Monday, February 23, 2015

They have weekends in Canada, no?

I don't know how scared I'd be of a cease-and-desist letter written by an attorney who used the phrase "end of business on February 22, 2015."

Thursday, February 19, 2015

Well that was not bright

The Apostolic Commissioner, who has never exactly smelled of roses, claims that recent reporting on the status of a lawsuit between himself and the Manelli family contained material misstatements. When one reports on a defamation case, it might behoove one to get the facts straight.

Now, I don't read Italian, so while I can click through the links from Rorate's original post on the topic back to the source at "Don Camillo's" blog, I cannot verify whether the translation of Fr. Volpi's most recent letter on the topic is an accurate summary of the original article. Notably, it does not track what Rorate itself originally posted: the new letter by Fr. Volpi quotes the original writer as claiming he "was sentenced." I do not see this phrase in Rorate's original piece (at least, it's not there now: I'm not digging through caches and the wayback machine to see what was originally there; apparently the original source has admitted that "sentenced" was a mistake, assuming Google Translate gives an accurate sense).

A few thoughts:
  1. In the United States, the truth is an absolute defense to a defamation action.1
  2. Also in the United States, a public figure can prevail in a defamation action only by showing "'actual malice'---that is, [that the statement was made] with knowledge that it was false or with reckless disregard of whether it was false or not."2
  3. European law is less protective of speech in general; the truth has not traditionally been an absolute defense and apparently remains not-a-defense in Italy.3
  4. Thus, one can see why, perhaps, Fr. Volpi might have negotiated a settlement while still maintaining that his statement regarding the Manelli family "was no lie, and could easily be verified."4 In Italy, the truth of the statement is not a guaranty of victory at trial.
  5. At the same time, it would be very unusual for one to enter into a settlement agreement that contained an actual admission of wrongdoing. Most settlement agreements expressly disclaim any such admission.
  6. That the settlement was confirmed by a court order is not implausible, though: even in the U.S. a settlement may be incorporated into a final consent judgment. Since the settlement in the Volpi case was purportedly negotiated in court-ordered mediation, it would not be outside the realm of reasonableness for that to have occurred.
  7. The defamation knife cuts both ways, of course: regarding Fr. Volpi's claim to be preparing a lawsuit of his own and rescission of the settlement agreement, one can say (a) that Rorate, to the extent its writers are situated in the U.S., is probably immune from any liability for its February 16, 2015, post, as Fr. Volpi is almost certainly a public or limited-public figure and Rorate's publication is unlikely to qualify as actually malicious; (b) that Don Camillo's potential liability would be governed by Italian law, which may be less forgiving; and (c) that while mileage may vary in Italy, Fr. Volpi would be unlikely to have grounds to rescind the settlement agreement under American legal principles unless the Don Camillo figure were under the Manelli family's control or he wrote what he did as a result of some conduct by them prohibited under the agreement.
P.S. (Feb. 23, 2015): It might go without saying, but in case it does not, my thoughts here are not on the merits of the Manelli suit against Fr. Volpi, nor of Fr. Volpi's claims against the Manelli family or anyone else. Opining on the merits would require knowledge of the true facts, which I lack. As for the matter in general, Fr. Volpi is the principal agent in what is, from all appearances, the profoundly unjust oppression of the F.F.I., a role for which he deserves opprobrium. That is true regardless of what legal claims he or anyone else might have.

1  See New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964).
2  Id. at 279--80.
3  International Press Institute, Key Findings: Defences in Defamation Cases, (last accessed February 19, 2015).
4  Was the statement true? Who knows; I have no way of knowing and it is beyond my purposes here to consider the question.

Friday, January 30, 2015


One would prefer to have quotes, rather than paraphrases. But the paraphrases are bad enough. Surely God has given us the leaders we deserve, rather than those we need.

Poscia ch'io v'ebbi alcun riconosciuto,
vidi e conobbi l'ombra di colui
che fece per viltade il gran rifiuto.

Friday, January 9, 2015

The Supposed Scandal of Proper Attire

Whiskey Catholic doesn't have a comments box, so I will make some comments on a recent post in this space.

