Archive for month: April, 2014


30 Apr
April 30, 2014

Many readers who find their way to this blog will remember a blog called Less than the Least that I co-authored with criminal law scholar Bill Stuntz from early 2008, shortly after Bill got a cancer diagnosis, until Bill’s death in March 2011.   (The blog is online here, and Bill’s cancer posts are here).  This blog is inspired by that one in many ways.

Every few months I get an email from a friend, often someone I first met through Less than the Least, proclaiming that he or she has just written a rather “Stuntzian” article.  By Stuntzian, the friend means counterintuitive, or puncturing the conventional wisdom in some way, often by flipping it on its head—as with Bill’s argument that the Warren Court’s decisions enhancing the Constitutional rights of criminal defendants may actually have left poor defendants worse off.  The friends’ emails always add a dollop of Stuntzian humility—saying, for instance, that they of course have not written a truly Stuntzian article, just a pale approximation.

For those who are interested in other top scholars’ engagement with Bill’s work, the essay collection The Political Heart of Criminal Justice (edited by Mike Klarman, Carol Steiker, and me) is just out in paperback from Cambridge University Press.  It’s a wonderful book, and one of the paperback’s many attractions is that you don’t need to take out a mortgage to afford the purchase price.

Muddling Through Justice: UCLA Veritas with Eugene Volokh

23 Apr
April 23, 2014

Last week, UCLA Law Professor and Volokh Conspiracy blog author Eugene Volokh and I talked about “Justice, Faith and the Human Condition” at a Veritas Forum at UCLA.  (Elizabeth Bawden was the excellent moderator.)  Eugene raised lots of wonderfully interesting questions: how can I talk about a Christian vision of justice when there have been so many different Christian stances on different issues?  Might Americans a century from now view our era as horribly unjust because we continue to eat meat?

Eugene described his own approach to justice as “muddling through,” and this became a recurring theme in our discussion.  I think muddling through is an apt and evocative description of the approach many Americans take to justice.  They wrestle with a particular issue, and reach a conclusion that seems most likely to further justice as they understand it.  The problem with this approach, in my view, is that it doesn’t provide any objective basis for thinking about justice.  If someone like Eugene is doing the muddling, the outcomes will be quite good, because he is extraordinarily bright and sensible.  But the same approach is equally compatible with awful results in the hands of decision makers who are, to give just one example, not especially interested in human rights.

I’ll save my discussion of a Christian perspective of justice for other posts, other than to note that the starting point is a vision of proper relationships within a society, based on the belief that each of us is made in the image of God.  I’ll also make the perhaps tendentious point that, when muddling through produces good results, especially in this country, it’s often because the muddlers are piggybacking on a Christian conception of justice.  They aren’t truly starting from scratch.

I can’t resist ending this post with a Eugene Volokh story I heard from one of Eugene’s colleagues.  Eugene was a child prodigy, starting college at UCLA at the age of 15, and later going to law school at UCLA.  When he applied for a Supreme Court clerkship with Justice Sandra Day O’Connor, the UCLA faculty gave Eugene rave recommendations.  (As most readers will know, a Supreme Court clerkship is the highest possible honor for a law student, available only to students at the absolute top of the class).  After his clerkship, as UCLA’s law school was considering Eugene for a faculty position, the hiring committee called Justice O’Connor to get her impressions of him.  Why do you want my recommendation, she quite sensibly asked, given that you were the ones who recommended him to me?  The hiring committee’s somewhat sheepish answer was that they were interested in hearing whether Justice O’Connor thought Eugene would work well with those who are not quite at his intelligence level, given that many of Eugene’s students wouldn’t be as bright as he is.  Justice O’Connor’s reply?  From what she’d seen, Eugene seemed to get along quite well with the other Supreme Court clerks.

