Why We Need Litigation

Wake County has changed my caseload. Before moving, I almost never litigated for or against homeowners' associations. I now have a number of ongoing cases on both sides of HOA disputes. Anyone who has been to Wake County will know why: HOAs are everywhere here.
In 1998, North Carolina enacted Chapter 47F of the General Statutes to regulate HOAs. 47F controls the powers of a HOA, what records a HOA must release, what a HOA's bylaws and declaration must include, and several other important aspects of HOAs. 47F has been law for nearly 20 years. But there is almost no case law interpreting 47F.
This is alarming.

Because of our British origins, the American legal system is a common law system. This means our law is primarily interpreted by the decisions of our courts. A plaintiff sues a defendant over a law, a court decides the case, and the court's decision becomes part of our law. Every other court has to follow that court's decision, unless the decision is overturned by the same court or a higher court. Cases, therefore, a very important to our legal system. If we don't have cases, we only have statutes and (slightly) educated guesses about what the statutes mean.
So reading 47F and see little to no cases troubles me. It means that when I read that a HOA can start or intervene in litigation or administrative decisions "affecting" the HOA, I want to ask all sorts of questions. How close does the relationship have to be? Does the HOA have to be directly affected? What if the case would, in the aggregate, affect the HOA? What if two homeowners sue each other and the HOA wants to get involved? I can guess at the answers to these questions, but I don't know the answers to these questions.
And that's why we need more litigation, not less.

Our legal system depends on cases. Cases make our law. Without cases in public courts with public decisions, our law stays ambiguous. Our law cannot progress without cases.
Since the 1980s, our federal courts have encouraged arbitration (hiring a private party to judge your case outside of court). Since 1991, North Carolina has required mediation (hiring a private party to help you settle your case) in at least some cases. Arbitration and mediation have only grown since then. If you have an Apple or Google phone, a Windows PC, or an Amazon account, you are almost certainly in at least one contract requiring arbitration. Proponents of mediation and arbitration argue they save time and, hopefully, money. As the NC Administrative Office of the Courts puts it: "The [mediation] program was charged with facilitating the settlement of superior court civil actions and with making civil litigation more economical, efficient, and satisfactory to litigants and the public." What's wrong with letting folks resolve cases quicker, cheaper, and on their own terms?
Not going to court means we don't have any case law. Arbitration decisions aren't binding on future courts or arbitrators. Mediators never even come to a binding decision. So our law cannot progress. Going to trial make be expensive and slow, but arbitration and mediation aren't the solution. Increased arbitration and mediation hands our common law system over to unelected, unaccountable panels of experts with no responsibility to follow their own decisions. It makes our common law system and civil law system.
The common law has proven itself to be one of the most (if not the most) enduring legal systems of all time. The common law has given us our rights and privileges. If we want to keep our common law, we must have cases. To do that, we must turn from arbitration and mediation and to trying cases. We may (almost certinaly do) need to expedite our legal process, but that's not a reason to abandon our litigation. Our law is at stake and we must defend it.

On the Shooting of Representative Scalise

Violence is human. Politics is the art of rightly ordering of humans. Therefore, violence must address politics and politics must address violence.
We have all experienced violence. Consuming goods extracted through violent means is violence. Ignoring the persecution of others is violence. Manipulation, economic, psychological, physical, is violence. Honesty compels us to admit we have all been victims and perpetrators, directly or indirectly, of violence.
Violence is one reason we have government. A functional government protects against direct acts of violence and mitigates indirect acts of violence.
Failing to prevent violence is a fundamental failure for government. Citizens must always be concerns when their government fails to prevent violence or--worse still--foments or condones violence.

When the United States was falling apart President Abraham Lincoln made one of the bravest assertions of this duty to mitigate violence:

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

In the midst of a war that split the nation asunder along political and moral lines, Lincoln chose not to vilify his enemies. He chose not to condemn or caricature those he was literally at war with. Rather, he extended charity towards all. Even when radical abolitionists called for punishment, Lincoln called for the nation to bind up its wounds.
Yes, Lincoln was party to the bloodiest war the United States has ever been involved in. Yes, the ethics of war are complex. My focus is not Lincoln's prosecution of that war or the larger ethics of war; my focus is the climate that created the Civil War and the climate the Civil War created.
The antebellum United States was divided bitterly and violently. Preston Brooks caned Charles Sumner near to death on the Senate floor. Violent anarchy ruled Kansas until the state could adopt a pro or anti slavery constitution. John Brown raided a federal military installation. If you were an abolitionist, slaveholders were miniature despots trading in and oppressing human souls. If you were a slaveholder, abolitionists were out-of-touch city elites who wanted to tell you how to run your life. Either way, your political opponent was your enemy, your evil enemy. The inability to compromise, to see opponents as fully human, fomented war.

