Recess from Reality

The recent decision in Canning v. National Labor Relations Board is a prodigious example of result-oriented jurisprudence masquerading as "originalism." I don't often agree with Jeffrey Toobin on questions of constitutional law, and indeed, his analysis tends toward realpolitik, but he's right here; this is another example of conservative judicial activism masquerading as constitutional interpretation:

The D.C. Circuit nevertheless found that Obama’s appointment of the three N.L.R.B. members was invalid. According to the court’s tortured reasoning, the Senate was not really “in recess” when the three were named. Indeed, the opinion essentially said that the Senate need almost never be in recess; a handful of senators could create “pro-forma” sessions that would trump any President’s ability to make appointments. Even beyond that, the opinion more or less removed the President’s ability to use recess appointments in all but a small handful of cases, suggesting that the vacancies would have to occur, not just remain unfilled, during recesses. The appointments of not only the N.L.R.B. commissioners but also of Cordray, and all of the actions of his new organization, are now in clear jeopardy.

I agree; what's wrong with the decision on an analytic level is manifold--the panel admits that the questions on which it decides the case were not properly raised below, that it may not even have jurisdiction over the constitutional issue--and then goes on to exercise it most vigorously. (Although why a business has standing to assert that the Senate's prerogative was violated, a political question if ever I've run across one is also opaque, hand-waved away with a few completely non-apposite citations.)

Its jurisdiction in doubt, the panel nonetheless finds that the only time at which the President can exercise the recess appointment power is not when the Senate is "adjourned" but when it is in capital-R recess--that is, between sessions, in part because the history does not support an exercise of the power during a Senate session--and then lists examples of exactly that exercise of the recess appointment power from 1857 well into the Twentieth Century. The panel just didn't find that these examples were enough numerically, a wholly made-up metric. Moreover, as Toobin notes,

As the Times reported (but the D.C. Circuit, once again, did not see fit to mention), President Bill Clinton made a hundred and thirty-nine recess appointments, while George W. Bush made a hundred and seventy-one, including those of John R. Bolton as Ambassador to the United Nations and two appeals-court judges, William H. Pryor, Jr., and Charles W. Pickering, Sr., Obama has made only thirty-two such appointments, including that of Richard Cordray as director of the Consumer Financial Protection Bureau.

If this decision is upheld, the Senate gets to abuse its "advise and consent" power to blanketly refuse to consider any nominee to the CFPB absent dilution of the agency's power, while the President's power to counter this abuse, used since 1857, and used sparingly by the present incumbent, will wither, creating the ability of a minority in the Senate to cripple federal agencies at will, with no real counterweight on the Executive side. This isn't checks and balances, it's a mugging.

The Fable Behind the Fiction

When I was a boy, I fell in love with Alexandre Dumas' The Three Musketeers and its sequels. I love them still, enough so that I revisit the books periodically. And I've often wanted to read the inspiration for them, the Memoirs of M. d'Artagnan, attributed to Gatien Courtilz de Sandras, a semi-fictionalized account of the life of the Captain of Musketeers Dumas drew his hero from, in a book he borrowed (and never returned) from the National Library. After many years of wondering if it even existed in English translation, I found a nice copy of it on ABE. As the previous link shows, I could have read the thing on line, it turns out, but I'd already ordered the book. They're en route; I will be patient, and not cheat with the digital edition.

It's in three heavy octavo volumes, the 1899 English Edition of Ralph Nevill's translation. And in it, scholars say, one can glimpse (through Courtilz's fabulizing) the shadowy images of the "real" inseparables, Athos, Porthos, and Aramis (Gascon brothers? Not Comte de la Fere, M. du Vallon de Bracieux de Pierrefonds, and Abbe d'Herblay, sometime Bishop of Vannes?) Not to mention a shadowy figure known only as "Miledi" As the New York Times noted in reviewing this translation in 1903, they "and the rest of that glorious company live in the language of their time--as in the diary of a chronicler. But it was Dumas who made them human, who gave them color, and who made them more real than even the truth itself. At the same time, these "Memoirs of M. d'Artagnan," in their spirited and sympathetic translation of Mr. Nevill, are by no means bad reading."

Can't wait to verify that for myself.

Talking Theatre

So, in my pre-lawyering days, in college, I fell in love with live theater. Being in it, I mean. True from the very first show I was cast in--an awful, utterly terrible production of dramatization of A Christmas Carol originally written for a Ladies Club in the early Twentieth Century, directed with all the electric verve of a dormouse in mid-winter. (The cast "solved" the problem by a heavy application of alcohol. I played Bob Cratchit as Eric Idle in an old Python routine. The Ghost of Christmas Future, blinded by his cowl, crashed into the orchestra pit at the first curtain call, although he somehow managed, after a few guttural cries, to scrabble back up before the lights came on.)

Yes, I loved the theater, especially after a friend from high school (if you read my post on Peter O'Toole's retirement, you know him as d"Artagnan) joined me at college, and we started getting cast in shows together. So as the fathers in The Romancers, done as a commedia dell'arte, my old friend and I played the parts as sidekicks-cum-rivals--not unlike Hector and Kilwillie in Monarch of the Glen (I was Hector-ish. This was 1986, so the TV series didn't exist yet, and when I recently stumbled on it, courtesy of Netflix, I gave a start of recognition as Richard Briers and Julian Fellowes started up their schtick.) Add our friend Porthos as a kinetic, bibulous Straforel, and the show was much more enjoyable than coherent.

Later, I did two shows in which I had a chance to do some real acting--in Jean Anouilh's Antigone as the lead guard Jonas opposite a more senior friend (our Athos) as Creon. Directed to be at attention throughout most of my big scene, I was forced to leave comic setpieces behind. Similarly, in The Tempest, I found a character inside the expositionary Gonzalo, and had a few nice moments. Nothing notable, nothing to write home about; just enough to understand the creative art that real actors bring to the stage, and admire it all the more.

