16 November 2021

"The Dignity of Commerce" and The Private Law Podcast

Nate Oman's book The Dignity of Commerce: Markets and the Moral Foundation of Contract Law (Chicago 2017) came out four years ago.

I got around to reading it only this past summer. It is very 
good. Attempting to span the gap in legal theory between autonomy and efficiency, Oman presents a  modest virtue-based justification for contract law. Even a brief moment of introspection reveals that we participate in the practice of contracting ordered to ends that are greater than exercising personal sovereignty or satisfying the appetites of the moment. Humans inevitably orient themselves to ends. We are more than creators of an evanescent identities or wealth-maximizing animals. But neither are we not not busy about our identities or satisfying our needs.
Autonomy and efficiency are part of the story but hardly the whole. And even to the extent that exercising autonomy and increasing one's welfare are aspects of human nature, standing alone they cannot account for contract law. Law and its ultimately coercive effects require a political justification, at least in States that adhere to some form of political liberalism.

What virtues does contract law inculcate?  Briefly,
Markets require that one consider the point of view of others and alter one’s behavior to satisfy their desires. This disposition supports three important liberal virtues. The first is deliberation, the ability to consider an opposing viewpoint. The other two virtues are negative. Markets weaken loyalty to tribe and family, cultivating the ability to relate to strangers according to impersonal criteria. Finally, markets break down aristocratic habit, encouraging people to relate peaceably as equals.

Markets make us less honorable and more commercial. Not duels but litigation.

To what end do Oman's three limited virtues of the market aim? What vision of human flourishing animates them? Very briefly, political liberalism. The contemporary political order in the West and many other parts of the world is decidedly secular in the sense described by Charles Taylor in A Secular Age. Liberalism works by eschewing the transcendent in political affairs. Even if the goal of human life transcends this present age, it remains the case that we do not agree about what that goal might be nor about its significance for the here and now. A flourishing market, buttressed by contract law, works well to maintain a liberal political order by softening our rough edges and keeping our minds occupied with the many goods the market delivers.

What might nearly as good as Oman's book is listening to Filipe Jimenez interview Oman about The Dignity of Commerce. I always appreciate Jimenez's podcasts but I teach in the field of private law. Still, one need not be a legal theory geek to appreciate this episode.

Of course, I don't agree with all of Oman's arguments and conclusions in The Dignity of Commerce. I have posted an initial draft of a paper, "Person-Centered Pluralism for Contract Theory" here. If you care to download the it you can go to pages 8-10 for my summary comments about Oman's book.

The heart of my critique Oman's account is his failure to ground the virtues of the market in the full human person. A richer account of what it means to be human would provide a firmer foundation for the virtues of contracting and the warrant for contract law than does support of the market and political liberalism. A vision of the flourishing person would also provide more bite when it comes to criticizing aspects of contract law. I try to do both in my piece.

There is no doubt, however, that The Dignity of Commerce is one of the best additions to contract theory in recent years.

12 October 2021

On Why I'm Not An "Evangelical" Even Though Kermit Zarley Would Say I Am

I'm not going to count the number of times I've posted about the uselessness of the term Evangelical in the American context. (Here, here, and here are some examples.) But if my posts don't persuade you, perhaps Kermit Zarley's will.

Go here to read Zarley's piece "Why I Am an Evangelical Even Though Evangelicals Say I'm Not." Why might Evangelicals say that Zarley isn't one of them? In his own words, because after years of self-study "I came to believe without any uncertainty whatsoever that the Bible does not identify Jesus with being God." (A better golfer than theologian but that's not my point.)

Apparently Zarley does realize that he can't be Catholic or Orthodox and deny the divinity of Christ. But Evangelical? Sure, why not?

Why not indeed since "Evangelical" is an adjective, not a noun. Most Americans, self-identified Evangelicals or otherwise, believe the term carries some incontrovertible substance but they're wrong. Evangelical is a socio-political term with a variety of religious connotations which are thin and frequently inconsistent. After all, who has the authority to define "Evangelical" and judge that Zarley is not one?

As I described here, I would call myself a confessional Protestant, and the confessional standards to which I subscribe clearly assert the divinity of Jesus. And, were I to assert otherwise, I belong to a body that would tell me I'm wrong and give me the heave-ho were I continue to proclaim my false belief. In short, "Evangelical" is little more than a malleable form of identification. 

