May 17, 2004
Some time ago, Amber Taylor asked:
Is there a better feeling than getting something good in the mail?
After receiving a package today I can say, no, there is not.
All of which puts me in mind of an old Miss Manners exchange (1/14/96) about whether one may type love letters (to which, Miss Manners-- shockingly-- says "if you like"):
DEAR MISS MANNERS:
Is it proper to use a computer for very personal letters? They will be legible, but I shudder to think that one day an ex-lover, when asked if he had any old love letters, will pull out my printouts and disappoint his audience.
Then again, love letters aren't meant to be framed and put on display for beauty, but to be read. I have very poor handwriting -- a learning disability I have always had, but have found ways around. I use a portable laptop for taking notes in class and for personal correspondence.
Really good love letters are meant to be pressed to the heart and kissed, after which they become illegible anyway.
Miss Manners isn't sure that they are not better off being indecipherable during and after the romance. But surely you are in a better position than she to know whether this gentleman's heart would become more inflamed by exposure to your clarity or to his imagination.
UPDATE: Or, alternately, Vladimir Nabokov (from Ada) on same:
When Van retrieved in 1940 this thin batch of letters, each in its VPL pink silk-paper case, from the safe in his Swiss bank where they had been preserved for exactly one half of a century, he was baffled by their small number. The expansion of the past, the luxuriant growth of memory had magnified that number to at least fifty. . . . No doubt the singular multiplication of those letters in retrospect could be explained by each of them casting an excruciating shadow, similar to that of a lunar volcano, over several months of his life, and tapering to a point only when the no less pangful precognition of the next message began to dawn.
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Matthew Yglesias makes a good point-- it must be really emotionally rough to be a judge whose judicial views conflict with his political views. [He is considering Jacob Levy, who thinks fast-track trade authority is probably unconstitutional, but also incredibly valuable.]
My own guess is that the pain of this sort of cognitive dissonance is precisely what keeps people like Jacob Levy from particularly wanting to be, say, federal judges. And this in turn may be an innocuous explanation for why so many legal professionals have judicial views that comport with their political ones. If you think that fighting for, say, an originalist understanding of the Constitution would make the world substantially worse off (or that the benefits of adhering to the rule of law would be substantially reduced by the costs of increased world poverty) you're likely to find something else to do with your time.
I've said something like this before, but it is a dead horse that I enjoy beating.
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So far the only way in which the legalization of gay marriage has directly influence my life is that I received a free slice of birthday cake this afternoon at the Law School. This isn't to say I'm not rather pleased about it. Like Jacob Levy, I regularly suffer from dissonance between my judicial and political views, so I must allow myself to be at least somewhat pleased by things even when I only agree with them on one of those two axes. This isn't to say I would have decided Goodridge the same way (although maybe there are legal issues there I don't know of), but the sight of a bunch of people being free to marry one another does make me very happy.
Sadly, my favorite Harvard bloggers, have all left Cambridge, so none of them can blog on-site about the excitement.
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I promised earlier more thoughts on Brown after Professor Hutchinson's class. In fact, most of my thoughts have been on Brown's idiot cousin, Bolling v. Sharpe (see directly below). But I will share (via Professor Hutchinson) a quote from Thurgood Marshall, who argued Brown, on the difference between Brown I (relief; 1954) and Brown II (remedy; 1955).
In 1954, I was delirious. What a victory! I thought I was the smartest lawyer in the entire world. In 1955, I was shattered. They gave us nothing and then told us to work for it. I thought I was the dumbest Negro in the United States.
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In Tom Stoppard's lovely play, Professional Foul, one scene takes place during a presentation at a conference of philosophers in Prague. An English gentleman is speaking about the philosophy of language, and interpreters are gamely translating his remarks into French, German, and Czech for the benefit of the non-English-speaking philosophers present.
