Advent

n., The time when Catholics stop to remember that the Church began in 1963 (or the 1880s) and that their ancestors never told small children that saints or mythical figures dispensed rewards and punishments during the octave of Christmas.

Theodolite

I've been trying to think of the name of this instrument since I was a senior in high school. I was aided just the other day by The Maneaters of Tsavo.

Surveying. a precision instrument having a telescopic sight for establishing horizontal and sometimes vertical angles.

Docket Numbers

Docket numbers in Tennessee's appellate courts are an absurdity. Something must be done about them. Their excessive length must be a burden on clerks, and they render citation to unpublished cases perversely cumbersome.

Take this docket number: M2008-02369-COA-R3-CV. Let's look at its elements:

1. A letter, "M," standing for the Middle Division. An interesting fact as a historical matter, but 1) entirely irrelevant, because the entire Court of Appeals has statewide jurisdiction, the divisions being strictly administrative and 2) already discernible from the notation in the style that the case is on appeal from the 20th judicial district. The M can be omitted.
2. All four digits of the year of filing. I know we had difficult with the whole Y2K thing, or at least thought we would. But we know it's the twenty-first century, and by the time we get to another one, the courts will have had to change computers again. Drop two digits.
3. The number of the filing. This is the only element that actually needs to stay the same.
4. Three letters telling us that this is in the Court of Appeals. This can be reduced. Tennessee has three appellate courts: Appeals, Criminal Appeals, and Supreme. We can get by with one letter: A (Appeals), C (Criminal), or S (Supreme).
   
5. R3 --- I'm not actually sure what this means. It can't be that important.
6. Two letters duplicating information we already have: "CV." The Supreme Court needs to be able to sort cases into "civil" and "criminal" categories. The other appellate courts do not, because they by definition only hear one type. Drop these letters from everything except the Supreme Court's docket numbers.

Thus, we can actually have a docket number like this: 08-02369-A. Better still if we move some elements and get A08-02369. That almost approaches federal elegance. Much better.

Pirates of the Caribbean

The most recent installment of the Pirates of the Caribbean franchise came out recently. It was much better than the last two attempts. Such movies are not high art, but they can be quite entertaining. I found several things particularly encouraging about this particular one.

1. No Orlando Bloom. The man is a terrible actor, and he looks like Keira Knightley's sister to boot. His absence improves any movie.

2. The Spanish Win. The Spanish never get to win. Not only do they lose in every swashbuckling movie, they played the role of veritable bogeyman for decades. The Sea Hawk, Captain Blood, even The Adventures of Don Juan (in which all the characters are Spanish):Errol Flynn literally made a career of ravaging the Spanish. And that's really too bad, because the Spanish are much more the heroes of the early modern era than the English. So getting to see the Spanish win was really quite a treat.

3. The Spanish Aren't Monsters. See #2: all the old swashbuckling movies are set-piece exhibits of Whig History, in which the Spanish not only lose, they deserve it to the hilt. The Pirates Spaniards aren't oppressing anyone, stealing anyone's property or precious English liberties, or engaging in any bloodbath. Even their religious devotion comes through without a mocking. Maybe J.J. Abrams thought that the idea of destroying a magical fountain because of its impiety cast aspersions on the Spaniards, but he certainly didn't push the point. And there aren't many aspersions one can legitimately cast upon the Spaniards: the fountain is 1) certainly dangerous if generally accessible and 2) inherently evil to use (even if not because it unnaturally increases one's life, certainly because the beneficiary uses it to murder his companion).

4. Swashbucklers are just plain fun.

Things that were unfortunate about the movie:

A. George II was not English, he was Hanoverian. In fact, he spoke very little English and did so, if at all, with quite an accent. This is certainly George II 1) because the character is old and 2) large-scale piracy (and all the famous pirates) were long dead by the time of George III's ascent in 1760. They could have played that in such a way as to make it quite funny; too bad they missed it.

Forum non Conveniens

Does not apply to wrongful-death actions in Texas courts. Texas Constitution Art. I, § 13.

Fees

Alaska is the only state that does not follow the “American rule.” Monzingo v. Alaska Air Group, Inc., 112 P.3d 655, 665 (Alaska 2005).

New Urbanism

There's a fairly persuasive article on the virtues of new urbanism over at Public Discourse.