08 September 2021

Person-Centered Contract Theory

Over several decades I have made several forays into contract theory (titles and links at the end). Contract theory has a range of meanings but Person-Centered Pluralism for Contract Theory (download here) is primarily a descriptive/interpretive account of contract law and, to a lesser extent, prescriptive. In other words, I try to provide a framework for understanding what contracts and contract law are for in terms of the human person. In other words, what makes making rules for contracting and for breach of contracts an appropriate human endeavor?

If what I wrote above hasn't whet your appetite, perhaps the abstract will:

Autonomy-based theories of contract theory have moved beyond the narrowly dutiful. Welfare-centered theorists have increasingly responded to criticisms by drawing moral concerns into their analysis. Refinements to virtue-based accounts of contract law bring the values of autonomy and welfare together but even the best hovers above the person whose virtues are considered. These developments collectively demonstrate a movement toward pluralism in contact theory. In short, the inadequacy of any single approach to contract theory is apparent. Scholars working from within each approach now seek to refine their theories in light of other perspectives. Yet this increasing openness to multiple perspectives has omitted sustained consideration of the center of contracts: the human person.

This article draws on the work of sociologist Christian Smith and others as resources by which the movement toward pluralism can be enhanced and grounded in a deep consideration of the capacities of the human person—thus, a person-centered approach. Because Smith is a sociologist, I also draw on the work of Andrew Gold to help bridge the gap between the capacities of person and state-sanctioned legal remedies. Finally, in an extended conclusion, I demonstrate how a person-centered pluralism can ground an approach to what Margaret Radin calls the “normative degradation” of aspects of boilerplate in a principled way.

Earlier works in contract theory:

Consideration in the Common Law of Contracts: A Biblical-Theological Critique, 18 Regent Univ. L. Rev. 1 (2006) (download here or here)

The Puritan Revolution and the Law of Contracts, 11 Tex. Wesleyan L. Rev. 291 (2007) (download here or here)

Principled Pluralism and Contract Remedies, 40 McGeorge L. Rev. 723 (2009) (download here or here)

Revisiting Unconscionability: Reciprocity and Justice (book chapter 2018) (download here)

07 September 2021

More on Worldview

My criticisms of the now-vacuous concept of worldview are legion (here and here for two recent ones). But you can go here to read the master's thesis of Jeremy Hexham, "The Appropriation of the Dutch Neo-Calvinist Concept of 'Worldview,' and the Way It Was Popularized Among American Evangelical Christians by Francis Schaeffer." Quite a mouthful. 

In 81 tightly argued but well-written pages, Hexham provides a painstaking historical account to reach a conclusion that the "transformation of the concept of worldview from an analytic tool to an excuse for not engaging people and ideas that contradict one’s prejudices, is the tragedy of the American evangelical worldview as it exists today." In other words, worldview as Critical Theory for white evangelicals

02 September 2021

Openings at Campbell Law

Campbell University School of Law in downtown Raleigh, North Carolina, has two openings for tenured or tenure-track faculty. Go here for the link through which to apply.

To whet your appetites, I've copied the position summary below:

Campbell University School of Law invites individuals to apply for up to two open faculty positions. These tenured or tenure-track faculty positions are nine-month appointments that will begin in August 2022 at the rank of Assistant, Associate, or full Professor. We are seeking candidates to teach required courses in (1) business organizations as well as (2) commercial law (including sales law), and/or contracts. We prefer candidates who are also able to teach upper-level elective courses in business/transactional/planning. We are also interested in candidates who, in addition to teaching one or more of the required courses, are able to teach family law, health-care law, or professional responsibility. Candidates should exhibit strong teaching skills and be committed to maintaining an ongoing research effort. A commitment to academic excellence and the ability to work effectively and collegially with faculty, students, and colleagues is expected. Successful candidates should expect their annual course packages to include one or more required, large-enrollment courses.  All applicants should have excellent academic credentials and outstanding teaching reviews. We welcome applications from candidates whose background will contribute to excellence through institutional diversity. Cover letters must explain how the candidate is able and willing and able to support each of the five distinctives set forth below.  Salary and rank will be commensurate with experience.

Campbell University is informed and inspired by its Baptist heritage and three basic theological and biblical presuppositions: learning is appointed and conserved by God as essential to the fulfillment of human destiny; in Christ all things consist and find ultimate unity; and the Kingdom of God in this world is rooted and grounded in Christian community. Campbell University embraces the conviction that there is no conflict between the life of faith and the life of inquiry.