But my favorite memories are of the more silly shows--when, in my senior year, d'Artagnan and I were cast in Ten Little Indians, he as the bombastic policeman Blore (undercover as an annoying millionaire) and I as Justice Wargarve, the seeming elderly Sherlock Holmes-figure who may solve it all, if he isn't killed. I smoked a curved pipe to suggest Holmes, and, in retrospect, some of my mannerisms evoked the late William Hartnell--but, oh, the fun each of us had trying to make the other break up onstage. So d'Artagnan's death cry grew longer and more ululating each night (one cast member swore it had crossed the line into lactating), and my expositions grew ever more intense, with me wheeling on d'Artagnan, pipe in hand, the stem jabbed outward as a pointer, as I pounced on a trivial admission like a hawk about to a draw its prey...

This post doesn't do justice to my friend, who in fact was a very talented actor. Cast in Long Day's Journey Into Night, directed by Athos, d'Artagnan showed he had the makings of a professional actor. It was, for a student performance, deeply textured, well thought out, solidly executed--and ably supported by Porthos, whose Jamie Tyrone was every bit as good--lovingly etched by an actor who had found a role whose tragedy moved him deeply, and with a haunting Mary Tyrone. It was one of those lightning in a bottle shows, where inexperienced kids do something way out of their league--and it works. Athos's direction made it possible, and the close-knit family atmosphere back stage was helpful, if a challenge to Athos as director, holding it all in balance.

I was production manager on the show, and scrambled to keep up with my friends. I managed not to run into any farcical catastrophes until opening night, Halloween. Now, our Edmund was friends with the two punk rockers on the campus that year--two very strikingly handsome women, if a bit intimidating. We were in a "Little Theater" on the third floor of a gorgeous Gothic pile, and among my duties was to make sure that the floor waxer didn't run his machine during the show, because our electrical plant was straining the circuitry to the limit. The floor waxer was known to be a little, er, off--shy, easily startled, and so dealing with him required diplomacy and patience. During the show, I heard the waxer start up, and slipped outside to stop him. I entered the hallway to see the man starting to put the machine through its circles, only to freeze at the sight of the two punk rockers--in full, 19th Century Goth gear (this in 1987, on the campus of a Catholic college mind you), low-cut billowing dresses, flowing capes, drifting like spectral galleons through the hall.

Reader, he bolted. I could hardly blame him; the sight of these two women in that setting on that campus was like nothing I'd ever seen, and I knew them reasonably well.

Yes, he bolted. With his floor waxer still running, on an extension cord into which large cables from the Little Theater were jacked, as well, all moving downstream away fro the theater at a pretty good clip. The extension cord pulled out of the wall, the lights all went out both in the corridor and onstage. As I fumbled around in the dark for the end of the cord, with the floor waxer emitting little bleats of terror, I heard:

JAMES TYRONE: Of course, we'll pay whatever you need. [pause] Within reason, lad, within reason, that is.

[Lights go out]

[loooong pause]

JAMES TYRONE, annoyed: I paid that electric bill, Mary, so help me.

[pause]

JAMES TYRONE (thoughtfully): Well, most of it, at any rate.

[Lights come back up. Actual O'Neill dialogue resumes; gasping Production Manager lays against wall holding newly-reconnected extension cord tenderly, while aforementioned galleons step over him. Floor waxer starts looking for another outlet...]

Yes, despite all this, I love the theater. But I have to admit, when I see the occasional moment where it all misfires, and have unabashed admiration for those who manage to land the big bird despite these moments (Mark Harelik, in particular, did it with the most consummate aplomb and generosity to a cast member in trouble I have ever witnessed)--well, a life in the law has its points after all.

Oh Hai!

The above image is from the wickedly clever entry, LOL Cats of the Middle Ages over at the British Library's Medieval and Earlier Manuscripts blog. I particularly love (follow the link to the original and then click to embiggen for best view) the little cat at the bottom of this first image, who is auditioning to play an instrument. He reminds me a little bit of the recurring cat in the medieval manuscript in Susan Howatch's Starbridge novels, described in Scandalous Risks as "a doodle in our most famous manuscript, one of the earliest copies of St. Anselm's Prayers and Meditations. The first Bishop of Starbridge somehow managed to extort it from the monks at Canterbury.” (the image is described as "an exquisite little painting of a cat with a mosue in his mouth.") Or, as the British Library post suggests, he could be the ur-Keyboard cat.

Cats. In ur Intertubes since 1066, apparently.

"Nothing Lasts Forever..."

Nothing lasts for ever. Even the longest, most glittering reign must come to an end some day.

I see from The New York Times (pointed out by a very good friend) that Netflix is remaking the iconic House of Cards.

The cast is good--Kevin Spacey, Robin Wright and Jayne Atkinson, among others. And David Fincher and Spacey have interesting creative priorities. It could work, even though my initial instinct was to reply to my friend that Ian Richardson and Diane Fletcher are irreplaceable. And indeed they are. Just as Jeremy Brett and Edward Hardwicke were. Yet Sherlock works, admirably. So looking at the new House of Cards as a fresh piece of work, not as a retread, perhaps it could work. Maybe even the longest, most glittering reign of Ian Richardson must come to an end some day.

You might think that, but I couldn't possibly comment.

Here's the trailer:

Palate Cleanser: The Curse of Fatal Death

After some fairly heavy posts, how about some gratuitous Who-age?

I think it's time for Stephen Moffat's premiere episode:



and Part 2:



You can see in comic form quite a few of the traits that have defined Moffat's time to date as show-runner--the Doctor as fairy-tale/mythic figure, the delight in time paradoxes, and the pull toward domesticity, to name a few. Not to mention the Doctor having to rescue the Daleks, his oldest foes.

