In aristocracies, it is not exactly work itself which is despised but work aimed at profit. Work is glorious [...]]]> Academics make less money than they would probably be able to make were they not academics. This is certainly true for the vast majority of law professors, most of whom were educated at elite law schools and often have had professional experience in the upper levels of the legal profession. Yet despite the fact that they make less money than their non-academic professional peers, law professors still work hard (although not as hard as say junior associates at Skadden). This morning I was reading De Tocqueville, and I came across this passage, which could be applied, I think, to much of academic work:

In aristocracies, it is not exactly work itself which is despised but work aimed at profit. Work is glorious when prompted by ambition or virtue along. In an aristocracy, however, we constantly come across the man who works for honor while being ware of the attraction of profit. But these two desires meet only in the depths of his soul. He takes good care to conceal the place where they meet from prying eyes.

There is much in here about academic labor. I think it is fair to say that while the attitude is not universal, there is a certain ambivalence toward work for profit within the academy, a fear of “selling out.” Work for “ambition or virtue” and the desire for honor rather than material reward, however, strike me as a rather good description of academic labor. A professor moils away at his or her law review article in the hope that it will change the world for the better (virtue) or advance her status within the academy (ambition).

Honor, it seems to me, is not such a bad way of capturing such motivations. Honor is an amalgam of both self-regard and principled behavior. The man who refuses to commit some fell deed because to do so is beneath him, would dishonor him, is both self-centered (it is his honor that matters) and principled (he refuses the fell deed even at great cost to himself). Likewise, the modern scholar is not a monk, anonymously toiling in the scriptorium for the greater glory of Knowledge. Rather, she seeks honor through both the self-sacrifice of intellectual discipline, honesty, and hard work and the self-assertion of authorship and its attendant claims to credit. The great goal is to be thought brilliant and insightful, unusually gifted and adept in one’s field. Ultimately, the dream is to produce some work that will “define the field,” living on after one has left the mortal coil and providing a kind of Homeric immortality of the mind.

For all of its ostentatious protestations of progressive egalitarianism, the modern academy is, I think, ultimately an aristocratic country.

This is a big book by one of the greatest living scholars of the early Republic. It is worth reading. Gordon Wood, of course, is the author of The Creation of the American Republic and numerous other works on the founding period. Empire of Liberty weighs in at 738 pages and is part of the not yet complete Oxford History of the United States. This volume covers the period from the adoption of the Constitution to the end of the War of 1812. It is a marvelous synthesis of contemporary scholarship on the period and a well-spent career by a careful and [...]]]> Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (New York: Oxford University Press, 2009)

This is a big book by one of the greatest living scholars of the early Republic. It is worth reading. Gordon Wood, of course, is the author of The Creation of the American Republic and numerous other works on the founding period. Empire of Liberty weighs in at 738 pages and is part of the not yet complete Oxford History of the United States. This volume covers the period from the adoption of the Constitution to the end of the War of 1812. It is a marvelous synthesis of contemporary scholarship on the period and a well-spent career by a careful and imaginative scholar. Enough with the superlatives and adjectives.

The book is organized as a narrative, with a nice mix of a somewhat gossipy treatment of elite politics interspersed with chapters on social history. On the social history front, the book is strong on economics and (thankfully from my point of view) religion. If there was one subject where I wasn’t entirely impressed, it was his treatment of military history. Having gone through a Civil War history phase as an adolescent, however, I suspect that I probably have a higher tolerance for the analysis of troop movements, battles, and logistics than the ordinary reader. Also, the volume has a good bibliographic essay, which is extremely useful as a scholar from another discipline who might be interested in using some of the literature on this period.

