Wednesday, December 30, 2020
Tuesday, December 29, 2020
St. Thomas Becket was martyred at Canterbury Cathedral 850 years ago today. Here are some suggestions to mark the feast:
The McCullen Center at Villanova was pleased to co-sponsor a recent lecture for the occasion by Rowan Williams on the legacy of the conflict between Henry II and Becket for the law of church and state, and it is available here.
For those interested in the historical background to the legal conflict that led to Becket's assassination, I highly recommend Anne Duggan's 2004 biography (in addition to Guy's accessible biography). More detailed coverage of the canonical and jurisdictional issues is available in papers by her late husband Charles Duggan, especially "The Significance of the Becket Dispute in the History of the English Church," Ampleforth Journal 75 (1970): 365-75 and "The Becket Dispute and the Criminous Clerks," Bulletin of the Institute of Historical Research 35 (1962): 1-28, both of which are reprinted in Canon Law in Medieval England: The Becket Dispute and Decretal Collections (London: Variorum Reprints, 1982). Finally, Beryl Smalley's The Becket Conflict and the Schools: A Study of Intellectuals in Politics in the Twelfth Century (Oxford: Basil Blackwell, 1973) is a splendid work of intellectual history and discussion of the figures advising Becket such as Herbert of Bosham and John of Salisbury.
I recommend this short post by Bishop Robert Barron, "'Culture Warrior' and the Fallacy of Misplaced Correctness." It opens with this:
One of the least illuminating descriptors that makes its way around the Catholic commentariat is “culture warrior.”
Barron is, in my view, correct. One encounters this descriptor -- "culture warrior" -- all too often in Catholic commentary, and it is almost always used by more "progressive" Catholics as a way to express disapproval of things that more "conservative" Catholics say and do. As Barron describes, the label is, often, unhelpfully contrasted with dialogue, mercy, humility, and accompaniment. As I noted a few years ago, in this post:
There is, to be sure, a lot to regret about the reality of the "culture wars" and the way they've distorted politics and harmed discourse -- among those things, in my view, is the common but unhelpful practice of labeling those with whom one disagrees politically as "culture warriors" -- although it seems to me that regret will not change the reality. It is simply the case -- and it does not make one a "culture warrior" who is "obsessed" to notice it -- that there are determined, well-funded, and increasingly powerful institutions, actors, and forces at work in the culture, in politics, in the law, and in the academy (for example) that oppose strongly the moral vision, commitments, and witness of the Catholic Church and that are doing what they can -- and they can do a lot -- to marginalize the Church, her teachings, and her institutions in public life.
As Barron notes:
[C]onsider the abstraction “culture warrior” as used . . . as a negative characterization of his opponent. [It] can’t possibly name anything real, since the accuser is every bit as much a culture warrior as the accused. It therefore functions as a smokescreen for what the accuser really wants to say, and I can think of at least two possibilities: either he doesn’t think that the issues his opponent is criticizing should in fact be criticized, or perhaps he feels that the way his opponent is characterizing the issue is unfair. In either case, the real matter is obscured, and the use of the term doesn’t move anyone even a bit closer to the truth. Infinitely preferable to trading in insulting abstractions that apply as much to oneself as to one’s opponent is to engage in the tough work of authentic argument.
Monday, December 28, 2020
I'm pleased to announce that my new paper, Reconstructing Malice in the Law of Punitive Damages, will be published by the Journal of Tort Law next year. The paper is my first foray into tort law scholarship, though I have been teaching Torts for the last 3 years at St. John’s. Malice, in the common law of crime and tort, is a thorny subject with a complicated and ancient lineage. Indeed, there are interesting connections between law and religion, on the one hand, and notions of malice in the law, on the other. But malice’s legacy was questioned beginning in the 19th century with Holmes (and others including J.F. Stephen) and then repudiated more decisively in the work of 20th century tort law giants like William Prosser and criminal law giants like Herbert Wechsler. And many others.
This paper attempts to reconstruct a historically correct, conceptually coherent, and normatively compelling case for malice’s reintroduction into the law of punitive damages. It also speculates about the utility of this reconstructed account of malice in other fields, especially criminal law. Finally, though this paper does not approach this topic, it does suggest the possibility of reconstructivism as a broader theory of law and legal development, something about which I hope to write in the future. Here is the abstract.
Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.
This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.
Saturday, December 26, 2020
Abuse of the Pardon Power: Highlighting the Positive Good of Clemency as Described by Mark Osler and a Shameless Self-Promotion of a Past Work of Mine
President Trump's pardon of corrupt political cronies and another group of war criminals who murdered children and other innocents was indeed "nauseating." Not only are they grotesquely unjustified, but they leave a negative impression about the positive good of clemency. For a most important discussion of these issues, including a wonderful colloquy with my University of St. Thomas colleague, Mark Osler, I encourage everyone to watch this program.