For an insightful look at Curse of Fatal Death (the title of the story), the always interesting Tardis Edruditorum is well worth a visit.

What's the Worst That Could Happen?

Remember the Bad Idea Bears?*

Well, their refrain "What's the WORST thing that could happen?" kept echoing in my mind when I read the bloviations of NRA President David Keene that volunteers could provide school security to avoid another Newton.

But I didn't expect to run into the stream of post-Newton stories of tragedies, near tragedies precipitated by almost epic stupidity, and farce bordering on tragedy. Not to mention these:

OK, those last few are all pretty funny, right? Except if they'd been lethal.

But then I thought, well, maybe I'm nutpicking--you know, picking extreme outlier examples to make them seem as if they are the majority. These folks may just not have had the benefit of proper gun training. I mean, we can't all be raised by the President of the NRA, right?

Oh, for the love of Benji--

In 2003, David Keene's son, David M. Keene, was sentenced to 10 years in prison for discharging a firearm in a crime of violence after he shot at the driver of another car from his BMW on the George Washington Memorial Parkway in northern Virginia. Police said the shot missed the other driver's head by inches.

According to WND (whoever thought I'd give them a link?), "David Michael Keene, was arrested for a road rage incident in which he allegedly fired a gun at another motorist on the George Washington Memorial Parkway. The round fired shattered the rear window of the victim’s car, lodging into the driver’s seat, coming within inches of hitting him, according to police reports." He pleaded guilty and served a ten year term in prison.

Yes, I know that the vast majority of gun owners aren't like any of these people. I know that most are careful, and that trained, educated gun owners are far less likely to have accidents.

But accidents happen. Like the two brothers I played with as a boy, one of whom entered the service, and accidentally killed his brother with his weapon. A moment's carelessness with a gun can ruin an extensive web of lives.

Guns are inherently dangerous. There's a right to bear arms, but the legitimate safety and security of others require reasonable regulation--not wholesale abolition--which has been needed for decades.

*No? Refresher course:

Federalism in Action

As I wrote in the wake of the Newton mass shooting, I believe that the Second Amendment affords states effectively plenary power over gun regulation. While the Supreme Court effectively deleted the "well regulated militia" clause from the Second Amendment in McDonald v. City of Chicago, the Court in the predecessor case, District of Columbia v. Heller, did leave a considerable amount of leeway for the states or the federal government to regulate guns:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession 2817*2817 of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."

128 S. Ct. at 2816-2817.

The majority notes in a footnote that "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive." (n. 26). I mention this because today, the New York State Legislature passed and the Governor signed, what the New York Times describes as "a sweeping package of gun control measures, significantly expanding a ban on assault weapons and making New York the first state to change its laws in response to the mass shooting at a Connecticut elementary school."

The new law provides:

The expanded ban on assault weapons broadens the definition of such weapons, banning semiautomatic pistols and rifles with detachable magazines and one military-style feature, as well as semiautomatic shotguns with one military-style feature. New Yorkers who already own such guns can keep them but will be required to register them with the state.

The legislative package, which Mr. Cuomo on Monday said he believed would be “the most comprehensive package in the nation,” will also ban any gun magazine that can hold more than 7 rounds of ammunition — the current limit is 10 rounds. It will also require background checks of ammunition buyers and automated alerts to law enforcement agencies of high-volume purchases.

....

The most significant new element will require mental health professionals to report to local mental health officials when they believe that patients are likely to harm themselves or others. Law enforcement officials will then be authorized to confiscate any firearm owned by a dangerous patient; therapists will not be punished for a failure to report such patients if they acted “in good faith.”

The legislation will extend and expand Kendra’s Law, which empowers judges to order mentally ill patients to receive outpatient treatment. And it will require gun owners to keep weapons inaccessible in homes where a resident has been involuntarily committed, convicted of a crime or is the subject of an order of protection.

The legislation will increase penalties for multiple crimes committed with guns, will require background checks for most private gun sales and will create a statewide gun-registration database. It also includes a so-called Webster provision, named for the shooting deaths of two firefighters who were ambushed in Webster, near Rochester, just before Christmas. The provision will mandate a life sentence without parole for anyone who murders a first responder.

And, in response to a controversy that erupted after The Journal News, a daily newspaper in White Plains, published the names and addresses of handgun permit holders in Westchester and Rockland Counties, the legislation will prohibit disclosure of the names in the new statewide gun-registration database, and will allow individuals to exempt their own names and addresses from being disclosed by counties that have such databases.

That last bit is a sop to those gun owners who felt that recent publication of such registrants stigmatizes them, and can even endanger their safety.

Overall, I believe this is a good bill. The regulations do not come anywhere near the blanket ban struck down in Heller, and track the areas of legitimate regulation allowed Congress by the Supreme Court in that decision, let alone the greater scope the states should be permitted. In the wake of McDonald, that is prudent. Moreover, it is a rational response to the fact that, in mass shooting cases in the last 30 years, "[o]f the 142 guns possessed by the killers, more than three quarters were obtained legally. The arsenal included dozens of assault weapons and semiautomatic handguns." (My emphasis.) Action was necessary.

But is it enough?

Of course not; laws can never eliminate the problem, especially as we have a violence-soaked culture, one which equates gun ownership with masculinity, in ads and video games. Beyond the fact that these games are protected speech under the First Amendment,the NRA's hypocritical blaming of video games has it backwards. As Paul Tassio convincingly argues:

Here’s a hint. It’s because we love real life guns so much as a society that violent shooter games are so popular. A society that is inherently fascinated with violence creates violent media, it’s not the other way around. And say what you will about this debate, but a kid playing a video game where he shoots a gun is safer than a kid who is shooting an actual gun, even just at inanimate objects. Compare a kid playing Call of Duty five hours a day to one who goes to the shooting range for the same duration. Which one might be better at hitting real world targets? Adam Lanza was a crack shot, and it’s more than a little bit likely it was from his time spent with his mom on the shooting range than it was from his hours spent playing Starcraft.

