13 April 2021

A Review of "Christianity and Private Law'

Several weeks ago I posted here about the newly-published book "Christianity and Private Law" (Routledge 2021). You can go here to read a short review of the same by John Witte.

Disclaimer: I contributed a chapter to this book. You can read an earlier draft of it here.

22 March 2021

"Statement Against Anti-Asian Violence"

You can go here to read the statement of my colleague Kevin Lee but it's short and clear and direct enough for me to reproduce below:

I write today as a proud Asian American. While there is a long history of violence against Asians in this country, the events of the last year, culminating in the mass murder of Asian American women in Atlanta, have been particularly troubling. They call to me for a response. It has been quite a year. Not only has it been marked by anti-Asian statements from President Trump and other Republicans, but also by the murder of George Floyd, which also involved a Hmong officer. It is a moment that calls for reflection on the Asian American experience in this country.

As a Korean American, I was brought up with stories about my father’s experience during the Korean War, which was his first real encounter with Americans. I remember most his admiration and gratitude for the United States Marine Corp. These men, he would say, knew what honor means. It’s not just a word, it’s a way of life. They died on the cliffs of Inchon to make Korea free, I would not be alive today if they had not. And I am forever in their debt and will always respect their valor, as with so many men and women in every branch of the military.

It is their memory and my profound respect for this nation’s commitment to justice and liberty that shapes my thoughts tonight. America does not persecute the vulnerable. Those men did not die on those cliffs so that Asians can be the butt of a joke or a victim of a hate crime. I am deeply saddened tonight because so many people seem to have forgotten this. And in doing so, they dishonor the service of men and women who died so that Asians like my father could be free. They do not know the disservice they do to their memory. Those who died fought for the finest traditions of this great nation; to liberate and sacrifice for liberty, and ask nothing in return other than a few acres to bury our honored dead.

I call on all Americans to denounce violence against Asian Americans because this violence is un-American. Our nation is great precisely because of the sacrifices that so many have given. Do not dishonor our country, our flag, and our honored dead. Stand up, as they did, for equality, justice, and freedom for all people, everywhere.

For the most recent statistics on violence against Asians in America go here to read Criminal Victimization, 2018, a bulletin from the U.S. Department of Justice. Table 14 on page 13 is captioned "Percent of violent incidents, by victim and offender race or ethnicity". With no explanation, specific data with respect to Asians is not displayed in the 2019 version of this bulletin although there is some interesting textual discussion on pages 17-21.

19 March 2021

The China Dream and the Sinicization of Christianity

Sarah Lee and Kevin J. O'Brien have published  an interesting and timely article, Adapting in Difficult Circumstances: Protestant Pastors and the Xi Jinping Effect. Cribbing from the abstract:

Many pastors in China are adapting to harsher policies and new ideological narratives by striving to lessen the threat Protestantism is perceived to pose. They are seeking to reduce 1) ideological competition, by not preaching about politics, dissociating themselves from dissidents, and expressing support for the China Dream, 2) security concerns, by striving to become financially self-sufficient, cutting off ties to foreign missionaries and calling for the creation of a truly Chinese church, and 3) collective action fears, by dividing congregations, avoiding networking, and viewing the small church model as part of God’s plan. Out of necessity and sometimes belief, they are finding ways to pursue God’s work within Xi’s strictures. In the course of adjusting Protestant practice and incorporating the China Dream and Sinicization of Christianity into their faith, they are aiming to show that they and their congregations can live with and are being steeled by repression.

09 March 2021

Visit Raleigh!

You can go here to see Campbell Law School's announcement that we are looking for visiting profs for 2021-2022. To teach what, you ask?

A visitor will either teach corporate law, property law, or wills, trust and estates with related upper-level courses associated with these core subjects

If interested, click the link and follow the directions. 

02 March 2021

The Business of Business Is ...

