"Spotlight"

(Written before Spotlight won Best Picture at the Oscars.)

After Saturday night we could easily understand why Spotlight has been nominated for an Academy Award for Best Picture. Spotlight is an underplayed but relentless account of the work of the Boston Globe newspaper in uncovering the extent of the abuse of children by a significant number of priests in the Roman Catholic Archdiocese of Boston and, more distressingly, the cover-up of that abuse by the leadership within the Church.

While some may criticize Spotlight for focusing only on abuse within the Catholic Church, it is a dramatic film, not a documentary. While Spotlight is appropriately R-rated, we believe that Spotlight was not unnecessarily graphic in its accounts of what happened to young boys (and girls); none were reenacted in flashbacks and only a few were described in detail. Moreover, director and co-writer Tom McCarthy allocates at least some of the blame for what happened for so long to the judicial system and even the Boston Globe itself. One cannot conclude, however, that any institution other than the RCC is primarily culpability for what happened to so many.

We also appreciated that Spotlight maintained its narrative focus. In particular, there were no action scenes or romantic diversions.

Of course we understand that the Catholic Church was not alone in failing to address the issue of abuse of children. Similar events and cover-ups have occurred in Protestant churches, non-ecclesiastical organizations, and government institutions like public schools. Yet there can be no question that such failures in churches have deeper and more significant effects than those of other institutions. For, unlike other institutions, the Church is the principal means by which God's grace is communicated to the world.

Thus, we should not be surprised at the hurt and rejection of the ministry of the Church by many when they learned what those trusted to care for them did to the least of these, and that their leaders knew and did little or nothing about it. In other words, the Church itself bears significant responsibility for its waning influence in the world today.

Student Loans and the Power of Arrest

A week ago there was a blip in the news cycle about a man being arrested for an unpaid student loan dating back to 1987. You can read a typical report here. As usual, there was more to the story and you can read a nice summary from Forbes here.

As it turns out, Mr. Akers wasn't arrested for not paying his student loan. He wasn't even arrested for not responding to the lawsuit brought by the USDOE to collect the loan. (He defaulted on that.) He was arrested, instead, for not responding to an order of the US District Court to appear for an examination to testify about his assets that could be used to pay the judgment.

Back in my collection days in Milwaukee, we regularly used the process called a Supplemental Examination ("supp" for short) to get judgment debtors to tell us where they had (or were hiding) their assets. Sometimes we'd ask a debtor to take out his wallet and give us the cash he was carrying. One of my senior partners (who later became a judge) was observant enough to notice that a debtor walked with a bit of a limp and asked his to take off his shoe where it turned out he had stashed a $100 bill. Great fun, at least from my side of the table.

Of course, some folks knew what was coming and so simply failed to show up for the supp. This amounted to contempt of court because the court had ordered the judgment debtor to appear. Thus we would ask for the court to issue the writ of capias ad respondendum (commonly known simply as a capias) to the office of the Milwaukee County Sheriff.

As I recall, two deputies had the job of finding, arresting, and bringing in the recalcitrant judgment debtor. (One wonders what they had done to deserve such a bottom-of-the-totem-pole job.) Exercising the power of arrest usually worked to loosen up an otherwise hard-nosed judgment debtor, which is not to say, however, that it necessarily led to payment but it was part of the job.

Student Loans and "Free" Higher Education (Updated)

Go here to read a post by friend Colin Chan Redemer titled "Minerva Has Left the Building." In even more unpleasant detail than the piece by Patrick Deneen (below the fold), Redemer explains that 

It is not the few tenured radicals, or the vocal woke students. It is not a few elite institutions. Rather the whole enterprise is rotten. From financing, to administration, to recruiting, to instruction, to accreditation, there is a tunneling wound in American higher education that I fear is fatal.

Just what is this tunneling wound? For an answer Redemer turns to history:

To understand a beast we must look to the head that guides it. In higher education that head is the administration. In the beginning, “administration” meant the servants of the university. The actual university was the faculty and the students.

But now: 

Is it an exaggeration to say that in the modern university the students and faculty exist for the benefit of the administration? Think about it in terms of sheer numbers. People think quite a lot about the student-to-faculty ratio when they are looking into investing in their higher education. But they should be asking about the faculty-to-administrator ratio. According to Forbes, a 2014 Delta Cost Project report shows that “the number of faculty and staff per administrator declined roughly 40% at most types of colleges and universities between 1990 and 2012, now averaging around 2.5 faculty per administrator.” In other words, in the span of just two decades, universities became 40% less efficient at providing instruction to students, if you measure efficiency by the number of administrators you hire per faculty member.

