Sunday, September 20, 2009

Superb Short Piece on Burke: Note Especially the Last Line

Washington Diarist: With Respect to What

Leon Wieseltier

September 18, 2009 4:06 pm

Travel westward along Massachusetts Avenue, down from Capitol Hill, and you will run into Edmund Burke. He seems to be hailing a cab, hand raised high, fingers parted, his whole form tense with the attempt to seize your attention; but in fact he is in mid-expostulation. This is the torsion of argument. The bronze statue, a copy of a late nineteenth-century one that stands in Bristol, which Burke immortally represented in Parliament, is eight feet tall, and was presented to Washington in 1922 by a British organization devoted to Anglo-American comity.

Inscribed on its pedestal is a sterling sentence--"magnanimity in politics is not seldom the truest wisdom," in the capital usually honored in the breach--from the conclusion to Burke's speech in 1775 on "conciliation with the colonies," which is the greatest speech I have ever read. The statue's location is a fine emblem of the local polyphony: a block away is the memorial to Samuel Gompers, glumly in bronze, who sits beneath a turgid company of allegorical figures, which contrasts unfavorably with the animated lucidity of Burke's image.

The progressive monument shows a fasces, the conservative monument shows a tricorn hat. And a few steps up the street is the libertarian glasswork of the Cato Institute—in a certain light Burke seems almost to be castigating it. In 1967, in a worshipful book about Burke, Russell Kirk ominously declared that "if, in the near future, this Burke statue still stands in deathless bronze on Massachusetts Avenue; and if its original ... still stands at Bristol ... --why, they will remain as symbols of a human order that has not been pulled down altogether." Well, it still stands, on a grassy island amid the traffic of an unapocalyptic city in which nothing can pull down human order, or disorder.

We are in the middle of yet another Burke revival. Jon Meacham, who relies on the identification of trends for his professional survival, ruled so last spring. The evidence is everywhere. Sam Tanenhaus smartly explains the fate of American conservatism as a contest between Burkeans and "revanchists." David Brooks calls President Obama a Burkean, though Thomas Sowell disagrees. In merry complicity with his own manipulation, Brooks tells of David Axelrod greeting him in the White House with a copy of Reflections on the Revolution in France in his hand. (No doubt liberal columnists are met with On Liberty.) A few years ago Arnold Schwarzenegger invoked a school of political thought that he unforgettably described as "Schwarzenegger, Edmund Burke, [and John] Kennedy." In a CNN discussion of health care hysteria last summer, Mary Matalin spoke obscurely of "Edmund Burke–type linguistics." Even Patrick Leahy cited the right's idol in a speech on government reform. And so on.

(I do not include George Will in the fashion, because he really is a Burkean and has the study to prove it.) Many decades ago Kirk noted with some astonishment that "nowadays Burke is praised in such journals as The New Republic." I am happy, in the spirit of the subject, to conserve the tradition of the house.

The Question of Burke is the question of change. It is no wonder that he is back now. Whether or not it is Burkeanism that moves Obama, the scale of his plans are an incitement to its reconsideration. But if Burkeanism means a hostility to change, then Burke was himself not a Burkean. "At once to preserve and to reform": here is the other great dialectical thinker about modern politics. "We compensate, we reconcile, we balance."

On America and on India, Burke espoused drastic historical action. Conor Cruise O'Brien, of genuinely blessed memory, may have liberalized Burke a little too much in The Great Melody, but he was correct, I think, that Burke's "one constant target" was the abuse of power. And for all his celebrated traditionalism, Burke unflaggingly championed rational deliberation: "In a free country every man thinks he has a concern in all public matters; that he has a right to form and a right to deliver an opinion upon them. They sift, examine, and discuss them ... Your whole importance, therefore, depends upon a constant, discreet use of your own reason; otherwise you and your country sink to nothing." Or, more poetically, "mind must conspire with mind."

Tradition, in Burke's category-shattering complexity, was in its way the history of public reason, and therefore not to be trifled with. Liberals should welcome a notion of truth as additive and accumulative. It may be objected that reason cannot operate adequately without abstraction, which was what Burke most loathed; but still his fidelity to received understandings must not be mistaken for a vindication of prejudice and unexamined conviction.

What Burke Demanded, rather, was circumspection about the motive for, and the pace of, change. Caution is not a sign of "reaction"; and the long annals of left-wing incaution, of the degradation of reform by revolution, should humble some of Burke's despisers. The Burkean retort to the call for change is, with respect to what? The idea of changing everything and the idea of changing nothing are both merciless, and unempirical, and futile for politics. We are all Burkeans and all not Burkeans, all preservers and all reformers, all liberals and all conservatives; we all have our preferred acceptances and our preferred remedies; we all do not wish to create or to destroy the world.

We must all climb down from our glittering generalities and justify what we propose in the particular. Concrete change is the only change we can believe in. (Obama has a peculiar relation to concreteness: he floats above it, in the empyrean of his diction, until he collapses into expediency.) The question, are you for change?, is like the question, are you happy?: an emotional set-up, an invitation to mistake a mood for an analysis. The only right answer to such a question is yes and no. To fulfill our desire we must disaggregate it.

In the matter of health care, the Democrats are learning this lesson, reluctantly; but the Republicans are now in a frenzy (or as Burke has it, a phrenzy) of aggregation, in wanton opposition to everything. It is not Burkean to declare, as William Kristol did again the other day, that "there is no health care crisis." Such a view is an affront to Burke's teaching about the significance of "circumstance," and to his undoctrinal and uncomplacent tone. It preserves, but it does not reform. Anyway, the preservation of our ills is not what we mean by tradition.

Leon Wieseltier is the literary editor of The New Republic.

Sunday, September 13, 2009

Basman on Nussbaum

I have not read Christine Nehring’s A Vindication Of Love and I barely know who she is. But I did read Martha Nussbaum’s TNR review of Nehring’s book; and I do know something about Nussbaum.

For Nussbaum an exemplary life is one of risk, challenge, profundity, seriousness and encountering big things: “The smallness of aspiration against which Nietzsche inveighed in his portrait of “the last man” is not, as he suggested, a recent creation of bourgeois European Christianity. It is a pervasive inclination of ordinary human life.” And: “The wise thesis is that one should be willing to incur risk for the sake of a deep and valuable love…”; “given that people tend to be self-insulating and risk-averse, valuable love involves “conquest and self-conquest,” a struggle against one’s own selfish and self-protective propensities. In this sense, struggle does seem intrinsic to the valuable type of love.”

An anecdote may illustrate the problem I find with Nussbaum’s arguments. I had a friend of mine too many years ago—in 1969—guest teach my first year English class, the students of which I otherwise taught, graded and passed and failed when I was a graduate student in English literature. He had not long before been an Assistant Professor who had never finished his PhD. After a power shift in my university’s English department he was deemed part of the dead wood. He was denied tenure. He went through ample protest, grief, apathy, depression and finally emerged with a not so bad teaching job in a local junior college which he stayed at for the rest of his career. In the guest class, at a certain point he launched into a paroxysm of passionate advice for my freshman students to take risks, court the possibility of failure, engage chaos if need be, rather than lemming like proceed through life with nothing ventured nothing gained.

I gave him a ride home after the class and at a certain point I asked him (told him really) whether it was presumptuous to so harangue my students when he did not know the first thing about any of them and when his own lived life contradicted all his advice. He had the same need for security and stability we all did. He was married and had to worry about paying a mortgage and such like—he had no kids—and to do that to bring home a pay cheque. I did not see him taking any risks, meeting great challenges, doing anything outside his day to day work remarkable for its seriousness and gravitas; nor did I see him engaging big things or courting either danger or chaos. I said, getting a head of steam going, that considering the example of his own life his advice was near a lie and that even if he exemplified his advice, dispensing it to impressionable first year students who never sought it was out of line, and, I thought, undeservedly self congratulatory.

I don’t like the notion of the last man though I think Nussbaum softens it almost to the point of platitude--reducing it from a specific social observation rooted in a specific time-- by saying, as if one upping Nietzsche, “…his portrait of “the last man” is not, as he suggested, a recent creation of bourgeois European Christianity. It is a pervasive inclination of ordinary human life.”

Ya’ think?

Really, you don’t need a PhD in philosophy from Harvard to know that “pervasive inclination”.

I note Nussbaum’s slicing of Nehring’s argument into two theses: the willingness to incur risk for the sake of a deep and valuable love; and the measure of love’s quality as the quantum of danger, risk and suffering we incur in its attainment. That second thesis is, as Nussbaum says, “adolescent and silly” for the reasons she points out and others--it's melodramatic, self absorbed, and an abstraction which fixes on a vulgarly romantic conception of love rather than the mature actuality of it as we experience it concretely in our lives.

But the first thesis which Nussbaum calls "sensible and wise" is no bargain either though for different reasons. Who is Nussbaum (or Nehring for that matter) to be recommending to people that they take risks for great love? What does she know, like my advice dispensing rather hapless friend, about whom she is talking to? What body of evidence gives her advice any foundation? After all, she herself notes that “Nehring provides no systematic evidence for the claim that attitudes to love have changed”. And what is her own systematic evidence? It amounts to this:

“…But it is certainly possible that in America in our own era we are seeing a rising tide of risk aversion. If I compare my students today with my student contemporaries of the 1960s and 1970s, they certainly do seem to be more cautious and more calculating--about career choice, political engagement, and aspiration generally. They make prudent life plans, and they are unembarrassed by all their prudence. It would not surprise me if attitudes to romantic love have become similarly cautious and calculating, and perhaps also similarly ironic and detached. How could they not, if people are determined not to take large risks in any precinct of life?...”

This seems illogical to me. Let’s assume that students are more prudent and calculating now than they were in the sixties—a case I’d rather see made than asserted impressionistically (and note the hedging " is certainly possible"). How does anything telling about their attitudes to romantic love necessarily follow? What, even in these impressionistic surmises, are we to gather about the attitudes of the more activist students of 30 and 40 years ago towards such love, of which I was one (save perhaps that the whole notion of romantic love was thought to be a bourgeois con)?

These quarrels with Nussbaum’s comments feed my more overriding criticisms of her argument: she has nothing to say to people she doesn’t know about incurring risks for love; she doesn’t know what people in the specificity of their lives risk and what the depths of their love may be; and she is platitudinous and vacuous—we all tend to be risk averse; take great risks; follow your heart—all tricked out in fancy language and with learned examples and names being dropped here, there and everywhere.

