Thursday, April 28, 2011


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).

Wednesday, April 20, 2011

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.

Monday, April 18, 2011

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").

Thursday, April 14, 2011

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.

Wednesday, April 13, 2011

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?

Friday, April 8, 2011

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.