First, the minutiae: the query posted by Whiskey Catholic contributor Michael asks about a "white tie" function and the lay perception of proper clerical attire thereat. Michael responds with a statement about "a black tie dinner." These, of course, are not the same thing. White tie is formal, black tie is semi-formal. Most American men will never again have the opportunity to attend a true white-tie function. It is our loss. In either event,* however, the proper clerical attire is not merely a cassock (as Michael says), but a cassock and ferraiolo. If a secular priest appeared at a formal function without a ferraiolo, he would be---and I would certainly think him---sloppily under-dressed. As for cuffs, one does not wear barrel cuffs with formal-wear. Laymen certainly do not, and it has been my impression (although I have not consulted an etiquette guide on the topic) that clerics do not either. So yes, a secular cleric at a formal or semi-formal affair should wear linked cuffs.

Second, the more substantial point: Michael's general take on the inquiry is spot-on. It bears noting that all of the situations inquired about by the reader involve the hypothetical priest being "on duty" or "at work," so to speak. The issue is not what does a priest wear about the rectory when reasonably secure from inquiring eyes, it was what does the priest wear when out and about, performing his sacred functions or at least appearing in public qua priest. And the laity not only expect, they desperately need, priests to conduct themselves in those moments in a manner concomitant with the dignity of their priesthood. (Frankly, we all need to conduct ourselves in a manner more concomitant with even basic human dignity, particularly in terms of dress.)

If I may diverge on one point, I can think of plenty of times it would be appropriate for a priest to wear sneakers, but they all involve athletics, or perhaps gardening. Priests, after all, can garden, play sports, and go running without giving scandal.

The risk of scandal is not from the priest who is properly attired, but rather from one who slouches about his parish in orange sneakers.

* If there is a distinction between clerical formal and semi-formal attire, I have never heard about it. But I haven't done a study. In a sane world, one would learn these things in a seminary, instead of debating whether one is expected to wear tennis shoes.

Tuesday, October 28, 2014

Hear Ye

Seven or eight months ago, it looked as if the next big thing, in the intellectual life of the Church, was going to be a showdown over the intellectual and theological compatibility between the American experiment and Catholic orthodoxy: Patrick Deneen called the disciples of John Courtney Murray out on the mat, John Zmirak was pulling out the long knives for traditionalists on social-policy grounds, I got banned from The Catholic Thing combox (apparently for my comments here), and it looked as if there was going to be a rumble. The Francis pontificate, with nothing good to say about existing economic systems, seemed a good time for it.

But then Cardinal Kasper crawled out of his hole. This topic does not need restating at length: suffice to say that there are persons within the Church, aided by secular agitators, who have mounted an attack on the truth of Christ's express teachings on the nature and indissolubility of marriage (as reaffirmed by, inter alia, the Council of Trent, Pius XII, and St. John Paul II). Their error incorporates ancillary assaults upon St. Paul's clear statement on the conditions for reception of the Blessed Sacrament and the Church's unchanging teaching about the nature of repentance. The confusion Kasperianism has already wrought has been substantial. The fact that it has been the topic of official discussion within the Leonine Walls has led, in places, to concern among the faithful over the nature of the Church's indefectibility. It is a pernicious heresy masquerading as an antinomianist canonical reform movement. The chicanery of the 2014 Special Synod was not its end: Kasperianism has plenty of dry powder.

The time has come, then, for all those who will withstand this error to do so. In order to do that in good array, orthodox Catholics need to lay aside their own disputes. This is no longer the time to revisit the merits of John Courtney Murray. It is no longer the time to play "I-told-you-so" over liturgical matters, or to throw bombs at people because of the perceived box in which they sit. Now is the time to pull together against a common foe.

Joseph Shaw had a series of articles on the nature of divisions amongst orthodox Catholics at his LMS Chairman Blog (here, here, and here). His thesis is that the heterodox are able to present a united front because their aim is destruction: who cares how the edifice is pulled down? The conservative, on the other hand, are divided, because before one may preserve a thing, he must decide what it is he wants to preserve, and there is disagreement about that.

Anyway, Modestinus picked up this idea over at Opus Publicum, and raised the prospect of a unilateral Traditionalist disarmament in pursuit of the fight against Kasperianism. He then announced such a move on his own part.