If one wants to test her fatuity consider how attenuated and unspecific her advice is. When do we incur such risks: when we just have met Ms or Mr. Right in sharp juxtaposition with a spouse of some years whose attractiveness has lost its luster, with kids, with the pressures of work, with bills to pay, with illness present, with all manner of setbacks, when years of a difficult life together have settled into something manageable or congenial or just pleasant and companionable? That in the midst of life one might find a great love—a “soul mate” as they say—and decide to forsake one's spouse, promises, moral obligations, commitments and fidelities of course happens. But that isn’t necessarily incurring great risk for great love. And either side of the decision so to forsake could be argue persuasively either way.

I don't think people not asking for it need prescriptions from Nussbaum, Nehring or anyone else on how to calibrate their souls so as to be open to great love or to be told pontifically what to risk for what.

My point is that Nussbaum is empty, unhelpful and self important burying platitudes in the here soft pillows of her scholarly learning and philosophical wisdom.

Nussbaum on Taking Risks for Love

Women today are too risk-averse in love, charges Cristina Nehring. We “settle,” and seek comfort rather than passion. In flight from pain, we end up too often with mediocre and cramped relationships. Obsessed with control, we lack “the generous fault to put oneself entirely in another’s hands and thus be at his mercy.” We employ a whole battery of devices to lessen our exposure to experience, to distance ourselves from real vulnerability: we regard our passions with ironic distance; we convert sex into a commodity; we glorify momentary pleasure rather than lasting emotion.

In the process, Nehring continues, women are losing out on one of life’s great goods. For love is not just wonderful in itself, it is also a source of energy for the rest of life’s activities--particularly, perhaps, for artistic and intellectual creativity. And it is a source of insight, leading us to see ourselves and others with more generous and accurate eyes. (Here Nehring draws persuasively on Plato’s Phaedrus.) In sum, love makes the entire person come alive--but only if it is pursued with sufficient openness and daring that it brings with it a constant danger of pain and loss.
So far, so good. Nehring certainly raises an important issue--although it is not only with respect to love, and not only yesterday and today, that people have preferred to live in an excess of caution. Most people in most times and places have been averse to risk, avoiding deep commitments of all sorts--to work, to justice, to a cause, to a country-- because they can see that through such commitments they would risk failure on a large scale. Most people enjoy contemplating the sufferings of tragic heroes, but they do not wish to be called upon for heroism themselves. Not caring deeply; looking at everything with irony, as a mere spectacle; and pursuing superficial pleasures: these are clever ways of evading or thwarting tragedy--in love, but also in every department of life. The smallness of aspiration against which Nietzsche inveighed in his portrait of “the last man” is not, as he suggested, a recent creation of bourgeois European Christianity. It is a pervasive inclination of ordinary human life.
But it is certainly possible that in America in our own era we are seeing a rising tide of risk aversion. If I compare my students today with my student contemporaries of the 1960s and 1970s, they certainly do seem to be more cautious and more calculating--about career choice, political engagement, and aspiration generally. They make prudent life plans, and they are unembarrassed by all their prudence. It would not surprise me if attitudes to romantic love have become similarly cautious and calculating, and perhaps also similarly ironic and detached. How could they not, if people are determined not to take large risks in any precinct of life?
Nehring provides no systematic evidence for the claim that attitudes to love have changed. She ignores a huge stretch of popular culture when she says that we badly need some books that make passionate romance sexy for women. Can it be that she has never encountered romance novels? Does she not go to the movies? Still, she is on solid ground when she contends that many people miss a lot in life, including a deeper understanding of self and other, because they are determined not to fail and not to suffer--because they hold the conviction that it is not better to have loved and lost. If you are a person globally averse to risk, then you will circumspectly avoid profound personal love, because its riskiness is obvious.
Nehring seeks to “reinvent” romantic love for our time, and to accomplish this by telling great love stories from literature and history, trying to get us to see how appealing they are in their proud openness to risk and in the magnitude of loss to which they make themselves vulnerable. Abelard and Heloise, Antony and Cleopatra, Mary Wollstonecraft and William Godwin, Margaret Fuller and Count Giovanni Ossoli, Jean-Paul Sartre and Simone de Beauvoir, Frida Kahlo and Diego Rivera--they are all fun to read about, and they do remind us of the joyousness and the wisdom that can come from life lived on a grand scale, without crippling self-protectiveness. (Although most of Nehring’s key examples are heterosexual, she expresses sympathy with same-sex lovers too, and evidently thinks that the same analysis applies to their choices.) Nehring rarely mentions the fact that some of these examples are fictional and some real, but blurring that line does not cause confusion, because her strategy is to show the lasting appeal of these stories for women today, as models and possibilities.

Unfortunately--since there is a good idea here--Nehring does not have terribly good taste about what is sexy in literary love. She adores the large melodramatic gesture, but does not seem drawn to subtlety, playfulness, or finesse. There is “hardly a sexier moment in the history of opera,” she pronounces, than the scene in Carmen in which Carmen convinces Don José to release her. Well, all right, the music is first-rate, but the view of love on offer is so adolescent that even Nietzsche--famous for his silly views about women and love--went for it. The simple man brought low by the wiles of a heartless seductress: this is a banal male fantasy, and it has very little to do with anything like love.
One suspects that Nehring would be utterly bored by the passages in opera--which is indeed a vast literature about love--that explore love and sexuality in a more subtle and, I think, more genuinely erotic manner: the playful, tender seduction duet “Il cuore vi dono” in Così Fan Tutte, which surely depicts risk in its own way, by showing how one can search for one’s own heart and then discover that it is beating over there, in someone else’s body; or the ecstatic final duet “Pur ti miro, pur ti godo” in L’Incoronazione di Poppea, which shows why one would want to take a risk in the first place--so as to attain a rapturous focus on the person one loves. Notice that in both lyrics the “you,” not the “I,” is paramount: these lovers are savoring one another, not their own interesting mental states.

For Nehring, only the crashingly obvious and way-over-the-top is sexy. This is a considerable defect in a book that aims to re-invigorate romantic love. Similarly, and astonishingly, she dismisses Shakespeare’s comedies as sources for insight into romantic love, calling them “frivolous,” “light-hearted,” and “without gravity.” (A part of the problem is that she appears to think that laughter is incompatible with passion.) And Nehring’s aesthetic deficiencies are amply on display in her writing, which is breathless, full of cheap effects, and as narcissistic as a teenager’s diary:
As I write these words, I bear the bodily scars of a loss or two in love. I have been derailed by love, hospitalized by love, flung around five continents, shaken, overjoyed, inspired, and unsettled by love.
There is a lot more writing as bad as this in Nehring’s book. Her bad prose has an ethically unpleasant flavor, in its fascination with her own experience, her own pain, and her own ecstasy. This is surely not helpful if what one is pursuing is love, which is, after all, directed at another.

Her style is not Nehring’s only problem. Her central thesis is really two distinct arguments, one sensible and wise, the other adolescent and silly. The wise thesis is that one should be willing to incur risk for the sake of a deep and valuable love. This advice may not be for everyone, but for those who have the strength to live that way, such a life does, as she says with Plato, promise great rewards--even when, as often happens, the love turns out to involve reversal or some other type of suffering. (There is always death at the end of even the happiest love.) We can add to the wise thesis a corollary that Nehring at times endorses: given that people tend to be self-insulating and risk-averse, valuable love involves “conquest and self-conquest,” a struggle against one’s own selfish and self-protective propensities. In this sense, struggle does seem intrinsic to the valuable type of love.
The second thesis, which Nehring regularly confuses with the first, is that the quality of a love can be measured by the amount of danger, distance, riskiness, suffering, and so on that it involves. In the pursuit of this melodramatic idea, Nehring writes chapters with subtitles such as “Love as Inequality,” “Love as Transgression,” “Love as Absence,” “Love as Failure.” The idea that love is improved by suffering and loss is an adolescent view (despite the fact that some great Romantic writers have had it--but then Romanticism had its elements of immaturity). This argument generates some of the book’s silliest parts, in which Nehring recommends to today’s women a life spent in unseemly narcissistic reveling in their own tribulations.
The second thesis is not the same as the first. All of Nehring’s favored lovers were willing to endure suffering for love, if life brought suffering their way--but they did not seek it out. They were quite prepared to live happily, and they eagerly did so, until illness and death took their inevitable toll. Sartre and de Beauvoir, Wollstonecraft and Godwin, Antony and Cleopatra: none of these lovers courted suffering as a good in itself. By Nehring’s own account, they enjoyed life and one another--and then, because of the way life is, they had to deal with adversity, loss, and death. But the roiled Romantic sensibility of Nehring’s second thesis, and the characters who are its exemplars, is quite different: Werther was not prepared to live happily with anyone, and he clearly regards his love as deep in proportion to its painfulness. Nehring clearly loves the Werther model of love, but I would question whether this is a model of love at all, and not a type of acute self-preoccupation--narcissism masquerading as love. Unlike love (as Nehring in her Platonic mood describes love), it yields no insight into any other person, because the gaze is resolutely on the vicissitudes of the self. Nor does it yield any insight into nature, since nature is seen through a fog of the sufferer’s own projected emotions. Nehring asks women to take generous risks, rejecting self-concern and self-protectiveness, but in her fascination with the pain of the self she moves awfully close to the invincible self-involvement that she rightly criticizes.

Each of Nehring’s chapters generates its own version of the two theses, and of the tension between them. Real love may be able to surmount social inequality--but does it require or thrive on social inequality? Real love may require suffering or loss, and this suffering may move us when we contemplate it--but does the love itself really get better or more “purified” the more the lovers suffer? Nehring certainly does not show that lovers are more open to one another because of the suffering that they endure. Again, deep love may at times lead lovers to transgress restrictive social norms, but surely it does not follow that love is deeper and more real the more transgressive it is. And this confusion about transgression is nothing other than a staple of male mid-life crisis. Politicians seem particularly prone to this confusion, perhaps because that profession selects for a high degree of narcissism.

Nehring addresses her book to women. She thinks that it is women in particular who need to hear her message, because she has an unusual diagnosis of the reasons for today’s risk-averse living. Bypassing such plausible causes as pervasive human anxiety, the desire to control the uncontrollable, the felt need to surmount mortality and the limits of the body, she pins the whole thing on--fanfare of operatic trumpets!--feminism. Feminism is to blame for women’s rejection of romantic love because, says Nehring, feminism asks women to be always rational and always in control, rejecting the romantic emotions as sources of low status or even of servitude. Moreover, feminism urges us to see love in contractual terms, and that sort of calculation is incompatible with real passion.

Let us admit that some feminists have mistrusted love altogether, and have urged women not to allow themselves to fall under its sway. One can always find such passages from some of the early radical feminists (though Nehring is quite wrong to pin this view on Andrea Dworkin, who wanted to open a space for real passion by getting rid of the idea that the man is always entitled to use force to gain his ends). And let us also admit that some feminists have at least suggested that correct sexual relations should not involve anything like abandon, or play with power relations--a view that Nehring appears to target, albeit unclearly. Some feminists may have been so severe in their critique of inequality that they insisted on too vigilant a control over people’s unruly fantasy lives. But the dominant view in feminism, I think, has been that the context of the relationship as a whole is all-important: in a context of mutual respect, intimacy, and trust, there is nothing problematic about experimenting with passivity, abandon, and temporary power and powerlessness.

