September 30, 2012

Modern Progressivism

I often use the term "progressivism" to describe what the majority of conservatives term (capital "L") "Liberalism." But what is progressivism generally, and what are the aspects of the brand of progressivism with we find ourselves confronted in much of the Senate and in the President? The purpose of this article is to outline some of those traits, and hopefully provide some food for thought.

I will begin at the end, towards a working definition of "progressivism". Here, the definition provided by Michael Frederici in the ISI Web Journal "First Principles" may be helpful:
Progressivism is an ideology based on the idea that historical and social progress are inevitable. The idea of progress assumes movement toward some ideal or end that usually includes the perfectibility of human nature and human society. Progressives conceive of this end in various ways: history may culminate in an era of absolute freedom, social and economic equality, or some form of utopia. Given the predilection to progress, the past is viewed as an inferior state of existence with various afflictions that wither away over time. While some progressives consider progress inevitable, others believe that political, economic, and social reforms are necessary to achieve it.
It is worthwhile to note that some progressive legislative goals - assistance to the poor, a social safety net for disasters, education for all, seem worthy in and of themselves. And, interestingly, philosophers known to be more conservative or libertarian in their views (Hayek, for instance) themselves advocated for social safety nets, to assist those in desperate straits. So what makes progressivism different than, say, justice-oriented Catholics? I believe that it is the teleology - the purpose or end - of the current progressives that makes them different. The same Frederici article cites the American Herbert Croly, who wrote in 1909 that:

Democracy must stand or fall on a platform of possible human perfectibility. If human nature cannot be improved by institutions, democracy is at best a more than usually safe form of political organization. . . . But if it is to work better as well as merely longer, it must have some leavening effect on human nature; and the sincere democrat is obliged to assume the power of the leaven.
So, in short, the progressive seeks to use institutional power to improve humanity. The question naturally arises - how should human nature be perfected and by what mechanism? I believe the answer lies in the egalitarian aspect of modern progressivism.

Egalitarianism, which appears in various forms in society. The Stanford Encyclopedia of Philosophy ("SEP") suggests three different forms: "intrinsic, instrumental and constitutive." With that said, although the definitions are not quite so clear cut in practice, the first one that concerns me is the definition of intrinsic egalitarianism. Again working with the SEP:
Intrinsic egalitarians view equality as an intrinsic good in itself. As pure egalitarians, they are concerned solely with equality, most of them with equality of social circumstances, according to which it is intrinsically bad if some people are worse off than others through no fault of their own.
Given the things I have read and (especially) justifications for passing certain laws, I believe that this intrinsic type is often co-existent with instrumental, about which the (ever handy) SEP notes:
For those who are worse off, unequal circumstances often mean considerable (relative) disadvantages and many (absolute) evils; and as a rule these (relative) disadvantages and (absolute) evils are the source for our moral condemnation of unequal circumstances. But this does not mean that inequality as such is an evil. Hence, the argument goes, fundamental moral ideals other than equality stand behind our aspiring for equality. When we are against inequality on such grounds, we are for equality either as a byproduct or as a means and not as a goal or intrinsic value. In its treatment of equality as a derived virtue, the sort of egalitarianism — if the term is actually suitable — here at play is instrumental.
 So, the difference between the two is succinctly stated as: for the intrinsic egalitarian, equality (especially of social circumstance) is a goal in and of itself; for the instrumental egalitarian, inequality is the cause of other social problems, and so amelioration of those problems is the reason for seeking greater equality.

Again, I think these two are often blended. For instance, one could be an intrinsic egalitarian concerning "gay" marriage (absolute equality is required, thus requiring the state to recognize any definition of marriage), and an instrumental egalitarian concerning progressive taxation, believing it is necessary to help the poorest in society survive, with the reduction in inequality of income a byproduct of that effort. I should also note that advocates of these egalitarian position likely do not go about defining themselves as "instrumental" or anything of the sort. Therefore, the egalitarian progressive seeks equality, either in and of itself, or towards the end of amelioration of societal ills.