Stone: 'You eat well,' says Mary to John. 'You cook well,' says John to Mary. We know that when Mary says, 'You eat well', she does not mean that John eats skilfully. Just as we know that when John says, 'You cook well', he does not mean Mary cooks abundantly. . . No problems there. But I ask you to imagine a competition when what is being judged is table manners. (Insert French interpreter's box -- interior.)At this point, the lot of them just give up. This is the feeling of baffled resignation I get whenever I read Bolling v. Sharpe, a school segregation case that-- like Brown-- turns 50 today. Sharpe held that not only did public school segregation violate the Equal Protection Clause of the 14th Amendment of the Constitution, but it also violated the Due Process Clause of the Constitution.
Interpreter: ... bonne tenue a table ... Stone: John enters this competition and afterwards Mary says, 'Well, you certainly ate well!' Now Mary seems to be saying that John ate skilfully-- with refinement. And again, I ask you to imagine a competition where the amount of food eaten is taken into account along with refinement of table manners. Now Mary says to John, 'Well, you didn't eat very well, but at least you ate well.'
Interpreter: Alors, vous n' avez pas bien mange ... mais ... (All Interpreters baffled by this.)
In other words, the Court held that the Constitution prevented discrimination by the Federal Government just as much as by the states, despite the 14th Amendment's express limitation of its own reach to states. [And thus held that if the states could not have segregated schools, neither could the Federal Government.] This declaration was summed up in this line, which even I can recognize as hubris:
In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.[The Constitution, of course, imposes different requirements and rules on the Federal and State Governments in many places.]
To cast stones fairly, I'm equally perplexed by Scalia and Thomas's failure to distance themselves from Bolling v. Sharpe when Adarand v. Pena came around (Adarand extended Sharpe's logic to forbid not only discrimination against blacks but also affirmative action in employment, when practiced by the Federal Government). Not a peep.
Please, please, don't get me wrong. School segregation was a terrible rotten no-good thing and I'm very glad that it is gone, both from the states and from the District of Columbia. But Warren's declaration that it's simply "unthinkable" that Congress might be trusted with the power to legislate based on race where the states were not is so baldly wrong that I feel like I'm trying to translate into Czech.
[As an ironic note, the next case listed is Berman v. Parker, which basically holds that Congress gets an incredible amount of latitute when exercising its state-like police powers in the District of Columbia]:
Subject to specific constitutional limitations, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation enacted in the exercise of the police power . . .UPDATE:
If I had read one page farther in my packet before posting this, I would have come across Warren's draft opinion in Bolling v. Sharpe before it was nixed by Justice Hugo Black. Originally, the decision relied upon the substantive due process cases to declare education to be a fundamental right, whose infringement required strict scrutiny. I don't really think much of the SDP cases, but if one does believe in them, I can certainly see the logic in holding public education to be one. On the one hand, most of the SDP rights involve not the right to government services, but the right to freedom from government intervention (in abortion, contraception, marriage, raising of one's children, etc.).
But on the other hand, when I talk to some of my liberal friends-- even quite legally astute ones-- they are simply aghast at the possibility that it could be Constitutional for a state to simply abolish public education entirely. (Barring Federal mandates, which might well exist, it is perfectly Constitutional.) The original draft of Bolling v. Sharpe would have changed that.
I guess the lesson here is that when unanimous opinions get drafted by committee, the results are just as baffling as when papers on the philosophy of language get translated into French.
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The Chicago Tribune has a nice story about colleges' growing attempts to recuit great chess players through scholarships and all the rest. The move (unsurprisingly) hurts the U of Chicago chess team a lot, as the article discusses. Chess skill correlates strongly with other characteristics that the University has always had in abundance, so as long as nobody was paying for those skills specifically, we got a lion's share. Now that other colleges will pay for them and we won't, we lose out. No shock, no real tragedy, and further evidence of the power of markets.
A question is whether recruiting chess players is like recruiting athletes (and thus, in my view, highly suspect). My initial inclination is to disapprove-- not because chess isn't an important skill, but because it seems to me that little good is done by paying money to get students to come to the school who wouldn't have done so anyway, merely so that the school can present a particularly good team at a game.
