Why Cats Don't Litigate (Or, at any rate, not well)

So, we have an extra cat, a beautiful tortoiseshell cat who, I swear, I did not let into the apartment. La Caterina claims that she didn't either, but all I know is one day I came home from work and heard this little creature's plaintive cry of "peep! peep!" coming from inside the house. And sure enough, she was there. Really, that's her. On my table. Reedin' mah paper.

So, she's slowly winning over the other cats, but observing the horde at feeding time, I now understand why cats would not, for all their admitted wiliness and intelligence, make good litigators. They do not understand what an experienced litigator friend and I have come to call "the Schmuck Rule." (Except we use a harsher term. In English). As in, "don't be the schmuck." By which I mean that it's every bit as important to convince the trier of fact or law that she or he wants to rule in your favor as it is to convince her that she can rule in your favor. So--don't be the schmuck.

Alas, most of our cats haven't learned that lesson. Oh, Giles, the benevolent, kindly watcher-cat has, and Elvis who is just too nice to be admitted to the NKA (Naughty Kitten Association) or even the less hard edged ANK. But the rest will crowd her out at the food bowls, and one (a feline version of Anthony Ainley) tries to bully her. They are, in short, the schmuck. And sure enough, I give our "newest little treasure" (as our landlord rather archly called her) extra treats and snuggles to make her feel welcome.

And teh boycott isn't working anyway; where Giles and Elvis lead, the others will, eventually, follow.

John Donne's Day

Today we celebrate John Donne--priest, poet, and lawyer. (You can see why he gives me hope!) Donne's poetry ranges from the satirical and sly, the mordant, the holy and the mystical. (A wonderful mordant poem-ette, written on his arrest for marrying without his wife's legally-required consent: "John Donne/Anne Donne/Undone"). A great lover of life, he was drawn into the Church progressively. He wrote, in Holy Sonnet XIV:

Batter my heart, three-person'd God ; for you
As yet but knock ; breathe, shine, and seek to mend;
That I may rise, and stand, o'erthrow me, and bend
Your force, to break, blow, burn, and make me new.
I, like an usurp'd town, to another due,
Labour to admit you, but O, to no end.
Reason, your viceroy in me, me should defend,
But is captived, and proves weak or untrue.
Yet dearly I love you, and would be loved fain,
But am betroth'd unto your enemy ;
Divorce me, untie, or break that knot again,
Take me to you, imprison me, for I,
Except you enthrall me, never shall be free,
Nor ever chaste, except you ravish me.

Anglocat on the Stump!

Your Anglocat has been invited to speak at the St. Joh's University Conference on The Theology of Work and the Dignity of Workers. (I'm speaking tomorrow, Saturday, at the wildly optimistic hour of 8:30 a.m.) Most of the speakers will be addressing these issues from either a labor law or a Roman Catholic perspective. My presentation will be on the Second Oxford Movement and its embrace of the dignity of labor. Here's the abstract:

In the late 19th and early Twentieth Century, the Second Oxford Movement built off the Anglo-Catholic foundation laid by John Henry Newman, John Keble, and Edward Bouvier Pusey. As Anglo-Catholicism grappled with the scientific and social turmoil of the end of the Victorian Era, and the aftermath of World War I, its leaders, especially Bishop Charles Gore, embraced not only the sacramental aspects of Catholic theology, but its commitment to "the Way" as the primary meaning of Christianity. For Bishop Gore, one key component of the Way was rendering justice to workers, which, to his mind, entailed the right to a seat at the table, despite the controversy that view engendered.

The full agenda of the conference is here.

Go to the Mirror, Boy!