I think it would also be hard to escape the aspect of modern progressivism that holds that ethics in politics is about, in John Haldane's words, "promoting or respecting the good of persons, where that good is understood as consisting in the satisfaction of considered preferences....Human beings are subjects of consciousness residing in the extended bodies that also serve as instruments for the production of gratifying experiences." Haldane calls this philosophy "hedonistic consequentialism". Therefore, if it seems like much of the focus of the modern progressive is on consequence-free sex (maximum happiness, minimum worry), you've not missed the program, but are rather quite on target. This gives the teleology of much of modern progressivism I suspect - the idea that laws ought to be formulated in such a way so as to ensure that  all people are equal in their ability to enjoy gratifying experiences. For instance, contraception at tax payer expense ensures that the poor as much as the wealthy are able to enjoy sex without natural consequences.

These are some of the aspects of progressivism which I find particularly expressed in the movement as we find it in the 21st Century. I will likely base some future posts on the ideas set forth herein, as the progressive movement, finding itself on the ascendancy for the moment, has all but cast off a camouflage of Christian Humanism upon which it relied in previous years, and is now nakedly pursuing the goals of hedonistic consequentialism. Thus, a fertile field for blogging.

September 30, 2012

Culture, Statecraft, and Obama's Middle East Failure - AT (Miller)

Your Universal Service Fee at Work - AT (Smith)

The Shady Ethics of ‘The Obama Phone’ - Patheos (Timothy Dalrymple)

Why I'm a Christian Conservative (A Reply to Angry Libertarians) - AT (Egerer)

Beauty Won't Save the World Alone - TIC (Caldecott)

How did Elizabeth Warren go from “not eligible” to “inactive” in Texas? (Update – As of 9/21/2012, Warren’s Texas license was on Administrative Suspension?) - Legal Insurrection (Jacobson)

The Pulverizing Macadamizing Tendency of Modern History - TIC (Kirk)

WAPO Attacks: Benghazigate? - Via Meadia

IT AIN’T NECESSARILY SO - The New Yorker (Gottlieb)

Always Ready With a Barb - NYT (Kino)

Does economic growth make you happy? - TLS (Skidelsky)

New Creditor Challenge to the GM Bankruptcy - Volokh (Zywicki)

A Perfect Description of Modern Socialism - TAC  (McClarey)

Sacrilege is Sometimes Hard To Spot - Via Meadia

Who are the "one in three?" - NCR (Fisher)

September 29, 2012

September 29, 2012

The $10K Degree Comes to Texas - Via Meadia

Young People Ditching Grad School - Via Meadia

More on Amish Beard-Cutting - The Originalism Blog (Ramsey)

“When You Trivialise the Founding Acts of a Religion, When You Touch on Sacred Things,” - Volokh (Volokh)

Postal Service Slides Again; Congress Silent - Via Meadia

Wind Energy Set for 95 Percent Drop? - Via Meadia

Recess Appointments Case Gets More Firepower - Originalism Blog (Ramsey)

Startups Threaten Visa and Mastercard - Via Meadia

Environmentalism That Can Work - Via Meadia

The attitude cultivated in America under one term of President Obama - LI (Jacoutot)

Iran Govt News Agency Publishes Onion Poll as Fact - Via Meadia

Surrender in New York - Legal Insurrection (Engel)

Barack Obama's Terrorist Attack Cover-Up - AT (Goss)

Edmund Burke and the Politics of Empire - TIC (Byrne)


A Fundamental Threat to American Democracy - TAC (McClarey)

French Austerity: Tax More, Spend More - Via Meadia

The Pragmatic and the Evidential: Is It Ever Rational to Believe Beyond the Evidence? - Maverick Philosopher

The Selfishness of Homeschooling - TAC (Frech)

Abortion at the Democratic Convention and at the Upcoming Debates - MoJ (Breen)

MTA changes ad rules and rewards Eltahawy stunt - LI (Sorock)

The Delaware Legislature Needs a Good Spanking - TAC (Tawney)