Wood has two chapters that will be of special interest to lawyers and legal scholars. The first is “Law and an Independent Judiciary” and the second is “Chief Justice John Marshall and the Origins of Judicial Review.” Both of these chapters are heavily weighted toward federal constitutional law and the rise of the Supreme Court. However, in comparison to Howe’s What Hath God Wrought (the next volume in the Oxford History and another book that is worth reading), Wood has a more in depth discussion of legal developments beyond the Supreme Court. His discussion of the intellectual roots of judicial independence in eighteenth-century English legal thought is excellent, as is his discussion of the politics of debtor-creditor law in the early Republic. Finally, while I feel called upon to carp at the way that developments in the common law consistently get relegated to second place vis-a-vis constitutional law in most histories, I was fascinated by Wood’s discussion of Marshall’s maneuverings against Jefferson. My employer is pleased to claim both men as alums (although the claim is stronger in the case of Jefferson than Marshall), but as between the two, Marshall comes across as the more pleasant, canny, and ultimately wise man.

In terms of political history, Wood organizes his narrative around the rise of Jeffersonian democracy. It’s a story in which the losers are, to my mind, ultimately much more interesting than the winners. One of the ways that Wood illustrates this story is through a series of portraits of middling political figures — congressmen, unsuccessful senators, successful grandees in state legislatures, and the like — which make for a nice contrast to a story dominated by Washingtons, Adamas, Jeffersons, and Hamiltons. I found myself sympathizing — if not entirely agreeing — with curmudgeonly Federalists like James Fenimore Cooper who had to live on in the increasingly crass and democratic society that Jefferson helped to midwife even if it was not ultimately his creation. Indeed, at the end of the book Wood provides a striking portrait of Jefferson in retirement, increasingly crotchety, disoriented by the grasping hucksterism of nineteenth-century America, and, perhaps most pathetically, more and more apologetic for slavery while still desperately clinging to the increasingly threadbare mantle of enlightenment prophet of human freedom. Indeed, Wood ends the volume with a peroration on the evil of slavery and its blight on the nation. It is, I think, the least compelling prose in the book, but there is no denying the evil that it condemns or the way in which it came to warp so much of American political, social, and intellectual life.

A tough liability system does more than provide [...]]]> Richard Epstein mounts a defense of tort liability in today’s WSJ. I wish that a defense of civil liability was a stronger element of free-market politics in this country, so I’m happy to see Epstein make the case for tort in a place such as the WSJ. Epstein calls for “a no-nonsense liability system that fastens full responsibility on the parties who run dangerous operations, no excuses allowed.” I am not a tort aficionado, but I wonder whether drilling for oil counts as an ultrahazardous activity exempt from the ordinary regime of negligence liability or if this is simply Epstein advancing his preference for a regime of strict liability. He goes on to write:

A tough liability system does more than provide compensation for serious harms after the fact. It also sorts out the wheat from the chaff—so that in this case companies with weak safety profiles don’t get within a mile of an oil derrick. Solid insurance underwriting is likely to do a better job in pricing risk than any program of direct government oversight.

I agree with Epstein that insurance companies coping with the risk of a tough liability regime are likely to be much better monitors than government agencies coping with the risk of political embarrassment. I do think, however, that Epstein’s article is rather too optimistic that tort can so easily serve the multiple purposes that he assigns to it. By providing victims with what amounts to a form of insurance through the tort system we create another kind of moral hazard, one that is less easy to manage through the kind of monitoring that private insurance provides because the relationship between insured and insurer in the tort regime isn’t contractual. Furthermore, as a system of compensation tort law has a tendency toward feast and famine for victims. This may mitigate concerns about moral hazard, but if we are interested in compensation for victims (as opposed to plaintiff’s lawyers) this is a problem.

There is an important aspect of tort liability that doesn’t make an appearance in Epstein’s argument. Liability does more than provide compensation and internalize costs, laudable as those goals are. As Benjamin Zipursky and John Goldberg have argued it also gives those who have been harmed a way of acting against those that have harmed them. Tort lets those who have been hurt by BP strike back, asserting themselves are more than passive objects of harm or compensation. If the proponents of civil recourse theory are to be believed — and I find myself more than a little persuaded — this is a goal worthy of attention in its own right.