Located in downtown Raleigh, North Carolina, Campbell University School of Law is a highly demanding, purposely small community of faculty and students whose aim, guided by transcendent values, is to develop lawyers who possess moral conviction, social compassion and professional competence, and who view the practice of law as a calling to serve others and to create a more just society.  To that end, the law school has adopted the following distinctives: (1) we offer an academic program that is highly demanding; (2) we bring together the theoretical and practical to produce thoughtful and talented lawyers; (3) we utilize the talents of a faculty that is profoundly committed to students and teaching; (4) we view the practice of law as a calling to serve others; and (5) we offer a Christian perspective on law and justice.

Again, note that applications must be submitted through the link on the left side of this portal

09 August 2021

Ethics in Early Protestant Thought: David Sytsma Uncovers the Little-Remembered Place of Virtue Ethics

Many years ago I wrote God's Bridle: John Calvin's Application of Natural Law (download here or here). In brief, I established to my own satisfaction that John Calvin was no theonomist or even a biblicist when it came to framing the laws of a political society. Calvin instead drew on the concepts of natural law and epieikeia/aequitas (equity) as developed by ancients like Aristotle, Cicero, and Seneca as well as Christian thinkers of the Patristic era and beyond. The Bible functioned as a warrant for (and framed the limited of goals of) political life and as a corrective for errors of the classical pagans. Since then, much more has been written on the relationship of Calvin and the Reformed Tradition to the larger Western legal tradition (e.g., David VanDrunen, Natural Law and the Two Kingdoms (go here to read my review)).

Even more recently David Sytsma, associate professor at Tokyo Christian University, has performed a service to everyone interested in Protestant ethical theories. Over the past year Sytsma has published two pieces that demonstrate that Protestants at the time of the Reformation and the next century and a-half drew significantly on the ancients for their work in ethics and politics. Most recently, in Aristotle's Nichomachean Ethics and ProtestantismSytsma establishes that Aristotle's great work provided the form for Protestant ethical thinking about the virtues: "In Protestant ethical systems of the sixteenth and seventeenth centuries, Aristotle typically appears as the foremost authority for method and content, even though many other sources are also used."

In the longer John Calvin and Virtue Ethics, Augustinian and Aristotelian Themes, Sytsma takes on everyone who does not believe that Calvin was an ethicist of virtue. After many closely argued pages he concludes that, 

[While] Calvin himself did not write a treatise on ethics ... his theology integrates traditional concepts of virtue and he assumes the usefulness of philosophical ethics for civil society. There is no support in Calvin’s writings to support the supposed “repudiation of teleological virtue ethics” by the magisterial reformers for which [Brad S.] Gregory argues [in The Unintended Reformation] (2012, 265). Instead, Calvin’s theological works provide ample justification for the subsequent development of Reformed virtue ethics, whether in the form of ethical treatises on the virtues or commentaries on the Decalogue, which correlate the commandments with virtues.

Recently I had the opportunity to teach a class at Redeemer Presbyterian Church in Raleigh on the commandment forbidding theft. During my preparation I was pleased to see that both the Heidelberg and Westminster Catechisms frame their discussions of the Ten Commandments in terms of virtues (duties) and vices (prohibitions). Heidelberg Q&A 110 and 111 make the point succinctly. Starting with the vices:

Q. 110 What does God forbid in the eighth commandment?

A. God forbids not only outright theft and robbery, punishable by law. But in God’s sight theft also includes all scheming and swindling in order to get our neighbor’s goods for ourselves, whether by force or means that appear legitimate, such as inaccurate measurements of weight, size, or volume; fraudulent merchandising; counterfeit money; excessive interest; or any other means forbidden by God. In addition God forbids all greed and pointless squandering of his gifts. (Emphasis added.)

And concluding with the virtues:

Q. 111 What does God require of you in this commandment?

A. That I do whatever I can for my neighbor’s good, that I treat others as I would like them to treat me, and that I work faithfully so that I may share with those in need.

Not only rules but virtues.

It is regrettable that most Evangelicals nowadays have lost a sense of their historic connection with virtue ethics. On the Left, there is a sloppy sentimentalism and painful-to-watch aping of Progressive elites. On the Right, we often see biblicism and just-as-painful worldview-ism

Here's hoping that  we see a revitalization of serious work with the virtues as guides to ethical and political life with folks like David Sytsma mining the past.

06 July 2021

Champlain Towers South, Condo Associations, and Bankruptcy

The New York Times has a nice article here on the reason why condo associations, like the one at the collapsed Champlain Towers South, fail to take actions necessary to preserve the value of the building and the lives of its residents. In brief, no one want to raise condo dues. In the short term, this keeps the members happy; in the long run, they might die. 