A winning chess team doesn't present exogenous benefits to the other students, so while all things being equal a school should encourage excellence-- in chess, in basketball (perhaps), in math-- there's no good reason to recruit people above and beyond an offer of admission just because they happen to be excellent in extracurricular activities.
Speaking of chess, several of you wrote in to point out that I never posted the answer for this chess problem I posted.
White moves the King to F2, threatening the unstoppable mate of pawn-G3 on the next turn. Black has one turn in the meanwhile to attempt to save himself, but he can't move his king, promoting his pawn to a queen or knight will do no good, moving the pawn to E5 leaves his king just as immobilized as before, and moving the Rook to C5 merely prolongs the inevitable by a turn. Alas.
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They have (thank God) yet to start their high-decibel chirping, but they're still noisy. Cicadas have covered the azealas outside my door, and now the bushes emit a constant drone like a power tool. It sounds like a belt sander with fine grit paper continually putting the final touches on the same plank of wood. Joy...
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Today is the 50th Anniversary of Brown v. Board of Education, and I'll have the good fortune of getting to hear Professor Hutchinson lecture later today about Brown, after which I may well have more thoughts. Justice Breyer and Andrew Sullivan both have op-eds in todays Times, although each is really writing as much about himself as about Brown, and neither of them takes Hutchinson's more pessimistic view.
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I don't generally like to convert my place on this group-blog to my own selfish use [Liar! Liar! --ed.], but as I mentioned earlier this weekend-- I'm going to be working in Washington D.C. from about June 13th-August 21st, and am looking for a bedroom to sublet someplace. I don't have a car or a huge budget, but aside from those constraints am quite flexible. If you're looking for a subletter or have leads, please don't hesitate to drop me a note.
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This week I am particularly pleased to present-- 20 Questions with Professor Bainbridge, who blogs at Professor Bainbridge and the Catholic group-blog Mirror of Justice. Read on as he discusses wine, cars, cigars, Catholicism and corporations, and talking to Lawrence Fishburne about The Matrix.
1: What prompted you to start blogging?
A buddy of mine threw a dinner party to which he also invited Hugh Hewitt. I told Hugh that I had been reading Instapundit and the Volokh Conspiracy for over a year and had been debating starting a blog of my own. I was worried, however, that I'd just be another Johnny-come-lately, Hugh told me that was stupid – blogging was the future and there was still room for new voices, especially if I could find a different angle from the Reynolds and Volokhs of the blogosphere. As we talked about it, we came up with a market niche focused on stuff they didn’t cover: business, religion, and wine. To the extent I tackled politics, moreover, I would do so from a less libertarian/more social conservative perspective than most folks in the blogosphere. (See, e.g, my recent row with Volokh Conspirator Randy Barnett over judicial activism.)
When the blog started, I focused mainly on business and law. With encouragement from Hugh and other friends I've made through blogging, however, my blog has become increasingly eclectic. I still don’t do much navel-gazing, mostly because my personal life would make pretty boring reading, but I'm inclined now to write about just about anything that catches my interest.
All of which is why I'm one of the folks listed on the Hewitt-inspired blog site.
2: What attracted you to corporate law, and why do you teach rather than practice?
In law school, I was assigned to Professor Michael Dooley as a research assistant. I spent two years helping him with the research for a casebook he was writing on corporate law. I was fascinated by the often quite intricate legal issues posed in corporate law, but especially by their susceptibility to economic analysis.
The tools of economics have always struck me as being particularly well-suited to the problem of analyzing and evaluating legal doctrine. Traditional forms of legal scholarship were mostly backward-looking. One reasoned from old precedents to decide a present case, seemingly without much concern (at least explicitly) for the effect today’s decision would have a future behavior. Yet, law is necessarily forward looking. To be sure, a major function of our legal system is to resolve present disputes, but law’s principal function is to regulate future behavior. The law & economics movement succeeded because it recognized that judges cannot administer justice solely retrospectively. They must also consider what rules their decisions will create to guide the behavior of other actors in the future. Law & economics gives judges a systematic mechanism for predicting how rules will affect behavior. And, as noted, corporate law struck me as being an area particularly amenable to both the normative and positive aspects of economic analysis. So it made a good fit for my interests.