I tend to be rather sympathetic to the aims of promoters of new-urbanism. People should live in communities, and towns should be built in a way that promotes that. We can quibble over whether this element or that is really necessary for the endeavor. I also find myself somewhat conflicted: I enjoy large trees and open expanses too much to be really comfortable in the cramped zero-lot-line environments that seem to be the product of much new-urbanist design.

But there's a more fundamental problem with the idea that if we just build mixed-use developments close together, that we'll automatically have functioning communities and be able to cooperate in shared spaces. That problem is, in essence, anti-discrimination law. The sort of idyllic cooperative that the new urbanists believe should be promoted through their architecture is only possible if the group of people living in a place is sufficiently homogeneous to operate as a society. You have to be able to exclude sociopaths, tattoo parlors, hookah lounges, wastrels, and Protestants from your community. Otherwise the cohesiveness necessary for the whole endeavor to function will never develop. We have proven quite incapable of excluding sociopaths from our existing public spaces over the last forty years: I fail to see how eliminating the front yard will banish them now. And federal and state law have eliminated most other means by which we might seek to control the demography of our local societies.

The new urbanists will have to show how implementation of their ideas will both reduce anti-social behaviors (vandalism, kidnapping, etc.) that afflict existing public spaces, and reach the desired results in the face of vigorously enforced anti-subsidiarity public policies.

You Must Cut Down the Largest Shrubbery in the Neighborhood

. . . with an injunction: Granberry v. Jones, 188 Tenn. 51 (1949). Unfortunately for the complainant, injunctions are not much more useful against shrubs than herrings against trees (but the court does provide a nice primer on the law of nuisance and hedges: "‘it has been held that no landowner has a cause of action from the mere fact that the branches of an innoxious tree, belonging to an adjoining land owner, overhang his premises, his right to cut off the overhanging branches being considered a sufficient remedy").

Well I'll Be

I'm gobsmacked: the Tennessee Supreme Court issued a cogent and well-reasoned opinion on the separation of powers:

Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995) (discussing appropriate role of administrative agencies in determining constitutional questions).

Of course, it was fifteen years ago.

Life Would Be Great

If you would just agree with me. I don't know where the Left has gotten this mantra, but it drives me nuts. We've been seeing it now for a good number of years. Remember the talk of "wedge issues" in 2004? That seems to be when it started. Why people think they can stop advocating their position and just pretend that everyone should agree with them for the sake of hospitality is beyond me. Can I do that? Sure! I invite everyone everywhere to place their differences aside and simply pull the lever on whatever I think is right.

Wasn't that easy?

Boston College Does Notre Dame a Favor: Will ND Capitalize?

For once, Boston College has done something useful. It has gone and hired away from Notre Dame Law School one of the most vociferous fellow travelers of the culture of death on the faculty. In fact, they've done so by making him dean.

Some may think it unfair to attach such a label to Prof. Vincent Rougeau. But the label fits. Prof. Rougeau openly and proudly served on Obama's National Catholic Advisory Council, a group that helped orchestrate a surprisingly effective campaign to demonize the magisterium and hierarchy of the Church among ordinary Catholics for the sake of electing to the Presidency that office's most vehemently pro-abortion holder. He mouthed a large volume of pablum about bridging divides and finding common ground on abortion. This line of argument essentially amounts to "if the pro-life movement would just STFU and agree with us that infanticide is fine and well, we'll say nice things about them." He was a hopeless but unsurprising apologist for the 2009 commencement debacle.

These people, the Kaveny-Kmiec group, provide solace and assistance to the enemies of the Church and of human society. They wring their hands and complain about how terrible things happen in the world but how if we just think happy thoughts and refrain from imposing our own will on anyone, somehow everything will be best. They never bother to discuss the fact that the law of this country already involves one group of people imposing their will on another group of people: five individuals in black robes who think that society will end not only if we refrained from killing infants in the womb, but even if we had democratic discussions about whether to kill infants in the womb. Yet, in the face of this sort of reality, what society really needs, according to Prof. Rougeau and his ilk, is an array of (federal) government projects that will give people money so that they will be less tempted feel less inclined to murder their own children. This is insanity. This is not promoting the common good. This is not acknowledging the impetus of the natural law. This is not respecting subsidiarity or solidarity: the solidarity of helping someone who is poor get desirable services pales in comparison to the abominable absence of it that abandoning the unborn constitutes. This is not acting like Catholicism is true.