So, along the way of this research I'm doing for my almost-complete-first-draft article on the role of canon law in the sex abuse crisis in the Roman Catholic Church, I found myself reading some fascinating works on medieval law--Glanville's Treatise on the Law and Customs of the Realm of England, written in the time of Henry II (around 1189), and The Mirror of Justices (c. 1328). Now, let me be frank here: This stuff is great. It's re-ignited my interest in jurisprudence in a big way, because I love seeing things--ideas, systems, even novels--in the root, and watching them grow. So, in Glanville we see the latest new thing: trial by jury--in a highly embryonic form, where the "jury" is actually a group of knights familiar with the parties and facts, and the first twelve to agree--there's your verdict! A long way from the current system, but a lot more reasoned then trial by ordeal, duel or the delightful farce of compurgation. (R.H. Helmholtz actually mounts a clever defense of compurgation as not intended to resolve factual disputes, but to clear one deemed by the court to have been unjustly accused, and to restore their standing in the community in his admirable The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s.)

But I want to say a word about the Mirror. The Mirror of Justices, it turns out, is as much hoax as history, jape as jurisprudence. The anonymous author (Andrew Horn? Perhaps.) basically, well, made up a lot of stuff that he thought would be good law, and did so plausibly, with so many learned references (which, if you sought out the works cited--a lot harder in the 1320s, when this little number was pulled off, than it is today--didn't support the propositions for which they were advanced. It's quite something to read F.W. Maitland's Introduction, in which he sniffs at "the credulous Coke" (intro at x), who "filled his Institutes with tales from the Mirror" and to realize that he's referring to one of the great figures of English law,Lord Chief Justice from 1613-1616, and the Institutes so tainted were used to train English and American lawyers until the end of the Eighteenth Century. The Mirror, in short, is the most successful "Cicero Memorandum" in history.

What's that? I hear you ask. Ah, welcome to my world. A "Cicero Memorandum" is the creation of John Jay Osborn, the novelist, lawyer and law professor best known for his first book, The Paper Chase. His follow-up, The Associates (1979) (the linked review is, in my judgment, overly harsh), introduces Craig Littlefield, an associate whose real passion is jurisprudence, and who comes up with an interesting solution to law firm ennui:

"I've decided that from now on, all my memoranda will be jurisprudential by nature. Suppose I am asked a tax question? Will I go to CCH or Prentice-Hall manuals? Will I look up the cases? No. I will turn to Austin, H.L.A. Hart, Lon Fuller, Pollock, Gierke. I'll give them Cicero, St. Augustine, Clactus. Perhaps even Dworkin and Cohen. All the good philosophers."

"You'll be fired. Of course you know that."

"I doubt it. They probably don't even read my work . . . My theory is that if I return to basics, to fundamental principles, the answers I give them will be correct, and should correspond with whatever conclusions an associate would reach by reading the cases. Now, if my answer is technically wrong, there will be only two possibilities. Either my analysis from first principles will be in error, or the current law is wrong."

(p. 157). Asked how he'll disguise his references, Littlefield blithely decides to make up case citations, and lose the books until the partners lose interest. He gets away with several "Cicero Memoranda" as he terms them, convincing himself that "[a]pparently, decisions interpreting section five-o-one(c)(three) of the Internal Revenue Code conform exactly with Rawls' theories of distributive justice, or the partners do not read my memorandum." (p. 181). Of course, it all ends badly. For a little while.

Not only was the Mirror successful in the short run, but it enjoyed a nearly 500 year lease on life as a source of law, on its own and through Coke. It is the ultimate Cicero Memorandum. And the fact that I was able to get a beautiful copy of the 1895 Selden Society folio size edition (marred only by the fact that I have to cut the leaves myself) is just extra gravy.

Armstrong: The End of the Affair

According to the Colorado Springs Gazette, Father Donald Armstrong has been sentenced in accordance with his plea bargain:

A judge Friday sentenced the Rev. Donald Armstrong to four years probation for his no-contest plea to one count of misdemeanor theft of funds from the Colorado Springs church where he once served as rector.

Fourth Judicial District Judge Gregory R. Werner also ordered Armstrong to pay restitution in the amount of $99,247 that was diverted to pay for his son's and daughter’s college education. The money came from a trust fund originally set up to pay for the education of seminary students.