Put more simply, one of the reasons we want tort law is so that those who it has hurt can stick it to BP for the harm they have suffered.

First, many tea partiers invoke the constitution in political debate. This may seem unremarkable, but it does gesture toward a certain view of politics that is both genuinely congruent with the founders [...]]]> I’ve found it interesting to see the way in which the tea party movement (and some of my neighbors who are involved in it) invoke the Founders and the constitution. Without exception every law professor with whom I have talked treats these tropes with derision, seeing the tea party movement as a bit of reactionary hysteria or worse. I think, however, that there is a deep affinity with some of the ways of political thinking one sees among at least some tea partiers and the political thinking of the founding generation.

First, many tea partiers invoke the constitution in political debate. This may seem unremarkable, but it does gesture toward a certain view of politics that is both genuinely congruent with the founders political thinking and, I believe, deeply mistaken. Gordon Wood has written about what he calls the “adjudicative politics” that were held up as an ideal by the American revolutionaries and the politicians of the early republic. In this vision, there is a single, unitary public good and the job of statesmen is to act as kind of super-adjudicators, applying known principles of good government to particular issues. As Wood documents, this vision of politics broke down in the 1790s and 1800s as it became clear that there was no widespread agreement on the meaning of the public good. Rather politics, far from being an exercise in adjudication, consisted of a continuous debate about the content of the public good and – more unsettling to the adjudicative model – the bargaining between constituencies over claims to political power.

So what does this have to do with the tea partiers?

Since 1950 the federal government’s share of total GDP spending has hovered around 20 percent. In the last couple of years it has risen to about 25 percent. (Note: this number understates government spending because it doesn’t include state and local government.) The underlying divide in American politics, it seems to me, is whether we want to keep pushing that number up to somewhere closer to European welfare state levels say around 50 to 55 percent. Many tea partiers have transposed this argument into constitutional terms, insisting that various forms of entitlement spending are unconstitutional. As it happens, I am on the side of those who would rather not see the state gobble up a larger share of the common weal, but it seems to me that this is an argument that must be made in the messy pragmatic terms of ordinary politics. Frankly, I don’t think that the constitution has much to say one way or another on the question. The tea party – or at least those bits that I have watched and talked to – seem to think that this is some sort of quasi-adjudicative question that can be answered by resort to first principles. In this, they are much like the politicians of the 1790s who thought that the messy questions about the wisdom of various fiscal policies for dealing with the new nation’s debts were best analyzed as semi-legal adjudicative questions. Jefferson was uncomfortable arguing fiscal policy with Hamilton (in part, of course, because Hamilton was better informed, more sophisticated, and ultimately – in my opoinion – smarter than Jefferson), so instead he turned fiscal debates into constitutional debates.

The second affinity between the tea partiers and the founding generation is their paranoia. The politics of the 1790s were filled with outlandish conspiracy theories. Jefferson was perfectly willing to entertain the possibility that Hamilton was a paid agent of the British crown. For their part, the Federalists were convinced that should Jefferson be elected president, he would import to the United States the excesses of the French Revolution. Christianity would be persecuted a la the anti-clericalism of the French Republic and there would be a guillotine set up in Philadelphia. One sees, I think, a similar outlook among bits of the tea party. In the Nazi-turrets world of Glenn Beck the Obama Administration threatens totalitarian dictatorship as opposed to merely profligate or unwise policies.