September 27, 2012

September 27, 2012

Elizabeth Warren represented Massachusetts client in Massachusetts - Legal Insurrection (Jacobson)

Can the Democratic Psyops Boost Obama? - AT (McQuillan)

Recession Here We Come - TAC (McClarey)

HECKLER’S VETO - Midwest Conservative Journal

Obama's Sequestration: Imperiling Us at Home and Weakening Us Abroad - AT (Cooper)

The Sure Cure for Voter Fraud - AT (Walker)

Understanding Romneycare - AT (McIsaac)

Clement of Alexandria: The Virtue of Liberal Learning - TIC (Woods)

If Men Don't Have a Right to Oppose Abortion… - Jennifer Fulwiler

No, the Officer Doesn’t Have to Announce the Offense When He Makes An Arrest - Volokh (Kerr)

Men Deserve the Chance to Speak Out on Abortion, Too - Live Action News (Fiano)


Stupid Meme: Libertarianism & “Gay Marriage” - TAC (Bonchamps)

Coming Crisis to Make Japan’s Lost Decade Look Like a Cake Walk - Via Meadia

High Schools Joining Higher Ed in Online Revolution - Via Meadia

Elizabeth Warren listed Cambridge as “primary practice location” with Texas Bar - LI (Jacobson)

Lemmings, Unite! Be True to Yourself? - Public Discourse (Esolen)

MSM Tipping Point On Obama in the Middle East? - Via Meadia

Free the Amish Beard-Cutters - The Originalism Blog (Ramsey)

No Fun Intended - LI (Engel)

China Launches Useless Aircraft Carrier with Much Fanfare - Via Meadia

No, Mass. Board of Bar Overseers has not exonerated Elizabeth Warren - LI (Jacobson)

"Shut Up And Sing" Might Be Funny. "Shut Up And Submit to the Police" Isn't. - Popehat (Ken)

Millenials Learning to Save - Via Meadia

September 22, 2012

The President and Separation of Powers

I begin this post with a disclaimer: while I am generally concerned about economic issues in this country, my greatest concerns in regards to the upcoming election revolve more around problems of abuse of political power and the likelihood (or lack thereof) that these will change in any way with the next election, regardless of the victor. I suppose that this makes me pessimistic (or as a friend says, realistic), but the hope I see of any short-term relief from a Romney / Ryan victory in terms of expansion (and abuse) of federal power is tempered by the performance of both men in their political careers.

As a modern Federalist and one who believes in strict separation of powers, I view with some alarm the steps taken by the current President, with or without collusion of Congress, to increase Executive branch power. The examples of such actions are legion - the refusal to enforce the Defense of Marriage Act, re-ordering payments to creditors when assuming control of GM and Chrysler, such that unsecure debtors were paid first (see, e.g., The Freeman article here), contrary to bankruptcy law, gaining (accepting!) the power to detain United States citizens without trial (see, e.g., here), expansion of the branch through passage of "Obamacare", and warring in Libya without any sort of authorization from Congress. These are just a few of the ways that this President has expanded the power of the Executive branch, both constitutionally and unconstitutionally.

However, while cries concerning the economy are loud, and this may yet be this President's undoing, few people, it seems, of any class, are truly concerned about the expansion of federal power. I believe that there are several causes for this. Certainly, lack of civic education and lack of media reporting or discussion of these issues are among them. But, I believe that a far greater cause is that the citizenry, for the most part, do not care that the President's power is so greatly increased - they only care whether the President is advocating for the ideas they find most important - such as pushing for Congress to pass bills to increase health care for the poor or expand military spending or save the environment. Questioning whether the President should have certain powers, or does exercise unconstitutional powers, is rarely discussed, and then only to dismiss such considerations as "radical" in some manner.