But Werner rejected a request by a special prosecutor to order Armstrong to repay Grace and St. Stephen’s Episcopal Church an additional $191,753 in church funds that also were spent on his children’s education.

Werner cited testimony by three former church officials who testified they knew of a deal where the church paid the tuition in lieu of giving Armstrong a raise for several years.

The judge also ordered Armstrong to perform 400 hours of community service not related to his current church and forbade him from managing the funds of any trust, business or legal entity.

Well, that testimony was a variable I hadn't foreseen. The testimony itself depicts a situation which strikes me as irregular at best--that the two wardens and another church official knew about Armstrong receiving college payments instead of raises, but that the vestry did not--and, in view of their joining the breakaway church led by Armstrong, St. George's, my cynic-o-meter is bleeping. Still, I stand by my original analysis: dislike Father Armstrong's churchmanship though I do, this was an appropriate resolution, properly geared toward not inflicting more harm than necessary. I note that, as I suspected, the prosecutors were not amused by Armstrong's attitude in the wake of the plea's negotiation (from the first linked story):

Prosecutors had asked the judge to consider jail time for Armstrong, without saying how much.

“I’m sure if church members had their way they would lock him up and send him to Elba,” said Pueblo County Deputy District Attorney Stephen Jones, alluding to the island near Italy where Napoleon was exiled.

Jones served as special prosecutor in the case because former El Paso County District Attorney John Newsome had been a member of the vestry, or governing body, at Grace Church.

Jones also asked the judge to order Armstrong to write a public apology to his former congregation, noting remarks Armstrong made after entering the no-contest plea in which he continued to maintain his innocence.

“It seems like there’s been no acceptance on the part of Mr. Armstrong to the reality of what he did,” Jones said.

The judge acted within his discretion in declining to order an apology, noting that the gap between the two congregations was "a huge divide." My only qualm about this resolution is the thought that Fr. Armstrong may in fact think he "got over." But the fact is, he didn't. Probation, being barred from fiduciary positions, and the public embarrassment--these all exact a cost, to say nothing of the months of anxiety he and his family must have suffered. Moreover, even after he completes his probation, he will still have a theft conviction on his record.

Fr. Armstrong is not in TEC anymore. So I don't feel an further comment from me is warranted, other than that I hope he will view this result as a what in fact is--a second chance and that his future ministry will be worthy of it.

John Spencer Explains It All

This bit, from The West Wing nails it--and is beautifully performed by the late John Spencer, with the support of Joanna Gleason:



I admired Spencer's work in a lot of different roles, but his portrayal of Leo McGarry was, I think, the crowning moment of awesome in a superb career. I was having a West Wing DVD retrospective this week as a "study break" from writing, and happened to hit this episode. Just outstanding work, especially in this scene.

Canons of Deconstruction

Well, still on my blogging sabbatical, working on a law review article on the role of theology in the RCC sex abuse crisis. The interesting thing I've been finding is a complete lack of comprehension on the part of non-Catholics of the Church's rationale underlying its defensiveness and secrecy, and, on the other hand, a complete lack of comprehension on the part of the hierarchy and its defenders of the outrage secular society (as well as, of course, many Catholics) feel as a result of the scandal. To a surprising extent, a large part of what I'm doing is interpreting each side's position, and trying to put it in a context the other might understand.

That doesn't mean that I think the RCC position is valid; I don't. But it's a position that has roots all the way back to the Twelfth Century, and that's not a tradition that one can just be written off as a post-hoc rationalization. It's been fascinating, too, spelunking through medieval history and theology, and reacquainting myself with such towering figures as Henry II, Thomas Becket, Augustine, Aquinas, and John Henry Newman. And meeting several new figures, including Gilbert Foliot, whose complexity of thought and moderation make him much more than a critic of Becket.

I'll link to the essay when it's finished.