There's much more of value in Redemer's piece but little of hope so I will leave readers with his conclusion:

For now it is enough to say that as parents and students gain clarity on what they want and on what universities now are, the demise of what we think of as higher ed in America is certain. New institutions that kindle the fires of philosophia—the love of wisdom—will rise not because of a billionaire’s vision or bequest, but because humans, by nature, reach out to know. And when their desire to know profound truth touches the cold reality of the modern university, like a root growing on concrete, they will turn aside to deeper, more fertile soil. Granted, billionaires could help this along by donating to already nascent projects; but these will have to be projects run by people who understand that higher ed is dead, at least to its original purpose

_________________________________________________________________________

I've posted many times about America's student loan problem. I've addressed the law that student loans are well-nigh impossible to eliminate in bankruptcy (here), although I've also observed that there may be some cracks in the nondischargeability wall (here). I've also written about the peculiar way in which the student loan programs subsidize foolish choices, educational scams, and ultimately drive up the cost of higher education (here, here, and here).

Higher education has become part of the battlefield in the race for nomination as the Democratic Party candidate for president. To the best of my knowledge, the Republican candidates aren't talking about education or student loans but Bernie Sanders and Hillary Clinton certainly are.

But here's the rub: whether it's Clinton's easier loan-payback terms or Sanders's free higher education for all, what are students and taxpayers getting for their money? Rather than wading into the swamp myself, I'll direct folks to two blog posts that address these concerns in significant detail.

First, go here to read Patrick Deneen's post "Res Idiotica" that painfully illustrates the un-education for which we pay billions.

My students are know-nothings.  They are exceedingly nice, pleasant, trustworthy, mostly honest, well-intentioned, and utterly decent. But their minds are largely empty, devoid of any substantial knowledge that might be the fruits of an education in an inheritance and a gift of a previous generation. They are the culmination of western civilization, a civilization that has forgotten it origins and aims, and as a result, has achieved near-perfect indifference about itself.

Deneen is not a crank (he currently teaches at Notre Dame and has taught at Princeton), and his observations of students at elite American universities rings true. Modern-day college graduates are not stupid but they are the products of a federal "No Child Left Behind" program of primary and secondary "education" to learn the skills of taking standardized multiple choice tests as well as undergraduate programs that do little more than train for evanescent jobs in the service economy.

Well, one might ask, if what passes for education is such thin gruel, why does college cost as much as it does? Why does the cost of education continue to rise while its quality continues to decline? Why are students incurring such inordinate student-loan debt?

As James K.A. Smith writes in USA Today here, the educational-industrial complex spends ever-growing sums for "experiences" instead of education:

The story behind the story of student debt inflation is the inflation of the university into an expanding behemoth of goods and services that have little to do with education and more to do with expectations of coddled comfort. Rather than being an institution centered on education, the university now aspires to be a total institution that meets every felt need. The campus is now a sprawling complex of fitness centers and cineplexes, food courts and gargantuan coliseums. Students aren’t taking out loans to pay for an education; they’re effectively borrowing money to pay exorbitant, short-lived taxes for the privilege of living in a scripted, cocooned city.

I would appreciate learning what our candidates for America’s highest elective office have to say about this. Could any of them provide any rationale for education beyond the utilitarian? Could any of them specify what it is that an educated person should know? I am not, however, holding my breath for any answers.

"Love in the Ruins": Observations on Percy Walker's Novel of the 60's

I suggested Walter Percy's "Love in the Ruins: The Adventures of a Bad Catholic at a Time Near the End of the World" (1971) to our book club in Raleigh. I don't know what brought this book to my mind except that I believe that an Internet acquaintance recommended it. Please contact me if you might be the one.

With an author from Louisiana and its dedication to Shelby Foote, I thought "Love in the Ruins" might run along the lines of the Southern Agrarians of the mid-twentieth century. I also thought after learning that it was a critique of the open-ended destruction left in the wake of the 1960’s, that it would bear some resemblance to Tom Wolfe's novels. And, given his Roman Catholic religious commitments, I wondered if "Love in the Ruins" might show some influence of Flannery O'Connor.

I suppose there were elements of all three literary forbears in Percy's book but on balance it was hardly the best of them, either individually or collectively. None of this is to say that “Love in the Ruins” is without merit but only that it fails to deserve the high praise it received on its publication.

My principal criticism of “Love in the Ruins” is that Percy’s style is firmly fixed in its time and has not aged well. Use of an untrustworthy narrator (Dr. Tom More, namesake of the author of “Utopia”) is fine even if it can become is a bit tedious. A book that features a narrator who is neither trustworthy nor likable, however, is difficult to enjoy. In addition, Walker’s 60’s-centered vocabulary and point of view are off-putting. I suppose it’s appropriate to strike a stance when engaging in satire but for me, anyway, it was a bit too much.