In looking at Mitt Romney, here is a man who presided over a massive expansion of government-provided health care in Massachusetts (increasing coverage but massively increasing costs as well). Rumor has it that the federal health-care plan is based substantially on the Massachusetts plan. In regards to Paul Ryan, he voted for the NDAA (see "infinite detention", as discussed above), stating "This bill affirms the military’s ability to lawfully detain individuals who are engaged in armed conflict with the United States and establishes new requirements for military custody in cases where foreign terrorists are caught in a plot to attack the United States" and noting that it was not the case that bill allowed detention of American citizens at the President's whim. That interpretation is up in the air (see, e.g., Volokh's Anderson).

However, more than their previous actions, Romney and Ryan have fully employed vocabulary that indicates comfort with roles as superlegislators - as proponents for major legislations and executive action, as executive "bullies", so to speak, who see themselves charged with making Congress act. The number of speeches promising to cut government spending, reduce the size of government, "fix" the economy - all things  committed to the Legislative branch, to those charged with making (or unmaking) laws. For instance, during his convention speech, Romney attacked Pres. Obama in many ways, but had this to say: "His $716 billion cut to Medicare to finance Obamacare will hurt today's seniors and depress innovation in jobs and medicines.  And his trillion dollar deficits, they slow our economy, restrain employment, and cause wages to stall." Congress ought to share in the blame, as Congress is responsible for all of these problems. Pres. Obama, despite being a cheerleader, has no power to cause or overturn legislation creating these problems.

Romney then gives me little hope that he intends any greater constitutional restrain than Pres. Obama. He followed up the previous statement concerning Pres. Obama with the comments such as:

"[W]e will give our fellow citizens the skills they need for the jobs of today and the careers of tomorrow.  When it comes to the school your child will attend, every parent should have a choice, and every child should have a chance.

[And] to assure every entrepreneur and every job creator that their investments in America will not vanish, as
have those in Greece.  We will cut the deficit and put America on track to a balanced budget."

These claims from among many others in which a President (or government generally) has no business. Certainly, things Romney said in his speech are true, good, and accurate. But, few constitutionally committed to the Executive. The President must face tremendous temptation to act first, then check for constitutionality of his actions later (see: DOMA). Once, however, Presidents are permitted to begin acting as legislators, and are encouraged to do so by the citizenry, Congress is superfluous and checks and balances are unnecessary, as the President will no longer be one branch, but two, or perhaps, three.

September 22, 2012

Wind Power: Still Buffeted by Free Market Forces - Via Meadia

Cherokee genealogist to Elizabeth Warren: “Your Native American issue has not been put to rest” - Legal Insurrection (Jacobson)

Afghan Surge Ends: Not with a Bang but a Whimper - Via Meadia

Live-blogging from Georgetown - MoJ (Vischer)

Failed Health Care Reforms Drive Massive Cost Increases - Via Meadia

Reader Mailbag: Taking History Seriously - Via Meadia

Another Spectacular Green Failure - Via Meadia

Why I'm Not a Libertarian - AT (Egerer)

Where's the Leadership on Social Security? - AT (Siggins)

No Apologies Needed, Mitt - TIC (Buchanan)

Onshoring Gains Momentum - Via Meadia

Moral Relativism, R.I.P. - The American Spectator (Rittelmeyer)

September 16, 2012

Tolkien and Law

Dear Readers,

    I have posted a working paper of mine, Tolkien and Law, on the Social Science Research Network. The paper is available for download and review, and I welcome commentary!

The opening paragraph:

In January of 2009, I engaged in an email conversation with Dr. Alison Milbank, who had written a book entitled, “Chesterton and Tolkien as Theologians.” The purpose of my email was to inquire if she had any inkling (pun intended) as to whether Tolkien had any connection to St. Thomas Aquinas. I had previously read, in an entry on Aquinas in the work “J.R.R. Tolkien Encyclopedia - Scholarship and Critical Assessment," by Prof. Michael D.C. Drout that, “Though the name of Thomas Aquinas never appears in any of Tolkien's published writings or letters, it would be impossible for a Roman Catholic of his generation not to have been influenced by Thomism." While I suspected this was true, I hoped Dr. Milbank had run across something more substantial. Surely enough, she indicated that St. Philip’s bookstore in Oxford had for sale a copy of the Summa that had belonged to Prof. Tolkien, and containing Anglo-Saxon booklists, as well as handwritten notations by him. Dr. Milbank was able to review that copy in preparation for her book, but did not purchase it due to the high asking price. - (continued...)

