's Retractiones, I must retract at least the major part of what I wrote a few days ago about the lack of correlation between the health care legislation in Massachusetts ("Romney-care") and bankruptcy. Careful readers might recall  my link to the L.A. Times which concluded that there was no correlation. In other words, Romney-care hadn't helped.

Now someone, Megan McArdle at The Atlantic, has looked at the numbers behind the conclusion. Unfortunately, there was more smoke than substance. The research used an absurd definition of "medical bankruptcy" and the 2007 baseline study had looked at a whopping (not) 44 bankruptcy case.

Any conclusions--either way--about the impact Massachusetts's health care legislation on the rate of bankruptcy filings is simply unknown. And perhaps unknowable. The kind of information needed to draw any valid conclusions may not be available from the financial information filed in bankruptcy cases.

What part do I not retract? The suggestion that the single-payer bias of the author of this discredited study might have influenced its result.

Health Care and Bankruptcy

Hat tip to the American Bankruptcy Institute for the link to this piece in the L.A. Times. In short,  a study published in the American Journal of Medicine has revealed that the health care legislation in Massachusetts (on which the President's national health-care legislation was modeled) has failed to reduce the number of bankruptcies caused by medical bills.

Why? Deductibles and co-pays are still too much for many to pay.

The solution, according to the one of the lead authors, is to reduce both. Just who will pay for the increased insurance premiums is left unstated. Perhaps the fact that the study authors founded an organization promoting a single-payer system suggests their answer.

R3RUE

That's the Restatement Third, Restitution and Unjust Enrichment for the non-legal cognoscenti out there. Both insiders and everyone else might be interested to know that the American Law Institute has approved the final text of the R3RUE  The ALI and Washington & Lee School of Law sponsored a symposium about the product of this 12+ years drafting endeavor on Friday. Lots of folks presented papers. Most were excellent (read: I thought they were interesting).

I've been interested in the topic of restitution in my teaching because the moral issues are closer to the surface than they are in, say, sales law. Restoring "unjust enrichment" to the title of the R3RUE makes this even more clear. It is especially helpful to contrast the overt morality of restitution/unjust enrichment with the utilitarianism that dominates contract theory (an issue to which I've alluded here and here).

Notwithstanding the excellent papers and the open-ended invitation to flesh out the contours of a moral theory that could justify a body of law called unjust enrichment, only one presenter took full advantage of the opportunity. Louis Wolcher's paper began by pointing out the failure of the Restatement itself to provide an account of justice (an omission I don't begrudge, given the nature of the document). He went on to observe, however, that for the opening to "justice" in its title, the text of the Restatement itself as well as its comments want to stay as far away as possible from justice as a norm. Instead, justice is a shorthand for policies derived from already-stated law. Justice, then, is a gap-filler, not a rule or even a principle.

In a different legal setting, I suggested here that this might be the best we can hope for in contemporary secular legal systems. But that was in a quite different context, one in which there was a rule. One might hope in this setting that legal academics might be able to articulate an account of justice by which to evaluate the success of courts when it comes to remedying unjust enrichment. After all, that's what the courts claim they are doing.

Perhaps another symposium is in order.

Fingers, Hands, And An Arm

Having run out of all their own qualified faculty members, the folks who organize Campbell Law School's weekly "Coffee Service" asked me to present a short talk today to interested faculty, staff, and students. I've been a visiting professor here since August and have appreciated learning how another law school does its job.

But back to earlier today. Lifting liberally from a sermon preached by Ruffin Alphin, I began with God's finger-work from Psalm 8: "When I look at your heavens, the work of your fingers . . . ." Next I commented on some of the many references in the Hebrew Scriptures to the earth as the work of God's hands (Psalm 95:5, Psalm 8:6-8), dominion over which God has given us, and what should be our response to to all this: worship including musical praises. Psalms 8:9 and 92:3-5. Then on to God's work of redemption that Moses described as the work of God's "outstretched arm" in Deuteronomy 26:8.

Why then did God roll up his sleeve, so to speak, to redeem his people from the powers of evil? So that we can stand before him holding the hand of our pleased (if not proud) elder brother Jesus. Hebrews 2:10-13. It was, after all, into God's hands that Jesus surrendered his spirit at his death (Luke 23:45-47) and the touch of Jesus' hand that brings life (Revelation 1:16-18).

A bit of encouragement, I hope.

One Kingdom or Two in "A Secular Age" Part 4

About time to wrap up my application of Charles Taylor's A Secular Age to a current debate among the orthodox Reformed folks. Does Christ's redemptive rule from heaven entail a single Kingdom extending over all of human life, ecclesial and cultural? Or is the locus of Christ's work of redemption limited to his body, the Church, leaving human cultural activity subject to divinely-implanted creational norms/natural law with respect to which the idea of "redemption" is a category mistake, thus leaving us with Two Kingdoms. Parts 1, 2, and 3 are here, here, and here. I've argued that neither approach has much opportunity for traction in what Taylor calls the contemporary Age of Authenticity. More than being a bit out of step with the times (not necessarily a bad idea), both the 1K and 2K approaches are distinctly of other times.

The 1k'ers goal of bringing all of life under the Lordship of Christ run squarely against the interests of the radically individualized, hyper-sexualized, autonomous denizens of the Age of Authenticity. The relentlessly "authentic" among us are equally nonplussed by the 2K'ers belief in natural law or the like by which cultural life should be ordered.

Let's see how Taylor characterizes the social imaginary of the Age of Authenticity to see if there's any distinctly Christian approach that might seem plausible. The 60's social revolution emphasized four strands of thought and practice: (1) radicalization of the reaction against the denigration of sensuality and sexuality in the Disciplinary Age, (2) radicalization of the notion of the equality of the sexes, (3) "a widespread sense of Dionysian, even 'transgressive' sex as liberating," and (4) a new conceptualization of sexuality as part of one's authentic life. I guess we should leave drugs and rock and roll out of the trilogy of 60's vices, at least as far as Taylor sees it.

Taylor's suggestion is to give up, at least so far as the masses are concerned, and leave the practice of a sexually disciplined life to the neo-monastic elites. In other words, give up on reforming life at all. We should, he concludes, admit that reforming life through the application of natural law in the second Kingdom or by applying biblically-derived norms in a single Kingdom is a project which, after one thousand years of trying, was futile.

Futile? I don't think so. The years of reform that have characterized the West since the eleventh century have been the source of much good. The extraordinary reorganization of life in the West into gradually more disciplined circles has been a mitigated blessing. Whether the disciplined life can survive the move from a transcendent source of order to an immanent one and now to an internalized form remains to be seen. The extraordinary pain of the patent failure of the 60's vision of authenticity is apparent to many although numbed for most by the incessant and insatiable consumption of ever more. When the narcotic of consumption crumbles, as it will, I believe that the words and lives of those ordered by the power of the resurrected God-man will again find traction. The wheel of history turns very slowly and I don't expect my children to see the end of the current age. But end it will in a new vision of the reformed life or the end of life as we have come to know it.

The Runner Stumbles...Stumbles

After reading the promos I had been expecting something like Agnes of God--mystical, a bit mysterious, and finally unsettling. But instead I got talking. Way too much talking. I know a play is based on, well, talking, but the staging of Regent University's production of Milan Stitt's The Runner Stumbles managed somehow--with one exception--not even to create a sense of action. The two leading actors, playing Father Rivard and Sister Rita, failed to generate the sort of emotional resonance that would turn their stock religious polarities into anything more than platforms for the widespread "free-spirited love = good," "rules = bad" pathology of American Christianity.