In short, we need to work on changing the culture not through the coercive power of the law, but by the persuasive power of speech, and by rejecting the Hobbesian world view of the gun lobby.

The Face of the Enemy

I think the hardest teaching in the Gospels is Jesus's telling us to love our enemies. It's so easy, as Bernard Shaw pointed out, to "throw oil on the flaming hell of your own temper" and hate. In politics, in religion, in life. Even in intramural civil disputes over property in the Anglican Wars, I've seen each side treat the other treated as not fellow Christians with whom relationships have broken down, but with contempt as bigoted schismatics on the one hand and as libertine emissaries of Lucifer on the other. I have sometimes been guilty of this myself; I have a quick temper and years as a litigator have sharpened my ability to jab or cut with words.

Last week, I was profoundly touched by an article in the New york Times about restorative justice in criminal law; Andy and Kate Grosmaire (Andy is, like me, a postulant for the diaconate in the Episcopal Church)initiated a restorative justice process with the family of their daughter's fiancé, who had murdered her in an argument, and which, thanks to a prosecuting attorney who was willing to try the process, resulted in a surprising degree of healing and reconciliation. Even in cases as serious as murder, other examples can be found.

As the author, almost 20 years ago, of a study of dismissing criminal cases in the interests of justice, I have long hoped that my ministry would encompass trying to bring reconciliation between offenders and the larger society. What I have read on restorative justice in following up on the article about the Grosmaires seems to point a way forward to me. And then, of course, I read about the horrific murder of my law school classmate, Theresa Gorski. I was, simply, shocked. I still am, I think. I asked my church to put Theresa and her children on the prayer list--but I couldn't bring myself to add her husband, Christopher Howson,who is accused of her murder.

I once wrote that we are none of reducible to our worst moments. I believe this with all of my heart, mind, and soul. Andy and Kate Grosmaire, in the worst of circumstances, saw this, and were able to bring themselves to forgive the man who had killed his beloved daughter. That is living one's faith in the most extraordinary way. And it's necessary for healing, and to bring healing.

I'm not saying that, if I were so tested, I could do what the Grosmaires did, what Sharletta Evans did. I hope I never am so tested--save me from the time of trial, indeed--but I can try to apply the lesson demonstrated so heroically by them in my own way.

Pray for Theresa, and her children. Pray for Christopher. Pray for all whose lives were shattered by this horror, and all similarly situated. And, in conflicts great and small, try to remember the humanity of those who hurt me--and hope that those I offend do the same for me. A bit late for a New Year's Resolution, perhaps, but I think that's the one for me. That, and continue exploring the world of restorative justice, to see where I may be led.

Death by Domestic Abuse

When I got to my office, I was shocked to see this in the New York Law Journal:

Grief-stricken colleagues of Theresa Gorski, a 47-year-old Legal Aid Society attorney who devoted the last decade of her career to advocating for children, met with counselors yesterday in the aftermath of what was described as a domestic violence-related death.
...
Gorski died Jan. 9 when she was removed from life support at Phelps Memorial Hospital, a short distance from her home in Sleepy Hollow, Westchester County. According to law enforcement, she allegedly was choked early on the morning of Jan. 5 by her husband, Christopher Howson, in the home they shared with their 5- and 8-year-old daughters.

Howson, 49, was charged with second-degree attempted murder and first-degree strangulation. Additional charges are pending now that Gorski has died.

The article identifies her as the Theresa Gorski who "was admitted in 1991 after graduating from Columbia Law School."

My classmate. The minute I saw the name, I was hoping it wasn't, but that's our year and law school. The more it's sat with me today, the more horror-struck I am by it.

Theresa and I weren't close friends, but we were friendly; she was kind in a pretty tightly wound environment, and, although she worked hard and long, she was funny, and interested in her classmates. Columbia was a little lighter and brighter for her presence. What I remember of her in classes is borne out by how she's described as an advocate by one of her adversaries: "extraordinarily well prepared, and [her] low-key, soft-spoken nature was left at the doorstep when she went to court." We didn't keep up, as is so often the case. There are only a handful of friends from those days that I've stayed in touch with. Columbia Law School was not, for me, a place where deep friendships were forged--although at least one college friendship really bloomed when a fellow Fordham alum and I met up again there. (The friend in question is a conservative, but we disagree agreeably, and I'm grateful for that beyond words.)

I grieve for Theresa, who in the nearly 23 years since we graduated, did great things in the law; the same adversary quoted above called her "a champion for children." Not a bad epitaph. But, to die so young, and in such a horrible way, at the hands of the one person she should most have been able to trust! I think of the young woman I casually knew, and shared the pressure cooker environment of CLS with, and remember her bright promise, her potential, and it's like I'm there again, in the uncomfortable, pretty ugly law school building we called the Toaster (they've improved on it since then), and I feel vertigo at the thought of Theresa going into the dark in so terrible, unfair a way. And God alone knows what other revelations will surface about her life outside of the office, or what will never be known. She deserved better, far better. And so did her children, deprived of their champion at so young an age.

The kind of abuse that led to the death Theresa suffered is horribly common--the NYLJ says that

One of the crimes initially charged against Howson, first-degree strangulation, has been on the books for only two years. It was created to fill a gap in the Penal Law after authorities and advocates complained that domestic violence victims were often choked to the brink of death and, absent a visible physical injury, district attorneys could charge nothing more serious than harassment, a mere violation. Until November 2010, strangulation was not a crime in New York State.

Johanna Sullivan, counsel to the state Office for the Prevention of Domestic Violence, said that law enforcement began charging under the new statute from the day it took effect. Now, according to the state Division of Criminal Justice Services (DCJS), about 1,000 strangulation arrests are made every month.
....

Sullivan said strangulation is a common way for abusers to exert power over their victims, bringing the victim to the very edge of death.