September 16, 2012 (Second Edition)

Obama leads from behind as violence in Middle East escalates - Legal Insurrection (Sorock)

Justice Department Appeals Injunction of Indefinite Detention Law - FedSocBlog (Publius)

Daniel Yergin on the Energy Revolution - Via Meadia

Obama abandons Chicago teachers just like he did Wisconsin’s public unions - Legal Insurrection (Sorock)

Genealogy of Auto Companies - History Shots (Gormley)

What Really Matters - Center for Law and Religion Forum (Movsesian)

September 16, 2012

Barack Obama is Unfit to be President - TAC (McClarey)

Who’s afraid of the Arab Street? Part 2 - Legal Insurrection (Jacobson)

Why Not To Emulate China - Via Meadia

Obama shoots the First Amendment, aims later - Legal Insurrection (Engel)

Why Punishing Blasphemous Speech That Triggers Murderous Reactions Would Likely Lead to More Deaths - Volokh (Volokh)

Who Killed the Liberal Arts? - TIC (Epstein)

The Arab Spring and the Video Riots - Volokh (Somin)

The Middle East Mess Part One: Over There - Via Meadia

Wal-Mart Coming to India? - Via Meadia

A Silver Lining in Hard Times - Via Meadia

Woe unto the Church, for It Will Be Taxed - Via Meadia

Federalist Society Announces New Book Apropos of Constitution Day - FedSoc Blog (Publius)

Your Name In Lights - Volokh (Elwood)

Appeasement and Blowback - AT (Donovan)

It's Not Bush's Fault - AT (Voth)

Going 'Backward' - AT (Bokor)

The White House and Press Create a Fairy Tale Version of History - AT (Feldman)

Rider of the Spaceways - TIC (Caldecott)

Just Say No to Terrorism - Volokh (Somin)

Governments Neither Create Wealth nor Effectively Redistribute It - TIC (Gilder)

September 13, 2012

September 13, 2012 (PM Edition)

Prof. Peter Spiro on Why “Hate Speech” Should Be “Ban[ned]” in the U.S. — and on How It Might Be Done, Using International Law - Volokh (Volokh)

Lack of Intelligence Community - Legal Insurrection (Engel)

Middle East a Tinderbox, American Leadership Absent - AT (Kahlili)

Is the Taliban Ready to Give Up? - Via Meadia

Wa Po Turns on the Volt - Volokh (Zywicki)

More Drama for Obama - Via Meadia

New Obamacare Challenge: The Origination Clause - Volokh (Barnett)

Chicago strike stalls over accountability and laid-off teachers - Legal Insurrection (Sorock)

Big Shocker: Greece Needs Another Bailout - Via Meadia

Ebola Spreads: Did That Guy on the Plane Next To You Cough? - Via Meadia

Revealed: inside story of US envoy's assassination - The Independent (UK)

City, Empire, Church, Nation - City Journal (Pierre Manent)

The State Gambling Addiction - City Journal (Malanga)

Apple and Cooperation

      Recently, I read of allegations made by a Chinese human-rights activist that quite a few Apple Computer factories in China have been conducting pregnancy testing on employees to assist the Chinese government in enforcing the one-child policy. Members of my family have iPhones, and I had been considering one. Now, I plan to wait on the idea until I see how Apple handles this allegation, and what steps it takes (if any) to halt the practice, or even pull out of China. I do not have much faith that the company will do anything, or that it cares - apparently, it ordered that such practices be stopped in 2006, but they were continuing as of 2012.

      The question naturally arises, it seems to me, as to what is to be done if one is an individual considering buying an Apple product? Fortunately, while the moral judgment may be difficult, at the subjective level, moral philosophy provides some considerations when one is faced with a decision such as "May I buy an iPhone, and if I do, how deeply am I implicated (if at all) in the decisions made by Apple in regards to pregnancy testing?"