I went into teaching for three reasons. First, the freedom to pursue problems that interested me rather than problems that somebody was willing to pay me to investigate. Second, the freedom to control my schedule. When I was in practice, I looked around and saw that even partners had relatively little control over their own time. I like being my own boss and teaching seemed like an environment in which I would have much more control over my schedule. Third, I am something of a ham and the idea of having a captive audience before whom I could hold forth for an hour or two at a time was immensely appealing.
3: Is there a bias on the part of textbook and law review editors against Corporations and in favor of "sexier" stuff like Constitutional Law? If so, what do you think accounts for it?
More so among law review editors than book publishers. Part of the problem may be bias on the part of law review editors, who perceive con law or the latest grand theory of Law & [Fill in the Blank] as bring “sexier” than business law. Part of the problem, however, also comes from the faculty end. Lots of business law faculty tend to stop publishing after they get tenure, perhaps in large part because we tend to get a lot more consulting opportunities than somebody who spends a career writing about what Icelandic blood feud sagas tell us about alternative dispute resolution. As a result, a lot of corporate law scholarship tends to be biased towards juvenilia.
4: How do you feel about the free speech rights of corporations? Should the rules for corporate speech be different from those for individuals?
It’s an interesting question at a number of levels, but let me come at it from the direction of the theory of the firm.
When you ask “what rights does a corporation have,” you are reifying the corporation – you are treating the firm as an entity separate from its various constituents. The prevailing law and economics account of the corporation, by way of contrast, views the firm not as an entity, but as an aggregate of various inputs acting together to produce goods or services. Employees provide labor. Creditors provide debt capital. Shareholders initially provide equity capital and subsequently bear the risk of losses and monitor the performance of management. Management monitors the performance of employees and coordinates the activities of all the firm's inputs. The firm is simply a legal fiction representing the complex set of contractual relationships between these inputs. In other words, the firm is not a thing, but rather a nexus or web of explicit and implicit contracts establishing rights and obligations among the various inputs making up the firm.
From this perspective, the correct question to ask is whether this set of stakeholders acting collectively through the board of directors and top managers should be able to exercise the same rights they could exercise individually. So phrased, it seems to me, the problem reduces to one of agency costs – the directors and top managers may use their control of the corporation to cause it to exercise rights in ways of which less powerful constituencies would disapprove. Depriving the corporation of the right to speak thus really is a way of limiting the perceived divergence of interest between top management and other stakeholders. Because the agency cost problem in fact is subject to a wide array of constraints (fiduciary duties to shareholders, markets for management services, and so on), I’m inclined to think that prohibiting corporate speech cannot be justified on this ground.
5: Why do so many corporations incorporate in Delaware? Should we be worried about this?
No, you should not be worried about this at all. Why not? For an extended argument, see my article The Creeping Federalization of Corporate Law. For a shorter version, check out my blog posts Delaware's Dominance and/or Vanderbilt Conference: Comments on Bebchuk and Cohen Firms’ Decisions Where to Incorporate.
6: You’ve previously suggested that there’s probably a bias against hiring conservatives or libertarians in academia. Do you have any suggestions for libertarians or conservatives entering law school about ways they might minimize that bias against themselves later while still remaining intellectually honest?
When this question is posed, I am always reminded of what Christ told the apostles when he sent them out: “"Behold, I am sending you like sheep in the midst of wolves; so be shrewd as serpents and simple as doves.” (Matthew 10:16.)
Don’t be dishonest, but don’t be unnecessarily controversial. Take care to cultivate contacts and, especially mentors on the left. Pick subject matter areas where conservatives tend to be more acceptable (the business end of the curriculum is especially safe).