"Someone can strangle someone almost to the point of dying, and will use that over and over again as a way of gaining power and control," said Sullivan. "They threaten the victim by almost killing them."

Sullivan said studies show that victims who have been strangled in the past are almost 10 times more likely to be killed through domestic violence.

I'm a lawyer. For three years, I did criminal appeals for Legal Aid. How did I not know these facts? Because they didn't directly touch anyone I knew?

I'm not sure why I'm writing this; maybe it's because I want everyone to learn from this hideous tragedy that domestic violence can enter the lives of the competent, engaged professional women who protect its victims in their professional lives. Maybe it's just because I want to pay tribute to my classmate Theresa, who did good, and deserved so much better. Maybe it's because I don't want to let her slip into the dark without a salute and a shabash from me. We're middle aged, now. The number of those who remember that rough and tumble, and what we were all like then--it ain't going up.

Plotinus said that nothing that really is can ever die. I believe that, truly I do. And I believe that all that Theresa was is, in a very real way, not lost. But let's not fool ourselves. This is a cruel loss for every life she touched, and an indictment of us as a society. There are those who claim that we live in a culture of death, often are dubious grounds. These statistics, and the shattered lives they represent aren't dubious.

God be with her, and her family.

The Reports of the Death of J.M. Keynes Have Been Greatly Exaggerated

Olivier Blanchard and Daniel Leigh of the International Money Fund have released a paper in which they acknowledge that their expectations of growth underpinning the IMF's support for fiscal consolidation (austerity to you and me) was the right approach to take in Europe in the wake of the Great Recession of 2008 to the present were, um, wrong. As the WSJ Blog summarizes:

In a new paper published Thursday [January 3, 2013], IMF Economic Counsellor Olivier Blanchard and research-department economist Daniel Leigh show the IMF recommended slashing budgets too fast early in the euro crisis, starving many economies of much-needed growth.

In “Growth Forecast Errors and Fiscal Multipliers,” Messrs. Blanchard and Leigh calculate IMF and European economists underestimated the euro-for-euro effect of cutting government budgets. While economists expected that cutting a euro from the budget would cost around 50 cents in lost growth, the actual impact was more like 1.50 per euro.

In other words, the assumption was that austerity would hinder growth one third the amount it in fact did. The paper itself states that in the last similar period, the Great Depression, the actual impact of austerity was a similar 1.6 ratio. In other words, austerity had the almost exact same impact in the wake of the Great Recession as it did in the Great Depression--a profoundly negative one, in almost the exact same amount. (See Paper at pp. 3-4).

As Peter Martin of the Sydney Morning Herald notes, this error had real consequences:

Rather than suffering far less than the savings they made on their budgets, the economies suffered far more. As mistaken advice it's monstrous - like going to see a doctor who tells you the medicine won't hurt much and finding it lays you low for years.
The fund forecast that if the eurozone took its advice it would grow 1.8 per cent throughout 2011. It grew 0.7 per cent. Italy would climb 1.3 per cent; it slid 0.5 per cent. Spain would surge 1.8 per cent; it grew not at all.

Another lesson learned by Blanchard and Leigh?

lower output and lower income, together with a poorly functioning financial system, imply that consumption may have depended more on current than on future income, and that investment may have depended more on current than on future profits, with both effects leading to larger multipliers.

(Paper at 4.)

[Notably, the Paper cites for that last proposition a 2012 study co-authored by Keynesian Paul Krugman, in what must seem to Krugthulu (as he is known on the blogs), a sweet bit of irony.]

So let's recap: Austerity, tried in the 1930s failed miserably, producing $1.60 in lost growth for every dollar in deficit reduction. Tried again, it failed to almost exactly the same extent. Of course, Blanchard and Leigh still contend that:

Finally, it is worth emphasizing that deciding on the appropriate stance of fiscal policy requires much more than an assessment regarding the size of short-term fiscal multipliers. Thus, our results should not be construed as arguing for any specific fiscal policy stance in any specific country. In particular, the results do not imply that fiscal consolidation is undesirable. Virtually all advanced economies face the challenge of fiscal adjustment in response to elevated government debt levels and future pressures on public finances from demographic change. The short-term effects of fiscal policy on economic activity are only one of the many factors that need to be considered in determining the appropriate pace of fiscal consolidation for any single country.

Austerians, I have only this to say to you:



(H/t: Balloon Juice

More on Secession

A reader from South Carolina responded to my post Firing on Fort Sumter, and I think his views are worth addressing. Unfortunately, my response was too long to post as a comment, but I think the issues he raises are worth a separate post. I want to thank him for his comment, which led me to hone in and (I hope) clarify my own views on these issues. I especially want to thank him for coming over to what might feel like hostile territory to engage me civilly on the merits. I'll give potted versions of the critiques; the original comment may be read appended to the original post.

My reader (he signed his name, but had no way of knowing I'd reply in a full post, so I'll leave it out) raises three issues:

1. He contends that my statement in the original post that "it would appear to assert that the Breakaway Diocese, even though it has, to use its own word, 'disassociated' from the national church, remains the only Episcopal diocese in South Carolina. TEC should be, effectively, prohibited from having a diocese within the same boundaries as South Carolina" is inaccurate, as the "request for a declaratory judgement makes no such claim. You're building a straw man." He further states that "The Diocese of South Carolina has made it perfectly clear that those who left the diocese and wish to reassociate with TEC and form a NEW diocese in the South Carolina Lowcountry have every right to do so. Furthermore, any such parish can leave with all their property and cash intact. What those parishes CAN NOT do is present themselves as the Diocese of South Carolina or attempt to assume the identity (including the history, seal, etc) of The Diocese of South Carolina, which is a registered legal corporate entity in the State of South Carolina."