Let us admit, too, that some feminists have wrongly criticized Mary Wollstonecraft for her passionate erotic life, in which she seems to them to be too susceptible, too lacking in pride. To the extent that some feminists have said this, Nehring is right to point out that the energy of some of the best feminist work comes from a willingness to seek passion without self-protection.
On the whole, though, the idea that women who are romantic and sexually passionate cannot be real thinkers has come more from males than from females, as Nehring herself notes. Men have had an irritating propensity to react to the presence of a sexually and romantically charged woman as if she were a source of trouble and confusion, and to feel that clear thinking can only take place if she is ushered out of the room. But that is their problem, not ours; and Nehring is right to say that women should never have listened to them. Male artists, as Nehring emphasizes, have always been allowed to have love lives, and women should have demanded the same right from the start. So I agree with Nehring that a productive feminism should not internalize the male critique of female sexuality, and that it should claim the right to equal erotic lives. How far this is the problem of feminism, and how far it is just an understandable reaction to a real problem that women were having in the workplace, still needs to be determined.

What certainly cannot be maintained, however, is that the search for equality itself is the death knell of passion. Nehring agrees that women did not get much opportunity to take risks for love until feminism came along: they were treated like property, and they could not really choose a mate for love. They were subject to force, and this was taken to be normal, the way things were, especially in marriage. Real sexual agency, for all but a lucky or privileged few, required feminism, with its insistence on the right to divorce, and its protection against marital rape, and increased attention to problems of sexual coercion in the workplace. Nehring seems to grant this--but then she should grant also that the entry of law into the domain of intimacy is not the end of romance, but its necessary condition. Unless and until women can earn money without depending on men; unless and until they can protect their bodies against assault, even in an intimate relationship; unless and until they can protect themselves from unwanted pregnancy; unless and until they feel free to go to the police when they have been assaulted--unless all these conditions of freedom and autonomy are in place, the pursuit of adult romance may be jeopardized for many women. Fear and silence will reign supreme. Why were the students of my generation so joyful and so willing to accept risk? In part, because feminism had cleared a space for risk of the valuable sort, by beginning to control the bad and non-necessary risks that women used to run every day in a male-dominated world.

But, says Nehring, love thrives on inequality. Here, of course, we have the two-theses problem. The first says, wisely, that real love should be prepared to overcome inequalities of power, class, and station. (That is the plot of more or less every Victorian novel.) The second says, foolishly, that real love requires inequality of power, class, and station. So confused is Nehring at this point that she interprets Pride and Prejudice as confirmation of her second thesis rather than her first: it shows, she says, that people always eroticize class difference and would never love people of similar station. What a trivialization of Elizabeth Bennett and Mr. Darcy! Their deep moral and intellectual affinity, and their strong romantic attraction, gradually manage to surmount the obstacles imposed by rigid social norms and the internal dispositions (prejudice and pride) that they engender. It is true that there would be no novel without the distance: after all, there has to be a plot. It seems obviously untrue, however, that there would be no love without the distance. Far from social distance being eroticized, it is, until late in the novel, a source of erotic blindness. At this point Nehring’s argument loses all clarity, as, seeking confirmation for her anti-feminist thesis, she begins to treat any qualitative difference at all as “inequality”: the very fact of heterosexuality, she now says, shows that sexual desire thrives on inequality.

But does passion even require qualitative difference? Here Nehring appears to endorse a view of sexual attraction that Roger Scruton popularized some time ago in his book Sexual Desire. Really valuable sexual passion, Scruton said, requires qualitative differences between the parties, because sexual love, when valuable, involves a kind of risky exploration of strange terrain, and we should think less well of those who stick to the familiar. Scruton could not advance this claim as a descriptive thesis about sexual choices, for nothing is more obvious than that people tend to choose people close to themselves in all sorts of ways--religion, class, education. But he did put it forward as a normative claim, and he used it to argue that heterosexuality is superior to homosexuality, because it involves greater adventure and risk. Something like this is probably what Nehring has in mind, although she has no disdain for same-sex passion.

What should we think of this? Do people who choose qualitatively similar partners really lack courage? The most obvious problem with Scruton’s thesis was that it was capriciously and inconstantly applied: to sexual orientation, but not to romances between adults and children, between Protestants and Catholics, between the virtuous and the immoral. A more subtle problem with his argument is that it is not even clear how it could be assessed: for, as the philosopher Nelson Goodman showed in his great essay “Seven Strictures on Similarity,” the concept of similarity is so slippery that it has basically no content. Any two things are similar and dissimilar to one another in manifold respects.

But the real problem with Scruton--and Nehring, who speaks, Scruton-like, of the “enigmatic Other”--is that they both mislocate erotic risk. What is risky is not getting in touch with some trait that is dissimilar to some trait of one’s own. It is the whole idea of becoming vulnerable to an inner life that one cannot see and can never control. It is not qualitative difference, but the sheer separateness of the other person, the idea of an independent source of vision and will, that makes real love an adventure in generosity--or, if one is like Proust’s narrator, a source of mad jealousy and destructive projects of domination and control. And this has nothing at all to do with class difference, or gender difference, or even temperamental difference. It has to do only with the fact of human individuation--that minds and bodies never merge, that intimacy is not a fusion but a conversation.

There is a grain of truth in Nehring’s thesis about personal qualities: it is at least plausible to maintain that loving someone who is complicated, opaque, and in some respects concealed can be of particular interest or value. At any rate, we often think less well of people who are willing to love only people who are altogether obvious and lacking in complexity. Rightly or wrongly, we think that such lovers are refusing some challenge, or lacking in curiosity. And yet an erotic attraction to psychological complexity does not require pursuing class difference, career difference, power difference, or some other obvious kind of difference. Indeed, it is difficult to imagine how one could ever pursue a relationship with persons as complicated as some of the artists and writers adduced by Nehring without a context of shared activities, commitments, or aspirations that would generate the kind of friendship and openness that make insight into another person’s complexities possible. The way she tells the stories of those complicated artists and writers, they understood this well.

Nehring’s complaint against feminism appears to be groundless (apart from offering a fair critique of some of its radical excesses). Pursuing equal respect is perfectly compatible with love. And what’s more, Nehring herself seems to think so. I would say that she is a feminist in spite of herself. For among the many relationships that she depicts, she keeps being drawn to the ones that assuredly do involve equal respect and reciprocity: relationships between strong thinkers or artists who respect one another’s work and sphere of action, and find a way to enact equality even in a world of inequality. In the case of Margaret Fuller, she makes it clear that she finds the Cambridge suitors who fail to appreciate Fuller’s intellect pathetic and contemptible, and she is very glad that Fuller ended up with Ossoli, who did know how to respect her.

All these are feminist paradigms, in the sense that the male of the couple is prepared to defy convention by giving the woman a respect, and a sphere of action, that the surrounding world does not give her. They involve deep connection and a willingness to risk difficulty and adversity, but they combine these qualities with reciprocity. Indeed, it is clear that much of their depth is owed precisely to their reciprocity, because mutual respect generates trust, and trust in turn promotes greater openness and generosity. Nehring herself concludes that “romantic love is better between partners with equal rights. . . . We can have both knowledge and mystery, equality and abandon.”

Nehring seems like a very sensible person with some provocative and useful observations, and some wonderful historical and literary material. If her book has an emboldening effect on some of its readers, if it makes them question their inclination to prudence and calculation, then it will almost certainly be for the better. How unfortunate, then, that--led on, perhaps, by the demand for hype and extremism that is a large part of the book-marketing industry these days--she should have rushed into print with an unrefined and not fully disciplined set of ideas, uttered in breathless and melodramatic prose. Her own thoughts deserve better.

Thursday, September 10, 2009

Fisher v Fisher Revisited

Fisher Revisited

This case is a 19 year marriage with no children.

They married in August 1985 and separated in April 2004.

The trial judge ordered 3 years of support with provision for a 3 year review without the need for a material change of circumstances.

Appeal court orders time limited support for 7 years.

The parties were married 1n 1985 when 21 and 23 each and separated April 2004 when they were 41 and 42.

The wife (appellant) worked for the early years of the marriage putting the husband (respondent) through school and moved from Waterloo to London so he could complete his professional education.

Appellant had high school education and the through marriage took courses towards BFA.

Appellant (paragraph 12) worked part time through the marriage. Until 1999 her work was seasonal with prolonged absences from work. From 1984-1999 she worked full time only half the time. She worked full time in the last years of the marriage. Her income averaged $30,000.00. She took a year off for depression October 2004 to September 2005.

At separation his income was around $140,000.00 with car allowance and benefits.

Respondent paid wife $102,000.00 for equalization.

Wife’s income prospects uncertain.

:”…[33] It is helpful to begin by setting out the factors and objectives of ss. 15.2 (4) and (6) of the Divorce Act regarding an order of spousal support.
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[34] I will deal with each of the relevant factors and objectives in turn, mindful, as was the trial judge, of the admonition that no one objective predominates; rather, it is important to balance all four objectives in the context of the circumstances of the particular case….
“…[36] Even though this marriage was lengthy, the trial judge decided that an indefinite order was not appropriate. In making this determination, the trial judge considered the appellant’s employment position and relative youth. For reasons that I will expand on later, I see no reason to interfere with the trial judge’s determination on this point.
Both parties did household chores—par. 37. But wife doesn’t argue the marriage affected her career prospects.

Husband’s obligation to his second family can’t reduce his support obligations to his wife—par. 41.

Moge is the basis of compensation theory. Here there was financial interdependence and economic advantage to the husband. There was no evidence of any of wife being denied by the marriage of any career opportunity. But she did suffer disadvantage from the break down with a lesser standard of living and her year of depression and after advantaging the husband to some extent—paragraphs 43—51.

Self sufficiency is a relative concept. It relates to the part past circumstances, the economic partnership they enjoyed taking into account all relevant factors. It’s more attainable in short term marriages: in long term marriages not so much.

Paragraph 56:

“…Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution (see Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)”, supra, at pp. 174-75). (p. 870)…(J. Dube in Moge.)

No argument that wife will be self sufficient on $30,000.00 per year. But is it reasonable to expect wife to gradually adjust her standard living to one commensurate with the rown income—par. 59.

“…Summary of objectives
[60] In summary, the appellant suffered no established economic disadvantage arising from the marriage either by the assumption of child care responsibilities or in any other way that compromised her career or educational aspirations. Any minimal disadvantage cannot be compared to that of a long-term traditional spouse who made career sacrifices to the significant advantage of the other spouse. While the appellant’s economic assistance at the beginning of the parties’ marriage provided an advantage to the respondent, the primary basis for the appellant’s support claim is framed as an inability to attain self-sufficiency in light of the marital standard of living….”

“…[84] The factors and objectives require a balancing of the parties’ circumstances, including the duration of the parties’ cohabitation, their ages, their incomes and prospective incomes, the effects of equalization, the stages of their careers, contributions to the marital standard of living, participation in household responsibilities, the absence of child-care obligations, the respondent’s increased cost of living arising from his new employment, the parties’ reasonable expectations, the respondent’s rapid pre- and post-separation increases in income, the appellant’s limited claim for compensatory support and her greater need for transitional support…”
“…[85] In reaching his decision to limit the duration of support, the trial judge referred to several authorities and specifically referenced the appellant’s “relative youth, her good health, the fact that she has no dependents and has no (significant) debt, and her past and present work record/ethics/opportunities”. As I have said, I agree with the trial judge that indefinite support was not indicated on the facts of this case….”

“ …[88] To provide the appellant with a reasonable transition following her nineteen-year marriage, it is my view that the appellant will need support for seven years, beginning with the year of separation. In my view, a seven-year order complies with the spousal support objective of recognizing the appellant’s economic disadvantage arising from the marriage and its breakdown, while also encouraging the appellant to complete her transition to self-sufficiency, whether by reason of earning a higher income or, more likely, by adapting her lifestyle to her then income….”
[110] In this case of a medium-term nineteen-year marriage, the Guidelines provide a range of support. At the low end of the range, the appellant would receive 28.5% of the parties’ income differential of $54,325, or $1,290 monthly ($15,483 annually). At the high end of the Guidelines’ range, the appellant would receive 38% of the differential, or $1,720 monthly ($20,644 annually). In accordance with the formula for duration, support would be payable for a period ranging from 9.5 to nineteen years.
[111] The award I consider appropriate in this case, at least initially, both exceeds this range for amount and falls below the range for duration. Thus, I turn to the provisions for restructuring, which essentially involve converting the specific ranges of support to a lump sum amount (without consideration for present values). In this case, this conversion results in a broad support range from a low of $147,088, to a high of $392,236.
[112] This global range can be compared to the trial award as a “litmus test of reasonableness”. The trial award, including interim support, but assuming termination in December 2008, totals a lump sum of $94,200[31], an amount that falls far below the Guidelines, although I recognize that this does not account for what may have been the final result after a review hearing.
[113] In comparison, the support award that I propose in these reasons would total $189,000[32]. This figure falls within the Guidelines global range, albeit toward the low end of that range…”.

Tuesday, September 8, 2009

Richard Posner on Machiavelli on Political Morality

Richard Posner on Machiavelli:

“People… have difficulty grasping the distinctive and essential components of political morality, comprising the qualities necessary in a statesman or other leader. Those qualities are strategic and interpersonal (manipulative, coercive, psychological) in character. They are quintessentially social. They constitute the morality, misunderstood as cynicism, expounded by Machiavelli, the morality that Weber contrasted with an ‘ethic of ultimate ends’, his term for the uncompromising absolutist ethics that one finds, for example, on the Sermon on the Mount. The ethics of political responsibility implies a willingness to compromise, to dirty one’s hands, to flatter and lie, to make package deals, to forgo the prideful self satisfaction that comes from self-conscious purity and devotion to principle. It requires a sense of reality, of proportion, rather than self-righteousness or academic smarts. The politician must have an ‘ability to let realities work upon him with inner consciousness and calmness.’”

Sunday, September 6, 2009

Me, James Wood, and The Broken Estate

Okay, I just finished reading the Introduction and the first essay in The Broken Estate. My head is still buzzing.

I came at my original doubts about Wood from the standpoint of him as a literary critic. The first essay is not really literary criticism as such and really does not go to my inchoate concerns about him as a critic. It is broader and richer than just literary criticism, more like a synthesis of intellectual history and popular philosophy blended in the course of largely taking on Peter Ackroyd’s book on More, which I have not read, with a dollop of commentary on UTOPIA thrown in.

But I’ll start with the Introduction.

The Introduction promises the that the differences between religious belief and literary belief will be the axes on which the following essays will turn (page xv second paragraph) and asserts the questionable propositions, if I am properly understanding them, that “Once religion has revealed itself to you, you are never free. In fiction, by contrast, one is always free to choose not to believe, and this very freedom, this shadow of a doubt, is what constitutes fiction’s reality.” (Page xv first paragraph).

What stops me from rejecting the first notion outright is the phrase “has revealed” because it is not clear to me whether Wood is using “revealed” in the sense of revelation or merely in the sense of “becoming aware of” and whether he means, if in the former sense, revelation sort of entails its inescapability even after intellectual rejection of the revealed. But even in that former sense I am fairly certain I disagree with what Wood says. In short, I fail to understand why after that intellectual rejection one cannot be secure in one’s non belief such that it is not haunted by the specter of former belief even if arising from revelation.

It seems a truism to say in fiction one is always free to choose not to believe. And I don’t see that notion of choice—which needs some unpacking in any event—so much as antithetically contrasting with religious belief contrast as rather being such a disparate idea of belief as to make them contrasting only in the most attenuated way. Firstly, and generally in any event, in principle, one is always free to reject religious belief in the same sense broad sense that one is free to or not to believe the illusion of reality a specific fiction projects. Then too, and more specifically, in reading fiction, the nature of one’s belief, one’s willingness to suspend disbelief, constitutes the reader in complex and dynamic relations with his own consciousness, reality and the “believed in” illusion of reality. Those relations are not sufficiently caught by the usual metaphor of double mindedness. They are better caught by some metaphor such as multi mindedness. They are also caught in more concise form by the apt phrase Wood himself uses: “as if”.

The religious belief Wood discusses is of a different order with no qualification allowed by as if. So really Wood conflates, I’d argue, the weak meaning of choosing not to believe fiction, such as by simply putting down the book with the complex experience of reading willingly wherein one simultaneously reads and is self conscious that what one reads is unreal. This multi consciousness is not a choice in the sense of putting down the book or deciding simply not to engage the illusion but is the very structure of the experience of reading fiction. So Wood’s metaphor of a “shadow of a doubt” in reading may be serviceable in describing the inescapable intrusion of reality—doubt in Wood’s terms here—but reinforces his conflation of choice and the nature of the reading experience.

Wood argues—page xv, second paragraph—that the broken estate—the “old estate”—was “…the supposition that that religion was a set of divine truth-claims, and that the Gospel narratives were supernatural reports; fiction might be supernatural, too, but fiction was always fictional, it was not in the same order of truth as the Gospel narratives.” He then goes on that in the nineteenth century this distinction began to blur: at the novel’s heights people felt that it could do anything; and, then, too, the Gospels began to be read by writers and theologians as a set of fictional tales; and “…fiction became an almost religious activity…” but without religion’s truth-value.” There then follows on page xvi a long paragraph of examples of this merging.

Wood’s learning is always impressive. But, to continue my prosaic attempt at chipping away at him, and without disputing his examples, I have trouble with these comments in relation to how he says he intends to ground his essays. In short, Woods, in contrasting religious and literary belief, wants to mine the distinction, as he himself makes clear, between “believing in” and “believing as if” or perhaps “believing in as if”. (The distinction actually is obvious enough that I’m not sure it warrants all his going on about it.)

Regardless, and granting him as a foundation the distinction upon which he wants to build, in Wood’s argument for its blurring in the nineteenth century, his distinction’s very terms evade him. For in these terms what can it possiblly mean to say that that at its heights the novel was like a religion but without religion’s truth-value? Let’s stipulate, as Wood argues, that the nineteenth century marked a new apex—from a variety of sources— in Europe of general religious doubt and, as an instance of that, marked seeing the Gospels as text. Save to describe the rise of such doubt and note some of its consequences, how does what is so stipulated relate to the distinction between “believing in”—which there is now less of in the nineteenth century—and “believing in as if” and how does it relate to the blurring between them?

And can there even be such a blurring given Wood’s premises?

Wood cites Coleridge’s argument that the Book of Job clinches the argument for the fallibility of the Scriptures, and the novel itself generating “a new sense of the real” that helped kill literal belief in Christ. I’d argue these are instances of doubt and not instances of blurring. And as I just noted the very idea of blurring makes no analytical sense to me here. Either there is “belief in” or there is not according to Wood’s own premises.

If that be so, then the accretion of doubt is a point entirely separate from blurring. Similarly, to say that nineteenth century artists and intellectuals had the highest hopes for the novel is far from an example of blurring. To say that literary style or art or aesthetic values constituted a religion minus its truth-value is to confuse metaphor with reality. Unless these artists attended and worshipped at the church and altar of art, Wood confuses even great faith and hope in, say, the novel’s boon and possibilities, captured by the *metaphor* of religious faith, with “believing in”. After all, as Wood argues throughout his Introduction, “believing in” and “believing in as if” are categorically exclusive from each other.

I need to be helped to understand what it *concretely* means to say, as Wood does, that “…there have been writers great enough to move between religious impulse and the novelistic impulse, to distinguish between them and yet, miraculously, to draw on both.” That all sounds too portentous to me to mean simply and prosaically that there are writers great enough brilliantly to draw on biblical sources or create biblical parallels and themes and symbols or make some other brilliant uses of religious materials and meanings in their art.

If for Virginia Woolf the “novel acts religiously but performs skeptically”, “mystically, only to show we cannot reach the godhead, for the god head has disappeared...”, that may be a nice formulation, but it is all metaphoric and fanciful. For, on Wood’s premises, the novel does not, nay cannot, act religiously, even though it does perform skeptically. And there is nothing mystical about it as such save for the sense in which the greatest human creativity fills us with wonder.

If Wood had wanted to talk about blurring in a way that does not contradict the terms of his Introduction, he might, as one way, have touched on how actual faith, arguably, these days has a comparable but not identical multi consciousness that marks reading fiction. But if he meant to broach that theme or thesis, it passed me by.

Friday, September 4, 2009

Bad Faith Litigation // Abuse of Process

In Oz Optics Limited v. American Home Assurance Company, 2009 CanLII 18230 (ON S.C.) at
the action was scheduled for trial. Defendant's request for trial adjournment was denied. Defendant then moved for summary judgment and asked in its motion for the trial to be adjourned to accommodate the motion. The action was case managed.

"...[17] Later, on March 6th, 2009, American Home’s counsel contacted counsel for the plaintiff requesting suggested motion dates for either March or April for the contemplated motion to seek an adjournment of the trial. Mr. Cutler, in his affidavit in support of the plaintiff’s motion said:

I was advised by Mr. Snowden’s assistant that the purpose of the motion was American Home’s request for an adjournment of the trial date. On the sole basis that the motion was for an adjournment of the trial, I provided Mr. Snowden’s assistant with available motion dates in April 2009.

[18] However, on March 11, 2009, counsel wrote to Messrs Cutler and Santini as follows:

This follows our recent facsimile transmission and communications with the court, together with messages received from your respective offices. We confirmed your ability to argue a motion on April 14, next.

We are instructed to move for summary judgment and will be delivering our materials in the next short while.

[19] Mr. Victor argues that this letter is evidence of bad faith on the part of American Home. He submits that the motion for summary judgment, fundamentally, is nothing more than a strategic move by American Home to obtain the opposed adjournment. On the basis of the entire record, I conclude that Mr. Victor is correct. In my opinion, the summary judgment motion is a bad faith motion. American Home has offered no justification of significance to explain its failure to bring its motion on a timely basis or to resile from its early agreement concerning the trial date. American Home’s decision to launch the motion for summary judgment followed Mr. Cutler’s statement that he would not consent to the required adjournment. The absence of clear evidence of why this decision was reached when it was constitutes a compelling inference that the decision was made for tactical reasons...."

...[39] Obviously, it is up to the trial judge to determine how she or he will conduct the trial. However, it is clear to me that the defendants’ motion for an adjournment and for summary judgment is an abuse of process and that the motion for summary judgment, in all the circumstances, is a bad faith attempt to buttress the request for an adjournment of the trial.

[40] In these circumstances, the plaintiff’s motion to strike the defendants’ motion is, in my opinion, the appropriate remedy. (See also Then J.’s decision in Theodore Holdings Ltd. v. Anjay Ltd. (1993), 18 C.P.C. (3d) 160 (Ont. Ct. Gen. Div.) and see the judgment of Steele J. in Iona Corp. v. Aurora (Town), reflex, (1991), 3 O.R. (3d) 579 (Ont. Ct. Gen. Div))....

...[44] Counsel for American Home argues that, on a motion to strike the opposite party’s motion for summary judgment, a moving party cannot pre-emptively argue or assess the merits of a summary judgment motion. He relies on Cullity J.’s decision in Millgate Financial Corp. v. BF Realty Holdings Ltd., [2003] O.J. No. 1309 (S.C.J.) where he, Cullity J., dismissed motions by the defendants to stay, quash or dismiss motions by the plaintiff for summary judgment. The defendants argued that the plaintiff’s motion was frivolous, vexatious and an abuse of process. There, the facts were quite different than they are in the present case. Indeed, the defendants had earlier moved unsuccessfully to have the action stayed or dismissed. The defendants argued that the motions for summary judgment were attempts to re-litigate questions that had already been decided in the earlier motions. Cullity J. held that the plaintiff’s position was not so obviously without merit that the motion should be considered to be abusive of the court’s processes. He held that the defendants’ position was required to be dealt with at the hearing of the motions for summary judgment and not in advance. There was no case management issue before Cullity J. as there is here. Paragraph 12 of Cullity J.’s decision is, however, very relevant.

He said:

[12] The Rules of Civil Procedure do not expressly provide for motions to strike notices of motion and I believe that the interests of efficiency and finality provide good reasons for this. There is no close analogy between a motion to strike pleadings in an action and a motion to strike another motion that would require the issues raised in the former to be determined. It was, however, common ground among counsel that there must be such a jurisdiction to deal with clear cases of abuse of process.

[45] Cullity J. relied on the decision of Molloy J. in Meditrust Healthcare Inc. v. Shoppers Drug Mart, a Division of Imasco Retail Inc., [2000] O.J. No. 3762 (S.C.J.) and of Steele J., in Iona Corp. v. Aurora (Town), supra, where both justices held that the court has jurisdiction to dismiss or quash motions that are improperly brought.

[46] Cullity J. then went on to examine the concept of “abuse of process” as follows:

[14] In consequence, I believe I should deal with these motions on the basis that whether they succeed or fail will depend upon whether the grounds on which the defendants rely require the motions for summary judgment to be quashed as an abuse of process. In Canam Enterprises Inc. v. Coles 2000 CanLII 8514 (ON C.A.), (2000), 51 O.R. (3d) 481 (C.A.), Finlayson J.A. stated:

Abuse of process is a discretionary principle that is not limited by any set number of categories. It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy. …

[47] Counsel for American Home relies on an extract from Molloy J.’s decision for the proposition that, on a motion to strike, a moving party cannot pre-emptively argue or assess the merits of a summary judgment motion. In my opinion, Molloy J.’s decision is not on point. In the circumstances of the case at bar I see no good reason to conclude that the plaintiff’s motion to strike the defendants’ motion should be and can be heard only by the judge before whom the motion for summary judgment and for an adjournment will be scheduled. The issue before me at this time is whether, given the timing of the request for an adjournment and the summary judgment motion, the defendants’ conduct constitutes an abuse of process and whether the motion for a summary judgment is a bad faith motion. The plaintiff is not seeking at this time to re-argue the merits of earlier motions made to the Court nor does the plaintiff seek a decision from me assessing the merits of the summary judgment motion. With respect, the judge before whom the defendants’ motion would ultimately be heard would be in no better position than I am to entertain and decide the plaintiff’s motion. In addition, time is of the essence – every day counts. The commencement of the trial is imminent. The plaintiff is entitled to have its motion determined immediately. I pause to note that last Friday I advised counsel in a facsimile transmission that I had decided to grant the requested stay.

[48] Obviously, the conduct of the trial will be under the control of the trial judge. He or she can, of course, deal with any further requests for an adjournment based on other grounds and can determine whatever other motions, if made, are properly brought before him/her.

[49] In the result, therefore, the plaintiff’s motion is allowed. An order will issue striking out the motion brought by the defendant, American Home Assurance Company, wherein it seeks summary judgment and/or an adjournment of the trial of this action...."

What is a Court for s. 1 of the Arbitration Act (Ontario)

In Kolupanowicz v. Cunnison, 2009 CanLII 20350 (ON S.C.) at
the issue was the meaning of "court in s. 1 of the Arbitration Act. The jurisdiction to appoint an arbitrator is limited to the "court" as defined n the Arbitration Act. S. 1 defines it as the Superior Court of Justice. While the Family Court is a branch of the Superior Court of Justice it is a distinct branch.

"...[1] When drafting a separation agreement with a provision for arbitrating future disputes, it would be wise to include a mechanism for selecting the arbitrator. An ounce of anticipation is worth a pound of litigation...

...(g) arbitrator required where negotiation/mediation fails

[20] Notwithstanding use of the word “will,” the separation agreement calls for binding arbitration as a last resort:

10.5 If negotiations and/or mediation have not resulted in a resolution of the difference between them they will submit the issue in dispute to binding arbitration, pursuant to the provisions of the Arbitration Act.

(h) no mechanism for appointment of arbitrator

[21] Paragraph 9.2 of the separation agreement requires the parties “to go to a mutually agreed upon mediator/arbitrator,” but where agreement is not possible, no mechanism is provided for the appointment of either. Similarly, paragraph 10.5 of the separation agreement requires arbitration, but nothing is said about how to select the arbitrator. Therefore, the appointment of an arbitrator is governed by the Arbitration Act, 1991... (my emphasis)...


jurisdiction of Superior Court of Justice

[61] “The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario”: see s. 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

jurisdiction of Family Court as a branch of the Superior Court of Justice

[62] Subsection 21.1(1) of the Courts of Justice Act creates the Family Court:[7]

21.1(1) There shall be a branch of the Superior Court of Justice known as the Family Court . . .

Although the Family Court is a branch of the Superior Court of Justice, it is a separate and distinct court.

[63] The Family Court “has the jurisdiction conferred on it by [the Courts of Justice Act] “or any other Act”: see s. 21.1(3) of the Courts of Justice Act.

[64] “In the parts of Ontario where the Family Court has jurisdiction,” proceedings under certain family law statutes (listed in the Schedule to s. 21.8 of the Courts of Justice Act) “shall be commenced, heard and determined in the Family Court”: see s. 21.8(1) of the Courts of Justice Act. The Arbitration Act, 1991 is not one of the listed statutes.[8]

[65] “Where a proceeding referred to in the Schedule to section 21.8 [of the Courts of Justice Act] is commenced in the Family Court and is combined with a related matter that is in the judge’s jurisdiction but is not referred to in the Schedule, the court may, with leave of the judge, hear and determine the combined matters”: see s. 21.9 of the Courts of Justice Act.

[66] According to the Schedule to s. 21.8, the Family Court does not have jurisdiction over proceedings under the Arbitration Act, 1991 except where specifically conferred or where the matter falls under s. 21.9.

“court” under the Arbitration Act, 1991

[67] Section 1 of the Arbitration Act, 1991 defines “court,” except in sections 6 and 7, as the Superior Court of Justice. (Section 7 deals with staying court proceedings and s. 6 refers to the limited scope of permissible court intervention “in matters governed by this Act.”)

jurisdiction to appoint arbitrator

[68] Section 10(1)(a) of the Arbitration Act, 1991 grants jurisdiction to the “court” to appoint an arbitrator “on a party’s application, if, . . . the arbitration agreement[9] provides no procedure for appointing” an arbitrator (and presumably where the parties cannot agree).

[69] There is no general juridical authority to appoint an arbitrator. The power to make such an appointment is limited to the “court,” as defined in the Arbitration Act, 1991, that is to say, the Superior Court of Justice.

[70] Any inclination to blur the distinction between the Family Court and the Superior Court of Justice ends when one reads s. 45(6) of the Arbitration Act, 1991. That section draws a distinction between the two courts:

45(6) Any appeal of a family arbitration award lies to,

(a) the Family Court, in the areas where it has jurisdiction under subsection 21.1(4) of the Courts of Justice Act;

(b) the Superior Court of Justice, in the rest of Ontario.

The drafters of the Arbitration Act, 1991, therefore, were alive to the different jurisdictions of the two courts.

[71] If the legislature had intended “court,” as defined in s. 1 of the Arbitration Act, 1991, to include the Family Court, it would have been a simple matter to add that court to the definition.

[72] All of this is consistent with s. 21.8 of the Courts of Justice Act which gives jurisdiction to the Family Court over proceedings undertaken pursuant to enumerated family law statutes in the Schedule and the Arbitration Act, 1991, is not one of those statutes.

could the Family Court ever have jurisdiction?

[73] Based upon s. 21.9 of the Courts of Justice Act, if an application to appoint an arbitrator were to be combined with a proceeding commenced in Family Court and referred to in the Schedule to s. 21.8, the Family Court judge may grant leave to hear and determine both matters. However, that is not the situation here. The request for the appointment of an arbitrator is not combined with a Schedule proceeding....