A few of you might wonder whether condo associations can file bankruptcy and reorganize their debts. After all, the Champlain Towers Association will certainly be a defendant in many wrongful death lawsuits. And, while there is likely to be some insurance, it's very unlikely it will be enough when the damages for over 100 claims are adjudicated.

Bankruptcy won't help much, though. For the reasons why, you can read my article Nine Into Eleven: Accounting for Common Interest Communities in Bankruptcy (here). The short of the problem is that a common-interest-community (CIC) like a condo association that finds itself in bankruptcy will see its powers of assessment exercised for the benefit of its creditors. In other words, the dues will be increased to the maximum owners are willing to pay before walking away from their property. Dues are set by an elected board outside of bankruptcy. Raise assessments too much and a new board is elected by the owners.

But there's no power to elect a new board once the bankruptcy case is filed. A bankruptcy trustee will be appointed if the current board doesn't jack up the dues. At some point, the dues can become so high that folks will walk away, surrendering their equity. Heads, the creditors win; tails, the owners lose.

None of this should be taken as a reason to excuse the condo owners at Champlain Towers; after all, they elected boards who were unwilling to bite the bullet and start repairs in time to prevent a disaster.

24 June 2021

"First Principles"

A thoughtful Christmas gift from the elder daughter was First Principles: What America's Funders Learned form the Greeks and Romans and How That Shaped Our Country by Thomas Ricks (HarperCollins 2020). Ricks is a journo and the book reads like good journalism. Short, clear sentences, paragraphs, and chapters. Quick and clear transitions and an engaging style. But unlike many in his profession, Ricks clearly spent serious time in the sources.

                                                                                                  Ignoring over-worn panegyrics to the influence of Locke and the Enlightenment (or the Bible) on the founding of the American republic, Ricks turned to the Classical influences on four leading personages: Washington, Adams, Jefferson, and Madison. However, having elbowed the Enlightenment from center stage in favor of classicism, Ricks failed to give attention to other influences such as English common-law constitutionalism and the moral and political-structural afterlives of the local governments of the New England Puritans and the Quaker regimes of the Middle Colonies. Still, First Principles was about the educational and literary influences on the founding four, not a full intellectual history of the revolutionary period. For that I could recommend the classic The Creation of the American Republic, 1776-1787 by Gordon Wood (1969), Inventing the People by Edmund Morgan (1988), and the more recent The American Founding: Its Intellectual and Moral Framework (David N. Robinson and Richard N. Williams, eds., 2012).

Ricks's deep dive into the educations of the founding four enlightened me. The initial place of Classicism and its quick decline as a formative influence in American civil and political life are well-presented. On the other hand, Ricks is less sure-footed when it comes to analyzing the the democratic impulses that came to the fore by the turn of the nineteenth century. The sources of the turn to democracy were, to be sure, more diffuse, regional, and even contradictory than the original focus on the Classicism of the the founding four. Even so, Ricks seems tone deaf to the democratizing effects of the First and Second Great Awakenings.

A bone to pick: quoting Perry Miller on the decline of Scottish Common Sense Realism in the early nineteenth century. Miller notwithstanding, Scottish Common Sense Realism fit well with the democratic and pragmatic turns of that era, must better than the idealism of a few of the intellectual elites. Its continuing influence in the influential nineteenth Presbyterian theology of Charles Hodge is well-attested.

Even though the election of Donald Trump in 2016 was the initial impulse for First Principles, Ricks does a good job of avoiding Trump Derangement Syndrome until the very end. Ricks concludes with an epilogue in which he lists ten suggestions for "what we can do." Most are anodyne and have, regrettably, little likelihood of influencing American popular culture (and thus public culture since the popular and the public are nearly synonymous in the digital age). His program proposed to answer to his very important suggestion 9 ("Rehabilitate 'Happiness'") was unsatisfying. The Enlightenment's "broader, richer notion of happiness" was parasitic on the longstanding Classical/Christian tradition. Unless carefully cabined, turning to Enlightenment folk could just as easily lead to the Reign of Terror as the sturdy yeoman of the Jeffersonian mythos. In any event, getting contemporary Americans to appreciate happiness as a virtue instead of as a surfeit of distracting pleasures has little chance of success.

In short, I can recommend First Principles. For most of what Ricks sets out to accomplish, he does quite well.

28 May 2021

Eric Posner on The Chimera of Human Rights

Over six years ago Eric Posner wrote a piece in The Guardian tilted The Case Against Human Rights. Not many folks come out against the moral bricolage that issues in human rights. Posner grounds his argument in realistic observations:

The truth is that human rights law has failed to accomplish its objectives. There is little evidence that human rights treaties, on the whole, have improved the wellbeing of people. The reason is that human rights were never as universal as people hoped, and the belief that they could be forced upon countries as a matter of international law was shot through with misguided assumptions from the very beginning.

