Sunday, July 23, 2017

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.

Thursday, July 6, 2017

Truth & Textualism: What St. Augustine can Teach Neil Gorsuch


When the United State's Supreme Court lost Justice Scalia, I thought it almost impossible that the Court would find a more devoted textualist to replace him.
I was wrong. Justice Gorsuch has proven himself to be as much, probably more, devoted to textualism than Scalia. Textualism is a theory of legal interpretation holding that the objective meaning of the text is the only meaning a court should consider. As Justice Scalia put it "it is the law that governs, not the intent of the lawgiver."

Textualism and its sister-school Originalism (which holds the original meaning or intent of a text should control) often run into heavy philosophical criticism. What defines a text? Do words have meaning independent of their speaker? Whose original intent or whose original meaning? For an excellent summary of these criticisms, read my friend Hal Lloyd's series of blogs on Neil Gorsuch. 
I have often claimed the argument over textualism and originalism is actually about epistemology and semiotics (the philosophy of knowledge and the study of signs). At root, we are arguing over whether meaning is given or made and how we discern or create meaning.

But reading St. Augustine, a theologian in the early Church, has made me rethink this position. Augustine wrote a treatise, On Christian Doctrine. The work is a short primer on how to read, interpret, and teach Scripture. Augustine prescribes a literal approach (ad litteram) to reading and interpreting Scripture. Augustine, following his own advice, wrote several works on the literal meaning of Genesis. Despite his instruction and title, however, Augustine's works on Genesis get quite figurative and metaphysical. This seems at odds with the stated goal of his literal interpretation.
Church historian and theologian Ephraim Radner offers an explanation in his book Time and the Word: "Ad Litteram requires a certain kind of attention, rather than a defined method." Augustine has not betrayed his goal of literal interpretation; the literal encompasses the figurative--at least in the context of Scripture. A literal interpretation does not necessarily imply a strict methodology. Augustine retains a literal attitude (i.e. he consistently adheres to the actual meaning of the text) while incorporating figural and metaphyiscal elements.

Textualist attention, rather than textualist method, has been the greatest accomplishment of Justice Scalia and the textualists. Prior to Justice Scalia's tenure, the Supreme Court had developed a tendency to issue soaring, transcendent opinions unmoored to any text. Scalia and textualism helped realign interpretation and text.

Textualism as an attitude is the stance of taking a text and is constituent parts seriously. A textualist attitude is like taking a magnifying glass to the text. Each sentence, each clause, each word of the text must be dealt with. The grammar and word choice of the text matter. Neither a judge nor an attorney should lightly dismiss the content of the text the Court is addressing.
Textualism as method demands we transform attitude into ideology. As an ideological principle, we must limit interpretation to the text and (often) its original meaning. It is this leap, this method, that runs afoul of the philosophy so well articulated by my friend Hal and others like him. Textualism has its philosophical merits and its ideological defenders, but I suspect Hal and many others would agree the textualist attitude has been good for our legal system.
We can apply textualism much like Augustine applied literalism, as an attitude rather than a strict method. By applying a textualist attitude, we avoid unnecessary philosophical debates about the stuff of signs or human knowledge. Yet we achieve the same result: a commitment to taking texts seriously. The philosophical debate should certainly continue, but for us humble practitioners of the law a textualist attitude should suffice.

Wednesday, June 14, 2017

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.

Wednesday, June 7, 2017

The Revolutionary Constitution

The 20th Century was a century of revolution. The Soviet Union began with the Russian Revolution of 1917. Germany, Italy, and Spain all fought, then succumbed to, fascist revolutions. France was not above the fray. War hero or not, De Gaulle certainly partook of at least some of this nationalist vigor. Then, as communism grew globally, China, too, had its own communist revolution. Southeast-Asia became a cockpit for revolutions. India left the British Empire. Then, to close the century, the Soviet Union came crashing down and spawned a new birth of Eastern European nations.
Through it all, the United States retained the same government and the same form of government. That's at least what our textbooks say, but we need to reexamine this conclusion.

The 20th Century was a revolutionary century for the United States too. It was a century of quiet, steady constitutional revolution. Our foundational document started the century as one thing and ended it as something completely different.

To get a sense of this difference, Let's look at life in the United States at the start of the 20th Century. One person, one vote was not on anyone's lips at this time (that came in 1963). Many states had voting districts based on geographic requirements rather than population requirements. So, an area with 2,000 people may elect as many state or federal representatives as an area with 20,000. Voting was severely (by our standards) restricted. No women could vote, most African-Americans could not vote, many states also prevented those in poverty from voting. There was no social security or Medicaid or major national welfare system to help if you became poor. Instead, there was the Church and charity.
If you were charged with a crime, you did not have a right to a lawyer (1962) or a jury (1968) or to remain silent (1966) or to be free from cruel and unusual punishment (1962). The state did not need a warrant to search you or your house (1961). You were not guaranteed the free exercise of religion (1947), the freedom of the press (1931), or freedom of speech (1925). Many states may have voluntarily extended some of these freedoms, few (likely none) extended them all. Nothing stopped them from merely changing their constitution or laws to deny you these rights.
The federal government was largely uninvolved in daily life. For Congress to regulate trade, the trade had to be traveling between states. They could not regulate trade in entirely within one state simply because it had an effect on trade in another state. There was no FBI (1908), hardly any federal crimes, no CIA (1947), no Federal Trade Commission (FTC, 1914), no Federal Communications Commission (FCC, 1934), and no federal regulation of elections or campaigning.

Most of these changes happened between 1933 and 1938 ("the New Deal") and 1953 and 1969 (the Warren Court). They happened through an interventionist president, FDR, and an interventionist Chief Justice of the Supreme Court, Earl Warren.
By the time their work was done, the United States Constitution was a fundamentally different document. We are still fighting battles in the war they started. Our debates about how involved the federal government should be in our daily lives are reenactments of the debates over the New Deal. Our debates about judicial activism and the role of the Supreme Court are reenactments of the debates of the Warren Court. Our modern Constitution is simply not the same document that we ratified in 1789. Between the administrative state and the expansion of Supreme Court decisions, our government and Constitution underwent a bloodless revolution. Until we understand this revolution, we cannot hope to understand or change present policies.

Saturday, June 3, 2017

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.

Sunday, May 21, 2017

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.