      I start with the question of abortion and specifically, forced abortion. I believe that abortion - the deliberate, targeted, taking of an innocent human life - is intrinsically evil. While this may be difficult even for some conservatives and libertarians, I would ask whether you consider the question of forced abortion, against a woman's will, an intrinsic evil as I do. I would hope that very few readers of this blog would dispute that forced abortion is an intrinsic evil. Therefore, I proceed with the assumption that forced abortion is an intrinsic evil, in one, if not more than one, way.

      First, I start with the question of Apple itself. Let us say that Apple is at least ignoring (if not knowingly co-operating in) the process of forced abortions, via assisting or allowing testing. This is an open question at the moment, but taking it as a hypothetical, this would mean that Apple is acting as an agent that assists in the Chinese government in forcing women to have abortions. Using the language of causation and cooperation, this means that Apple is "formally cooperating" in forced abortion. To borrow from a bioethicist:

Formal cooperation is a willing participation on the part of the cooperative agent in the sinful act of the principal agent. This formal cooperation can either be explicit (''Yes, I'm happy to drive the getaway car because I want to be an accomplice'') or implicit. ''Implicit formal cooperation is attributed when, even though the cooperator denies intending the wrongdoer's object, no other explanation can distinguish the cooperator's object from the wrongdoer's object'' - National Catholics Bioethics Center, Formal and Material Cooperation, Ethics & Medics, June 1995 (reprinted here).

(I realize here that there a distinction ought to be made between "sinful" act and "evil" act, but I believe that the language in use provides a general framework for individual consideration, and that the distinction is unimportant when the individual in question is considering whether to purchase an Apple product or not.)

      However, if one is purchasing an Apple product, which for the purposes of this hypothetical, is made in China, and one has no way of knowing whether the factory in question is one engaging in assisting with pregnancy testing, one may be engaged in a species of cooperation. This may be what is called mediate material cooperation, which has been defined as:

[C]oncurring in the sinful act of another but not in such a way that one actually places the act with the other or concurs in the evil intention of the other but by doing something which is good or indifferent in itself, that action supplies an occasion of sin to another or supplies assistance, means or preparation. Fr. Edward J. Richard, Principles of Cooperation.

      Now, it is evident that the immediate purchase of (for instance) an iPhone, all other things being equal, is a neutral act - if the immediate purpose is benign (to be able to communicate via cell phone), the act itself takes on no immediate moral implications. However, under principles of mediate material cooperation, if one approaches the purchase with the awareness that the purchase will provide some means for the company in question to continue operating factories in China, then one is faced with the question of the principle of double effect as to whether one may consummate the purchase.

      That principle is debated hotly in philosopy, but versions of it state that one may perform an act that has a known evil side effect, but only if:

(version 1 - Wikipedia, citing T. A. Cavanaugh, Double-Effect Reasoning: Doing Good and Avoiding Evil, p.36, Oxford: Clarendon Press)
  1. That the action in itself from its very object be good or at least indifferent;
  2. That the good effect and not the evil effect be intended;
  3. That the good effect be not produced by means of the evil effect;
  4. That there be a proportionately grave reason for permitting the evil effect.

(version 2 - Stanford Encyclopedia of Philosophy - Doctrine of Double Effect)
  1. That the action in itself from its very object be good or at least indifferent;
  2. That the good effect and not the evil effect be intended;
  3. That the good effect be not produced by means of the evil effect;
  4. That there be a proportionately grave reason for permitting the evil effect
      As noted above, the action of purchasing an iPhone is good, for most purposes, in and of itself, or at least indifferent (provided that one is not purchasing the device because one wishes to assist in getting more forced abortions in China). Presumably, therefore, the good effect is the intended one. So far, so good. However, the third and forth criteria above produce difficulties. The good effect, that of purchasing and communicating on an iPhone, is assisted in some measure both during the production of the device and by the money paid for the device. Finally, I am not sure that there is any proportionately grave reason for permitting the evil effect in general. If there were no other means of communication (which, in this case, there are plenty of competitors for Apple products that may not have the same production problems), or one were required to have an iPhone to maintain one's job (and thus provide for one's family), then one might have a grave reason. However, for many, and especially in the case of other Apple products which are not necessities in any sense, the possibility of material cooperation in evil is great.