One sees this especially in the way that the financial crisis gets conceptualized. Gordon Wood noted that for Americans of the 1790s and 1800s it was difficult to understand financial panics and economic set backs as anything other than the results of human agency. Masons, Illuminati, and paid foreign agents must be working behind the scenes to undermine the American republic by attacking its prosperity. Likewise, for many tea partiers financial panic and recession are the work of a corrupt cabal of bankers and politicians and their overweening greed. I would be the last to deny the public choice pathologies that have driven many of our economic woes. On the other hand, I think that much of the problem lies not in corrupt deals but in policies that enjoy extremely widespread public support, such as the subsidization of home mortgage debt through the tax code and low interest rates, or factors largely beyond American control, such as China’s policy toward its current accounts surplus. The tea partiers’ response, however, often strikes me as much more akin to Jefferson’s reaction to finance: “Bankers are evil, corrupt parasites! Can I please have some more credit?”

Hence, I think that the tea partiers have better claim to the mantle of the Founders and the early republic than elites are inclined to give them. This, however, is precisely the problem. In many ways the politics of the early republic were dysfunctional (if endlessly fascinating). The adjudicative approach to the public good was simply inadequate to the complex realities of a pluralistic society. Paranoid moralizing was an attempt to humanize and therefore understand complex and bewildering problems, but it led to misguided policies, such as Jefferson’s war on the Bank of the United States.

Ultimately, the political system of the Founders and the early republic gave way to the world of Martin Van Buren, the man who constructed the first true American political party. There is no denying that Van Buren is a less heroic and inspiring figure than titans such as Hamilton or Jefferson, but by regularizing conflict over the public good and the jostling of constituencies he created a political culture than hued closer to the realities of democracy than did his predecessors. I can understand the tea partiers distaste for a Van Buren-esque world, but ultimately I believe that is the world in which we actually live. Better to reside there than retreat to the Manichean fantasy world that existed in the political imagination of the 1790s – and it would seem a large bit of the 2010s.

If any person or persons hall, in any newspaper, or handbill, written or printed, publish or proclaim any other person or persons as a coward or cowards, or use other [...]]]> Of late I have been doing some research on the relationship between dueling and litigation in the 18th and 19th centuries. An integral part of the Code Duello was the practice of “posting someone a coward.” If a gentleman refused to give satisfaction on the field of honor to a gentleman he had offended, then the victim would print broadsides or take out newspaper advertisements announcing that so-and-so, previously thought a gentleman was in fact a coward. In an effort to suppress the practice of dueling, the Texas legislature adopted the following law:

If any person or persons hall, in any newspaper, or handbill, written or printed, publish or proclaim any other person or persons as a coward or cowards, or use other opprobrious and abusive language for not accepting a challenge, or fighting a duel, such person or persons so offending shall, on conviction, be punished by a fine not exceeding five hundred dollars, and imprisonment in the common jail of the county not exceeding sixty days, at the discretion of the court.

I haven’t seen anything about convictions under this law. Notice, that it is drafted so that it probably sweeps up more than simply “posting” someone for refusing a challenge. Journalists wishing to comment on the courage of Texas politicians refusing a challenge should proceed cautiously.

In the case of Sotomayor, empathy was associated with identity politics. There was some ineffable something about being a wise Latina that gave Sotomayor special insight into the way that the law effects “ordinary people.” In Sotomayor’s case one could at least construct a facially plausible story about her biography in which her experience provided some insight into “ordinary people” outside of her legal expertise.

Not so with Elena Kagan.

There is nothing [...]]]> As Kagan progresses through the Kabuki of the confirmation process we can expect to hear her supporters invoke the idea of empathy as a kind of liberal counterpoint to Roberts’s umpire analogy. The more I think about empathy and judging, however, the less I think that it has any substance at all.

In the case of Sotomayor, empathy was associated with identity politics. There was some ineffable something about being a wise Latina that gave Sotomayor special insight into the way that the law effects “ordinary people.” In Sotomayor’s case one could at least construct a facially plausible story about her biography in which her experience provided some insight into “ordinary people” outside of her legal expertise.

Not so with Elena Kagan.