7: Why do you oppose the Socratic Method, and how do you prefer to teach your law school classes?
I waffle between a very weak form of Socratic and lecture (tending towards the latter), making extensive use of PowerPoint.
As a business law professor, I exclusively teach second and third year students. Even if the Socratic method is a useful way of teaching people how to think like lawyers, a point I am not prepared to concede, by the time the students get to me they’ve either learned to do so or they never will. So it’s a waste of time and effort on both my and their parts.
In addition, my focus is on transaction planning. We read a case but then present a problem in which economic actors must adapt their behavior to the legal landscape created by the case. This is not a process that lends itself to the Socratic method as it usually used in law schools. For one thing, transaction planning requires that the student understand the underlying economic and financial issues. Suppose, for example, that figuring out how to respond to a given legal rule requires one to understand the Capital Asset Pricing Model. How one is supposed to teach CAPM via the Socratic method is something of a mystery to me.
I’d commend to you, by the way, Brian Leiter’s post in which he argues that the Socratic method is the scandal of legal education.
8: Woody Allen famously opined that the only cultural advantage to Los Angeles was the ability to make a right turn on red. What other advantages would you say that LA has over an East Coast metropolis like Boston or New York?
Weather. Weather. Weather.
Better access to rare California wines.
Driving very fast on very twisty canyon roads.
It’s a lot safer to be a pedestrian here, oddly enough given how little time we spend being pedestrians.
Shopping at the same Bristol Farms as Lawrence Fishburne means that I may eventually work up the courage to tell him just how gawd-awful Matrix Reloaded and Revolutions were.
Greater diversity geographically. (You really can spend the morning on the beach and the afternoon on snow-covered mountains.)
One hour to Vegas by air.
Valentino’s wine list.
California judges are much more liberal about letting law professors act as expert witnesses.
Did I mention the weather?
9: You seem to drink California wines almost exclusively. Is this because you believe there is a benefit to drinking locally, or for some other reason?
With the possible exception of TCA contamination, the most common fault I find in wine is the cooked flavor it develops when the bottle has been stored under excessive heat conditions. Living in California, I buy a lot of my wines directly from the winery and have it shipped overnight or second day. As a result, there’s very little risk of heat damage.
Having said that, however, I believe one does tend to develop a regionally-attuned palate. Like most other American wine drinkers I know, I favor wines that are intensely fruity and oaky, with rich and complex flavors, but with smooth tannins that make the wine accessible early without extended aging. Which is a great description of California wines (albeit also Australian and many Italian wines), but which leaves many French wines out.
I should note, however, that I am a big fan of claret – i.e., red Bordeaux. Indeed, when I think about the greatest wines I’ve ever tasted, a very substantial number of clarets are on the list. That list would include, for example, Chateau Lafite-Rothschild 1981, Chateau Cheval Blanc 1983, and several Chateau Gruaud-Larose vintages (1982, 1983, 1986, and 1990 spring to mind). On the other hand, a number of California cabernets would make that list too. Those that come to mind include Ridge Montebello 1990, Silver Oak (Napa) 1991 and Silver Oak (Alexander Valley) 1994, Robert Mondavi Reserve 1990, and Heitz Martha’s Vineyard 1984. The one wine I am most eager to track down, moreover, is a California cabernet; namely, the 1958 Beaulieu Vineyard Private Reserve, since 1958 is my birth year and that year’s BV is supposedly one of the greatest wines ever made in California. I’ve bid on it at several auctions, but never prevailed.
10: Most Chardonnays produced in California these days tend to be oakey, buttery, or both. Do you consider this a positive development? And as a more general rule, do you prefer your wines to be "intellectual" or "blockbusters"?
See my answer to # 9. In general, I find terms like “intellectual” or “finesse” are most often used by fans of French wines to justify spending exorbitant sums on wines that are high in acid and/or tannin but low in fruit.
