A while back I had some thoughts about usury as existing in a somewhat unique position from a historical point of view. Professor Bainbridge had a nice response to my post. And this is a more recent and also very thoughtful post by John Schwenkler, discussing a piece by Elizabeth Anscombe, Faith in a Hard Ground, in which she comes down very strongly opposed, that I did not know.
Friday, November 18, 2011
Usury Revisited
Holiday Music
My colleague, Mark Movsesian, has an amusing post about a concert planned for the "holiday season." Careful and excellent scholars like Daniel Dreisbach, Vincent Phillip Muñoz, and Donald Drakeman have persuaded me that, in addition to his other discretions, Jefferson was rather cagey and nuanced about the quality of his beliefs in the separation of church and state. At the very least, I don't recall any of his writing on this score involving the righteousness of marital infidelity, so the binding theme of the concert is not clear to me. I suppose those who attend should not expect to hear any masses, and few oratorios, chorales, and cantatas as well.
Thursday, November 10, 2011
Baude on Federal Common Law and Choice of State Law After DOMA
Will Baude has a wonderful new piece on what should replace DOMA (as it seems to be expiring) for purposes of deciding which state law ought to control the issue of the validity of a same-sex marriage. I haven't had a chance to read through all of Will's piece (and it is not in my area -- but Will writes so accessibly that I can pretend that I really understand it as he does), but one of the (many) things that makes it interesting is that Will notes that this issue is just one example of a larger set of issues dealing with "interstitial law":
First, I demonstrate that the second-order conflicts problem for federal question cases should generally be resolved through a federal common law of conflicts. It cannot be resolved by treating federal question cases like diversity cases [Will rejects applying Klaxon to this category of disputes] . . . . Second, I demonstrate that institutional role matters. Congress solves conflicts problems differently than courts do, because it is free to implement a broad range of policy goals through conflicts doctrine, while courts have a more limited role of filling in the gaps between Congress’s choices. Both of these principles apply to all instances of what is here called “interstitial law”—a form of federal law that relies upon state law.
Wednesday, November 9, 2011
Murray on Marriage as Punishment
Professor Melissa Murray (Berkeley) has published Marriage as Punishment in the forthcoming pages of the Columbia Law Review, a paper which aims to show a number of things. First, it describes how marriage was used historically not only as a kind of escape valve for the crime of seduction but also as a "punishment" for that crime. Second, it takes very seriously the metaphor of "the old ball and chain" to show how "marriage figured prominently in the operation of the criminal justice system." Third, it wishes to resuscitate what it claims to be an older view of marriage as something more than the "unvarnished good" which, it again claims, it is described as today by those seeking same-sex marriage rights. Fourth, it injects a caution about the way in which same-sex marriage proponents make their claims about the good of marriage. Marriage is a discipline, the author claims -- a discipline at times enforced by the state -- and as such it is in many ways inimical to achieving full "liberty and autonomy for sex, whether in marriage or not." (107) What we really need if we are after "greater sexual liberty" is to be skeptical of the "disciplinary force" of marriage (no less than of criminal sanction) -- in order to create "a place for sex and sexuality beyond the disciplinary domains of the state." (107-108) I wish Philip Rieff were still with us to offer his thoughts.
Tuesday, November 8, 2011
Announcing the Colloquium in Law: Law and Religion
The Center for Law and Religion at St. John’s University School of Law (for more information, come
to CLR Forum) is pleased to announce an exciting new seminar for Spring 2012, Colloquium in Law: Law and Religion.
This course invites leading law and religion scholars to make presentations to a small audience of students and faculty. The following speakers have confirmed:
January 30: Philip Hamburger (Columbia University School of Law)
February 13: M. Cathleen Kaveny (Notre Dame Law School)
March 5: Joseph Weiler (NYU Law School)
March 19: Michael McConnell (Stanford Law School)
April 2: Justice Antonin Scalia
April 16: Ayelet Shachar (University of Toronto Faculty of Law)
Topics will be announced shortly.
Each session of the Colloquium will run from 4:00 to 6:00 in the third-floor faculty library. Interested faculty members in the New York area and beyond are invited to attend and participate.
Please email the Colloquium’s co-organizers, Marc DeGirolami ([email protected]) or Mark Movsesian ([email protected]), if you would like to attend.
Sunday, November 6, 2011
Messiaen's Quartet For the End of Time
My son Thomas and I went to a concert of Olivier Messiaen's "Quartet for the End of Time" this afternoon. Messiaen is a wonderful 20th century French composer who created the quartet in 1941 as a POW in a German camp. Messiaen met a clarinettist, a violinist, and a cellist in the camp; the only guy who had his instrument was the clarinettist, but they managed to get hold of the other instruments and debut the piece in the prison.