2. Second, he suggest that "you're being overly optimistic in your reading of the Wacamaw case. There is absolutely no evidence that South Carolina courts will by into TEC's cockamamie argument of 'implied trust.'"

3. "As to whether the Diocese of South Carolina can be a "free floating" diocese, the vast majority of Anglican around the world affirm the idea of extraterritorial dioceses."

My Response:

First, thanks for the comment. Really; I'm about to explain why I don't agree, but that doesn't mean I don't welcome the view from the other side.

Let me start with the easiest one. TEC's theory that a trust was created prior to the Dennis Canon's adoption is one that has been, as you note, accepted by several courts; the theory that the Dennis Canon was sufficient to create a trust, though, was not an invention of TEC but rather of the U.S. Supreme Court in Jones v. Wolf. The Court wrote that:

At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal.

443 U.S. at 606 (emphasis added). This is exactly what the Dennis Canon did, and, assuming the South Carolina Supreme Court got its facts right in All Saints v. Campbell, "[i]n 1987, the Diocese amended its constitution and canons so as to include the 'Dennis Canon.'" Id., text at n. 4.

Whether the existence of the trust will be ultimately upheld is, as I noted in the main post, not a slam dunk. To my mind, that's because the current U.S. Supreme Court is very fractured in its approach to the Free Exercise and Establishment Clauses, and the stability of the precedents can't be taken for granted as a result. But the Supreme Court told the state courts and lower federal courts what steps would be necessary to create a trust, and TEC followed those steps, and SC explicitly ratified that decision. Normally, that should do it.

2. Slightly harder: Extraterritoriality. I agree that there are dioceses that are both called "extraterritorial" or "extra-provincial." However, they are under the metropolitan authority of a province (generally, the Archbishop of Canterbury). Most of these were formed in colonial days, or as mission churches, in areas where the Anglican population was too small to support a province.

My understanding--not disputed by my reader--is that the Breakaway Diocese intends to remain unaffiliated, as a self standing body. That seems to me to pose a problem, as does the notion that a constituent diocese can unilaterally break away and re-align, let alone exist in isolation. As Colin Podmore notes in his report to General Synod, "The Governance of the Church of England and the Anglican Communion,"

The Church of England is not simply an aggregation of dioceses. In the Middle Age, it was called "Ecclesia Anglicana" in Latin, and the"Church of England" in English, not "Ecclesiae Anglicanae" or "the Churches of England." The General Synod is not an assembly of diocesan deputations, but the synod of a national church.

This view is in harmony with Anglican thought from Hooker on. I don't know how these fundamentals of Anglican ecclesiology square with an independent diocese, or with one purporting to secede from the province to which it belongs. (I should in fairness note that Podmore is something of a critic of James Dator's Many Parts, One Body, originally written in 1957, and which argues that the rights of nullification and secession did not apply to TEC; the Dennis Canon, enacted subsequent thereto supports Dator, and the classic secessionist arguments deployed against him seem to me to presume against experience and against logic that TEC is somehow less of a province than is the Church of England.)

3. Status of the Respective Dioceses of SC: Which brings me to the last point. First, let me acknowledge an error on my part; had I read the Diocese's press release in addition to the January 4, 2013 letter of Mark Lawrence I cited in the earlier post, I would have found this statement:

“When the Diocese disassociated from The Episcopal Church we didn’t become a new entity,” Canon Lewis explained. “We have existed as an association since 1785. We incorporated in 1973; adopted our current legal name, ‘The Protestant Episcopal Church in the Diocese of South Carolina,’ in 1987; and we disassociated from the Episcopal Church in October of 2012. The Episcopal Church has every right to have a presence in the area served by our Diocese – but it does not have a right to use our identity. The Episcopal Church must create a new entity.”

So I clearly did err in thinking that the Breakaway Diocese thought it had the right to simply geographically displace TEC. My apologies.

That said, for the reasons in part 2, I think the viewpoint has it rather backward--TEC doesn't recognize the right of a diocese to align itself with another province--and its case is pretty grounded in Anglican history; think of the original (1571/1662) text of Article 37 of the 39 Articles: "The Bishop of Rome hath no jurisdiction in this Realm of England." That's the basis from which Hooker postulates provinces based on national identity. Again, I think that the burden of proof is on those who assert that the Church of England is more of a national church theologically (not in civil law, obviously) than is TEC.

It seems to me that the TEC position--that the Episcopal Church-affiliated diocese in South Carolina is the Episcopal Diocese of South Carolina is consistent with this history and ecclesiology, while the converse position amounts to congregationalism writ large.

I appreciate my reader's comment, and pressing me to think through these issues, as well as pointing out my factual error.

Firing on Fort Sumter

Per The Lead, I see that the Breakaway Diocese of South Carolina has filed a civil lawsuit against the Episcopal Church ("TEC") and, presumably, the continuing Episcopal Diocese of South Carolina, seeking an order from

the court to prevent TEC from infringing on the protected marks of the Diocese, including its seal and its historical names, and to prevent it from assuming the Diocese’s identity, which was established long before TEC was formed. It also asks the court to protect our parish and Diocesan property, including church buildings and rectories, which our forefathers built and even shed blood over, and you have maintained without any investment of any kind from the national church.

The filing of the suit is remarkable for two reasons: First, it would appear to assert that the Breakaway Diocese, even though it has, to use its own word, "disassociated" from the national church, remains the only Episcopal diocese in South Carolina. TEC should be, effectively, prohibited from having a diocese within the same boundaries as South Carolina; secession precludes replacement, in their view. This claim is far-fetched; I really can't see the courts preventing TEC from having a Diocese of South Carolina, especially in view of Jones v. Wolf, in which the Supreme Court reaffirmed that the First Amendment "requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization." And, if TEC can have an Episcopal Diocese of South Carolina, then how can the breakaway Diocese retain exclusive rights to a name that suggests an affiliation that no longer exists? (I suppose they might win the seal as a trademark, though, if they get a sympathetic judge. That question seems pretty wide open, as far as I can see, though the seal might be required to be modified.)