Furthermore, this whole song and dance is rolled up in dissent. The bishops, the consecrated successors of the apostles set up by God to rule the Church in communion with the Bishop of Rome, say that laws permitting elective abortions are not in accordance with the divine law and must be opposed? They say that one can never support an elected politician because of his support for such laws? Well, Cathleen Kaveny has a fancy, nuanced theological argument (she learned it at Yale, that ancient bastion of orthodoxy) that demonstrates that listening to bishops, even when they speak in union together with the pope on a matter of faith and morals, is well, optional. These people have attempted to orchestrate schism for political gain. Their methods and their ideas are the refuse of modernism.

I will refrain from commenting at length about his ideas on legal education: you can see the Boston Globe's gloss here. Suffice to say that the new-classes-more-diversity-worldwide-focus thing hits all the right buzzwords. We always hear about where the legal profession is going. Have we ever stopped to consider whether on earth we want to go there? Never mind, Dean Rougeau will make sure we---or at least Boston College---arrive ahead of schedule, hand basket and all.

So now what? Prof. Rougeau was an important and prolific member of the NDLS faculty. He taught a variety of important classes, including on occasion a thoroughly incomprehensible section of 1L Contracts. He obviously needs to be replaced (even apart from Dean Newton's mania to hire more faculty generally). There are three types of teacher ND could get: 1) Rougeau Redux, no explanation needed; 2) Secularist Steve, who could care less (or even resents) that we hang crucifixes all over the place, it's just the best job offer he got in a tight market (sounds like a good number of folks in my class); 3) Catholic Carl, someone who actually lives his professional life as if Catholicism---the real one with bishops and a magisterium, not the ersatz version of hand-wringing and getting along---were actually true.

The Law School has already announced that it's raising tuition by six percent for next year, for reasons that are not at all clear: supposedly we need more teachers to cover new classes on transactional work and mediation. Oh? Funny, because I looked, and nobody is hiring transactional lawyers. Also, mediation involves talking to clients and other attorneys, activities not encouraged among first-year associates. Will there be other new classes on meeting billables quatas and finding cases that contradict well-established legal rules because your client's case has no basis? Needless to say, my level of confidence in Dean Newton's ability to get this hire right is not overwhelming.

Our Lady, Mirror of Justice, ora pro nobis.

Final Judgments?

In Evans v. Wilson, 776 S.W.2d 939 (Tenn. 1989), the Tennessee Supreme Court declared that "So long as [a Rule 59] motion is pending, there is no final judgment for purposes of T.R.A.P. 3(a)."

This statement appears to be a manifestly incorrect statement of law. More recently, the Supreme Court has said that a final judgment is one that "adjudicated all the claims raised in the pleadings and the rights and liabilities of all the parties." In re Estate of Ridley, 270 S.W.3d 37, 41 (Tenn. 2008). This definition (which the court appears to have cribbed from older cases) comports with the definitions in Rule 58.

Of course, no appeal will lie while a Rule 59 motion pends: but this is not because of the absence of a final judgment, but because Rule 59 and Appellate Rule 4 abate the timeliness of notices of appeal during the pendency of such motions. See Ball v. McDowell, 288 S.W.3d 833, 836 (Tenn. 2009). The time limits found in Rule 4 are, of course, jurisdictional. Thus, if an appeal is filed during the pendency of an unresolved Rule 59 motion, it is true that the Court of Appeals lacks jurisdiction, but it is not true that its lack of jurisdiction is the result of the absence of a final judgment: it derives instead from the untimeliness of the appeal.

Blasting

"A railroad company has the right to blast rock on its right of way in order to level down its roadbed; but if, in doing so, it casts rocks upon, and so injures, the land of an adjoining owner, whose land has not been condemned, and who has not conveyed or agreed to convey the right of way, the latter has the right to an assessment of damages for the injury done."

Hord v. Holston River Ry. Co., 122 Tenn. 399, 123 S.W. 637, 639 (1909).

Flannery O'Connor & the Incarnation

There's a splendid article, apparently by an Orthodox writer, on Flannery O'Connor qua iconographer over at ISI. Well worth the read: The Iconographic Fiction and Christian Humanism of Flannery O’Connor.

The Internet & the Size of the World

If we believe "about.com," the earth has an equatorial circumference of 24,901.55 miles. That gives us 196,888,000 square miles of surface area. Yet every once and a while, more often it seems due to the internet, one comes across a thing that or a person who belongs in some far-away corner of all that space.