11: What advice would you give to young wine lovers on small budgets? And what if said wine lovers are very fond of port?
Chile and Australia are producing boatloads (literally) of high quality inexpensive red wine. I find Chilean whites less successful, but am very fond of many Aussie whites. If I’m going to spend say $8 on a bottle of wine, it will rarely be a Californian. Instead, it’s almost always going to be Aussie or Chilean.
Port is a problem for the wine drinker on a tight budget. Domestic “ports” are pale imitations of the real thing, at best, and I find them undrinkable. Vintage character ports (such as Cockburn’s special reserve) are probably your best bet, but even they run $16+ a bottle.
12: Now that several months have elapsed in which to evaluate the results, what is your assessment of the recall process in California? Has Schwarzenegger been an improvement over Davis so far?
The recall process was great theater. I loved every minute of it.
As for Schwarzenegger, I think he’s done pretty well. On a personal note, he’s just announced a long-term funding arrangement for the UC system under which there will be funding beginning in 2005-06 to resume the growth of faculty and staff salaries. After 4 years without a raise, that was very welcome news.
My main complaint is that Schwarzenegger muffed the budget deal. Arnold never again will be stronger than he was before the compromise that led to Props 57 and 58. Yet, when push came to shove, he cut a lousy deal.
Schwarzenegger’s failure to take his best shot at getting budget reform with real teeth will undermine his ability to obtain real reforms down the road in other areas. Having said that, however, I’d still like to see him take up the agenda I suggested here. Getting through a version of Colorado’s TABOR plan would be an especially primo legacy for the governor. So too would be finally getting rid of the nativists in the California GOP.
13: You've suggested that you're willing to support a republican candidate for president despite his great deficiencies. How bad would a Republican have to get(or how good would a Democrat have to get) before you switched your vote (or abstained)? Would you have voted for Richard Nixon?
You know the expression "yellow dog Democrat"? I don’t know what the Republican equivalent is. but it would describe my politics. I'm unabashedly partisan. No matter how mad Bush makes me, I'd still rather have him picking the next Supreme Court justice than any Democrat I can think of. No matter how mad I get at the GOP in Congress over stuff like the budget, I'd still rather have Orin Hatch presiding over the Judiciary Committee than Pat Leahy and so on. Throw in the other two issues I care most about – taxes and defense – and it becomes very hard for me to imagine voting for Democrats at pretty much any level.
The Nixon question requires more context. Am I voting based on what was known in 68 or 72? Or am I voting on the basis of what we know now? What are my alternatives?
Nixon was a very bad apple, to be sure, but we do have to thank him for one thing: Nixon’s tragically flawed Presidency begat Jimmy Carter’s gloriously flawed Presidency, which begat Ronald Reagan, who won the Cold War and made the GOP believe that it could become a majority party.
14: What made you decide to add BlogAds to your site, and do you worry that some readers will find this less aesthetically appealing and stop reading?
Between BlogAds and my Amazon Associates program, I make enough for the blog to break even most of the time and some months even pull in a small (very small) profit. I’m an unabashed capitalist and I figure most of my readers know that. Hopefully, the content will keep them coming back.
15: You’re also a member of the group-blog, Mirror of Justice, which is "dedicated to the development of Catholic legal theory." What are the principles of Catholic legal theory, and how developed is this area already?
The point of the blog is that there really aren’t well-developed notions of what a uniquely Catholic legal theory might look like. My hope is that the blog will provide a central clearing house for thinking about what such a theory might entail.
I think our founder, Villanova Dean Mark Sargent, put it quite well in the introductory post, where he explained that Mirror of Justice is “a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory -- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.”
16: What sort of place should religion have in American political debate? Many people hold political positions for religious reasons– to what extent should we just argue explicitly about those religious beliefs, and to what extent should believers make an effort to recast their arguments in secular terms?
At the core of the mission statement of Mirror of Justice is our shared belief that “faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation.”