Inspection of Documents

In Timminco Limited v. Asensio, 2009 CanLII 9431 (ON S.C.) at

the plaintiff sued the defendant for damages for defamation. The plaintiff pleaded certain contracts. The defendant asked to inspect them. The plaintiff amended its pleading and scrubbed out the reference to the contracts. The plaintiff moved against the amendment as a an attempt to defeat the right of disclosure.

"...III. Decisions of Master Hawkins

[12] Master Hawkins released virtually identical reasons on November 17, 2008, ordering the production for inspection of the documents sought by both sets of defendants. Master Hawkins gave three reasons for his decision. First, the entitlement to inspect the documents “crystallized as soon as the defendants served the plaintiff with their request to inspect documents”. Rule 30.04(3) required a response “forthwith”. Timminco could not defeat the defendants’ crystallized rights by later amending its claim to delete references to those documents.

[13] Second, the Master rejected Timminco’s argument that production should not be ordered because both actions involved claims of defamation. He held that Rule 30.04(3) did not set forth any defamation exception.

[14] Finally, the Master held that to dismiss the motion would not be consistent with the policy embodied in Rule 1.04(1) to secure the just, most expeditious and least expensive determination of every proceeding. Were he to dismiss the motions, the Master contemplated that production of the contracts would be required during the discovery phase of the actions, raising the prospect of the defendants then amending their defences and adding unnecessary steps to the litigation...."


"...B.1 Effect of the amendment of the Statement of Claim
[22] Master Hawkins concluded that the defendants’ entitlement to inspect the requested documents “crystallized” as soon as the requests were served, and the plaintiff’s subsequent amendment of its pleadings could not defeat the requests. In reaching that conclusion Master Hawkins did not err; indeed, I agree with his analysis.

[23] Timminco pointed to a number of Federal Court decisions dealing with instances where a party, in response to a motion to strike out all or part of its pleading, amended its original pleading to cure the defect. The Federal Court held that the amended pleading stood in the place of the first, rendering the original pleading irrelevant for purposes of the motion: C.J.A., Local Union 2103 v. Canada, [1986] F.C.J. No. 823 (F.C.T.D.); Samsonite Canada Inc. v. Costco Wholesale Corp., [1992] F.C.J. No. 721 (F.C.T.D.).

[24] Those cases are distinguishable. Certainly a plaintiff can amend its pleading without leave before a defence is filed, and it makes sense that if a defendant moves to strike a claim as disclosing no reasonable cause of action, then a court should look at the most recent pleading of the plaintiff to assess the reasonableness of its claim. Timminco was entitled to amend it claim without leave in this case, and it did so. However, upon receipt of the defendants’ requests to inspect the contracts, Timminco became subject to an obligation imposed by the Rules of Civil Procedure to make available the documents for inspection within five days.

[25] Timminco could not relieve itself unilaterally from that obligation by amending its Statement of Claim. I say this for two reasons. First, courts should not interpret the Rules of Civil Procedure in a manner that would countenance their breach, which essentially is the position advocated by Timminco. Second, as the case law has made clear, the intent of the Rule is to provide the opposite party with the same advantage as if the other had reproduced the contents of the document in its pleading. Timminco’s position runs counter to that purpose of the Rule..."

Tuesday, September 1, 2009

j hildner said about the below essay

"...Excellent article.

It won't do for liberal lawyers to abandon the common sense notion of constitutional principle -- that judges ought to, in some plausible sense, follow the law rather than simply make policy -- because, without such a notion, judicial authority lacks justification. Scalia has said that the mark of a principled jurist is that he's disappointed now and then by the outcomes that his theoretical commitment requires.

You can argue that Scalia is too infrequently disappointed, but at least you can call him out when he's inconsistent. He sets himself up for that criticism by setting forth a coherent theory -- one that is formally outcome-neutral -- of how judges should decide cases. He tells you how to evaluate him -- how to tell when he's cheating. Any legal theorist or judge should do the same, at least in her own mind, or else she is justifiably susceptible to the criticism that she is just making it up as she goes and doing whatever she wants -- prerogatives typically reserved for democratically elected and theoretically accountable politicians.

It *sounds* like the "text-and-principle" concept comes closest. The authors suggest that this is merely originalism made sufficiently general to embrace preferred liberal outcomes, and if that's *all* this person is saying, then, no, I don't suppose that that's enough. However, it sounds like it's in the ballpark and may be a good starting point for the "theoretical innovation" that the authors say is missing while at the same time offering, as the originalists do, a broadly appealing and comprehensible intellectual framework. Indeed, something like soft originalism resembles what many non-Federalist judges seem to be doing already, albeit not under the auspices of a self-consciously grand theory. When judges interpret statutes and even the Constitution, they frequently say something like, "We begin, as we must, with the text. See five cases."

Whatever theory liberal lawyers wish to advance, they would do well to echo this common-sensical and, perhaps for some, reassuring point: We begin with the text. *Of course* we begin with the text. We agree that some particular text sets forth the law, and that other texts -- say, the Ten Commandments or South Africa's constitution -- do not. We know that that particular text may not plausibly embrace everything we would like -- say, a general constitutional right to health care or a prohibition against redistributive taxation (although both of those arguments have been made). We know that it may require things we don't -- say, a prohibition against government endorsement of religion or equal suffrage in the Senate. It is what it is, and we're apt to be disappointed by it on occasion, regardless of our political views or ideological commitments.

(Some, such as Sanford Levinson, are so disappointed by it that they recommend a new constitutional convention -- a comprehensive re-write. Although I'm sympathetic with many -- maybe all -- of Levinson's arguments about our "undemocratic Constitution," I think he underestimates the risk that a fresh political process -- which would no doubt be infected by the sort of incoherence, lies, primitive understanding, and hopeless misunderstanding currently on display in our health care "debate" -- would make things much worse. I would fear, for example, a sharp narrowing and perhaps elimination of the establishment clause.)

However, there are some awfully good things in there. Those things are, most obviously, a republican form of government as well as a pretty good list of rights -- not subject to popular veto -- governing the relationship between the government and the governed. But, they're vague, and so the question is how to interpret them in a consistent way that is plausibly "faithful" to them and avoids legitimate complaints of "legislating from the bench." The answer of some "originalists" is to step into the shoes of those who drafted them and try to guess how they would decide the case before the court today. But, as the authors point out, it is hardly clear that such a process is justified by the text or the history or anything else.

The rights they set forth are inspired by particular circumstances and contemporary outrages, but they are couched in general terms. They are, on their face, statements of principle. It is beyond dispute that one can proclaim a general principle but not follow it in the particular case. (Indeed, the nation's founding was infected at the outset by just such a problem.) Thus, the drafters of the equal protection clause did not suppose that it required legal sex equality. Women weren't even allowed to vote at the time. No, the drafters had race in mind. But they didn't confine the language to race. The statement of principle is thus susceptible to an argument -- not previously considered or, if considered, thought exotic or outlandish -- that the principle logically applies to forms of legal discrimination other than race, including sex discrimination, because they are similar in character.

That, in fact, is our equal protection jurisprudence in a nutshell, and shows how constitutional understandings can "evolve" while maintaining -- indeed, increasing -- fidelity to the document. To shut down such arguments because the drafters would not have agreed with the particular application of the principle isn't faithful to the text but rather to an interpretive error -- an unreasonable blind spot -- of those who wrote it.

If anything, it's the Constitution to which judges owe deference, not the prejudices of the drafters. Mercifully, with the exception of the 3/5ths clause, since abrogated by amendment, they were wise enough not to write their prejudices into the document. Viewed this way, it seems that soft originalism is not an arbitrary choice to assess the meaning of the text at a higher level of generality but rather to be attentive to the level of generality that the text actually sets forth. It may be that this approach -- which relies on text, history, and moral reasoning in a very familiar way -- would produce the outcomes liberals want in a good many cases.

(For example, I think it clearly points the way toward a gay marriage right.) But it is theoretically agnostic regarding outcomes and also avoids the sense in which "minimalism" and "pragmatism" seem unprincipled. If the conventional legal materials point the way toward a gay marriage right, for example, a minimalist might urge caution because such a ruling might prove unpopular. But, if you agree that the principle entails such a right, then aren't you ignoring the Constitution and thus abdicating your responsibility to uphold it?

This is the sort of discussion liberal lawyers -- or any lawyers talking about theory -- should be having. Unfortunately, as the authors point out, we too often approach it from the standpoint of outcomes: How do I come up with a theory that says that Lochner was wrong and Roe was right? How do I come up with a theory of stare decisis that justifies both Casey (which upheld Roe) and Brown (which overturned Plessy)? I suppose it's inevitable that our political preferences, as well as our understanding of constitutional history, will inform our theoretical preferences, but those theoretical preferences must, to be viewed as legitimate, have an argument behind them other than that it fits together -- however tenuously -- past decisions the outcomes of which we approve.

some really smart guys talk about essays by really smart guys arguing for a theory of progressive constitutional interpetation

Outcomes, Outcomes

· Eric A. Posner and Adrian Vermeule

Edited by Jack M. Balkin and Reva B. Siegel
(Oxford University Press, 355 pp., $19.95)

"...There is a genre, the "constitutional manifesto," that sits uneasily between the scholarly or theoretical analysis of constitutional law and the buzzwords of day-to-day constitutional politics. The latter category may be nicely illustrated by the competing slogans of interest groups contesting the Sotomayor nomination: "judicial activism," "empathy," and so on. The constitutional manifesto, by contrast, attempts to expound a philosophical vision of constitutional law and politics that is nonetheless accessible to a broad audience, and is also politically savvy, so that it may guide a political and legal movement in particular directions over time. The constitutional manifesto therefore declines to take short-term political constraints as a given, and instead attempts to lay out a program of action that can shift the location of those constraints in the future. It is both intellectual and political, and its integrity is determined by the relationship between those terms. The Constitution in 2020 is the latest example of a constitutional manifesto: a collection of essays by self-identified "progressive" scholars of law and politics.

To understand its genesis, one must begin the story further back, with the progressive movement's antithetical twin: the conservative legal movement that began in the 1970s. Reacting in part to the perceived "activism" of the Warren and Burger Courts, conservative lawyers, many associated with the Reagan administration, founded or captured a range of institutions and used them to develop a cadre of conservative legal elites. The pipeline for young conservative legal talent begins with membership in law-school chapters of the Federalist Society, followed by a judicial clerkship, a job in the Reagan/Bush/ Bush administrations or in a prestigious conservative law firm, a quasi-academic post in a conservative Beltway think tank, or all of the above. But the institutional side of the conservative legal movement was not the main source of its energy. The movement drew its strength from its theoretical and ideological wing. Conservative academics and judges, including Raoul Berger, Robert Bork, Frank Easterbrook, and Antonin Scalia, developed a suite of legal theories and commitments centering on "originalism," or the idea that the original public meaning of the Constitution in the founding era should control its interpretation today.