      I do not deal with here the question of whether one currently using an Apple product, who purchased it before being aware of Apple's potential cooperation with forced abortion, may continue to do so. I suspect the answer is "yes", but that is without performing a similar analysis on that question. With that said, those of us who find this argument compelling should both avoid purchasing Apple products and discuss the matter among others whom we know, so that perhaps even Apple will take notice and other good will result. 

September 13, 2012

Eleven Items of Infamy - The Constructive Curmudgeon

From Huxley to Orwell - The Constructive Curmudgeon

Clinton Makes Right Call on Tweet Debacle - Via Meadia

Hobby Lobby Sue[s] over HHS contraception mandate - MoJ (Scaperlanda)

D.C. Orders Bar to Stop Offering “Marion Berry’s Dirty Asian Summer Punch” - Volokh (Volokh)

 Montana Supreme Court: No Constitutional Right to Medical Marijuana - FedSoc Blog (Publius)

Is College a Lousy Investment? - Maverick Philosopher

Iran Has Obama in a Headlock - AT (Lewis)

Music of the Republic - TIC (Nelson)

The Natural Map of the Middle East - TIC (Buchanan)

The NLRB and Religious Freedom - MoJ (Moreland)

Poverty, Abortion, and Budgets: Democrats for Life Need Better Arguments - Public Discourse (Fragoso)

A Worm in the Apple - AT (Blackwell)

Once Again, Pro-Life Democrats Fail to Persuade - NRO (New)

Equally Hammered: Everybody Winning the Race To The Bottom - Via Meadia

Is College a Lousy Investment? - The Daily Beast (McArdle)

Free Speech For Me, But Not For Thee - TAC (McClarey)

Springtime for Arab Mobs - AT (Smith)

Obama in the Buff - AT (Folks)

What's Strangling Job-Creation - AT (Hoven)

Obama versus Clinton - AT (Arsers)

September 10, 2012

September 10, 2012

Work, If You Can Find It - Liberty Law Blog (Greve)

Time to Ask Obama about His Social Security Number - AT (Cashill)

Father Barron Reviews For Greater Glory - TAC (McClarey)

Un-Spinning Jobs Numbers - AT (Hoven)

NLRB Goes Back to the ‘80s To Justify A Union-Notice Rule - Liberty Law Blog (Agarwal)

Russell Kirk and the Anamnesis of the West - TIC (Birzer)

Chicago Teachers Union strikes, publishes Gloria Steinem endorsement - Legal Insurrection (Sorock)

The Democratic Party's Polarizing Convention - AT (Crouse)

Our Immature President - AT (Nagasaki)

Barack Obama's Running Mate: A Proven Liar, Coward, and Bully - AT (Levinson)

Why California’s Three-Parent Law Was Inevitable - Public Discourse (Morse)

The Liberal Arts and the Christian Life: Why There Is Still Hope - Musings of a Christian Humanist

Noise vs. Knowledge: America’s Longest Presidential Campaign - Via Meadia

RI Democrat Touches Pension Reform Third Rail…and Lives! - Via Meadia

“Lead or Leave Euro”, Soros Tells Germany- Via Meadia

On The Cusp of Another Energy Revolution? - Via Meadoa

Obama Picked Up: What’s Wrong With This Picture? - TAC (Trasancos)

Trying to Fight the System from Within - Volokh (Volokh)

Larry Solum on the Countermajoritarian Difficulty - Volokh (Somin)

A Congress for the Many, or the Few? - NYT (Bernstein)

Spinoza in Shtreimels: An Underground Seminar - Jewish Review of Books (Fraenkel)

September 6, 2012

September 6, 2012

Abortion, More Abortion, Yet More Abortion - TAC (McClarey)

