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March 2008 Archives

March 2, 2008

Pain and Ugliness-- Stuntz

Physical pain hurts, ugly things look bad, nasty smells smell nasty. What do these basic realities have to do with one another?

I’m pretty sure the conventional response is: not much. Ugliness is an aesthetic judgment, and aesthetics seem somehow not quite real – a kind of ethereal sensibility that one cannot possess absent a measure of training and refinement. Pain, on the other hand, is reality itself: as hard as the ground underneath one’s feet. It is the reality into which all other realities collapse. The more you hurt, the more you do nothing BUT hurt. No training is needed to absorb that lesson.

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March 3, 2008

Evangelicals and the Choice of Democratic Nominee--Skeel

The standard storyline about religion and the nomination process has been the failure of evangelicals to agree on a single preferred Republican candidate. But the choice of Democratic nominee has more momentous implications. If Clinton is the nominee, evangelicals will swarm to McCain (who, contrary to popular belief, has significant support among evangelicals– much more than among staunch, nonevangelical conservatives). Obama, by contrast, could win a sizeable slice of the evangelical vote.

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March 6, 2008

More on Subprime: Bernanke and Bankruptcy--Skeel

Fed Chairman Ben Bernanke has now called on banks to forgive portions of the principal owed by struggling subprime borrowers, which suggests that a major intervention may be coming. As between jawboning (the Republican inclination) and a bailout (the Democrats’ leaning), I’ll take jawboning any day. But the third option, amending the bankruptcy laws to allow borrowers to reduce their mortgages, is, in my view, much superior to either, as I argued in a post last week.

Rather than repeat those arguments, I’ll simply add two additional points.

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March 9, 2008

The Most Famous Evangelical Intellectual You've Never Heard Of--Skeel

Thanks to Crazy for God, a new tell-all memoir by his son Frank, Francis Schaeffer is back in the news in evangelical circles. Twenty-four years after his death, the height of his fame has long since passed, but Schaeffer had an incalculable influence on the contemporary evangelical mind.

In 1955, Schaeffer and his wife Edith founded the Christian retreat center L’Abri in Switzerland. Schaeffer, a Presbyterian minister, took all comers, engaging college students, dropouts, and others in debates about the meaning of life.

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March 10, 2008

My Condition--Stuntz

My surgery happened about ten days ago; I’ve been home from the hospital for a week. The surgery went well, as these things go: the tumor was sizeable but they apparently got all of it, which is good news. Cancer has spread to a few lymph nodes, but fewer than the docs expected. I’m to start chemo, and possibly radiation, soon.

I was hoping to do a fair bit of blogging during this time, but that may be harder than I had imagined: there are good days and bad days, and on the latter, reading and writing just aren’t possible. I’ll do what I can.

I’m trying to feel that eagle soaring . . .

King Lear and the Culture Wars--Stuntz

The two sides in America’s long-running culture war disagree about much, but agree about something very important: both sides believe law shapes cultures, not the other way around. Sometimes, it seems to work that way. The civil rights legislation of the 1960s reinforced and accelerated a dramatic change in white culture. Race discrimination, once routine, came to be seen as the awful thing it is.

But surprisingly often, it works the other way around.

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March 12, 2008


I have two related reactions to the Eliot Spitzer story. First, it seems to me that we have to expect this sort of thing when we ban conduct like prostitution but tolerate upscale call-girl networks like the one Spitzer apparently used. This is a classic instance of American-style law enforcement of morals crimes: rich offenders live by more lenient rules than poor ones. That kind of cultural “reform” program promotes little save for cynicism among the poor and hypocrisy among the rich. The opposite kind of class discrimination—target offenders like Spitzer, and leave street hookers and their customers alone—might work better, but human character being what it is, that kind of trickle-down law enforcement is politically inconceivable.

Which leads to the second reaction: Better to legalize the relevant behavior than to have legal bans that are enforced in heavily class-biased ways. The occasional upper-class scandal like the Spitzer case serves only to fool the public: we think there is actually one law for the rich and for the poor. It isn’t so. Unless and until we are prepared to punish poor street hookers and rich “escorts” equally, we should abandon the fiction of prostitution bans. The sexual culture won’t be reformed by unenforced—or discriminatorily enforced—laws.