Originalism stitched together diverse elements of the conservative legal coalition, who could each see something congenial in the "original" Constitution and in originalism's purported corollary, the promise of a "restrained" judiciary obedient to the rule of law. Economic libertarians, who pined for the old laissez-faire Constitution that was largely dismantled by the New Deal, could hope for a restoration of the Lochner Court's protection of property rights. (Lochner was a 1905 case that struck down a maximum-hours law, and therefore symbolizes judicial review to promote economic liberty.) Law-and-order conservatives could believe that originalism promised to undo the work of the Warren and Burger Courts in creating procedural rights for accused criminals. Traditionalist pro-business conservatives could hope that originalism meant stability, and respect for settled precedent, and an end to the unsettling creativity and redistributive tendencies of liberal judges. Social conservatives could anticipate the overturning of Roe v. Wade. Statist conservatives could hope to restore what they saw as an original commitment to strong presidential power and a "unitary executive." And old-fashioned populists could see in originalism a fetish that would ward off cosmopolitan judicial elites who make policy and displace the people's hard-won democratic prerogatives.

Originalism was easy to sell, because of its simplicity and its resonance with the larger American culture of Founder worship. Originalism enjoys enduring appeal among the middlebrow public, the sort of people who buy biographies (or hagiographies) of the Founders in astonishing numbers. But there were latent tensions and fault lines within the conservative legal coalition. A major theoretical and political fissure developed over the role of precedent, or stare decisis--the legal principle that past decisions should be respected. Business-oriented and traditionalist conservatives wanted stability, not counter-revolution, and at the theoretical level it proved hard to reconcile originalism with the raw fact that large chunks of the original constitutional order are, from the standpoint of the present, normatively horrifying, economically obsolete, or politically unacceptable to supermajorities of the current citizenry. Moreover, in the usual way of ideological movements, new developments threatened to splinter the conservative legal coalition. After 2001, for example, statist conservatives concerned about national security supported the Bush administration's expansive counter-terror policies with legal arguments, while a small but vocal group of libertarian conservatives opposed them, and made alliances of convenience with civil libertarians of the left.

Originalism also suffered withering, and quite justified, criticism from the legal academy. Originalism was shown to be theoretically problematic on several scores: it is unclear why exactly the original public meaning should control all subsequent constitutional interpretation, and it is unclear that the founding generation expected that it would do so, or that it meant the Constitution to so instruct. The latter point creates a kind of paradox at the heart of originalism. From the standpoint of political theory, originalism created the problem of the "dead hand," which is that past generations effectively rule over current majorities of the living. The Founders tried to anticipate this problem by permitting constitutional amendment, but their amendment procedure imposed excessive hurdles and stifled reform except in the most extreme cases. Also, left-leaning academic critics of originalism pointed out a long series of politically opportunistic decisions by conservative-originalist judges, who sometimes avoided the politically unpalatable implications of their own theory or squared desirable results with the theory only by means of implausible epicycles. A leading example was the conservative judges' opposition to campaign finance regulation on free-speech grounds: taken seriously, the original meaning of the free-speech clause of the First Amendment would be much narrower, and would easily permit such regulation to go forward.

Despite these ongoing problems, the conservative legal movement has been a spectacular success overall, judging by its own aims. It has managed to institutionalize itself in major law schools, despite the overwhelmingly leftward tilt of law school faculties. And it has become a leading mode of justification among the justices of the Supreme Court, both right and left. In the recent case of District of Columbia v. Heller, which identified an individual right to keep and bear arms under the Second Amendment, justices on all sides argued in originalist terms.

Distressed by the success of the conservative legal movement, liberal and progressive legal scholars, at odds on many other matters, have sought to create institutions that would mimic, and counter, the conservative success--most prominently the American Constitution Society, founded as an explicit counterweight to the Federalist Society. Until recently, however, there has been less attention to the conceptual or ideological side of the movement. If the conservative legal movement started with an outraged and deeply political reaction to the Warren and Burger Courts, the upheaval of the 1960s, and the Carter administration, it is nonetheless true that the conservative movement's theoretical ideas largely preceded their institutionalization. In the progressive legal movement, the pattern has been that the institutions come first and the ideas are secondary.

The Constitution in 2020 attempts to fill this gap. Its editors, Jack Balkin and Reva Siegel, start off with a call to arms. Conservatives have "stock[ed] the bench with movement jurists who will adopt positions favored by conservatives on key questions of constitutional law." Conservative jurisprudence, with its commitment to originalism, "simply disguises the values of a contemporary political movement as the framers' intentions." Conservatives show "blind deference to the past" and a "dogmatic obedience to the Founders' expectations" that "would infantilize the living." They proclaim that "in cases where decisions deviate from the substantive results that conservatives prefer, conservatives denounce judges as arrogant villains. In cases that announce decisions conservatives favor, conservatives depict judges as impersonal arbiters of a law of the distant past in which they exercise no judgment and no responsibility." The tension here--a jurisprudence that compels judges to give blind deference to the past could hardly allow them to implement a modern-day political agenda that bears only a passing relationship to eighteenth-century constitutional understandings--merely underscores originalism's success in sowing confusion among the left.

Having identified the monster, and expressed grudging respect for its political successes, Balkin and Siegel acknowledge that mere criticism cannot penetrate its hide. Progressives need their own movement jurisprudence. The editors, in the introduction and in their separate contributions, suggest several labels--"fidelity to the constitution," "democratic constitutionalism," "redemptive constitutionalism"--but the relationship among these is unclear, and the editors lay out only the vaguest themes. They say that redemptive constitutionalism reflects the notion that "we must work to restore past understandings and sometimes we must try to redeem constitutional guarantees that have not been met"--a vaporous formulation in tension with itself. The editors reject a return to the "glory days of the Warren Court," and they vaguely praise "dialogue" between courts and "political mobilizations." They insist only on the premise "that our understanding of our constitutional commitments evolves in history, that the nation has yet fully to meet many of these commitments, and that the aspiration to do so helps make this nation great." The contributors to the volume will flesh out the idea of the evolving Constitution.

The book's twenty-two contributors divide into two groups. The minimalists, led by Cass R. Sunstein, endorse an approach that conservatives used to call judicial restraint. Minimalists reject "broad, ambitious judicial rulings." Courts should advance doctrine through small steps. They should avoid striking down statutes as much as possible. They should respect precedent. They should avoid Warren Court-style judicial heroics--but, since Warren Court opinions have precedential value, they should not overturn them. Courts can avoid taking controversial positions on great constitutional questions by focusing on the facts of the case, waiting until the issue is squarely presented, deferring to legislative judgments, and even refraining from giving a ruling. Minimalists criticize District of Columbia v. Heller, the case that established Second Amendment gun rights, but they also criticize Roe v. Wade. Sunstein candidly admits that he is not sure whether minimalism is progressive or conservative. He argues that it is an appealing judicial philosophy that avoids excessive judicial interference with democratic politics.

Many other contributions have a minimalist flavor, though not all of the contributors in this group identify themselves as minimalists and none repeats Sunstein's criticism of Roe v. Wade. Robin West argues that progressives should attempt to persuade legislatures, not courts, to implement the progressive agenda. Larry Kramer says that progressives should develop local institutions for promoting their values. Bruce Ackerman repeats his proposals for a new campaign finance system, a national holiday that encourages national deliberation about policy, and a massive redistribution of wealth to guarantee all citizens an $80,000 "stake" in society.

These and other contributors are skeptical that courts can advance progressive values, so they emphasize practical politics or legislative cures. In Ackerman's words, "our right-wing judiciary will be in no rush to vindicate the privileges of citizenship against the economic forces threatening their effective exercise. In the run-up to 2020, the greatest legal contribution lies outside the courts." If courts do not endorse the progressive agenda, then inventing theories of constitutional adjudication that would advance progressive goals is an idle exercise. Mark Tushnet, one of the contributors here, has elsewhere made an institutional case for "taking the constitution away from the courts," pointing out that judicial review of statutes for constitutionality has produced morally objectionable outcomes as well as morally salutary ones.

In minimalism, then, we see the same tension as in originalism. For some, such as Sunstein and Tushnet, minimalism is a genuine institutional commitment, driven by a particular conception of the role of the judiciary in a democratic society or the long-run consequences of the institution of judicial review. Such minimalism has no political valence. For others, minimalism is a short-term tactic, to be dropped as soon as the Supreme Court returns to Democratic control. Sunstein reaches across the divide, asking conservatives to adopt a position based on a shared commitment to democratic politics and skepticism about judicial activism--but this position is constantly undermined by the other contributors to the volume, who imply that they are minimalists only as long as their party lacks judicial power.

The second group of contributors reject minimalism, but mostly agree that the Warren Court went too far in some undefined way. Although they concede, in a gesture to minimalism, that some kind of unspecified "dialogue" between courts and other actors is desirable, they are committed to a substantive constitutional vision that would compel courts to uphold progressive laws or strike down laws that are not progressive. But rather than giving us a theory, they give us a riot of labels--redemptive constitutionalism, legislative constitutionalism, popular constitutionalism, democratic constitutionalism, constitutional fidelity, the method of text and principle, equal liberty, progressive constitutionalism--and vague restatements of the idea that the Constitution evolves, yet somehow differs from public attitudes and legislative bargains, and thus remains somehow connected to the past.

This approach is most clearly reflected in Robert Post and Reva Siegel's chapter. They argue that we need a substantive "constitutional vision" rather than a mere theory of interpretation. Progressives need a vision--that is, a package of constitutional rights and rules--that will inspire Americans. This vision needs to be articulated in legal terms because of the power of law in our society. And theories of constitutional interpretation should be selected with this political program in mind. Rather than arguing, like Sunstein, that one should start with a general theory of constitutional interpretation which appeals also to values shared by conservatives, Post and Siegel work backward, arguing that progressives should "select from among the traditional modalities of interpretation those which are the best suited to give authoritative legal expression to their constitutional understandings," which--again--are resolutely "substantive." Post and Siegel unembarassedly suggest that progressives pick a theory of constitutional interpretation that advances their legal and political preferences, which are not clearly distinguished.

Other authors content themselves with piecemeal claims. Pamela Karlan wants the Court to expand the right to vote so as to give courts a greater warrant to restrict gerrymandering and other shenanigans. Robert Post advocates a modification of First Amendment speech doctrine so that courts can approve campaign finance regulation and strike down copyright laws that "diminish the capacity of persons to participate in the public sphere." William Marshall advocates a reinterpretation of the religion clauses that advances (largely unarticulated) progressive views about religious liberty. The right-wing judiciary is presumed to go along.

