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. 

Wednesday, February 5, 2014

Gee Willikers

Rorate Caeli has a transcript up of a pair of talks by a very earnest, very well-intentioned priest on the works of Tolkien and Lewis.

Several brief comments.

First, the good father seems to be responding primarily to Joseph Pearce's somewhat hyperbolic treatment of Tolkien more than to Tolkien himself. I don't know (although it is, I suppose, possible) that Tolkien himself discussed his work in the exuberantly theological terms that Pearce has employed.

Second, insofar as Father wants to criticize Pearce's gloss, the criticism may be warranted. (I haven't read Pearce's works on Tolkien, simply seen bits, snatches, and summaries.) Middle Earth is manifestly not the actual universe and Iluvatar is manifestly not the one true God. Implying otherwise quickly, and for the reasons Father notes, places the basic underpinnings of the story at odds with the Truth.

Third, however, the fact that Middle Earth and its universe are not our actual universe seems to deflate much of Father's criticism. It is one thing, and quite an understandable thing, to criticize a work for presenting a false idea about the world. It is something else entirely to criticize it for presenting an idea at all about some other world. The Church has always condemned witchcraft and the occult because these things either present false explanations for the reality of our world or represent efforts to wield diabolical powers. But if we posit, simply as an exercise of the imagination, a world other than our own, in which the laws of nature and the the universe are not the same, and if the workings of that world involve what we would term "magic," we're not invoking the same set of underlying assumptions and errors that make actual attempts to invoke magic in this world quite wrong.

One could, I suppose, posit that it is impious to imagine things that do not exist or universes governed by beings other than the true God. There might be some validity to that position. But in its most extreme (but perhaps logically necessary) variant, it would clearly exclude all exercises of the imagination and condemn all fairy tales. It is likely that there were never such things as dragons: is it wise, under this manner of thinking, for Catholics to read The Golden Legend? This strikes me as Catholicism meets Common Core: a lamentable flattening of the scope of human thought, even beyond the condemnation of errors or limitations made for pedagogical reasons.

Four, Father criticizes Lewis's Narnian and Space Trilogy tales. The latter, indisputably, present a view of the universe that is almost certainly incompatible (at the very least) with Catholic teaching on the effects of the Fall. They are not rigorously theological books, although, like many of Lewis's works, they are fun and contain some food for thought. His criticism of Narnia is rather weaker, I think: there is no reason (that I have ever discerned in Catholic teaching, at least) that God should not have created multiple worlds, although (as Lewis himself posited somewhere in the Space Trilogy, oddly enough) the idea of a second incarnation is probably totally false. The idea that children (and these are children's stories) are going to be inclined towards scientific materialism by The Magician's Nephew or the occult by the presence of an anthropomorphized star in The Voyage of the Dawn Treader is a stretch at best. (How many children associate "fallen stars" with the diabolical?) The idea that it was monstrous for Lewis to present a race of gnomes in The Silver Chair as preferring to live in the bowels of the earth simply takes the cake: if the things were made to live there, it's just good teleology that they would want to return. Hell, after all, isn't actually in the earth's core. Narnia isn't a substitute for the gospels, or even a good grade-school Catholic religion text, but it's a shade better than Father gives it credit for, I think.

Is it a little disconcerting that hippies and freaks have always gobbled up Tolkien? Yes, one has to admit it is. But that fairly stands merely for the proposition that the books don't deserve to be canonized: they are not a great new Catholic myth. They're merely literature, literature that takes place in a world apart and in which virtue and vice are presented in, I think, a compelling fashion. We could quibble over the import of plot elements, but even getting to that insider-baseball level of detail undermines a thesis that the works are, per se, unwholesome.

One final note: Father's essay touches on a Catholic assessment of the Renaissance, and the dispute over whether or not the reclamation of pagan styles, forms, and works was an improvement upon or a degradation of Catholic medieval culture. Chesterton, who Father cites, was certainly correct in this regard. But that does not mean that the culture of classical antiquity is bereft of value to the Christian: Chesterton wrote to that effect at length in The Everlasting Man, and Father himself discusses Plato. Surely then, without giving them more credit than they are due, their arts and letters retain at least aesthetic and literary value that can be enjoyed in good conscience today.

Friday, October 11, 2013

A pox upon Thomson West

The publishing standards of the legal-book industry are a shambles. First of all, what sort of title is "Prosser, Wade and Schwartz's Torts"? And is it Prosser, Wade and Schwartz's Torts: Cases and Materials (as the cover suggests) or Cases and Materials: Prosser, Wade and Schwartz's Torts (as the title page suggests)? Or is it merely Torts: Cases and Materials (or perhaps Cases and Materials: Torts), with the names being merely decoration? And why is there no bastard title page?

You publish only a very few types of books. Do better. (We won't even mention the absurdities perpetrated in multi-volume updated works like Wright & Miller.)

Wednesday, September 25, 2013

Excuse Me, Messrs. Brooks

But why isn't this item available in some permutation of blue, green, and gold? What am I supposed to do with USC colors?

Saturday, August 24, 2013

Still an Americanist Rag

I have to confess that I have never cared for Joseph Bottum. His writing when he was at First Things regularly struck me as overly ambivalent. In fact, I stopped frequenting First Things' websites because it became difficult to discern what the publication was actually doing.

Now Bottum is out at First Things (something I hadn't even known, see supra). And he's appeared instead in the editorial pages at the flagship of Americanist rags, Commonweal. What has Bottum come to tell us? "That [t]here is no coherent jurisprudential argument against [same-sex 'marriage']."

Well, that's a surprise to a lot of people who have gone to lengths to articulate a long list of such arguments, I'm sure. Perhaps Bottum means "there is no winning jurisprudential argument against same-sex 'marriage.'" But that's a very different statement. Lots of losing arguments are coherent, and a fair number of losing arguments are right.

Bottum goes on to insist that American Catholics "should accept state recognition of same-sex marriage simply because they are Americans." Yes, Mr. Bottum is here to tell us that being an American dictates what you should believe, fiddlesticks to popes, bishops, and the CDF. Down with popery indeed. Leo XIII is dead, after all.

If Bottum's essay isn't craven Americanist nonsense, nothing is. 

I would say one should go read it, but I provide the link mainly in hopes of creating unfavorable google results. Unless one is interested in the sentimental details of Mr. Bottum's friendships, his thoughts on the USCCB's bad public-relations skills, his poor opinion of John Finnis, or his belief that what really matters is that lots of people like the Catholic Church, the essay is not worth the time.

Do not think that I came to send peace upon earth: I came not to send peace, but the sword.
should accept state recognition of same-sex marriage simply because they are Americans - See more at:
should accept state recognition of same-sex marriage simply because they are Americans - See more at:

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at:
There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at:
There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at:
There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: