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.)

Ouch

Professor Grisez does not like papal interviews.

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?

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: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

should accept state recognition of same-sex marriage simply because they are Americans - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

Intiative Proponent Standing

One of the biggest consequences of the Hollingsworth opinion is that it provides a road map to short-circuiting initiative measures. All the state executive need do is decline to defend the measure in federal court, and the challenger will win by default. That poses a substantial challenge to those who regard the initiative as a valuable bulwark against government officials beholden to interests other than the public's.

I think the answer to those inquiries is on page 14 and 15 of the Hollingsworth opinion: if you want proponents to be able to defend initiative measures in federal lawsuits despite the governor's preference to the contrary, you need a statute deputizing the proponent for that purpose, akin to the statutes authorizing private attorneys general in qui tam actions, complete with some modicum of control and a fee-indemnification provision.

Look at what the Court says:

We recognized [in Arizonans for Official English] that a legislator authorized by state law to represent the State’s interest may satisfy standing requirements . . ., but noted that the Arizona committee and its members were “not elected representatives, and we [we]re aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” 

 [The California Supreme] Court never described petitioners as “agents of the people,” or of anyone else. . . . All that the California Supreme Court decision stands for is that, so far as California is concerned, petitioners may argue in defense of Proposition 8. This “does not mean that the proponents become de factopublic officials”; the authority they enjoy is “simply the authority to participate as parties in a court action and toassert legal arguments in defense of the state’s interest in the validity of the initiative measure.” That interest is by definition a generalized one, and it is precisely because proponents assert such interest that they lack standing under our precedents.

And petitioners are plainly not agents of the State—“formal” or otherwise. [Petitioners claimed below that i]t was their “unique legal status” as officialproponents---not an agency relationship with the people of California---that [provided them with standing].

More to the point, the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. . . .

If the relationship between two persons is one of agency . . . , the agent owes a fiduciary obligation to the principal.” But petitioners owe nothing of the sort to the people of California.

Finally, the California Supreme Court stated that “[t]he question of who should bear responsibility for any attorney fee award . . . is entirely distinct from the question” before it. But it is hornbook law that “a principal has a duty to indemnify the agent against expenses and other losses incurred by the agent . . ." If the issue of fees is entirely distinct from the authority question, then authority cannot be based on agency.

Hollingsworth v. Perry, __ U.S. __, No. 12–144, slip op. at 14--16 (2013) (citations omitted).

Ouroboros

The ouroboros is the image from ancient mythology of a snake consuming its own tail. I note it here because I can never remember the word.

Fr. Longnecker on the Immigration Act of 1924

Fr. Longnecker, the South Carolina priest and convert from evangelicalism who writes the Standing on My Head blog (which apparently has been absorbed by the internet amoeba of vapid religious prose, patheos.com), has not technically voiced his support for the Johnson-Reed Act. But he doesn't particularly care for your grubby, knuckle-dragging, Romish ancestors with their bad genes and undemocratic racial dispositions.

The comment boxes at the Internet Amoeba of Vapid Religious Prose are onerously regulated by software I dislike, so I'll make a note on Fr. Longnecker's point here. To wit:

Fiddlesticks. Catholics in every age have abjured the Faith because the prince of this world tempted them to do so through his assorted allurements, of which wealth, social acceptance, and worldly interests are but notable examples. They did so in unprecedented numbers in the West during the twentieth century because their priests, bishops, and school teachers stopped telling them to do otherwise. The role that the relationship between their culture and the Faith played was merely that they continued (and in some cases still continue) to call themselves "Catholic" long after they ceased to be such in any but the strictest canonical sense.

These people who Fr. Longnecker thinks were so misguided---these Poles, Irishmen, Slovaks, Czechs, Italians, and Irishmen---were the faithful. There never was any Catholicism other than the Catholicism that they, and their confreres in other societies, lived out within the milieu of their cultural experience. Of course the faith shaped their culture and became a part of it: the cultural expression of the faith, in immigrant communities in the U.S. and back in Europe, was the residue of a civilization that had been transformed by the Church. This is precisely what the Faith's role vis-a-vis the world is supposed to be: if the Church is something to which we belong on days other than Sunday, it must play a seminal role in defining our other activities, our meals, our celebrations, and our mourning.

The decay of cultural Catholicism proceeded along with the decay of Catholicism in the United States and the West generally. The demise of those communities was a feature of the self-immolation of American Catholicism. But they were not the cause of the disaster, nor even the differentia of the occurrence. They were merely victims, along with the rest, of worldliness and foolishness.

The sweeping criticism of the way in which an entire civilization lived the Faith is absurd. It is beyond absurd when contrasted unfavorably with the supposed virtue of assorted bands of Dutch heretics. And coming from a WASP convert, who lives in a part of the country (one, mind you, of which I am quite fond) that has about as many yak farms as old ethnic Catholic enclaves, it resembles nothing so much as mere chatter from the peanut gallery. Fr. Longnecker has gained wide respect for his often insightful commentary. But his foray into internecine warfare on a topic on which he appears poorly equipped to comment---and in which his rhapsodic praise of his heretic ancestors raises all manner of questions---is lamentable.

For another critique, may I recommend The Bellarmine Forum.

Inconceivable

There is some confusion about whether this subsection begins, “A corporation shall have power to indemnify ...” or “A corporation may indemnify ...”. As originally enacted, § 145(a) contained the phrase “shall have power”. 56 Del. Laws 50, § 1 at 170 (1967). According to the annotations in the Delaware Code Annotated (and confirmed by a review of the legislative records since 1967), § 145(a) has never been amended. See 8 Del.Code Ann. tit. 8, § 145(a) (1991 & 1995 Supp.).

Nevertheless, the Delaware Code Annotated, a private compilation by the Michie Company of all Delaware legislative acts, at some point began using the phrase “may” in place of “shall have power”. See 8 Del.Code Ann. tit. 8, § 145(a) (1974). We have not been able to explain this non-legislative change in statutory language. The Delaware Corporation Law Annotated, published by the Corporation Trust Company, continues to use the phrase “shall have power”. Del. Corp. L. Ann. § 145(a) (20th ed. Corp.Trust.Co.1991).

One treatise uses the phrase “shall have power”, see Ernest L. Folk, III, et al., Folk on the Delaware General Corporation Law at 145:1 (3d ed.1994), while another uses “may”. See 5 R. Franklin Balotti & Jesse A. Finkelstein, The Delaware Law of Corporations and Business Organizations at 100 (1990 & 1993 Supp.) (“Balotti & Finkelstein”). The parties to this appeal perpetuate the confusion: their joint appendix contains a version of § 145(a) that says “shall have power”, but one of the briefs quotes a version that says “may”.

When there is a conflict between an original enactment of the Delaware Legislature and the codification of the law, the original enactment controls. Elliott v. Blue Cross & Blue Shield, 407 A.2d 524, 528 (Del.1979); Kimmey v. Farmers Bank, 373 A.2d 569, 570 (Del.1977). We therefore employ the Legislature's version of § 145(a), which says “shall have power”.

Waltuch v. Conticommodity Servs., Inc., 88 F.3d 87, 90 n.6 (2d Cir. 1996) (discussing what 8 Del.Code § 145(a) actually says).

"Bargain and Sell"

One invariably sees the phrase "A bargains and sells to B" in deeds. Equally invariably, nobody handling such a deed can explain why the deed says "bargain and sell." Because they do not understand the words, having never bothered to learn the nature, purpose, or origin of their presence, people simply assume they are superfluous. It is fashionable in many circles to deride such phrasings as merely an abundance of surplusage.

Au contraire. The Georgia Supreme Court explains:

Blackstone says of the deed of bargain and sale, that it “is a kind of real contract, whereby the bargainor, for some pecuniary consideration, bargains and sells, that is, contracts to convey, the land to the bargainee, and becomes by such a bargain, a trustee for, or seized to the use of, the bargainee: and then the statute of uses completes the purchase; or, as it hath been well expressed, the bargain first vests the use, and then the statute vests the possession.” (2 Black. Com. 338.) So, Cruise says; “The proper and technical words of this conveyance, are, “bargain and sell;” but any other words that would have been sufficient to raise a use upon a valuable consideration, before the statute, are now sufficient to constitute a good bargain and sale.”