There is nothing in her biography to suggest any special insight into the lives of “ordinary people.” The Upper West Side (my experience with native New Yorkers is that some non-trivial percentage of them take a positive pride in NOT understanding America beyond the five boroughs), prep school, Princeton, Oxford, Harvard Law School, a Supreme Court clerkship, work at an elite law firm, the University of Chicago, the Clinton White House, HLS again, and the Solicitor General’s office. There’s nothing in there that screams, “Special connection with the poor and the downtrodden, or even with the middle class and doing fine.” From what I’ve seen, Kagan is an intelligent and decent person. She may well be able to see the world from the perspective of “ordinary people,” but if she does so it is by an act of imagination rather than memory.

None of this will keep folks from lauding Kagan’s “empathy.” If empathy is no longer tied to biography and identity politics is there anything left of it? The answer, it seems to me, is “Not much.” When empathy is invoked in contemporary debates about the judiciary, I think it’s best to simply see it as a gesture toward a set of substantive positions. To be empathetic is to be solicitous of the state in its role as regulator but less so in its role as defender of national security. It means a somewhat more pro-defendant position on criminal procedure. It means a preference for national rather than state government. Above all else, I suspect that it means holding the kinds of opinions that we all expect Elena Kagan to hold on the various cultural arguments — gay rights, abortion, etc. — that form the detritus of the sexual revolution. None of this, however, really has to do with empathy. Rather, it simply strikes me as a substantive vision of the relationship of the state to individuals, businesses, and local communities.

With the exception of a brief stint in private practice, Kagan has spent her entire career either in government or else in academia studying the processes of government regulation. She shows little academic or [...]]]> So President Obama has nominated Elena Kagan to the Supreme Court. He certainly could have done worse. I am not without concerns and chief among them is that Kagan is a scholar of public law. Given that the vast majority of the Court’s docket concerns public law this may seem like an odd concern. I certainly prefer the study of contract law to administrative law, but the Supreme Court is seldom called on to decide private law issues while public law cases form its bread and butter.

With the exception of a brief stint in private practice, Kagan has spent her entire career either in government or else in academia studying the processes of government regulation. She shows little academic or professional interest in business. This is important because while public regulation makes up the bulk of the Court’s docket, private businesses are overwhelmingly the target of that regulation. Everything in Kagan’s career, however, suggests that she is intellectually geared to look at the regulatory process from the government’s point of view. For example, in law school I had an advanced seminar on administrative law from Kagan. It was an interesting class, mainly focused on the competition between bureaucrats and political appointees. In our discussions businesses were always conceptualized as either passive objects of regulation or pernicious rent-seekers. Absent was a vision of private businesses as agents pursuing economic goals orthogonal to political considerations. We were certainly not invited to think about the regulatory process from the point of view of a private business for whom political and regulatory agendas represent a dead-weight cost.

At this point we can expect the obligatory dance around abortion rights and other hot button issues. We can expect a discussion of Kagan and the military. (I’ve got ideas for a post on the unfortunate disconnect between the culture of law schools and the culture of the military; stay tuned.) We can expect a rehash of the merits of umpires versus empathy. While discussing empathy, however, it’s worth thinking about the problems of a Court that is increasingly packed with justices who have had limited practical or intellectual engagement with the world of business.

At the heart of the criticism, it seems to me, is an assumption that the umpire analogy is meant to offer either a theory of law or a theory of adjudication. On this reading, Chief Justice Roberts was [...]]]> We’ve been treated of late to a fair amount of commentary on umpires and supreme court justices, most of it dismissive. Chief Justice Roberts’s remarks during his confirmation hearings about judges as umpires has been attacked in the pages of the New York Times by Geoffrey Stone, for example, as either naive or — more likely — dishonest. I’m not, however, convinced that the umpire analogy is the jurisprudential gaff that those among the con law chattering class have been making it out to be.