I've posted several times about the purpose of the corporate form of business enterprise (here, here, and here). In short, it's not maximization of shareholder value. But if you don't believe me, you might find this short piece by Dallas Willard more persuasive. A teaser:

What is business (manufacturing, commerce) for? Today the spontaneous response to this question is: The business of business is to make money for those who are engaged in it. In fact, this answer is now regarded as so obvious that you might be thought stupid or uninformed if you even ask the question. But that is only one of the effects of the pervasive mis-education that goes on in contemporary society, which fosters an understanding of success essentially in terms of fame, position and material goods. However, that only reflects a quite recent view of the professions—of which we will here assume business to be one—and, even today, is definitely not the view of success in professional life shared by the public in general. No business or other profession that advertises its ‘services’ announces to the public that it is there for the purpose of enriching itself or those involved in it

18 February 2021

New Municipal Tricks

Through much of the past decade I wrote and posted about municipal (Chapter 9) bankruptcy. Herehere, and here for some examples. Anticipating a good question--why aren't there more municipal bankruptcies--I have argued that the current super-low interest rates are permitting cities to borrow from Peter (folks seeking any decent yield on fixed-income securities) to pay Paul (municipal retirees). (For what it's worth, I don't think the uptick in rates over the past week or so portends a radical increase in the costs of municipal borrowing, at least not as long as the leadership of the Federal Reserve and the current administration in Washington remain in place.)

But what if the current low rate environment isn't enough? What if some municipalities want to take on more debt--without voter approval--than state law allows? And what if investors seeking yields are stupid? Well, as you might expect, there's an app for that. The market is as adept at developing flim-flam as useful products.

You can read about the latest flim-flam in municipal finance here. (I posted about an earlier version of this sort of scheme here.) Quoting from the article with some interpolations added for clarity,

A city creates a dummy corporation to hold [municipal] assets, [transfers the assets to the corporation], and then rents [the assets back]. The corporation then issues bonds [borrows money] [secured by the rental payments due from the city] and [transfers] the [loan] proceeds back to the city, which sends the cash to its pension fund to cover its shortfall. These bonds attract investors — who are desperate for yield in a world of near-zero interest rates — by offering a rate of return that’s slightly higher than similar financial assets.

In other words, arbitrage. 

But why? Two reasons: first, as the article notes, the state pension fund in California (CalPERS) charges 7% interest on unpaid municipal pension contributions. Borrowing by any means at, say, 3%, means the municipality "profits" by the difference. Of course, someday the bonds will come due, but a different set of elected city officials will have to deal with that eventuality.

Second, in some states general revenue bonds must be approved by voters. In other words, voters can veto what amounts to an unsecured loan to their city. But some of those states make an exception for bonds secured by specific assets and some states allow their cities to do the two-step end-around of using a corporation to shield their indirect borrowing from voter approval.

But wait, isn’t the borrower a corporation, not the municipality? Why should the city care if the corporate borrower defaults? The article doesn’t explain this but there are two reasons why a municipality might care. First, it may have guaranteed the payment of corporate debt (the bonds). Alternatively, the corporate debt is secured by some apparently municipal assets. What will the city do if its corporation defaults and the bondholders attempt to repossess the collateral (say, a golf course, art collection, city hall, etc.)? Detroit managed to wheedle out of surrendering its municipal parking lots to bondholders, but future bankruptcy judges might not be so forgiving.

Of course, if a municipality can keep its cake—its transferred assets—and not repay the money its corporation borrowed, the bondholders will be left holding the bag. Which goes to prove the truth of the adage that there’s a sucker born every minute.

19 January 2021

Commodifying The Personal: Again

But there's more here

Exactly how many donor children Mr. Meijer has around the world is impossible to say. But Ties van der Meer, the director of the Dutch Donor Child Foundation, and his colleagues have calculated that if Mr. Meijer’s known pattern of clinic and private donation was any indicator, the number could run to several hundred, even 1,000.

In an email, Mr. Meijer dismissed that conclusion. “I have approximately 250 children,” he said. “Assumptions of 1,000 are ridiculous. I am disappointed by the obsession of the numbers.


Interesting piece from the NYT here. The headline says it all: "The Sperm Kings Have a Problem." Elaborating: "Many people want a pandemic baby, but some sperm banks are running low. So women are joining unregulated Facebook groups to find willing donors, no middleman required."