Unions, Democrats Gut California Pension Reform - Via Meadia

We should tune in to the Romney and Ryan show - The Telegraph (Daley)

The Surrogate Uterus: Baby M and the Bioethics Commission Report - Public Discourse (Cassidy)

America’s Crisis of Political Legitimacy - TIC (DeLong)

Uncanny Tales of the Moral Imagination - TIC (Pournelle)

The Takings Clause and Government Destruction of Homeless Persons’ Property - Volokh (Somin)

“Government Is the Only Thing that We All Belong To” - Liberty Law Blog (Samuelson)

Tyler Cowen Does a MOOC - Via Meadia

Being Civil in Mean Times - Musings of a Christian Humanist

Cameron Steers UK to the Right - Via Meadia

Reflections on Family Law

Note: I do not reveal any client information in the following paragraphs. This is a fictional episode in its entirety, relating general attitudes of the current middle-class culture.

The middle-aged client, carrying a torrid novel, gasped when I revealed that, in reviewing the trial court's judgment, there was no issue to appeal. "So, they're just going to get away with it?" "Get away with what?" I asked, noting that the child, while having increased behavioral issues when with the other parent, was hardly acting out of the norm, and had not been abused in any way. "Such small changes", I added, "would hardly justify a change in custody or need to show something serious to a judge in order to have a custody order change." "Well", came the reply with a sob, "I will just have to keep trying."

This vignette, I suspect, would be familiar to many a practitioner of family law. The sobbing or angry client, dealing with the effects of ordered minimum visitation, angry at the legal system for failing to correct what they see as some form of injustice, especially when they feel controlled or manipulated by the other parent.

I often wonder at the root of these feelings. I suspect that in some part, my clients are affected by the natural sense of disorder resulting from dealing with a divorce or out-of-wedlock birth. That is, the individual has some sense that something is wrong, but lack any faculty to attribute it, so the confusion and anger becomes free floating. Deep down I suspect that most of these people are aware of their own fault in creating the situation, but that is far too difficult to acknowledge, and so it become attributed to the other parent.

In such cases, the law too often becomes a tool which the damaged individuals (for it is often both parents who are psychologically impaired by the former relationship) seek to control or lash out at the other individual. Accusations of relationship rape, adultery, drug use, and domestic violence are legion, and (especially when dealing with a pro se party or a rapacious lawyer), too often discussed on the basis of flimsy evidence - used as "mud flinging". And so protective orders are issued, no-contact orders are entered, custodies are changed, and parties become willing to lie to try and get their way with their children.

Rather interestingly, the possessive pronouns used reveal quite easily how parties feel. A client will refer to what the other is doing to "my son" or "my daughter", when the pronoun "our" would be more correct. What I suspect is at the root of this is the refusal to accept a continued relationship with the other person, a requirement of frank acknowledgement would be to the person who is (knowingly or unknowingly) mourning the end of the time with the other person that produced the child.

I often wonder about the Catholic Church's insistence on the procreative and unitive aspects of sexual relations, and how it plays not not just mystically, but emotionally and physically. As I have mused above, the damaged client often seeks to use the law not just to protect the child or children, but to "get at" the other person in some way. It's almost as if the individual blames the other for their unmarried state with children and all of the additional work and expense involved, which (with the limited exception of rape or true abandonment) is almost always a shared fault.

This affects the lawyer in a few ways. One is that lawyers become jaded about anything reported by a client purporting to cast the other as some sort of monster, as such things may play out to be lies or exaggerations, and lawyers find it much more difficult to believe their clients. Moreover, with the widespread advent of emotionally "venting", the report from the client that  "I saw [insert bad thing here] on Facebook" something about the other becomes an instant red-flag of problems for the lawyer. Another negative effect is that good lawyers, who are aware of their clients' own problems, and aware of the weakness and difficulties of their own cases, are blamed for "not making a strong case", for failing to get the change of custody, or are fired for not being enough of a "bulldog". And so, good lawyers rapidly flee family law, sick of the accusations, the emotional treacle (see here: Death by Treacle) and the inability to get clients to compromise.