My most recent experience of this phenomenon comes via the blog Roma locuta est (note the fun url). It's kept, under his real name, by a perfectly splendid and highly talented fellow I knew (not immensely well, but somewhat) during my time in Ohio. He beautifully sang one-half of the Victimae paschali (the other half being done by the lovable Italian permanent deacon) one Easter when I was in college. One of his daughters, when about two, is reported (I didn't see this myself) to have put a couch arm cover on her head and announced, in response to an inquiry, "I'm not a princess, I'm a nun!" It's a pity he lives in Delaware and not Nashville. And the blog, by the way, is thoroughly enjoyable.

Lies, Untruths, and Historically Unencumbered Examples

Anyone for whom the internet is more than a series of tubes has probably observed, over recent weeks, a widespread smoldering fire over the moral boundaries that surround violations of the eighth commandment. The discussion, on which a veritable whose-who of Catholic American thinkers has weighed, was sparked by the "sting" videos produced by an organization called Live Action at a Planned Parenthood facility. I write here not because I have anything profound to offer to that conversation (that would require that this page have an audience), but rather because I have thoughts that I want to develop myself, and this is the easiest place in which to write them.

Several writers, notably at the Witherspoon Institute, have come out strongly with the opinion that there is no exception to the prohibition on deceptive false utterances. Many of their critics have raised the Nazi-at-the-door scenario and the necessity-of-spies scenario in response. I think the Nazi scenarios are bad examples for this exercise because they carry too much baggage, leading to uncritical assumptions and conclusions.

Thus, for this exercise, we're going to take a situation that engender essentially no preconceptions, at least among Americans: there is a Frenchman, working for the French government, who slips into Sevastapol as a spy during the Crimean War. He carries false papers and is there with the express intent of passing sensitive information to the allied armies. We will assume that the Crimean War was just. Of the following acts undertaken by the spy, which are immoral as violations of the eighth commandment?

1. The Spy comes ashore furtively.
2. The Spy wears Russian clothes.
3. The Spy wears his hair and beard in a Russian fashion.
4. The Spy carries papers falsified to appear as identification documents issued by the Czar's government.
5. The Spy carries Russian matchbooks and other personal paraphernalia.
6. The Spy greets a Russian fisherman in Russian.
7. The Spy greets a member of the Sevastapol garrison or police in Russian.
8. The Spy lends a match, from his Russian matchbook, to the policeman.
9. The Spy, when asked for his name, gives the Russian translation of his name.
10. The Spy, when asked for his name, gives a false Russian name that bears no relation to his own.
11. The Spy asks directions from a Russian passerby.
12. The Spy, when asked, produces his Russian passport.
13. The Spy, when asked about his background, says that he is from Odessa, that his father is a clockmaker. a) Assume his father is not a clockmaker, and that he was born in Marseilles. b) Assume instead that his father is a clockmaker in Marseilles.
14. The Spy, when asked about his business, says that he has come to Sevastapol to make arrangements to sell goods to the garrison and ship them across the Black Sea (or insert preferred business).
15. The Spy observes the dispositions of Sevastapol's defenses.
16. The Spy communicates his observations to the allied forces by furtive means.
17. When asked "You're not a French spy, are you?" the Spy replies "No."
18. When asked "You're not a French spy, are you?" the Spy replies "What a silly thing to say! By the Autocrat of all the Russians himself, I'm shocked to hear such an accusation!"
19. The Spy, when conversing with a Russian, makes disparaging remarks about Napoleon III, when he personally admires the Emperor.
20. The Spy attends the Divine Liturgy at an Orthodox church, where he engages in liturgically correct gestures and recites the Nicene Creed without the filioque.
21. The Spy goes into a tavern, plies a Russian soldier with vodka, and tells him stories of his adventures (which never happened) until the soldier reveals secret military information.
22. Thy Spy engages in #21, but drinks the Russian into a stupor and then rifles his papers.
23. The Spy engages in a) #21 and b) 22, but without telling false stories.
    

I can't think of any other spy activities that involve dishonesty and aren't covered here. Which are lies?

Iconoclasm

The decline of ecclesiastical art in the Christian west---and the decline of art in the west more generally---is a well-documented, or at least a well-observed, phenomenon. The history of artistic decline, the rush to shatter rules and co-opt artistic renderings for the purpose of expression, can be found elsewhere. I tend not to regard myself as qualified to tell it, and I shall decline to attempt to do so. But it seems, based on simple casual observation, that this decline must be related to a different trend that has arisen recently in ecclesiastical art.