Compensation for sperm donors is prohibited but they may be reimbursed for expenses (typically travel). The cost to prospective donees, however, is high, up to $1100 per vial for the best sperm. ("Best" being from donors who are good-looking, highly-educated, and successful.) With the pandemic, sperm donations to regulated banks are down so, as the article notes, some women are turning to the grey market.

All of which invites some non-market observations. As noted in my posts on the work of Adeline Allen on surrogacy contracts (here and here), there should be more than satisfaction of a personal good when evaluating the ethical; I hope no one takes rule-based utilitarianism (e.g., law and economics) as an adequate moral philosophy. With respect to surrogacy contracts, I believe that Allen successfully argues that the undeniable good of having a child to whom one is genetically related is outweighed by the negative good ("bads") that surrogacy entails. Pregnancy via sperm donation, however, presents the opposite biological scenario; the male, not a female, is the surrogate.

Is this distinction sufficient to render sperm donation licit? Although I think the answer is no, reasonable minds might differ. And even if we conclude that such contributions to human life are unethical, (how) should the law (of, e.g., contracts) incorporate such a moral judgment?

No clear answers from me but certainly questions worth pondering.

12 January 2021

"Christianity and Private Law"

Nearly three years in the making, at last Christianity and Private Law* is in print.

Edited by Bob Cochrane and Michael Moreland, Christianity and Private Law contains seventeen chapters each by a different author. Ably introduced by John Witte, the book is divided among a three-chapter Introduction to the field of private law which is followed by four or five chapters on each of the three principle subjects of private law: property, contracts, and torts. My contribution is chapter 11: Revisiting unconscionability: reciprocity and justice.

Quoting from the introductory comments of John Witte on the relevance of "Christianity" in a discussion of private law,

Opening chapters in each of the four sections are devoted to biblical and traditional Christian teachings. They underscore the depth, nuance, and complexity of Christian engagement with these fundamental private legal relationships. Constructive and critical chapters later in each section highlight and illustrate the enduring value of these traditional Christian teachings for addressing discrete modern private law questions. 

I am pleased to commend Christianity and Private Law to a wide audience of thoughtful persons who are interested in learning about "how we got here" and "how can we improve" the systems of private law bequeathed to us by our forebears in the Western legal tradition.


* (Routledge 2021). 

05 January 2021

"Differential Treatment Among Creditors ..."

 "... Under India's Insolvency and Bankruptcy Code"

You can download the paper written by colleague Risham Garg and me based on my Fulbright Research Scholarship in 2019 by going here or here 

Squibbing the abstract:

This paper represents the results of an examination of the implementation of India’s Insolvency and Bankruptcy Code, 2016 (IBC). This project included purposive sampling as well as interviews with resolution professionals, representatives of India’s Insolvency Professional Agencies, and officials of the Insolvency and Bankruptcy Board of India.

Analysis of this data identified three problems:

1. Vesting near-plenary control of the Corporate Resolution Insolvency Process (CIRP) with a Committee of Creditors made up of financial creditors has led to a perception of inequitable distributions between the classes of creditors.
2. The CIRP provisions of the IBC are inconsistent with public policy to the extent that they were construed to fail to protect vested charges of secured creditors.
3. The CIRP provisions and the accompanying Insolvency Resolution Regulations fall short of the standards of procedural fairness.

To resolve these problems this paper suggests that the Insolvency Resolution Regulations be revised to: (i) define “net liquidation value” as the value of the assets of the corporate debtor less the value of those assets subject to secured claims of holders of registered charges; (ii) require any resolution plan to account for the value of the secured claims of holders of registered charges in assets of the corporate debtor; (iii) require any resolution plan to disclose information substantiating the allocation of value within the class of financial creditors and between the classes of financial and operational creditors; and (iv) require the Committee of Creditors to provide reasons for any deviation from the norm of equitable distribution of any residual enterprise value between the classes of financial and operational creditors.