The quartet, in 8 movements, is deeply informed by Messiaen's abiding Catholicism. It is "for the end of time" in two senses. Messiaen takes the Book of Revelation as his inspiration. His point of departure is Chapter 10, where the seventh angel descends and announces that "time shall be no longer" -- the end of Time as the end of past and future and the beginning of eternity. Messiaen's time signatures are also iconoclastic in the piece; in fact, sometimes there is no definite rhythm at all (I don't understand how the players were able to be in unison), and it was in this sense too that Messiaen wanted to convey the end of the usual 3/4 and 4/4 regularly measured time in Western classical music. Time is characterized throughout the piece as sad and weary, to be contrasted with the lively music of heaven. The piece was challenging (with lots of unexpected bird twittering), but just great.
Then, Thomas and I came home to watch our Patriots lose, as Time expired.
Optimism is a Brain Defect
At our retributivism conference on Friday, Luis Chiesa pressed the provocative point that we ought to take seriously the possibility of causal determinism and incompatibilism in punishment theory. Taking such views seriously would mean toying with the possibility that there is no free will and therefore no culpability for wrongful acts -- indeed no 'wrongfulness' at all. Luis's argument seems to depend on a prediction about the moral attractiveness of our punishment practices if we accept these possibilities. Agreeing with these possibilities might threaten the whole enterprise of retributivist punishment, along with much else.
I appreciated Luis's learned presentation, though I don't agree with him about these matters. On the other hand, here, finally, is a deterministic finding that I can get behind (h/t Tom Smith).
Tuesday, November 1, 2011
A Question for MacIntyre Mavens
Here's a question some buddies and I have been throwing around that I thought the learned readership here might know something about. I know that Alasdair MacIntyre's critical thesis in After Virtue has found some applications for and in law. That is, MacIntyre's diagnosis of the unintelligibility and interminability of moral discourse not as proof that non-cognitivists are right but instead as evidence that we have lost the teleological foundations that made moral discourse and the ideas of true and false possible in the first place, the incapacity of rationalism to replace that Aristotelian foundation, and the resultant contemporary emotivism -- some or all of this has found applications of one sort or another in legal academic writing with which I am familiar. Some of Steve Smith's writing draws on the critical thesis in MacIntyre, for example.
What I am not sure about is whether the more positive thesis of After Virtue about social practices, goods internal to those practices, the contextualism of those goods and their intelligibility only within social practices, the mutability of the goods as the practices/traditions evolve, and the practices/traditions as sites within which the virtues are displayed -- has anyone written about the law as such a social practice/tradition? Has anyone developed the contextual, situated social practice/tradition thesis in MacIntyre as an account of law?
Sunday, October 30, 2011
Constitutional Pressure Points
Here's a series of events I found interesting. This story reports that in 2006, the United States Conference of Catholic Bishops had been awarded a government contract for the provision of assistance to victims of human trafficking. These contracts are awarded pursuant to the William Wilberforce Trafficking Victims Protection Act of 2000. Earlier this October, the contract with the USCCB was not renewed by the government and it was awarded to three other non-profit organizations. There is some speculation in the story that the reason the contract was not extended was the USCCB's unwillingness to refer victims to abortion providers or supply birth control, but the government did not explain its decision.
In related news, in 2009, the ACLU of Massachusetts filed a federal action in the District of Massachusetts against the federal government alleging that its decision to award this contract to the USCCB violated the Establishment Clause.
Friday, October 28, 2011
The Display of Catholic Images at The Catholic University of America
It is hard to know what to make of this story (h/t Professor Bainbridge). What is most curious about it to me is the allegation by Professor Banzhaf that Muslims were compelled to "perform their prayers surrounded by symbols of Catholicism -- e.g., a wooden crucifix, paintings of Jesus, pictures of priests and theologians which many Muslim students find inappropriate." Later in the story Banzhaf is quoted as saying that Muslim students have no choice but to pray "surrounded by pictures of Popes."
It seems to me that there are two issues: (1) are there rooms on the CUA campus which do not contain such images or items (and, I suppose, were students prevented from gathering to use them for prayer)?; and (2) is the reference to these items' "inappropriateness" one which is specifically limited to their inappropriateness as places of Muslim prayer, or is it a more general sense that displaying these images and items at CUA is inappropriate per se?
As to the first question, in my wonderful year at the law school at CUA, I can think off-hand of several rooms which did not display the complained-of images and items. Indeed, I can even think of a few such rooms at the Salesian house near campus where I was lucky enough to sleep. It does not seem to me that it would be difficult to find such a room on the CUA campus, though perhaps the claim is that the University willfully barred the students from access to these rooms.
As to the second question, I can understand that Muslims might not want to pray in a room bedecked with Catholic images. On the other hand, if the claim is that these images are "inappropriate" for display tout court, I am not sympathetic to that claim.
UPDATE: Please see the letter by President Garvey linked to in the comments, which clears many things up, including the fact that it seems that not a single Muslim student has complained to the University. Not one. And see also the Banzhaf press release on this matter referenced by David Nickol. As I've observed about Maureen Dowd's columns, this may be a case of mixing together a few too many utterly disparate animadversions.
FURTHER UPDATE: It gets worse. See also this story, which reports that no CUA student has complained to Banzhaf either, notwithstanding his ongoing attempts to solicit plaintiffs for the complaint. Good grief.
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