Dudley’s Lessee v. Bradshaw, 29 Ga. 17, 22–23 (1859). 

Thus, the contract for the sale of land was the bargain, which created (as it still does) an equitable title in the purchasor. The sale was the legal result, created by the Statute of Uses (27 Hen. VIII c. 10), that followed, of the legal title vesting in the purchasor as a result of the bargain. So the words are not surplusage: they describe the conveyance of two different rights, distinguishing a deed from a trust instrument. Once again, our ancestors prove that they were more intelligent than we like to believe.

 

The Vatican Press Office Must Be Abolished

The embarrassing and confusing spectacle of Fr. Frederico Lombardi, S.J., tottering out and issuing bizarre statements about the nature of Church teaching and Canon Law simply must come to an end. What purpose is served by manufacturing mountains of vacuous papers stamped by a Vatican office? Surely the answer is "none whatsoever."

The two Vatican Councils speak at substantial length, if not with astonishing pellucidity, on the various forms in which the Church's Magisterium acts. "Press conferences by Jesuits" are not on the list. The Church has laws. She has liturgical texts. She has papal decrees, encyclicals, dogmatic constitutions, and various concilar documents. She does not need press releases. Publish a schedule of Mass and confession times, a number to call to schedule a baptism, and be done with it. If someone wants to know what the Church says on further matters, let him look to where the Church has already spoken. All the present state of affairs does is make bad situations worse.

The same topic, continued

“If heretics no longer horrify us today, as they once did our forefathers, is it certain that it is because there is more charity in our hearts? Or would it not too often be, perhaps, without our daring to say so, because the bone of contention, that is to say, the very substance of our faith, no longer interests us? Men of too familiar and too passive a faith, perhaps for us dogmas are no longer the Mystery on which we live, the Mystery which is to be accomplished in us. Consequently then, heresy no longer shocks us; at least, it no longer convulses us like something trying to tear the soul of our souls away from us…. And that is why we have no trouble in being kind to heretics, and no repugnance in rubbing shoulders with them… It is not always charity, alas, which has grown greater, or which has become more enlightened: it is often faith, the taste for the things of eternity, which has grown less…”

Henri de Lubac: Further Paradoxes (Newman Press 1958) and reprinted in Paradoxes of Faith (Ignatius Press 1987)

Thanks to Fr. Zuhlsdorf for the quote.

Good Country People

Several people who I respect immensely, notably my former professor Rick Garnett, have recently been advocating the idea that what we really need in this country is to be nicer* to one another. Rick points to a recent post by Robert Miller over at First Things regarding the late Ronald Dworkin. Prof. Miller's thesis is, generally, that one can be a "good person" while holding and disseminating dangerously wrong ideas, and that we should all be nice to people with whom we disagree because, apparently, they're probably good people.

Now, I certainly will not advocate acting uncharitably. But charity demands neither that we be "nice," in a conventional sense, nor that we think that people who spread lies are "good people." Laying aside for the moment the first point, who is a "good person"? That should be an easy question for even the most lackadaisically peeping Thomist. A good person is a person who does good things. And how many bad things must a person do before we agree that he is no longer a "good person" in a conventional sense? Well certainly if he dedicates his life to promoting something evil, it becomes rather difficult to continue to claim that he is nevertheless a "good person." Does a person's wrongdoing "not count" because he refrains from beating his wife, or because he puts a roof over his children's heads? May the saints preserve us from the tyranny of small expectations. This sounds like nothing so much as the classic intellectual-property line: the defendant may not escape liability simply be showing how much of the plaintiff's work he did not copy.

To hold otherwise---that we can say a person, irregardless of the things he believes, is nevertheless a "good person"---is to fall into nominalism and related errors. A person's character is defined by his actions, including his actions of belief and advocacy. So we would never say "Jim believes and advocates the Arian heresy, but is not an Arian," or "Bob vehemently and firmly believes that it is good to barbecue infants, but he's not a barbarian." This makes no more sense than the statement "Steve sleeps with numerous women who are not his wife, but he's not an adulterer."

Granted, "good person" is almost vacuously vague. And even "bad persons," again somewhat vague, deserve love and respect (for themselves, if not for their ideas and actions). But it's stuff and nonsense to say that a person, otherwise guilty of profoundly wrong and destructive actions (such as the widespread propagation of false ideas) is a "good person" because he is not also an axe murderer, or a sociopath, or a burglar. One doesn't get a pass for murder because one says one's prayers at night and gives generously to the poor. One oughtn't to receive a pass on writing vile books because he throws nice cocktail parties.

The advocacy of such passes is Laodicean at best.

* In fairness, the word "nice" does not appear in Rick's most recent post or in Prof. Miller's linked post. It's my gloss, based partly on a prior Mirror of Justice post---to which I don't have a link at the moment---about dinner parties.

A Call to Abolish the Office of the Tennessee Attorney General

The office of Attorney General of the State of Tennessee is an anomaly. First, it is filled by appointment of the Supreme Court, a body before which the Attorney General is charged with representing the interests of the State of Tennessee. Second, it has a disturbing tendency to publish laughably bad advisory opinions.

One of the most visible of those duties is the promulgation of opinions in response to dubia propounded by state officials. Recently, one was submitted regarding HB3576, the 2012 act vetoed by Governor Haslam outlawing Vanderbilt's dissolution-of-the-monasteries policy. The Attorney General's office (over the Attorney General's name) concludes that HB3576 violates the First Amendment's right to freedom of association. Yes, the Attorney General concluded that a legislative act attempting to protect associational freedoms from interference by a private institution actually infringes upon the right to free association.

The Attorney General's Office predicates that conclusion on Boy Scouts of America v. Dale, 530 U.S. 640,
647 (2000). Boy Scouts, of course, is the decision holding that the Boy Scouts cannot be compelled to repeal their restrictions on admission of known homosexuals to certain leadership positions, because doing so would compel the Boy Scouts to associate with persons against their will. The A.G.'s opinion next cites to Wiley Mission v. New Jersey, No. 10-3024 (RBK/JS), 2011 WL 3841437, at *13--16 (D.N.J. 2011), a trial-court decision applying Boy Scouts to conclude that a state law could not compel a nursing home operated by a religious institution to have a home resident on its board of directors. The Attorney General concludes from these authorities that a law prohibiting a private institution from enforcing an all-comers policy on subordinate associations within it impermissibly compels the institution to associate with people against its will.

This is a shockingly poor example of legal reasoning.

Boy Scouts and Wiley Mission---by the Attorney General's own admission and description---concern membership in the plaintiff institution. The private group in those cases said "we choose to limit the scope of our private association to certain people." The right to make that choice and enforce it via one's private group is commonly understood to be guarantied by the First Amendment (at least until one opens up a club house). But this is not what Vanderbilt says at all. Rather, Vanderbilt's statement is "specified conduct is a prerequisite to use of campus facilities and access to otherwise freely available benefits." Vanderbilt is not associating with student groups, because the students who comprise those groups are already Vanderbilt students. Furthermore, the parts of Vanderbilt itself capable of associating or being associated with---its board, faculty bodies, colleges---don't "associate" with student groups or student-group leaders in any meaningful way. The president of Vanderbilt Catholic didn't have an ex officio seat on the board of directors, or a right to harangue the School of Medicine. Rather, the student who could have been president of Vanderbilt Catholic was already on Vanderbilt's campus: the rights, privileges, and (most relevantly) interaction with other members of the university community that he enjoyed qua student would not have been increased by his position at the head of a student organization.

Before moving on, permit me to preempt two responses. First, the idea that use of Vanderbilt intellectual property constitutes an association. Perhaps it does: perhaps there is case law out there standing for the proposition that the right to use Vanderbilt trademarks enjoyed by sanctioned students groups constitutes a constitutionally significant form of association. But the A.G.'s opinion is not predicated on that ground; it certainly does not appear in the opinion's summation of Boy Scouts and Wiley Mission. Indeed, given the existence of an entire body of intellectual-property law dedicated to the question of implied association based on mark usage, I find the thesis questionable at best. Furthermore, nothing appears on the face of the facts that suggests that student groups receive a per se license to use Vanderbilt's name or marks.