That same spirit animates contemporary politics. Turn on late night television and you'll hear how bumbling Republicans don't understand reproductive anatomy but want to dictate what you do with your uterus, how Christian theocrats want to force their religion on America, or how ill-educated, hypocritical rural Americans want to run out the immigrants and minorities they've always been prejudiced against. Turn the same television to a different channel at a different time and you'll hear how progressives want to allow sexual predators in the same bathroom as your wife or child, how the political establishment is trying to undo the will of the American people, or how the Democrat's are scheming to use the Courts to force Christianity and morality out of America. It's the same message: "We are good. We are safe. They are bad. They want to steal, kill, and destroy the things you love. You must love us and hate them."

A Congressman was shot today. It seems he was shot because of this message, because of the political climate we have created. If we cannot empathize, we will polarize. If we cannot talk as sensible humans, we will kill as insensible animals. If we cannot give charity, we will be given malice.
Let us resolve to preserve our union by giving malice to none and charity to all.

Truth in Empire

"The past is a foreign country: they do things differently there" 

-L.P. Hartley

My wife and I have been watching a BBC documentary series on the British Empire. In the mindset of its time, the British Empire was civilized, moral, powerful, and fashionable. Britain enriched itself and enriched its colonies--or at least so they thought.
From our post-imperial perspective, these views seem ignorant and immoral. How could a white, wealthy elite justify subjugating a quarter of the world? Even if they brought law and civilization, it could never justify the brutality of slavery, colonization, and the wars necessary to undergird them. The haughty British deluded themselves into thinking they were performing a service for the colonized when really all they were doing was enriching themselves. Worse yet, the elites may have known it was a facade and yet kept the facade up simply to preserve power. The elitism and racism were repugnant and rampant.
This understanding is particularly popular in the United States--an independent, democratic nation founded on throwing off the chains of empire.

Yet this story is a little too neat, too self-justifying. We have matured past our immoral imperial history. We know better now. With our climate accords and peacekeeping missions and microfinancing, we help the developing (not third and decidedly not uncivilized) world in real ways imperialism never did. We allow the peoples of the developing world to govern themselves on their own terms.
But have we really matured?

The developing world can govern itself, so long as it is liberal, sustainable, and tolerant. Criminalize homosexuality, repress women, or restrict voting rights and we might invade you. We did it in Serbia then Somalia then Afghanistan and now (to an extent) Syria. When our NGOs dig their wells or build their schools, they do so to spread the gospel of liberalism (the justice towards which history arcs). When our businesses bring McDonalds, they do so to earn money and to bring capitalism.
Admittedly, we no longer directly colonize other nations. Nor do we argue that the interests of our nation and the interests of God are aligned (at least, not as often). But the differences are smaller than we may be comfortable with. In a secular society, isn't justice the highest remaining authority? What makes spreading belief in tolerance different to spreading belief in Christianity? What makes spreading liberalism different to spreading civilization?

I am not arguing our interventions have been wrong. I am arguing that we must wrestle with the morality of imperialism if we want to jusify our modern inteventions.

We can console ourselves with an easy narrative that we have overcome an elitist, racist imperial past but we do so at our peril. Our peacekeeping operations and nation building are all too often imperialism in different garb. Economic development, liberalization, and modernization can just as easily mask elitism or racism. Our goals may be different but the underlying thesis is the same: we know better and you'd be better off like us. Imperialism's temptations remain. If the past is a foreign country, perhaps we should try to understand it before we condemn it. By understanding it we will understand, and critique ourselves, better.

What I'm on About

Before I start blogging in earnest, I should try to explain what exactly I'm on about. Why should I write this blog and, more importantly (at least for you), why should you read it?