Much of my recent work focuses on accountability for official wrongdoing. A most troubling aspect of the recent slew of arbitrary pardons by President Trump is that they come at a point in which he has no accountability for his actions. There is a reason he did not issue these pardons until now, which is that he knew these controversial actions would have further damaged his chances of re-election. But there lies the problem, for which a simple solution is available.
Two decades, ago, in the aftermath of controversial pardons to relatives and cronies by President Clinton at the end of his second term, I wrote an article titled "Suspending the Pardon Power during the Twilight of a Presidential Term". I proposed amending the Constitution to suspend the pardon power, other than to delay an execution, from the date of a presidential election until the inauguration for the next administration. Building on my earlier suggestion of the same in an op-ed, a proposal was introduced in Congress in 2001 to do just that but, alas, went nowhere. It is now time to renew the proposal.
Tuesday, December 22, 2020
I recently published a short essay at Public Discourse about the need to extend the above-the-line charitable tax deduction. This is, admittedly, a rather small policy issue that many people overlook. The deduction means that a tax filer making $300 in charitable gifts ends up generally paying $30-$70 less in federal income taxes.
As mentioned in my essay, however, not having an above-the-line charitable tax deduction would actually prove quite unfair to taxpayers and nonprofit organizations that are religious in nature. This is because higher income earners generally give to more secular causes (such as the arts and wealthy universities), and those taxpayers will seemingly always have the charitable tax benefits that come with itemizing. As documented in a 2019 report by Senator Mike Lee and the congressional Joint Economic Committee, lower income earners (rarely itemizing their taxes) are more likely to give their charitable dollars to organizations that are religious in nature, and to nonprofits that directly help those in need in their local communities.
Interestingly, the new Coronavirus Relief bill extends the above-the-line option into the 2021 tax year. In fact, the new bill actually doubles the tax benefit for married couples filing jointly, meaning that a married couple can claim an above-the-line deduction of up to $600 in 2021. I think this is a common sense policy move that will inspire more Americans to give to worthy causes.
December 22, 2020 | Permalink
Monday, December 21, 2020
Over the weekend, Franklin Graham tweeted that, because President Trump has been proven right in the past, if he claims that the election was rigged or stolen, Graham believes him. This tweet was an insightful but troubling distillation of the cultural cognition work that Dan Kahan has been doing for years. Kahan explains that our debate over climate change, for example, “isn’t about what you know . . . it’s about who you are.” On many of our hot-button issues, people aren’t “thinking about the arguments,” they’re “thinking about which side they’re on.”
The journey of the white evangelicals who look to Graham for leadership has been remarkable over the past four years, moving – in very broad terms – from a “we have to vote for Trump because he’s not Hillary,” to more enthusiastic support that looks beyond character issues because of Trump's policy positions, to a wholehearted reliance on Trump's character (trustworthiness) even when there is no evidence to support his claims. This trajectory – tribe over facts – is not limited to white evangelicals, of course. I recently asked a circle of friends, all of whom are full-throated opponents of President Trump, if they could cite one positive policy or practice that had been implemented by this administration. Total silence, followed by protestation of my question’s premise. The sides have been chosen, and that’s the choice that matters.
This is not going to end on January 20. President Trump is a powerful accelerant, but not the source. I believe that this is the most pressing challenge we face as a nation, not only because our tribalism is preventing the flourishing of human relationships near and far, but because it makes political collaboration on the many other challenges we face exceedingly difficult. What does Catholic social teaching have to offer at this time? Yes, CST offends both tribes because of the substance of the Church's truth claims. But what does it have to say about our rapid retreat from the world of factual analysis into a cultish tribalism? The social scientists have plenty to say, but what about the Church? If the bishops’ contributions to our national political discourse over the next four years does not include the dangers of tribalism as a focal point, that will be an opportunity lost. Let’s start at a very practical level: if a pastor were to recognize the problem and decide to preach on growing American tribalism, what should he say?
December 21, 2020 | Permalink
Tuesday, December 15, 2020
I’m grateful for Timon Cline’s critique (at the Cantankerous Calvinist) of my MoJ post about Critical Race Theory, as it’s the sort of substantive engagement that is sorely lacking when Christian leaders, as John Inazu puts it, use the CRT “label as a cudgel” against efforts to promote racial justice within the Church. I welcome Timon’s contributions and have just a few comments:
First, defining CRT. CRT can be a tough target to pin down, as is the case with many intellectual movements. I think Timon deems portions of the Delgado/Stefancic primer on which I rely as misleadingly innocuous re CRT’s core beliefs. I’m sure that depends on whom we consider to be authentically foundational to the movement. What is the harm, though, of taking the Delgado/Stefancic understanding of intersectionality, for example, identifying the insights it can provide, then articulating precisely where more robust interpretations fall short of the Christian worldview? I confess, I’m still not sure why intersectionality’s invocation as an expansive “sensibility," in the work of Kimberle Crenshaw, is necessarily a bad thing. Again, it seems to me to depend on the particular application we’re talking about.