Doing the Right Thing in the Wrong Way in Detroit

19 Apr
April 19, 2014

As Detroit’s bankruptcy heads into the homestretch, with the big hearing on its proposed restructuring plan currently scheduled for mid-July, Detroit is increasingly using settlements with key constituencies to line up additional payments for its pension beneficiaries.  The most dramatic illustration of this is Detroit’s art-for-pensions deal.  Under the proposed deal, the Detroit Institute of Arts would sell its art for $816 million to a nonprofit organization that will commit to keep the art in Detroit.  The $816 million, which would come from a group of foundations, the state of Michigan, and others, would be used to fund a higher payout for Detroit’s pension beneficiaries than they would otherwise receive.  More recently, Detroit entered into a settlement with a small group of its bondholders who have argued that they have a lien and are entitled to highest priority.  Under the settlement, the bondholders would receive roughly two-thirds of what they are owed, and a large side payment would be made to Detroit’s pension beneficiaries.

These arrangements seem to me to be doing a good thing in a very dangerous way.  It’s right, in my view, for pension beneficiaries to receive somewhat more than other general creditors, and this can be justified under existing municipal bankruptcy law  (as I have argued elsewhere, for example, here).  But the new arrangements take money that might otherwise go to all general creditors, and give it to one group of these creditors—pension beneficiaries.  In a short new magazine article (here), I point out that the strategy used in the art-for-pension deal is remarkably similar to the most problematic features of the 2009 Chrysler bailout.

I can imagine several technical (but unpersuasive) arguments Detroit might use to try to justify the art-for-pension deal and the side payment to pensioners under the bond deal.  I will perhaps delve into the particulars in future posts.  But the bottom line is that the new settlements are deeply problematic from a rule of law perspective, and should be rejected by the bankruptcy judge.  It’s essential to minimize the hardship of Detroit’s bankruptcy on pensioners, but it’s also important not to run roughshod over the rule of law, at the expense of Detroit’s other creditors, along the way.

Christianity and Complexity

14 Apr
April 14, 2014

Complexity is widely viewed as an embarrassment for Christianity.  How can a faith whose origins date back thousands of years possibly speak to a world as complex as we now know the world to be?  This often is the first question I get from friends who are intrigued by my faith but doubt the plausibility of Christianity.

In my view, elaborated at length in True Paradox, the assumption that complexity is an embarrassment for Christianity actually gets things backwards.  Although the materialist perspectives of Harvard linguist Steven Pinker or New Atheists like Richard Dawkins seem much more sophisticated and contemporary, their explanations of puzzles of our subjective experience—such as our perceptions of beauty and suffering—are anything but.   Pinker has described artistic creativity as an evolutionary accident, for instance, and our sense of beauty in nature as designed to alert us to the presence of food.

Christianity explains our experience of natural beauty as a reflection of the goodness for which the world was intended, and the transience of the sensation as evidence that this goodness has been corrupted.  Artistic creativity is a reflection of our having been made in the image of God.  It is one of the ways in which, to paraphrase the theologian N.T. Wright, we reflect the beauty of creation back to God.

I will have much more to say about both sets of explanations (including interesting new developments in evolutionary psychology’s accounts of beauty) in the coming months.  My point here is that critics of religion like Pinker and Dawkins, both of whom I love reading and profit from enormously, seem to flatten out some of the key complexities of human experience.  They treat some of the richest and most perplexing features of our lives as unimportant or accidental.

Christians certainly aren’t immune to this tendency either.  We make a similar misstep when we suggest we can “prove” the truth of Christianity with simple logical arguments, and ignore the messiness and complexity of the world as we actually experience it.  But Christianity itself is at home with complexity.  In my view, this is one of its biggest selling points.


11 Apr
April 11, 2014

Welcome to everyone who finds their way here.  The seed for this blog was sown as I was writing and revising True Paradox: How Christianity Makes Sense of Our Complex World, which will be published in October 2014.  My editor’s favorite way of hinting that a passage didn’t quite fit was to suggest I might want to “turn it into a blog post.”  The would-be blog posts needed a home, and I’d already been thinking about starting a blog.  So here we are.

True Paradox, the book, explores a variety of puzzles and paradoxes that are common to human experience, including consciousness, our experience of beauty and suffering, our inability to create a just social order, and our perception of an afterlife.  Christianity has surprisingly plausible explanations for each of these puzzles.

True Paradox, the blog, will ponder these issues and many others.

I am not especially prolific when it comes to blog posts, so I do not expect to post more than two or three times most weeks.  From time to time I plan to invite guest bloggers to join me and add an additional perspective.  But mostly it will just be me reacting to whatever seems noteworthy or interesting.