Moreover, the Breakaway Diocese asserts that it has title, free of any trust interest on behalf of TEC, or the Continuing Diocese, of all property within the historic boundaries of the original diocese--although the communication states that "We respect the decision of those who wish to remain with TEC but believe they must also respect the identity and property of the Diocese of South Carolina, which has been painstakingly built over two centuries."

As I've previously written, I think that the claim of the invalidity of the Dennis Canon and the trust created thereby seriously overstates the impact of All Saints Parish v. Campbell, which turned on the fact that the quitclaim deed in question had been issued by the Diocese nearly a century prior to the property dispute, 70 years prior to the Dennis Canon's adoption, and eighty years prior to the diocese's explicit ratification of the Dennis Canon--all of which events happened decades before the consecration of Mark Lawrence as bishop of South Carolina. In All Saints, the Supreme Court found that any trust created could not include the property at issue, because the Diocese had abandoned any claim on the property before the creation of any trust under the canons of either TEC or the Diocese. Here, however, there is no dispute, as far as I can tell, that when Mark Lawrence became bishop, TEC had enacted, and South Carolina had adopted, canons creating a trust in all property within the Diocese on behalf of TEC.

Even if I believed (as I do not) that the Diocese had a right to secede from the province, then-bishop Lawrence* took his position as bishop subject to that trust, as did every member of the diocesan Standing Committee.

Now, TEC can bring causes of action based on breach of fiduciary duty, conversion and fraudulent conveyance within, at a minimum, three years after the transfers at issue, or discovery thereof. The quitclaim deeds were issued in November 2011. Thus, the Breakaway Diocese's action would, it seem to me, open it (as a corporation) and the individuals who took the actions to a very serious claim that the 2011 quitclaim deeds constituted conversion, fraudulent conveyances, and breach of fiduciary duty, in that they were issued with the intention of depriving TEC of its interest by the very trustees who owed TEC a duty to protect that interest. Obviously, there is no such thing as a slam dunk in litigation, which is part of why I have throughout advocated (and, where applicable, cheered) peaceful resolution to these property disputes, but I have yet to see a convincing--or, in fact, a plausible--argument as to why the Breakaway Diocese and its policy makers would not be liable. South Carolina's ecclesiastical authorities may have, a century and a half after the original Fort Sumter, made the same mistake that was made then.

*I know, I know; holy orders are indelible--but in what church is Mark Lawrence a bishop? The Church of South Carolina? It's certainly not not the Episcopal Church, and no other province has purported to consecrate him. In what world does Anglicanism support free-roaming bishops and upon what ecclesiological theory? I'm genuinely not trying to be snarky, here, but I don't understand how, having renounced his canonical obedience, and having been deemed by the Church which consecrated him to have abandoned his ministry (a decision which the courts clearly cannot review under the First Amendment), he can claim the title. Feel free to enlighten me in comments.

The Fable of the Fair Cloth

Today, the Episcopal Diocese of New York celebrated the ministry of our retiring bishop Mark Sisk. The celebration took the form of a festal Eucharist with choir and musical offerings by two of the artists in residence at the Cathedral of St. John of the Divine.the inimitable Judy Collins, and Paul Winter (of whom I'd often heard, but had never heard until today).

A minor note, but important for me: as a postulant, this was the first time I have ever processed with the clergy of the diocese, among the seminarians, in cassock and surplice. It was a wonderful experience, chatting with the seminarians and my fellow diaconal postulants, seeing my friends among the clergy, and being welcomed to the fold.

Bishop Sisk's sermon was a combination of gentle thanks for all who had contributed to his episcopacy, and personal reflections, gathered around two anecdotes. One of them, especially, resonated with me. As the Bishop told the story, one day, as he stood at the High Altar in the Cathedral, he noticed that the fair cloth had a gash in it, which had been painstakingly, delicately stitched back together. Curious, the Bishop made inquiries, and found out that some years before, a mentally disturbed man had come into the Cathedral, and had hacked at the altar, through the fair cloth. The Bishop compared the Church to the fair cloth--torn, but still beautiful, rent, but still performing its function.

A little later, Judy Collins stood during the passing of the peace, and walked to the same pulpit where the bishop had spoken. In her remarks, she said that the bishop's story about the fair cloth had reminded her of Leonard Cohen's song Anthem, and its lyric, "There's a crack in everything/that's how the light gets in." She sang the 1860s hymn (as reworked by Pete Seeger, and, apparently, two of his neighbors whose names have been forgotten), "How can I Keep From Singing." Then, "because we need it, in these times," led us in singing "Amazing Grace." She sang it a cappella, in the supernally clear, melodious voice that has occupied a place in my heart since I was a child, and we sang it with her.

You can get something of the flavor of the moment here; though the video is nearly 40 years old, the singer sounds very much the same (although she knew her audience--no effort to get us to do harmony!)



Paul Winter sent us out after the Eucharist and the last hymn with his "Sun Singer," which he performed in conjunction with the Cathedral organist. The piece was well chosen, I think; with the organ accompaniment, it had just the right valedictory feel to mark the celebration of what has been, in the breathing space between that and what is to come.



Taken all in all, a good day.

The Land of Lost Content

In one of his novels (I'm pretty sure it's Murther and Walking Spirits) Robertson Davies describes the notion of the "Land of lost content"--the home from which severed, the exile cannot find rest, always yearning for return, but the place doesn't exist in our mundane world, so the exile always futilely yearns. For Davies's father, that land was Wales (the related concept of hiraeth gets a workout in Davies's earlier novel, A Mixture of Frailties).

For me, as for Helene Hanff, I think for me it has always been England, but not just any England--the England of literature. (Like Helene, I got there, and the guy she spoke to was right--it's there.) I have a particular weakness for the Victorians, the Edwardians and their successors through the 1940s.

