Geithner’s Stress Test

01 Jul
July 1, 2014

Former Treasury Secretary Timothy Geithner’s book tour promoting Stress Test, his memoir of the 2008-9 crisis, has gotten eclipsed by Hillary Clinton’s book tour.  But the questions his apologia raises about if and when bailouts are appropriate, and whether our largest financial institutions are still “too big to fail,” still have not been resolved.  My instincts tend to be completely different than Geithner’s (no doubt one of the many, many reasons he’s the one who was Treasury Secretary), as reflected in this little column.

Summer Solstice

26 Jun
June 26, 2014

Maybe something is wrong with my stars, but the summer solstice always leaves me feeling off balance.  Although there are a lot of things I don’t love about summer, I do love the lengthening days, which leave more time to sit on the back porch sipping a glass of wine, waiting for the deer (a doe and a fawn, this summer) to make their early evening appearance.  Yet the solstice always seems to come just as summer gets going.   It seems like the days should still be expanding.  The longest day shouldn’t have come last weekend.  It should be four or five weeks from now.

The New Poet Laureate

20 Jun
June 20, 2014

Last week’s announcement that Charles Wright will be the next poet laureate brought back many memories.  Shortly before my last semester of law school at the University of Virginia in the late 1980s, I sent Mr. Wright (as we knew our professors back then) a note begging him to give me a slot in his poetry writing workshop.  The note was shameless—saying that I’d tried unsuccessfully to enroll for the workshop before, that this semester was my last chance, etc.  Happily, he let me in anyway.  Once a week I drove from the law school to our classroom on the main campus, and slipped into another world (for which I got law school credit!).  Wright was already a legend on campus, even though he had not yet won the slew of poetry awards he has received since.

A few years ago, I interviewed Wright at his house in Charlottesville for Books & Culture (here).  A part of the interview that didn’t make it in to print seems to me to nicely capture Wright’s humility and dry humor.  We’re talking about his famously musical line, which varies in length, but always has an odd number of syllables.

Interviewer: One of the things everyone talks about when they talk about your poetry is the music in the poetry and the beauty of the language.  You have said many times over the years that you don’t have an ear for music.  I think you’ve said that you can’t carry a tune, I don’t know whether you’re exaggerating or not…

Wright: No, I’m not.

Interviewer: Where does the music come from?

Wright: It comes from the words.  I don’t know, it sounds good to my ear, you know, since I can’t make music – can’t play music, I make my music in my poems.  And just the way the lines sound to me – and there is a certain melodiousness, I think, to the way, at times, I can get the lines moving.  And then sometimes there’s not, on purpose.  But I never set out to be a singer – and in my lines it just sort of transpired – it just sort of happened.  And then once it sounded good, I said – well, that’s the way I want to try to write it.  …


Here’s an example of the music, taken from a description of the narrator’s visit to Emily Dickinson’s house in “Zone Journals” (1988)

… But I liked it there. I liked

The way sunlight lay like a shirtwaist over the window seat.

I liked the view down to the garden.

I liked the boxwood and evergreens

And the wren-like, sherry-eyed figure

I kept thinking I saw there

As the skies started to blossom

And a noiseless noise began to come from the orchard–

Campus Christian Groups and “Religious Discrimination”

13 Jun
June 13, 2014

The New York Times reported earlier this week on the ouster of Christian groups from Cal State, Vanderbilt and other schools because their leaders are required to affirm belief in Jesus’s resurrection and acknowledge him as their savior.  (Bowdoin College, which is featured most prominently, has since challenged the story).  The requirement that the Christian groups’ leaders be Christian violates the colleges’ policies banning groups that exclude any students from applying for leadership positions on religious or other grounds.

All-comers policies, which were upheld in a 2010 case involving the law school at Hastings, are in part a response to the Supreme Court’s shift (thanks in part to a series of classic articles by Michael McConnell) from strict separation of church and state in the 1960s and early 1970s to an emphasis on neutrality between religion and irreligion.  In effect, these policies say: “You want neutrality.  We’ll give you neutrality.  We won’t allow distinctions of any kind.”

Christian groups can of course simply forgo campus funding and take their functions off campus.  This isn’t a bad option, but it carries a cost both for the group and for the campus.  Campus life is a little less vibrant if groups with distinctive perspectives are effectively excluded.  Many of the students I talk to say one of their biggest frustrations is the inability to have open discussions about big, controversial issues on campus.  A rule that forces groups that wish to foster a distinctive mission off campus is not likely to foster a robust marketplace of ideas.

The other alternative is for groups to give in, and to adopt a policy permitting anyone to apply for leadership positions.  One problem with this is that it will often be at least a little disingenuous.  A Christian group doesn’t really want a leader who believes Christians are deluded, any more than Republican groups want straight ticket Democrats or Democratic groups a Republican.  The groups that are least well positioned to protect their mission are smaller and more vulnerable groups.  If the leaders are chosen by vote, unsympathetic outsiders might even show up when the time comes to select the next year’s leaders and proceed to “take over” the group.  This isn’t a genuine risk with most groups at most campuses, but it unfortunately could happen at some.

The Final Act in Detroit’s Bankruptcy

07 Jun
June 7, 2014

As goats graze (temporarily) in Detroit neighborhoods, an enormous number of objections have been filed to Detroit’s plan for adjusting its debts, and Detroit has responded with a two hundred plus page reply defending the art-for-pensions deal (aka the Grand Bargain) and the plan.