I've named the blog Veritas. (Possibly because I'm a snob who uses Latin names to sound smarter than I actually am). Veritas (truth) is the thing that ties together all the other things I am interested in. It is the common melody to the disparate songs I sing.
Truth, not truth; certainly not truthiness. There is no room for alternate facts here. The goal is to explore capital t Truth. Truth in law. Truth in faith. Truth in policy.
We can seriously and sincerely disagree when we honestly seek Truth. To the extent we seek something lesser, our debates take on personal, unrighteous dimensions. Unrighteousness is not exactly a buzzword these days (neither is Truth), but it is the best word to describe the panoply of vices resulting from self-centered acts--whether that self be one individual or a group of individuals acting selfishly,
Truth is the thing we must aim for. It is the thing this blog aims for.

I am a lawyer married to a theologian. You can expect me to write about law and justice. Those posts will often steer towards the academic and jurisprudential. You can also expect to hear about theology and the practice of faith. I may try to be an academic theologian but don't be fooled; I am amateur with good help. You can also expect to hear about public policy. Every lawyer should be concerned about how the law affects people. Every lawyer should strive to make more perfect laws. So, other than sex, that about covers all the politics you should speak about at the dinner table. Should be fun.

Pilate once asked Jesus "what is Truth?" Jesus never answered. I may not always have that answer. I certainly never will have it fully. But every soul seeks Truth. Together, let us answer Pilate's question.

On the Election

Alright, I’m giving in.

Prudence tells me to hold my tongue, but conscience tells me to speak.

I have a few thoughts I must share about the presidential election. I’ll be brief.

First: we chose this.

Remember back in 2004 when the “don’t blame me, I voted for John Kerry” stickers were cool? This presidential election is like that—but on a much larger scale. We want to reel in disgust at the candidates our elections have chosen. The majority of Americans don’t like Trump or Clinton. They’re ridiculous. They’re ideologues. They’re criminals. Surely we can do better. So we look down on the people who voted for Trump or Clinton or Sanders or Cruz. We wonder how people could ever vote for these folks.

At a deeper level, however, we are looking for someone to blame. If it’s ignorant, rural populists or cowardly, establishment democrats or baby boomers or the system, then I can sleep better at night because it’s not my fault.

But, here’s the brutal reality: we chose this. Maybe we didn’t vote for Trump or Clinton, but we helped bring them here. We created this political climate. Every time we turned the dial to Glen Beck or Rachel Maddow, we brought this day closer. Every time we spouted off on Facebook or Twitter or Imgur, we brought this day closer. Every time we blamed before trying to understand, we brought this day closer. The problem isn’t Trumpism or the establishment; our attitude is the problem. We want quick fixes, smooth sound bites, and the reassurance of hearing our own opinions read back to us.

We chose this.

Second, the lesser of two evils may not be worth it this time.

If your problem with Trump or Clinton is that you can’t trust them, then why are you voting for them? Trump says he’ll give Republicans the Supreme Court. He also says he’ll build a wall with Mexico and hand over his tax information and take care of women. Do you believe him?

Third, there isn’t a simple Christian answer.

I’ve been thinking a lot about a Christian response to this election. My wife keeps asking me who I’m going to vote for. I had a lot of answers and fiery rhetoric. Then, my pastor knocked me off my high horse.

God has been challenging my politics a lot lately. Does my pithy one-liner truly love my neighbor? Am I committed to Truth or being right? How much of my politics is just an excuse to show off how smart, independent, or educated I am? What would it look like to truly image God in the public square?

A Christian response isn’t about a vote, a candidate, or a party; it’s about an attitude. The attitude of a Christian must always be one of humble submission to Christ. That means acknowledging our sin, acknowledging our pride, and acknowledging our ignorance. I like to pretend I have the answers—but I don’t.

Step one is humility. I’ve found myself saying “how can you be a Christian and vote for…” Maybe my answer isn’t the only valid answer. Maybe the other guy is a faithful Christian too. God surprises me every day. I pray He will continue to challenge me. If I am not uncomfortable with God’s politics, then there is a decent chance they aren’t God’s politics.

But, humility doesn’t mean silence. Christianity has non-negotiables. We can be humble yet insistent on the truths of our faith. We must stand against doctrines that co-opt Christianity. More than that, we must stand for the Gospel. How hypocritical is it for us to criticize Muslims for not condemning ISIS yet stand silent when our leaders twist our faith?

Our insistence shouldn’t be a personal attack nor should it come from a bullhorn. Instead, it should be the loving response of a people who know that Truth is on our side. Christ calls us to a higher way: the way of love. We can love our enemies while proclaiming the truth of Christ. Pray for the politician you hate, the voters you can’t understand, and the pundit you despise. Jesus Christ died for them as much as He died for you and I.