Second, there is the issue of money. I find it unlikely that anybody really gives a hang about funding in this debate. But even if they do, universities constantly disclaim the idea that their financial support of student organizations transforms student speech into university speech. Above that, in light of Title IX, it seems wholly risible to claim that the state cannot compel an educational institution to spend money for state-specified purposes regardless of the school's desire to serve those same purposes.

The much apter analogy is that the university is serving in this case as a forum. It permits students to meet in university spaces, to advertise via university communication media, and to access the university's logistical apparatus. Maybe there is a compelling body of case law that prevents the state from compelling private fora from discriminating on  association grounds. But that body is not headed by Boy Scouts. If this is the best the Attorney General can do, it is not an office this State needs.

Discretionary Costs

The $20.00 fee for service on an out-of-state defendant via the Secretary of State is recoverable as costs, so long as "fact of payment is endorsed on the original process by the secretary of state." Tenn. Code Ann. § 20-2-215(b).

Friday in the Octave of Christmas

Last Christmas, there arose a question in my family as to whether the Friday in the Octave of Christmas is a day of penance. Apparently the question arises elsewhere also, and, as Fr. Zuhlsdorf demonstrated, the answer is not self-evident. My research last year, which I present here for the sake of reference, indicated that Friday in the Octave of Christmas is not a solemnity, and thus is a day of penance. To wit:

1. Christmas does have an Octave in the Ordinary Form calendar. See Gen. Norms for the Liturgical Year & the Calendar ¶ 35. 
2. The days in the Octave of Christmas, however, do not appear to be Solemnities. Compare id. with id. ¶ 24 (specifying that days within the Octave of Easter are Solemnities). 
3. For this reason, the Friday in the Octave of Christmas is a day of abstinence or the alternative penance stipulated by the episcopal conference, pursuant to Canon 1251, which excepts only solemnities.
4.  The traditional practice, which derived from the 1917 Code of Canon Law and not from the Missale Romanum or its affiliated liturgical norms (and thus is not resurrected by Summorum pontificum or Universae Ecclesiae), abrogated the obligation of abstinence on the basis of whether or not a Friday was a "day of precept," that is, of obligation. Since under the Extraordinary Form calendar and the 1917 Code of Canon Law the Friday in the Octave of Christmas is not a day of obligation, the traditional observance would make the Friday in the Octave of Christmas a day of abstinence. See 1917 CIC c. 1252 § 4. That day is not a day of obligation under the modern calendar either universally or in the United States, either. See Liturgical Calendar for the Dioceses of the United States of America 2011 at 42. Reference to the Extraordinary Form calendar shows that the Friday in the Octave of Christmas is, in fact, only a second-class feast, suggesting that the distinction between paragraphs 24 and 35 of the modern General Norms is not a scrivener's error. 
5. That is, Friday in the Octave was not a day of precept or a solemnity in 2011 in the United States. At the same time, none of the universal days of obligation established by the 1983 CIC fall during the Octave. I can't imagine how a day in the Octave could become one of obligation, but your local solemnity mileage may vary depending on what day of the week Christmas is. (Isn't, for instance, the feast of St. Thomas a Becket a solemnity in England or parts thereof?)
6. Thus, assuming that the English version of the General Norms is an accurate translation, Canon Law binds all persons to observe the Friday in the Octave of Christmas, as a day of penance (assuming that one does not live in a place where the day is made a solemnity by virtue of a local patronal feast, see #5). If one habitually practices that penance by abstaining from meat, one should abstain on that day. If one is accustomed to abstain pursuant to the norms associated with the usus antiquior, one should abstain.
7. I appear to have located the General Norms, as well as Paul VI's motu propio promulgating them (Approval of the General Norms for the Liturgical Year and the New General Roman Calendar) from the ICEL website.