Second, discerning the nature of Christian leaders’ (categorical) objections. I highly doubt that the SBC seminary presidents are condemning CRT only after closely reading John Finnis’s take-down of Roberto Unger. I’m not a legal philosopher, and they’re not either. They – and other Christian leaders – are engaging CRT in theological (and cultural?) terms. More than the nature and extent of legal indeterminacy, my best guess is they’re concerned about another point Timon makes: “Racism, for CRT, is no longer personal animus on the basis of ethnicity or skin color, but complicity in the status quo of a white dominant society.” Yes, and the allegation of complicity requires sustained attention and unpacking by Christian leaders before they categorically dismiss its insights.
Third, assessing the threat / influence. In response to the comparison I drew between CRT (lots of condemnation) and Law & Economics (not much condemnation), Timon is correct that the former has more explicitly acknowledged influence today than the latter does, particularly on college campuses. But the difficulty of tracing the influence precisely reflects the complexity of this conversation. If we look at Law & Economics as one manifestation of a worldview premised on the desirability of maximizing individual preferences, it’s tough to argue that CRT has left a more powerful mark than that.
While I may not be ready to join Timon in his overall assessment of CRT, he and I wholeheartedly agree that this is an area in which Christians need more conversation, not less.
My Foreword to the NCRI Report: ANTISEMITIC DISINFORMATION: A Study of the Online Dissemination of Anti-Jewish Conspiracy Theories
The ancient and ugly curse of hatred of Jews and Judaism never quite goes
away. Sometimes it goes underground for a while, even appearing—finally,
mercifully—to be dead. But then, like a vampire, it suddenly rises from its
coffin to prowl the night. After the full, shocking revelation of Nazi atrocities
in the Shoah, antisemitism was—or at least appeared to be—utterly
stigmatized. Jews were regarded as victims, and expressions of fear or envy
of them—or contempt for them—were spoken, if at all, only in whispers. And
where even so much of a hint of antisemitism was perceived, including in
discussions of the state of Israel and the policies of its governments, the
person expressing it was marked as a vile bigot, even a crypto-Nazi.
Today, however, in living memory of the death camps—indeed while we still
have living Holocaust survivors who bear identification numbers tattooed
by the SS on their breasts or forearms—antisemitism is again being spoken
aloud, even in some cases by “respectable” people. Of course, among the
“respectable,” at least, antisemitism is still dressed in camouflage, even
costumed in the language of “justice” and “human rights;” but most people
who hear it—whether they welcome it or find it disgusting—know what it is
they are hearing.
As anti-Jewish attacks and hate crimes proliferate worldwide, anti-Jewish
conspiracy memes promote fears about “replacement” by Jews and other
immigrants, control by police and a nefarious “deep state” across all kinds
of political affiliations, nationalities, and ethnicities.
Hatred of Jews and Judaism exists today on both the left and right sides
of the ideological spectrum. It can be found among the rich and the poor,
the more-and less-highly educated, the fervently religious, and the devoutly
secular. It is sometimes stated coarsely, other times in the rhetoric of the
sophisticated and even high-minded. But, as the report you are about to
read makes clear, the “narrative” is the same—and the same as it has always
been: the Jews are depicted as crafty, greedy, selfish outsiders (“rootless
cosmopolitans”) who are conspiring against “us” and “people like us” to take
what is ours, to control our lives and futures, to “replace” us. So what’s new?
Well, electronic media—especially social media—are new.
So the old story can be told—spread virally using new technologies and
the platforms they provide. Jews, wherever they are the minority (which is
at most times and in most places) have always had to fear mobs—and, of
course, demagogues, that is to say, rulers—or people who want to be rulers—
who whip mobs up into anti-Jewish hysterias. But now the demagogues are
on social media, often hiding behind pseudonyms, and the mobs are social
media mobs inciting what the report describes as a “viral dissemination of
It is, to say the least, depressing to see the blessings of exciting new
technology—technology that can, and often is, used to do great good—
abused and degraded to serve the cause of spreading the virus of anti-
Jewish calumny. But now, as this ancient scourge reemerges in its newest
technological guise, this piece offers new methods to carefully and
rigorously analyze and accurately understand the threat so we can be
effective in combating it. This report is a crucial first step toward that goal.
I heartily endorse the report and commend it to you because the facts set
forth in the report itself persuade me of the need to take seriously—both the
threat to the Jewish community, and the threat to all that is honorable and
decent—by “anti-Jewish conspiracy memes.” The meme is a tool used by
antisemites to spread the contagion of anti-Jewish hatred, and if we are to
curtail its effectiveness, we need tools of our own to expose the meme to
the greatest of all disinfectants, namely, sunlight. We need to alert men and
women of goodwill of every faith and shade of belief to the reality of what is
going on in the cyber world so that they can join those of us already in the
fight against the “new” antisemitism. As you will see from the report, it is not
too early to put out the call for “all hands on deck.”
December 15, 2020 | Permalink