In Part I of what follows there is a brief introduction to salient features of the corporate insolvency resolution process under the IBC. Part II describes the research underlying this project while Part III elaborates on certain aspects of that research. Part IV situates the conclusions of that research in the larger framework of Indian law and international practices. Finally, Part V lays out proposed changes to the CIRP Regulations and a defense of their efficacy in this context. 

15 December 2020

A Segment of Student Loans Are Dischargeable

You can go here to read an index of my posts on student loans and bankruptcy. The press of busyness this fall had prevented me until from posting about an August decision by the Eighth Circuit. It should be of interest to some folks burdened by student loans. (Unless the newly elected president waives the wand of an Executive Order and makes all student loans disappear in a flash, in which case, never mind.)

In McDaniel v. Navient Solutions LLC (In re McDaniel), the Tenth Circuit Court of Appeals held that so-called Tuition Answer Loans are dischargeable unless the loan was made (or insured or guaranteed) by a governmental unit or nonprofit institution. What is a Tuition Answer Loan? I don't know the origins of the term but according to the Tenth Circuit such loans are ones made for living expenses and the like of a student who is aso receiving educational benefits. In other words, to be nondischargeable, the loan must be closely tethered to the cost of a student's education, not merely the costs of staying alive.

I do not know whether private Tuition Answer Loan are common. (Recall that Tuition Answer Loans made, insured, or guaranteed by the government or a non-profit are nondischargeable.) Regardless, this gap in the wall of nondischargeability will help some and force private lenders to make and price loans loans by risk rather than relying on a bankruptcy subsidy.

(For a more detailed analysis of this case go here.)

25 November 2020

A Letter to the Supreme Court

You can go here to download an open letter from former colleague James Duane to the United States Supreme Court about a pernicious expression in Justice Kennedy's opinion in the Masterpiece Cake Shop case.

A summary to whet your appetites,

On June 4, 2018, Justice Anthony Kennedy announced the judgment of the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018), one of the last opinions he wrote during the three decades he served on the Court.

In that historic opinion, Justice Kennedy coined a novel and illogical phrase that had never before appeared in any opinion ever written by any Supreme Court justice in American history, when he commanded lower courts to ensure that government officials evaluating claims of religious liberty treat all religious beliefs and citizens "without undue disrespect." It is clear from the context of the opinion that Justice Kennedy mistakenly believed that this phrase was roughly equivalent to the familiar expression, "with all due respect." But they are not.

In this open letter to Justice Kennedy and his colleagues, the author respectfully points out the Court's pernicious stylistic error, and explains why the phrase coined by the court is a mischievous aberration and a logical absurdity, and graciously invites the Court to correct this mistake before the opinion is finally reported in the United States Reports.

17 November 2020

Can Worldview Thinking Be Rescued?

By now my readers should know that I believe that worldview thinkingTM is a virus that has infected the minds of many American Evangelicals. Reasons for my negative evaluation include: worldview thinking diminishes, not enhances, actual thinking; in practice worldview thinking amounts to another form ideology (which worldview's proponents denounce in others; it reduces Christianity to a few (perhaps as few as four or five) beliefs, thus leaving out swathes of important Christian teachings; and worldview thinking ignores wisdom, a category of intellectual activity that the Scriptures hold in very high esteem.

What, if not worldview? In other words, is there a better way to relate the truths of the Christian faith as historically confessed to the issues of the day? As a matter of fact there is. Go here for a podcast by Alastair McGrath in which he discussed the virtues of the "illumination" approach as succinctly described by CS Lewis: "I believe in Christianity as I believe that the sun has risen. Not only because I see it, but because by it I see everything else."

In other words, after one has reasonably mastered a field of study, one may look to the received Christian tradition to make sense of the whole of it. Knowledge, in distinction from information, exhibits a connectedness with other bodies of knowledge including the philosophical and the theological. In other words, knowledge examines collected information in terms of truth. Many survive on mere information and technical know-how but, as we should know, the unexamined life is not worth living. Wisdom, in turn, takes knowledge and orients it toward the practice of living (and not merely thinking about thinking). Yet examination--turning information into knowledge (and knowledge into wisdom)--requires illumination, which the Christian tradition supplies.