At the heart of the criticism, it seems to me, is an assumption that the umpire analogy is meant to offer either a theory of law or a theory of adjudication. On this reading, Chief Justice Roberts was claiming that law is like base ball, a simple, closed system of formally realizable rules. The role of a judge is simply to call the balls as he sees them. Such a view, his critics point out, is hopelessly naive. Law, perhaps especially constitutional law, is not like baseball. Its terms are frequently vague. It often consists of rules that are not formally realizable. Judges don’t passively call balls or strikes but are necessarily engaged in the creation of the law. John Roberts not being a stupid man, we must assume that he is either surprisingly mistaken or else being willfully deceptive. Or so runs the critique. I’m skeptical, however, that this is the best reading of the analogy.

My understanding of the umpire analogy is not that it is an account of law or judicial decision making. Rather, I think that the analogy is offered as a statement about judicial virtue. A virtuous judge is one who fairly applies the law. We can and will have strong and, I assume, good faith disagreements about what the law means and how it should be applied. The umpire analogy is not meant to resolve such disputes. It is not a gesture toward one approach rather than another. Rather, it is a gesture toward what a virtuous judge is like. An umpire may prefer the Red Soxs to the Yankees (most decent human beings do), but it would be bad form for him to act as a fan cheering when he called the third strike on a New York batter, even if the strike was properly called. The idea of the umpire doesn’t imply no preference about the outcome. It does, however, suggest that judicial virtue comes from establishing a distance from the disputes one resolves and an allegiance to following the law.

One might object to this characterization by saying that it is too banal to be meaningful. In a sense, I suspect that this is true. On the other hand, I do think that this notion suggests that one might be able classify some judges as bad judges not because they adhere to a mistaken theory of law, but because they lack certain habits and dispositions. Indeed, I suspect that many of the smartest and most interesting judges on the bench may actually perform fairly badly by the umpire measure of judicial virtue. One might also object that the umpire does not actually provide a good model of judicial virtue. The virtuous judges, one might argue, are not detached but passionately committed to justice. Fair enough. This is not an implausible theory of judicial virtue. Notice, however, that this is not ultimately an argument about the nature of law.

I realize that in the world of op-eds before a Supreme Court confirmation fight, it is probably too much to hope — even from academics — that writers will interpret the words of political opponents with charity and generosity. That said, noting that law is not really like baseball doesn’t strike me as particularly relevant in assessing the validity of the umpire analogy. It isn’t a theory of law.

Abstract: For a century, the general law of contracts has lost ground to specialized, transaction-specific bodies of law such as employment or labor law. Contracts scholars have generally lauded this development as an improvement over the formalistic rules of classical contract doctrine. This Essay takes a more ambivalent stance, arguing that legal specialization creates two dangers. First, specialized law [...]]]> For those who care about such things, I have a new paper up on SSRN entitled “Bargaining in the Shadow of God’s Law: Islamic Mahr Contracts and the Perils of Legal Specialization.” This one looks at the treatment of Islamic marriage contracts by American courts, and was written for Wake Forrest’s recent symposium on context and contract law. Enjoy! (The abstract is after the jump)

Abstract:
For a century, the general law of contracts has lost ground to specialized, transaction-specific bodies of law such as employment or labor law. Contracts scholars have generally lauded this development as an improvement over the formalistic rules of classical contract doctrine. This Essay takes a more ambivalent stance, arguing that legal specialization creates two dangers. First, specialized law necessarily rests on strong assumptions about how particular transactions unfold. The script implicit in the law, however, can encourage judges to misinterpret transactions that differ from that script. Second, when transactions differ from the implied narrative assumed by specialized law, the rules created by that law to deal with particular transactional forms may cease to serve a useful function, creating the danger of random, unjustified, or needlessly complex resolution of disputes. Both problems are on display in the application premarital agreement law to Islamic marriage contracts, which are increasing common in American courts. In this case, the law of premarital agreements is in part responsible for the courts’ consistent mischaracterization of Islamic marriage contracts as antenuptial agreements, which has potentially perverse consequences. Furthermore, because that specialized rules for premarital agreements were created for a different context, they allow parties to Islamic marriage contracts to escape liability where we have no reason to suppose that the contracts are otherwise suspect. Ironically, the much maligned general law of contracts provides better tools for policing abuse in such contracts than does the supposedly more nuanced law of premarital agreements.