I realize that many legal academics find my interest in faith-based scholarship eccentric, at best. As Thomas Shaffer pointedly observed, modern law schools “have systematically—theologically!—discounted, discouraged and disapproved of the invocation of the religious tradition as important, or even interesting.” Thomas Shaffer, The Tension Between Law in America and the Religious Tradition, in THE WEIGHTIER MATTERS OF THE LAW: ESSAYS ON LAW AND RELIGION 315, 327 (John Witte & Frank Alexander eds., 1988).
As Richard Neuhaus reminded us, however, “the democratic reality, even, if you will, the raw demographic reality, is that most Americans derive their values and visions from the biblical tradition.” The Naked Public Square 139 (2d ed. 1986). How can we talk about law or politics without taking that basic reality into account?
17: The Catholic Church condemns both abortion and capital punishment. But in U.S. politics the traditional alignment is pro-abortion and anti-capital punishment (leftist) or anti-abortion and pro-capital punishment. How does a faithful Catholic evaluate that kind of compromise?
I think a faithful Catholic has a hard time finding a home in either major political party, largely because of this precise set of issues. Personally, I oppose both. For me, however, abortion is the trump card. In Evangelium Vitae, John Paul II teaches that execution is only appropriate "in cases of absolute necessity, in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvement in the organization of the penal system, such cases are very rare, if not practically nonexistent." As to the death penalty, the Church thus continues to recognize a small set of cases in which it is at least theoretically justifiable. (I should note, however, that I was utterly unpersuaded by Justice Scalia’s attempt to defend the morality of the death penalty from the critique to which the Pope subjected it in Evangelium Vitae.)
In contrast, the magisterial teaching on abortion set out in Evangelium Vitae is categorical. After defining abortion as "the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth," the encyclical asserts that "direct abortion, that is, abortion willed as an end or as a means, always constitutes a grave moral disorder.”
18: On bachelor’s nights, you’re known to smoke a cigar (sometimes in the house). How did you start cigar-smoking and what kind do you smoke?
I had a regular poker game in grad school and started smoking cigars with those guys. (I'm still looking for some LA players for a regular poker game, by the way.)
These days my usual smoke is Dunhill's Peravia brand. It's a fairly big cigar (seven inches with a 50 ring size), but pretty mild. Anyway, with the return of warm weather, it is back to the deck for me and the dog.
19: Do you prefer your BMWs to have automatic or manual transmissions? (And do you worry that it’s too ostentatious for an academic to be seen driving a BMW?)
My current car has the SMG transmission, which strikes me as an ideal compromise. As the full name -- “sequential manual gearbox” -- implies, the SMG is a true manual transmission, not a fake manumatic like BMW’s Steptronic or Audi’s Tiptronic transmission, which means there’s no torque converter to drain off power. Yet, there’s no clutch pedal. In fact, at its most aggressive setting, the SMG actually shifts gears faster than you or I could on our best day. Best of all, however, the SMG also offers a quasi-automatic mode in which the system’s computer brain takes over shifting. So if I’m stuck in traffic, I can leave it in the auto mode and not worry about shifting, but I can also paddle shift to my heart’s content when I’m on the open road.
As for your second question, you have to remember that I live in LA. Out here you don’t have to worry about being ostentatious until you get into Maybach territory.
20: Do you read fiction? If so, what kind of fiction do you read?
Fiction probably makes up about 40% of my pleasure reading. I mostly read science fiction and fantasy. I’m more into the old school style than the post-modern and cyberpunk stuff. JRR Tolkien. Robert Heinlein. George Martin. Jerry Pournelle. Steven Brust. Glen Cook’s early Black Company novels. Larry Niven. Laurell Hamilton’s early Anita Blake novels. David Weber. Harry Turtledove’s Civil War series. Outside science fiction, I rely on Tom Clancy for long airplane flights and Robert Parker for short ones.
I also read a lot of theology, military history, biographies, and wine.
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