This page does not attract readers; I keep it for my own edification. But let me say, for the record, that Modestinus's proposal should be adopted across the board. That means you, Rorate Caeli: stop sneering at "neo-Caths" and "conservative Catholics" when something bad happens. Just report the news and write about goings on (a necessary service your blog does very well), but save the barbs for the common enemy. It also means you, writers and editors of The Remnant. The various interlocutors who have crossed swords with the traditional movement may not be correct; their errors may be dangerous in certain ways. But they are not as dangerous as the Kasperianists. Points of disagreement with them can almost certainly be discussed, when necessary, without resorting to epithets. But the internecine fighting amongst the orthodox needs to stop, and this has to be a first step.

Of course, one would hope for reciprocation. One could hope that Fr. Longnecker, Elizabeth Scalia, Matthew Schmitz (was I supposed to have heard of this man before he started making snyde comments about Rorate Caeli?), and even (mirabile dictu) Mark Shea and John Zmirak might stop hyperventilating over the perceived excesses or peccadilloes of those attached to the Old Rites and (or) a less Americanized view of Catholic Social Teaching. 

The time has come, at least for the time, to take a phrase from the parents' handbook: "Just Drop It, Y'all."

So let's. Just drop it. Stop it with the internecine squabbling, backbiting, and name-calling.

Postscript: "But, but, what about Vatican II?" you ask. What about it? The Council issued no anathemas, it defined nothing. You are free, so far as the Council itself appears to be concerned, to believe anything you like about it. It took place, it was an ecumenical council, and it did not definitively teach error: that's what we know. Beyond that, who cares? Even if we care for other purposes, the Council---or at the very least its contentious passages---have nothing to do with the present problem. So fights over the interpretation of the Council (which, given that the Council did not itself demand that we believe anything in particular, I find a futile endeavor) are irrelevant for the present. Lay them aside.

Thursday, June 12, 2014


One sees "estopped to" and "estopped from." Which is right?

Well, both get you the maximum 10,000 hits that Westlaw can process on all-states/all-feds. The oldest result for "from" is McDonald v. King, 1 N.J.L. 432 (N.J. 1791). For "to," you have Holmes v. Kennedy, 1 Root 77 (Conn. 1775).

Bad Tennessee Decisions: State v. Marcum

The idea has been advanced recently that it is an attack on the independence of the judiciary to suggest that members of the appellate courts should be dismissed via retention election. I submit that most Tennessee appellate judges should be so dismissed, on the basis that our appellate courts routinely demonstrate legal reasoning so poor as to shock the conscience.

Here is an example: State v. Marcum, 109 S.W.3d 300 (Tenn. 2003). This is a criminal appeal involving the proper interpretation of a statute that is not exactly fit for mixed company, Tennessee Code Annotated § 39–13–501(7). That statute provides:
(7) “[Defined Term]” means [A], [B], [C], [D], or any other intrusion, however slight . . . .
In the statute, the terms that have replaced by letters are assorted acts. The Supreme Court holds, in Marcum, that act [C] can be committed without an "intrusion": "The phrase, 'or any other intrusion,' has no modifying effect upon the defined . . . acts. The word 'or,' as used in the statute, is a coordinating conjunction that functions merely to introduce a generic non-specific alternative."

This is nonsense. The word "or" is certainly disjunctive, but the court has read the word "other" out of the statute. The word "other" is certainly descriptive of the preceding list. Conversation would become impossible otherwise:

Q: Do you have any pets?
A: A dog, a cat, and a fish.
Q: Do you have any other animals?
A: A dog, a cat, and a fish.

Rinse, lather, repeat. The word "other" means that A, B, C, and D are all acts that involve "intrusion," but if the legislature left any off, they count too. Ejusdem generis and Noscitur a sociis both suggest this result: you do not read words in a statute in isolation. (Those principles also reinforce the conclusion that "intrusion" should be an element of each act, given the Defined Term, which, let us say, suggests such an element.) And each word in the statute should have a meaning. Deleting the word "other" yields precisely the result that the court reached: reaching the definition of each item without reference to the "intrusion" element. What we have here instead is sloppy, results-driven adjudication. If the court wants to adopt a "the sonofabitch had it coming" rule for criminal cases, let them do that and then take the consequences.