Now the positives.

Walker had deep and prescient insight into the pathologies unleashed by the decade of the 60’s. First is the running (and sometimes farcical) conflict between Tom More and the behavioral psychiatrists of his day. The experiences of More and Walker’s descriptions of behavioral “therapy” reveal what happens when we deny that human beings have a “nature.” The monomaniacal behaviorist psychiatrists disclose a society that valorizes behavior modification over truth and perfecting the mechanics of sex over commitment. Even when Dr. Tom More invents a “lapsometer” that actually measures the reality and bent of our inward soulish nature, his fellow scientists don’t believe it. Much like David Bentley Hart and others with respect to our contemporary “New Atheists,” Walker exposes the willful blindness of those who reduce humanity to its physical and chemical processes.

Second, Walker describes a society in which there is an ever-increasing political polarization revolving around unassailable but deeply-held convictions and whose racial divide remains stubbornly deep. Over four decades ago, Walker predicted the “retreat to commitment” that makes impossible rational conversation over the common good. Today many on the Right and the Left find comfort in ideology rather than doing the hard work of looking for solutions to the challenges of intractable social and human problems.

From a literary perspective, the chaotic life and mental illness (and constant boozing) of Tom More himself serve to illustrate the unbridgeable bifurcation of America as it moved in the 1970’s—and today. Percy was certainly perceptive in all of these observations and for that I was glad to have read “Love in the Ruins.”

Percy’s prescription for living in a time near the end of the world is less clear. Tom More’s personal reunification was due in part by his marriage to—of all things—a moralistic Presbyterian nurse, who was the prime force in bringing order to his life. For Walker, a down-to-earth religion that combined the moral strictures of Presbyterianism and the tangible connection to the divine of sacramental Catholicism seem to be crucially important. It’s not entirely clear why this should be the case except that both Christian traditions reject the soul-less psychological behaviorism that characterized the mental health establishment against whom Tom More inveighed and consider human beings to be real moral agents. Moreover, both traditions recognize the fallenness of our nature and the need for grace-filled sanctification (or purgation) to make matters right.

In short, “Love in the Ruins” is a good novel full of valuable insights and commentary but marred by the author’s peculiar point of view and manner of expression. If you’re up for some work, I can definitely recommend it.

"Abraham Kuyper, Conservatism, and Church and State"

I was disappointed with Mark J. Larson's "Abraham Kuyper, Conservatism, and Church and State" (Wipf & Stock 2015) . Even at its brief ninety-seven pages, it is a long read. Foregoing a full review, I will note a few problems.

First, I found little evidence that Larson was deeply acquainted with the full corpus of Kuyper's published works. He repeatedly cites to Kuyper's Lectures on Calvinism and occasionally to other of his works as they appear in Abraham Kuyper: A Centennial Reader (Eerdmans 1998). Larson cherry picks from the cherry pickings to support his not-too-subtle thesis that Ronald Reagan remains the greatest of America's political conservatives. Larson's agenda-driven use of sources brought to mind Benjamin Cardozo's observation about six styles of legal writing:

There is the type magisterial or imperative; the type laconic or sententious; the type conversational or homely; the type refined or artificial, smelling of the lamp, verging at times upon preciosity or euphemism; the demonstrative or persuasive; and finally the type tonsorial or agglutinative, so called from the shears and the paste-pot which are its implements and emblem.

Larson’s “Abraham Kuyper” is the latter.

Second, and perhaps more problematic, is Larson’s definition of conservatism. It is combination of Classical Liberalism (see one of my articles here) and free market economics. For most Americans this is conservatism but it’s a bit anachronistic to identify it with Abraham Kuyper. In this respect Kuyper himself was a transitional figure. He was most definitely not a conservative as the term was understood in his own day. He was a Liberal. And, in that sense, Larson is correct to find in the American Founders one strand of Kuyper’s political philosophy a century later. But only one strand.

For an American audience, Kuyper was quick to pick up on his affinity for the Founders but, as James Bratt has observed, Kuyper’s understanding of them was second-hand. For his Dutch audience (and voters), Kuyper was much more communitarian and advocated the sorts of labor law reforms that would have made late-nineteenth century Republicans blanch and contemporary ones call him a RINO. (And folks on the other side of the pond call him a Red Tory.)

More could be said but won’t. With regret, I cannot recommend “Abraham Kuyper.”