To what "misguided assumptions" does Posner point? He begins with the granddaddy of human rights pronouncements, The Universal Declaration of Human Rights of 1948. Not only did the Declaration not have the force of law, "the rights were described in vague, aspirational terms, which could be interpreted in multiple ways." I argued in Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Religion (here or here), the fissiparous combination of rights as trumps and rights as claims to various goods proved an unstable foundation. Posner agrees:

The central problem with human rights law is that it is hopelessly ambiguous. The ambiguity, which allows governments to rationalise almost anything they do, is not a result of sloppy draftsmanship but of the deliberate choice to overload the treaties with hundreds of poorly defined obligations. In most countries people formally have as many as 400 international human rights – rights to work and leisure, to freedom of expression and religious worship, to nondiscrimination, to privacy, to pretty much anything you might think is worth protecting. The sheer quantity and variety of rights, which protect virtually all human interests, can provide no guidance to governments. Given that all governments have limited budgets, protecting one human right might prevent a government from protecting another.

Posner has many more insightful comments on the problem that a regime of unclear and unenforceable human rights has created. And he also has a thoughtful conclusion:

With the benefit of hindsight, we can see that the human rights treaties were not so much an act of idealism as an act of hubris, with more than a passing resemblance to the civilising efforts undertaken by western governments and missionary groups in the 19th century, which did little good for native populations while entangling European powers in the affairs of countries they did not understand. A humbler approach is long overdue.

It is regrettable that in the nearly seven years that have elapsed since Posner wrote, little has been learned. The notion of human rights remains captive in service to political and activist agendas with far less effect on the ground where they are needed most.

25 May 2021

Join Campbell Law

Campbell Law School needs an instructor in our legal research and writing program. Go here to see the job posting.

18 May 2021

Why I Will Not Dwell On Theory ...

 .. in my substantive law classes. Contemporary legal theories--autonomy-centered, welfare-maximizing, critical [fill in the blank]-- provide insights into the law. Legal theory, particularly in its virtue-based forms, may provide a nexus for discussing the relationship between law and justice. But legal theory will never occupy a significant place in the classroom when I'm teaching, say, Contracts.

Rather than providing my own elaboration, I'll quote some portions from an excellent piece by David Lyle Jeffrey, Advice to Christian Professors of Literature.

Consider his comments on what happens in literature courses (and their humanities-lite substitutes gender studies, culture studies, race studies, etc.):

In too many classrooms, professors are obliged to talk about the issues, not about the texts, which may in some cases be an incidental mercy for the teacher, but not for the students. Impoverished to a degree they cannot measure, they are likely to say, as one did recently in my hearing: “Actually, I haven’t read Milton. But that doesn’t prevent me from seeing that he is irrelevant now.”

Then consider Jeffries's comments on what this means for the place of literary studies in the university:

With the growing influence of Freudian, Marxian, Lacanian, structuralist, post-structuralist schools such as deconstruction, post-colonialist, feminist, and queer studies between the late 1960s and our present, one trending fashion has succeeded another, as a quick review of MLA [comparable to the AALS for law faculty] annual conference programs will confirm. The cumulative result has been disruption in the identity of the profession, the curriculum it teaches, and the intellectual gravitas obtaining for literary study among our colleagues in the university generally.

The move toward teaching literary theory instead of literature has not quite been matched in legal studies. Since most law students want to practice law (and, it must be observed, their future clients want legal advice), teaching legal theory instead of law has not totalized the curriculums of all law schools. Legal theory is, however, is coming to occupy more of the curricular space. Substituting theory for law is not a disaster for most graduates of a T-14 law school; by and large they are bright enough to learn the law on the fly. But substitution harms most law students in most law schools and, it should be added, their future clients.

Is there a place for legal theory in the law school curriculum? Again consider Jeffries's observation: "I recognize the potential in various theoretical frameworks, even some of those which I have come to resist or even oppose. In fact, I recommend reading, consideration, and even experimentation with some of these many post-modern approaches now in vogue. There is something to learn from almost any of them."

Thus, I bring interaction with some of my own work in legal theory to the Contracts classroom as an occasion for extra credit. I regularly mention an insight from legal theory when discussing the meaning or effects of a judicial opinion or statute. And we talk about theory quite a bit when I teach my seminar in Christian Perspectives on Legal Thought.

Legal theory is a good but it isn't law. And teaching law--at least when I'm the teacher--is what law school is about.

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.