March 14, 2008

The Fall of the House of Spitzer: Notes from Rome--Skeel

Shortly after I learned of Spitzer’s resignation, I was at dinner with
several Italian lawyers. At the table next to us at a lovely restaurant
near the Trevi Fountain sat the leading director of soft core porn
movies in Italy. (Note to wife: I didn’t recognize the director, my
companions did). The Italian lawyers were puzzled that resignation was
the obvious response to a sex scandal in the U.S. The Italian public
wouldn’t be especially alarmed about this kind of revelation, they said:
they expect it from their politicians.

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Punishing Corporate Crime--Stuntz

David’s post about Spitzer and his excesses prompts a thought: I wonder whether those excesses might be hard-wired into the enterprise of prosecuting corporate crime.

Think about it this way. Thieves who never quite manage to steal anything aren’t likely to get prosecuted; by contrast, burglars who break into lots of houses are much more likely to face punishment than burglars who break into one or two. More criminal success leads to higher odds of punishment.

Now think about corporate crooks.

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The Debate Over Wiretapping Liability--Stuntz

I confess I don’t understand the current debate in Congress about legal liability for telecom companies that cooperated with the government in the wake of September 11. The issue isn’t whether the kinds of assistance those companies provided ought to be legal—Congress is free to decide that issue prospectively. The only real question is whether, having been promised that they would not face legal liability for their actions, the promise should now be revoked, retroactively.

That just isn’t a hard question.

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March 17, 2008

Spitzer, Bear Stearns and the Uses of Corporate Criminal Law--Skeel

Bill speculated several days ago that prosecutors’ use of criminal law to pursue the executives of firms that go spectacularly bust may often serve no other purpose than to discourage firms from engaging in the kinds of risks that make a market economy go. I for one think that this is a very real danger. Executives who commit crimes should be punished, of course, but often prosecutors seem to identify the targets in high profile cases first, and then start looking for criminal provisions to prosecute them with.

There are two problems with this, in my view.

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Giotto and the Art of Heaven--Skeel

Like nearly everyone who loves Italian Renaissance art, I’ve often wondered why hell seems so much more interesting than heaven in the Last Judgment paintings. My own answer has usually been that, because we are sinful, we understand sin and its consequences far better than we do virtue. As a result, sin and punishment spur our imagination (we all have a bit of Dante in us), while heaven often looks more like a celestial game of ring-around-the-rosy (as in Fra Angelico’s lovely depiction at the San Marco monastery in Florence) than the true transformation the creation is groaning toward.

But after encountering Giotto’s Stefaneschi Polyptych in the Vatican Picture Gallery several days ago, I don’t expect to ask the question much any more. I now think it’s possible to show what heaven will look like, at least in a small way, and that Giotto, the thirteenth century Italian artist who transformed Western art, did it.

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March 20, 2008

Bear Stearns and its Shareholders--Skeel

Many of Bear Stearns’ biggest shareholders are screaming about its proposed sale to JPMorgan for $2/share. This is a good sign. It is important that shareholders bear the costs of the bank’s missteps in the subprime market. But their squawking also raises at least two questions: can they derail the deal?; and would Bear Stearns be better off in bankruptcy?

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March 21, 2008

Should Obama Leave His Church?--Skeel

In the furor this week over the anti-American comments of Jeremiah Wright, the pastor of Barack Obama’s church in Chicago, the one question that’s gotten surprisingly little attention is the most obvious one: Should Obama leave his church?

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Angry Churches--Stuntz

Judging by Jeremiah Wright’s sermons, Barack Obama’s church seems to be an angry place—angry at white America for the many ways it has held back and held down the black community represented in its congregation. I want to write about one source of that anger—crime and criminal punishment—in another post. For now, I’d just note that one can see something similar in a lot of mostly white evangelical churches. There, the target of white believers’ anger is the secular culture that tolerates and even promotes all manner of evil.