How often do you read a news story in which some journalist or activist makes a claim that XYZ Corporation is extremely profitable because they recently had $253.7 million (or some other big number) in profits? Such numbers, of course, tell us exactly nothing about how profitable XYZ Corporation is. Sure, $253.7 million is a lot of money to me, but I have no idea if it is a lot of money in this context. Furthermore, without a bunch of other information there is no way that I [...]]]> This post is not a big deal, but I did want to vent briefly about one of my pet peeves: Citing raw profit numbers as evidence that some corporation is making huge profits.

How often do you read a news story in which some journalist or activist makes a claim that XYZ Corporation is extremely profitable because they recently had $253.7 million (or some other big number) in profits? Such numbers, of course, tell us exactly nothing about how profitable XYZ Corporation is. Sure, $253.7 million is a lot of money to me, but I have no idea if it is a lot of money in this context. Furthermore, without a bunch of other information there is no way that I can tell if $253.7 million is a lot of money. One possibility might be to site revenue statistics to me. For examples, if they had profits of $253.7 million on revenues of $10 billion this means that they had a profit margin of about 2.6 percent which is not much to write home about. On the other hand, profits of $253.7 million on a $1 billion in revenues suggests a profit margin of something like 25 percent, which is pretty profitable. Of course, even looking at profit margins isn’t as probative of profitability as one might assume. One still has to ask the question of how much capital is at issue. For example, if you get $253.7 million on $1 billion in revenues, you have a nice looking profit margin of 25 percent. On the other hand, if there is $25 billion in capital invested in the business, then we are looking at a return of something like 1 percent on the capital, which isn’t really all that impressive. Of course, even this number doesn’t fully capture stuff like risk or contingent liabilities. This is why I get testy when some politician or pundit cites some impressively large number and then opines about how very, very profitable business X is. The truth of the matter, I suspect, is that the pundits and politicians have no idea whether or not business X is profitable. Scarier still, they probably have no idea that they have no idea how profitable business X is. It really bugs me.

Okay, I feel better for having gotten that off my chest.

The Mormon Church’s involvement in agriculture is a legacy of the nineteenth century practice of Mormons paying tithing in kind to the church. [...]]]> I recently taught Sherwood v. Walker, the famous case involving a Michigan cow named Rose 2nd of Aberlone, as well as a number of other mistake cases in contracts dealing with cows. I’ve got bovine jurisprudence on the mind. It seems that the same is true for Eugene Volokh, who recently noted a case involving a “church owned cow.” The cow in question was owned by the Mormon Church and seems to have negligently collided with a motorcycle. In the interests of extending our jurisprudential understanding of cows, I can’t resist adding another twist to the church-owned cow story.

The Mormon Church’s involvement in agriculture is a legacy of the nineteenth century practice of Mormons paying tithing in kind to the church. As a result of this practice, in the nineteenth century, the church acquired large herds of cattle as well as other food stuffs. It then issued so-called “tithing scrip,” which was in effect private currency. The holder of scrip could redeem it for foodstuffs, including beef, at church storehouses. The scrip then circulated as money, in effect providing liquidity to the perpetually cash starved economies of the Intermountain West in the nineteenth century. Because the currency was in effect backed by cows, however, it was subject to some odd monetary pressures. For example, when a particularly harsh winter killed off a large proportion of the church’s cattle herds, it was forced to reduce the purchasing power of tithing scrip at church storehouses because there simply wasn’t as much beef available as previously. The result was price inflation as the value of the scrip declined.