One of Detroit’s main defenses for the dramatically higher payout to pension beneficiaries than to several classes of bondholders (13% or less for bondholders vs. 59% or much more for pensions, depending on how the claims are calculated) is that payments coming from outside sources like the state of Michigan or the foundations that are ponying up $366 million to protect Detroit’s art shouldn’t count for the purposes of the comparison.  I’m surprised that Detroit puts so much weight on this argument, which seems deeply and transparently flawed.  To the extent the payments are for the art, which is an asset of Detroit, they should benefit all of Detroit’s creditors, not just one group of them.

Since I’ve been very critical of the Grand Bargain, at least in its current form, I should note that many of the details of Detroit’s plan strike me as admirable.  Detroit has been careful to minimize the cuts to the most vulnerable pension beneficiaries, for instance, and the city has made adjustments to the claims of pensioners who benefitted from indefensibly generous annuities and gratuitous payments by the pension funds.

One of the most interesting questions now is whether Detroit will attempt to settle with either of the two classes of bonds that have been offered the stingiest payouts under the plan.  If Detroit settled with both classes, the “unfair discrimination” argument would disappear, because it is available only to a class of creditors that votes against the plan.  My prediction, which is of course worth every penny you’re paying to read this post, is that Detroit will try to settle with one group of bondholders—the limited tax general obligation bondholders (LTGOs)—but not the other—the holders of certificates of participation (COPs).  The COP funding was used to plug a hole in Detroit’s pensions, and the bankruptcy judge has hinted that he thinks the funding arrangement was illegal.   This gives Detroit a better defense against an “unfair discrimination” objection with the COPs than with the LTGOs.  It isn’t unfair discrimination to give the COPs a pittance, the reasoning would go, if there’s a plausible argument the COPs aren’t entitled to anything.


05 Jun
June 5, 2014

The latest debate over Thomas Piketty’s book on income inequality (a battle of statistics between Piketty and the Financial Times) reminded me that I’ve neglected to post a little column I wrote on the book a few weeks ago. The column, which speculates about the reasons  Capital in the Twenty-First Century has gotten so much attention, is here.

The Disinvited Graduation Speakers

21 May
May 21, 2014

Watching the silencing of Condoleezza Rice and other graduation speakers this graduation season, I found myself thinking of the “check your privilege” debate, and of the complexities of power in the university setting.  At least some of the protestors seemed to be exercising their own form of privilege—privilege that they have in universities, but will not have quite so much of in the working world.

Some warn that the protests are destroying the long tradition of inviting prominent figures to deliver commencement addresses.  I’m no fan of the protests, but perhaps there’s a silver lining.  The politicization of graduation speeches may encourage more colleges to invite artists and poets and philosophers to deliver the speeches.  It don’t think this would be such a bad thing, and it may even serve as a final reminder that the best colleges do much more than maximize the starting salaries of their graduates.


21 May
May 21, 2014

Those who have glanced at this blog know that I am no fan of the art-for-pensions deal– aka, the Grand Bargain– in its current form.  Here’s a recent op-ed on that theme.

A committee of the Michigan House has a key vote on Michigan’s proposed contribution to the deal today.  One of the interesting features of the political context is that Michigan governor Rick Snyder is a Republican; the legislature is controlled by Republicans; and as it turns out, Judge Gerald Rosen, the mediator who is purported to have masterminded the art-for-pensions deal, was once a Republican candidate for Congress.   Given that Michigan Republicans have had a fraught relationship with Detroit in the past, a decision to provide state support– either for this deal or in another form– would be a little like Nixon’s decision to go to China.

“I” and “We” in Town of Greece

07 May
May 7, 2014

In this week’s big Religion Clause case, the Supreme Court upheld the practice in Town of Greece, New York of permitting local clergy to open legislative sessions in prayer.  Rather than appointing a permanent chaplain to deliver bland, nonsectarian prayers, Town of Greece selected a different chaplain each month, rotating through the religious congregations listed in the phone book.  Two residents alleged that the practice violated the Establishment Clause, because the vast majority of the chaplains were Christian, and because many of the prayers invoked Jesus and were otherwise sectarian in nature.   The Supreme Court disagreed, siding with Town of Greece by a 5-4 vote.

The case has been construed as a big victory for Christian churches, and in a sense it is.  But Christians and Christian churches should be careful what they wish for.  Local governments that adopt the Town of Greece model will need to invite adherents of all perspectives to take their turn leading prayer.  After listening to the prayers of atheists and wiccans, as well as other religions, some public prayer advocates may conclude that opening legislative sessions in prayer isn’t such a wonderful idea after all.  I doubt that the new case will prompt thousands of local communities to follow Town of Greece’s lead.

When Christian pastors do pray before legislative sessions, non-Christian hearers will be listening very carefully to the pronouns they use.  In church and in other Christian settings, we often preface our statements with “we pray” and conclude by saying “we pray Jesus’s name.”  This isn’t likely to go over so well before a legislative session, which suggests that when Christians or adherents of other faiths pray in the legislative setting, they will need to be careful to say “I pray,” without presuming on their hearers.  It’s the kind of attention to pronouns many of us are familiar with when we offer grace before meals with non-Christian friends in our own homes.


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.