Natural Law and Contracts: An Outline

Who knew there was a University of the Arctic? Apparently there is because it's one of the affiliations listed for Dawid Bunikowski. Go here to download Bunikowski's paper (really an amplified outline) tilted Going Back to Natural Law in Contract Law: Necessity of Metaphysics in Law.

Bunikowski makes the standard critiques of the non-foundational turn of modern jurisprudence and urges a return to the metaphysically thick accounts of contract law developed in the Medieval and Early Modern periods of European jurisprudence. In his own words, "poetically saying, philosophy, theology, and law are marching together, what is a beautiful way, crystallizing the way itself like going back to the true origins of our law in Europe, and in contract law especially."

Nothing new but a nice (and short, i.e., 24 pp.) introduction to how we got here and what Bunikowski thinks we should do about it.

Trolling the Platitudes of Legal Education

Legal education today is under attack from a multitude of quarters. (See my posts here and here for a couple of examples.) Plus ça change, plus c'est la même chose.

While reading Jim Gordley's most recent work, "The Jurists: A Critical History" (Oxford 2013) I couldn't help chuckle when I read several quotes from an article published in the Yale Law Journal in 1943.

According to authors Harold D. Lasswell and Myers S. McDougal in Legal Education and Public Policy: Professional Training in the Public Interest, the goal of legal education should be to train lawyer-policymakers who would work to implement "democratic" values. To what end, you ask?

A legitimate aid of education is to seek to promote the values of a democratic society and to reduce the number of moral mavericks who do not share democratic preferences.

Why these democratic-totalitarian ends?

The laborious work of modern science had provided a non-sentimental foundation for the intuitive confidence with which the poets and prophets of modern brotherhood have regarded mankind. Buttressing the aspirations of these sensitive spirits stands the modern arsenal of facts about the benevolent potentialities of human nature [sic] and a secure knowledge of the methods by which disturbed personality growth can be prevented or cured.

I guess you can count me among the "moral mavericks" but even so one can only wonder what folks 70 years hence will say about silliness of much of what is published in the Journal of Legal Education or what frivolous changes in course syllabuses must soon be implemented at the behest of the American Bar Association acting as an agent of the educrats at the U.S. Department of Education.

ASARCO Bites: Boomerang Tube and Attorneys Fees for Committee Counsel

This past November I posted a series of entries dealing with bankruptcy cases from the Supreme Court's most recent term. In Part 5 here I discussed Baker Botts v. ASARCO. Briefly, the law firm of Baker, Botts did an outstanding job for a Chapter 11 debtor. In fact, through the law firm's efforts, ASARCO's creditors received payment of 100% of their claims. One entity, however, was most unhappy with the work of Baker, Boots, the parent corporation of ASARCO who Baker, Botts had sued for looting its subsidiary. Anyway, after losing the lawsuit against it and putting the cookies back into the jar, so to speak, and getting ASARCO's creditors paid, the parent corporation re-took control of it subsidiary and objecting to paying Baker, Botts for its work.

To no one's surprise, the courts, including SCOTUS, approved the fees incurred by Baker, Botts excluding, however, the fees it incurred in fending off the objections by the disgruntled parent corporation. In other words, Baker, Botts had to "eat" the cost of getting what every objective observer agreed it deserved.

The majority of SCOTUS came to its conclusion based on its reading of the relevant section of the Bankruptcy Code. The Court went on to note, however, that it might be possible for a firm in the position of Baker, Botts to recover the cost of successfully defending its fees if its contract with the Chapter 11 debtor so provided.

Fast forward to January 2016 when the law firm representing the committee of unsecured creditors in the Chapter 11 of Boomerang Tube inserted such a fee-shifting term in its agreement with the committee. Committees, for those not engaged with the details of Chapter 11 practice, jointly represent all unsecured creditors but, after court approval, are paid by the Chapter 11 debtor. The United States Trustee objected to inclusion of the fee-shifting provision and the bankruptcy court eliminated it.

The bankruptcy court found the provision objectionable for several reasons only one of which seems compelling to me: it would require a third party, the Chapter 11 bankruptcy estate, to pay for the defense fees of another party, its creditors' committee. You can read the full opinion here. The remainder of Judge Walrath's opinion is a cramped reading of every aspect of the Supreme Court's opinion in ASARCO and the relevant statutes.

I don't think it would be worth the Committee's time to appeal this decision. After all, getting a third party to pay fees spent in defending your fees is a stretch. I remain hopeful, however, that counsel for Chapter 11 debtors will fight for the contractual right to get paid in the face of formulaic objections to their fees from parties have no skin in the game.