As part of its efforts to raise revenue during the Civil War, the U.S. government passed a series of banking acts designed to decrease government borrowing costs. All nationally chartered banks were required to hold their reserves in the form of treasury bonds, and non-federally chartered institutions were hit with a heavy tax on the notes that they issued. The effect was to slap a punitive tax on any bank depositor who did not loan his or her savings to the U.S. government. During the 1880s federal prosecutors in Utah decided that the various scrip-issuing bodies of the Mormon church were subject to this tax, and demanded decades of back taxes, eventually killing off the scrip and replacing it with currency issued by federally chartered banks.

Taxes. Regulation. Inflation. Cows. Some things never change.

To the William and Mary Community:

The Faculty Assembly of the College of William and Mary strongly endorses the March 9 statement by President Taylor Reveley concerning the College’s nondiscrimination policies. We are deeply troubled by the Attorney General’s recent attempt to change these policies, particularly those banning discrimination based on sexual orientation. Non-discrimination policies flow from the fundamental principle of merit-based judgment that informs every aspect of the work of the Faculty.  This principle governs how we teach, how we appoint and promote, how [...]]]> A quick follow up on my post last week on the Virginia Attorney General’s claim that all anti-discrimination policies adopted by state schools that included sexual orientation were void (and the Governor’s repudiation of that position).   The William & Mary Faculty Assembly adopted the following statement in response to events:

To the William and Mary Community:

The Faculty Assembly of the College of William and Mary strongly endorses the March 9 statement by President Taylor Reveley concerning the College’s nondiscrimination policies. We are deeply troubled by the Attorney General’s recent attempt to change these policies, particularly those banning discrimination based on sexual orientation. Non-discrimination policies flow from the fundamental principle of merit-based judgment that informs every aspect of the work of the Faculty.  This principle governs how we teach, how we appoint and promote, how we conduct our research and scholarship, and how we evaluate each other’s contributions to the College and the wider community.  We are irrevocably committed to the ideal that these judgments must always be based upon the merits of the case, and that
they must reflect our integrity as a community of teachers and scholars.  We applaud Governor McDonnell’s recent Executive Directive which we understand as committing his administration to safeguarding similar merit-based principles in the Commonwealth.

The lack of a clear — and fully articulated — commitment to non-discrimination would erode our ability to attract the very best faculty, staff and students. Without such a commitment to a merit-based ethos, where individuals are evaluated on their work and accomplishments but no other personal characteristics, the College has no plausible claim to being a leader among American institutions of higher education.

The Faculty Assembly

This Article considers the legal implications of perhaps the most important disaster myth: the myth that natural disasters produce widespread looting and violence. The Article examines a number of unfortunate legal consequences of the myth, including deployment of military troops in a law enforcement, rather than humanitarian, capacity; distortion of response priorities outlined in disaster plans; and imposition of restrictions on freedom of movement [...]]]> Awhile back we had a guest post from Lisa Grow Sun (BYU) on the various myths surrounding disasters and the challenges that they pose for policy makers who are grappling with events such as we’re seeing in Haiti and Chile.  For those who are interested, Lisa has now put her most recent paper on the topic up on SSRN.  Here’s the abstract

This Article considers the legal implications of perhaps the most important disaster myth: the myth that natural disasters produce widespread looting and violence. The Article examines a number of unfortunate legal consequences of the myth, including deployment of military troops in a law enforcement, rather than humanitarian, capacity; distortion of response priorities outlined in disaster plans; and imposition of restrictions on freedom of movement and other basic rights. Ultimately, the Article concludes that the deleterious effects of the myth on our disaster laws can best be countered by constraining official discretion to overemphasize security risks in immediate response decisions, rejecting calls to pass broad looting laws that can reflect and perpetuate the myth, and reforming the structure of federal disaster agencies by removing the Federal Emergency Management Agency from the Department of Homeland Security and reestablishing it as a cabinet-level agency.

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