All of which is to say that the return of Downton Abbey and the publication of William Manchester's and Paul Reid's The Last Lion: Defender of the Realm are both very welcome news to me--albeit at different levels. Manchester's first two volumes, the superb Visions of Glory (1983) and Alone led me to deeper study and greater admiration of Churchill, warts and all. So volume 3, long despaired of, is an unlooked for benison, even if, at times, it reads a tiny bit as ersatz, not completely authentic, brew. It's not that there weren't ways of pursuing the story without Manchester; the war years are well documents and often told, by WSC himself, and by the estimable Martin Gilbert, and Gilbert's final volume, Never Despair: 1945-1965, is less the work of the academic historian Gilbert has been and more a wonderfully human coda to the titanic life he had chronicled, and a long farewell after the distance Gilbert travelled with his subject.

But I wanted to read Manchester's version, because his storytelling was very, very different from Gilbert's. You want to know why? Here's Manchester's description of Dunkirk, from the Preamble to volume 1:

he French had collapsed. The Dutch had been overwhelmed. The Belgians had surrendered. The British army, trapped, fought free and fell back toward the Channel ports, converging on a fishing town whose name was then spelled Dunkerque.

It was England’s greatest crisis since the Norman conquest, vaster than those precipitated by Philip II’s Spanish Armada, Louis XIV’s triumphant armies, or Napoleon’s invasion barges massed at Boulogne. This time Britain stood alone. If the Germans crossed the Channel and established uncontested beachheads, all would be lost, for it is a peculiarity of England’s island that its southern weald is indefensible against disciplined troops. Now the 220,000 Tommies at Dunkirk, Britain’s only hope, seemed doomed. On the Flanders beaches they stood around in angular, existential attitudes, like dim purgatorial souls awaiting disposition. There appeared to be no way to bring more than a handful of them home. The Royal Navy’s vessels were inadequate. King George VI has been told that they would be lucky to save 17,000. The House of Commons was warned to prepare for “hard and heavy tidings.”

Then, from the streams and estuaries of Kent and Dover, a strange fleet appeared: trawlers and tugs, scows and fishing sloops, lifeboats and pleasure craft, smacks and coasters; the island ferry Grade Fields; Tom Sopwith’s America’s Cup challenger Endeavor; even the London fire brigade’s fire-float Massey Shaw — all of them manned by civilian volunteers:

English fathers, sailing to rescue England’s exhausted, bleeding sons.

Even today what followed seems miraculous. Not only were Britain’s soldiers delivered; so were French support troops: a total of 338,682 men. But wars are not won by fleeing from the enemy. And British morale was still unequal to the imminent challenge. These were the same people who, less than a year earlier, had rejoiced in the fake peace bought by the betrayal of Czechoslovakia at Munich. Most of their leaders and most of the press remained craven.

It had been over a thousand years since Alfred the Great had made himself and his countrymen one and sent them into battle transformed. Now in this new exigency, confronted by the mightiest conqueror Europe had ever known, England looked for another Alfred, a figure cast in a mold which, by the time of the Dunkirk deliverance, seemed to have been forever lost.

England’s new leader, were he to prevail, would have to stand for everything England’s decent, civilized Establishment had rejected. They viewed Adolf Hitler as the product of complex social and historical forces. Their successor would have to be a passionate Manichean who saw the world as a medieval struggle to the death between the powers of good and the powers of evil, who held that individuals are responsible for their actions and that the German dictator was therefore wicked. A believer in martial glory was required, one who saw splendor in the ancient parades of victorious legions through Persepolis and could rally the nation to brave the coming German fury.

An embodiment of fading Victorian standards was wanted: a tribune for honor, loyalty, duty, and the supreme virtue of action; one who would never compromise with iniquity, who could create a sublime mood and thus give men heroic visions of what they were and might become. Like Adolf Hitler he would have to be a leader of intuitive genius, a born demagogue in the original sense of the word, a believer in the supremacy of his race and his national destiny, an artist who knew how to gather the blazing light of history into his prism and then distort it to his ends, an embodiment of inflexible resolution who could impose his will and his imagination on his people — a great tragedian who understood the appeal of martyrdom and could tell his followers the worst, hurling it to them like great hunks of bleeding meat, persuading them that the year of Dunkirk would be one in which it was “equally good to live or to die” — who could if necessary be just as cruel, just as cunning, and just as ruthless as Hitler but who could win victories without enslaving populations, or preaching supernaturalism, or foisting off myths of his infallibility, or destroying, or even warping, the libertarian institutions he had sworn to preserve.

Such a man, if he existed, would be England’s last chance.

In London there was such a man.

I wanted the end of the story from the author of that prose poem. And now, insofar as it can be done, I am reading it.

Downton, is, of course, a much lighter affair. But skillfully wrought and acted, with moments of light comedy edging the pathos from the verge of bathos. Like its predecessors Upstairs, Downstairs (hats off to Jean Marsh and Eileen Atkins for creating the template) or The Forsyte Saga, Downton is a bit of a wallow in what's come to be known as "Theme Park Britain."

These are not, I hasten to add, my Land of Lost Content. They are sentimental (though Galsworthy's novels have tougher fiber than people give them credit for) evocations of the affection that real Anglophile bears the place, but rest on the fire kindled by greater writers--Trollope, Shakespeare, Herbert, Wodehouse, Gore, Shaw, Doyle, Snow, and, yes, I admit it, poor old Galsworthy, as well as so many others--Wilde, Pope, Fraser--there I go again.

Downton capitalizes on the pre-existing goodwill, true, but delivers a good ride. Churchill, in Manchester's telling, reminds us of the power of the Victorian mindset and Victorian values when confronted by the starkest of adversity. Mock them if you will, but at your peril--the Victorians could be repressed, but were never conquered.