The trend of which I speak here is the practice of writing icons of Western saints. You can find over at the New Liturgical Movement a contributor who writes at great length about his practice of writing icons of Western saints (among other subjects). I will here step out on a limb and unequivocally declare that I do not approve of this practice. I find it wrong-headed, counter-productive, discordant, and just plain odd.

First of all, the practice is wrong-headed. The icon is the principal form of ecclesiastical art in the East. There, it has flourished, developed, and become an integral part of the lives, practices, and belief of generations of Christians. Iconographical art forms certainly existed in the West and influenced the development of Western art forms. But the traditions of Western Christians developed away from icons and into more representational forms of ecclesiastical art (icons are certainly representational when compared to, e.g., abstract art forms, but it is certainly my understanding that an iconographer does not seek to reproduce the image of his subject in the same way that a realist painter does). Whatever the merits of iconography may be, and I do not pretend to deny them those, they simply are not what the Western Church has been using for a great many centuries: they no longer form an organic part of our tradition here. The current attempt to import them is an odd exercise in unnecessary cross culterization. What would we think if the Archbishop of Louisville appeared on Sunday carrying a serpentine Eastern crozier? more dramatically, what would a Byzantine congregation think if their pastor replaced all the icons in their church with statues? The West and the East have their own traditions and their own art forms. Both produce beautiful works suited to the cultures, history, and sensibilities of their respective societies. Neither has any need of being colonized in this sort of way by the other.

Second, the practice is counter-productive. The Church in America could furnish a large European nation with its monstrous religious art. There is a vast quantity of work to be done in rediscovering and reinvigorating art in continuity with Western traditions. Going and plastering icons all over the place works at counter purposes with that necessary work. In addition, many of these icons depicting Western saints are simply not very attractive. Take this image of St. John Neumann, for instance. The icon is a flagrant copy of an older, well-known image of the immigrant bishop. But it sacrifices the original work's benefits without introducing any of its own. It may not be an absolute eyesore, but neither is it beautiful. So we take business and impetus away from artists in our tradition, while filling the spaces in our homes, offices, and churches with mediocre pieces.

Third, the practice is discordant. It is the artistic equivalent of eating Thai food on Thanksgiving or hiding eggs on Christmas. It takes a saint---a man or a woman who served God in a particular time and place in history and whose life in that time and place has been held up by the Church as a universal example for those still on earth---and thrusts him into an entirely different setting. St. John Neumann does not belong in an iconographical setting; neither does St. Patrick, any more than Our Lady of Czestechowa belongs in a baroque statue. Similarly, to connect to points made supra, I as a Western Christian do not belong in a setting filled with icons. At the very minimum, Western saints and Western Christians together do not so belong: I would not begrudge Byzantines a devotion to St. Patrick based around a rendering made in their traditions, nor would I find it improper to hang Our Lady of Czestechowa in my own home. Both of those cases would be examples of one tradition of the Church recognizing the fruits of the other. This strikes me as an entirely different proposition from the mere appropriation of a methodology indigenous to one tradition into the other, apart from any simultaneous borrowing of content. St. Patrick in a Latin church done up like some kind of archimandrite defeats all the aims of ecclesiastical art: seeing it prompts one to think first not of God, but of why in blue blazes St. Patrick is dressed like St. Cyril.

Finally, the practice is just plain odd. It flunks the smell test. A lot of ecclesiastical-art cognoscenti look with disdain at the plaster and chalkware statuary that adorned our grandparents' houses, as crass, mass-produced, and of poor quality. I will openly admit to looking with even greater disdain at modern resin statuary, which is just plain ugly. But the fact of the matter is that statuary belongs in the West, it's familiar (and even those chalkware statues, which oftentimes aren't all that bad, serve a legitimate purpose for the devotion of ordinary folk). One need not ask questions about its presence, or wonder why it instead of something else is present. The same can be said for many forms of two-dimensional artwork at home in the West as well. Icons, though, except when depicting Eastern saints, produce exactly the opposite reaction. They are, in a word, puzzling. Unfamiliar. Odd. Some of the people who produce them are undeniably odd as well. I decline to look for them, but if one is so inclined, one can find about the internet a series of icons---produced in the same unadorned, bland manner as the one of St. John linked above---depicting a wide variety of non-Catholic and even non-Christian personages surmounted by nimbi. Nobody is ever going to make a baroque sculpture of Martin Luther King as a saint. Maybe inferior icons are cheap to make. Maybe they have simply become trendy somehow. Maybe lots of good reasons can be proffered for their use in the West. But their proliferation remains odd.