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Race and Crime--Stuntz

Like many who heard it, I was powerfully impressed by Barack Obama’s speech in Philadelphia this week. But I found the speech unsatisfying, because it all but ignores the issue that is central to racial division in twenty-first-century America: crime and criminal punishment.

In his clearest reference to that subject, Obama was guilty of either fuzzy thinking or misplaced political correctness. He used his grandmother’s “fear of black men who passed by her on the street” as an example of racism. It isn’t.

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March 22, 2008

Battling Cancer--Stuntz

I’ve spent the month of March, so far, recuperating from surgery for colon cancer. You read a lot when you’re getting over surgery—and, if you’re like me, you watch a lot of “Law and Order” reruns (preferably, any episode that includes the late Jerry Orbach)—and one of the subjects I’ve been reading about is, no surprise, cancer.

Sometimes, the reading is a help. People who have been down this road know things about it that I don’t, and some of them are things I need to know. But the accounts of cancer treatment I’ve read have some problems. One in particular bothers me.

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Race and Crime: More Thoughts--Stuntz

Thanks for the thoughtful comments on yesterday’s post. A few responses:

1. Several posts suggested that high crime in urban black neighborhoods might be due to the “don’t snitch” movement and to rising levels of jury nullification. I think this gets causation backward. Jury nullification became a serious problem in a lot of poor city neighborhoods in the 1990s, and it was clearly a response to mass imprisonment in those neighborhoods – especially, mass imprisonment for drug crime. The contemporary “don’t snitch” movement is, in part, a response to the same thing, and in part, a reaction to the fact that the police can’t protect witnesses – because there aren’t enough police officers.

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March 23, 2008


Every year, it staggers me. Mostly, I think it’s the improbability of the enterprise that knocks the wind out of me, leaves me utterly shattered. The notion that the God of the universe would submit Himself to all the ugliness and indignity and pain that this world can muster, and much worse besides – that He would, in doing so, turn death itself against itself. Add to that the breathtaking, terrible yet wonderful truth that He did all this for the likes of me, and countless more like me. How can it be so?

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March 27, 2008

Clinton's Bank-Friendly Populism--Skeel

Hillary Clinton has just rolled out her most extensive recipe yet for addressing the subprime crisis. The plan, which includes $30 billion to purchase troubled mortgages and for foreclosure auctions, as well as a freeze on foreclosures and interest rates, is striking in two respects: 1) although the plan is wrapped in populist appeals to struggling homeowners (of whom we have many here in Pennsylvania), it seems nearly as attractive to big banks and other lenders; and 2) there’s nary a word about reforming the bankruptcy laws, a much more sensible way to help out homeowners. I suspect these two things may be related.

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March 28, 2008

Hospitals and Cancer Treatment Centers--Stuntz

I’ve spent a fair bit of time around hospitals over the years: two major abdominal surgeries, three lower-back fusions, and more injections and films and tests of various sorts than I can count. The Boston-area hospital I’ve come to know best is Massachusetts General, where my last three surgeries were done.

This past week, I paid my first visit to a cancer treatment center: the Yawkey Center, named for longtime Red Sox owners Tom and Jean Yawkey, whose charitable foundation helped build it. The difference between that center and the hospital that sits next door to it is mind-blowing. Mass General embodies bureaucracy of the coldest sort. Yawkey oozes warmth. The waiting room—where cancer patients sit while waiting to have blood drawn or to see their oncologists—faces one of the best views of Boston I’ve ever seen. You can’t look at that view and avoid smiling. Notice: that smile-inducing vista belongs not to doctors in their offices, but to cancer patients.

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March 29, 2008

Frida Kahlo and Immigration--Skeel

The hottest ticket in my neighborhood these days is the Frida Kahlo exhibit at the Philadelphia Museum of Art. One of the most arresting images in a show filled with startling images is a 1932 painting called “Self-Portrait on the Borderline between Mexico and the United States.” Like all of her art, “Self-Portrait” is about Frida. But it’s also about immigration, and for me, at least, it sparked a question I hadn’t thought about before: if Latin American culture suddenly became trendy in the United States, how would this affect the immigration debate?

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