In the most theoretically ambitious contribution, Jack Balkin argues for what he calls the "method of text and principle." The main feature of this approach, which echoes the legal philosophy of Ronald Dworkin, is its emphasis on general "principles" in the Constitution (equal protection, freedom of speech) as opposed to specific rules and standards. A principle such as equal protection can have different meanings in the eighteenth century--when slaves and women clearly lay outside its scope--and the twenty-first century. Balkin tries to hoist the originalists on their own petard by claiming that the original principles of the Constitution imply different things at different times. When the Founders condemn "cruel and unusual punishment," they must be understood to condemn not only what they understood to be cruel in their own time, but whatever future generations might consider cruel.

This argument does not so much provide an alternative to Warren Court constitutionalism as offer a special kind of argument for it, one that boosts originalism to a higher level of generality in order to yield progressive results. So Balkin must make a gesture to democratic constitutionalism, and he does so by de-emphasizing courts. He argues that citizens, not judges, must be the source for most constitutional innovation. He also disparages the ability of judges to innovate. They are appointed by presidents, they face various institutional constraints--and so they will never veer far from public opinion. This, of course, undercuts the claim that Balkin's "method of text and principle" could make any difference for how judges behave. As for non-judicial interpretation of the Constitution, one wonders why citizens who do not antecedently agree with Balkin's political commitments would adopt his method of constitutional interpretation or any other method at odds with their political preferences.

Three other contributors--Vicki Jackson, Harold Koh, and Frank Michelman--up the ante by urging courts to use foreign and international law to interpret the Constitution. In several recent cases the Supreme Court has done just that, holding that the execution of mentally retarded people and people who committed capital crimes as juveniles violates the Eighth Amendment, in part because most countries do not permit executions of such people, and because some international instruments frown on such practices. The involvement of foreign courts provides the needed chastening of Warren Court hubris: American judges will work humbly arm in arm with foreign judges to improve our political order.

This approach might yet become the progressive successor to Warren Court-style "activism." But it has several problems. First, most countries are not in fact more liberal than the United States, and many are far less so. So which foreign law to use? Reliance on foreign and international law to achieve progressive ends would have to resort precisely to the sort of selective use of sources that critics of originalism impugn conservative judges for employing in domestic law. Koh agrees that American courts should not incorporate the law of Zimbabwe, but should engage in the "selective incorporation of the best practices of international and foreign law." Best, according to what standard? Koh's own academic work is an industrious picking and choosing of international and foreign law that protects the rights of women and minorities, as opposed to the countless illiberal foreign norms that curtail free speech, protect against "religious defamation," and promote an inquisitorial model of criminal procedure. Parochial to the core, Koh seems to think that whatever is not progressive according to American lights is not "best."

And there is another significant problem, a cultural problem, about the proposal that American courts rely upon foreign law. It is that Americans hate the idea of global constitutionalism. The idea is a godsend for conservative talk-show hosts. It dips deeply into two vast reservoirs of American populism: the fear that cosmopolitan elites will sell us out to foreigners, and the fear that judges will impose their policy preferences on democratically elected representatives.

So where are we left? Balkin and Siegel promise a distinctive approach to constitutional interpretation that relies on the notion of an evolving or living Constitution, and will promote a progressive agenda. It will avoid the Scylla of judicial restraint and the Charybdis of Warren Court constitutionalism. But as a group the contributors avoid neither hazard. The minimalists endorse judicial restraint. The non-minimalists offer various piecemeal or comprehensive constitutional visions with courts at the core. Some suggest greater deference to the legislature or public opinion, or a greater willingness to revisit precedent after public rejection. But these wrinkles have always been a part of the broad tent of Warren Court constitutionalism.

The idea of dialogue--a back-and-forth between the Court and political actors--offers more promise as a genuine third way. But the contributors fail to flesh out this concept. For all their cosmopolitanism, they ignore the constitutional debates in other countries where the use of this term in constitutional settings originated. Some countries, such as the United Kingdom, use a weak form of quasi-constitutional judicial review in which judges can declare statutes incompatible with higher legal obligations, but lack the power to actually override those statutes. In other countries, courts can strike down laws but governments can reinstate them. Some constitutions give legislatures the formal authority to override a judicial decision by reenacting the law that has been struck down, sometimes after additional legal formalities. Foreign constitutions are also usually easier to amend than is our own. In many cases, foreign governments can amend the constitution after a court interprets it in a way that the government disapproves of. Foreign commentators sometimes refer to these processes as dialogue, because of the back-and-forth between legislature and court.

But the experience in foreign countries offers little hope for progressives. Foreign courts develop constitutional norms, but legislatures have some ability to veto. When courts keep their rulings within the mainstream of public opinion, the legislatures will not veto. In such a model, judicial doctrine can be only as progressive (or as reactionary) as public opinion is. In any event, the American political system offers only the most limited opportunities for dialogue between courts and political institutions. Supreme Court interpretations of the Constitution cannot be overturned except by constitutional amendment--a nearly impossible procedure--or through the slow process of replacing justices after they retire, or through an occasional spasm of public outrage, which by its nature cannot realistically occur every time the courts depart from both law and public opinion to enforce the judges' idiosyncratic preferences. The upshot is that in the United States dialogue occurs, but only rarely.

And when dialogue does occur, the results are not necessarily progressive, as may be seen in a recent flap over the use of foreign and international law in judicial review. As mentioned above, the Court used this method in a handful of cases involving the death penalty and other issues; Congress got wind of the practice and protested. One legislator proposed a resolution opposing the practice generally, and the Military Commissions Act of 2006 prohibited the use of "foreign or international source[s] of law" as a basis for judicial decisions on the subject. In Senate confirmation hearings for Chief Justice Roberts and Justice Alito, senators pressed the nominees on this issue, and the nominees offered assurances the senators that they would have no truck with foreign-and international-law-influenced interpretation. Meanwhile, the liberal wing of the Court has, for the time being, reduced its citations to foreign and international law in constitutional cases, though some members continue to defend the practice in speeches.

This is probably not the sort of dialogue that the liberals in The Constitution in 2020 have in mind. Since legislators are not uniformly or even mostly progressive, not even after President Obama's rout of the Republican Party, dialogue offers few opportunities for progressive politics. Some of the contributors seem oblivious to the problem that dialogue can produce reactionary or retrograde outcomes. Victims of an updated version of the Whig theory of history, they implicitly equate all "change" with "progressive change, " overlooking that--as Justice Scalia has emphasized--change is liable to go backward as well as forward. The minimalist progressives, to their credit, are worried about this in the judicial setting, and fear that empowering the courts will harm the progressive cause on balance. A large number of Rehnquist Court and Roberts Court opinions--striking down a gun control law, affirmative action programs, campaign finance legislation, a violence-against-women law, and much else--provide ample cause for alarm.

The more sophisticated of the non-minimalist progressives in this book are aware of the downside of dialogue between progressive courts and a relatively conservative populace. This may explain why they eschew the foreign model of dialogue between courts and legislatures, and instead try to develop an American version that emphasizes dialogue between the courts and social movements, such as the civil rights movement on the left and the gun rights movement on the right. These movements have goals that are more extreme than those of public opinion as reflected in legislatures, but they can advance their agenda if they find a receptive audience in the Supreme Court. Decisions that go their way can stick as long as minority coalitions in the legislature can block a move back to the status quo. So the progressive agenda in legal theory boils down to this: wait for the eruption of a new left-wing social movement, and hope that enough Supreme Court justices sympathize with its aims.

Yet the contributors bewail the right-wing political movements that formed in reaction to Warren Court decisions. They do not praise them as a contribution to the type of dialogue that can provide the basis for a progressive jurisprudence. Indeed, their bCte noir--originalism--is for them the excrescence of a social movement in dialogue with the courts. So social movement dialogue offers no more certain hope for progressive politics than dialogue with legislatures, or indeed straightforward minimalism. This may explain why the contributors never develop this idea, but just wave it like a flag. The vaguely left-wing connotation of the word "dialogue" is the whole of their argument.

In this respect, and also more generally, The Constitution in 2020 displays an odd mix of sophistication and naivete, of brazen political scheming and political caution. Although some of this is doubtless due to latent disagreements among the book's multiple authors, there is a key tension at the heart of the book's enterprise. Common to nearly all the authors are two commitments--a commitment to using law to promote a progressive political agenda, and a commitment to public candor about the first commitment; but these are incompatible, at least in pragmatic terms.
In what used to be the standard legal-theory game, legal scholars would attempt to derive their theories from normative premises and factual beliefs that nearly everyone accepted. Originalists, for example, appealed to the idea of a separation of law from politics, the genius of the Founders, the commitment to democracy, and the institutional limitations of courts, including the tendencies of judges to be influenced by their political preferences. Other schools also appealed to democracy while de-emphasizing the genius of the Founders because of the fear of the dead hand. The representationreinforcement school associated with John Hart Ely, for example, argued that courts should ensure that everyone can participate in politics but should not impose substantive political outcomes. Those advocating judicial restraint or minimalism also appeal to democracy and the limits of the judiciary. Critics would accuse theorists of smuggling in their political values, but theorists would never admit to this, and seemed sincerely committed to finding a constitutional scheme to which all could agree.

The progressives in this book, with a handful of exceptions, do exactly the opposite: they try to reverse-engineer a constitutional methodology that would produce their preferred political outcomes. Even more oddly, they do not confine this discussion to a back room or a faculty lounge. They are open about the political motives of their thinking. They proudly announce their agenda. "We progressives," they say, over and over, need a methodology that does for progressivism what originalism (in their view) has done for conservatism: reliably cause the Supreme Court to implement progressive outcomes, or at least provide rationalizations for those outcomes.

The candor would be commendable if it were not also loopily self-defeating. Whatever you think of the motivations of Supreme Court justices, they never say that they decide cases in order to advance a political agenda. Yet the contributors to this volume are in effect asking them to do just that. By adopting democratic constitutionalism, redemptive constitutionalism, or any other method openly defended as a tactic for achieving a political agenda, the justices would be signaling their intention to use their position to advance political aims. For The Constitution in 2020, the abandonment of the ideal of judicial impartiality is too obvious to deny. No nostalgic dwelling on lost illusions here. But Supreme Court justices could hardly take this stance, whatever they may believe.

And so this book may be the first of its kind: it announces and terminates its research agenda in a single volume, strangling itself in the crib. Likewise, it is self-contradictory of the contributors, or at least the editors, to advocate a dialogic theory of constitutionalism and in the same breath to assume, to stipulate in advance, that the dialogue will or must produce progressive results. One of the pragmatic preconditions for genuine dialogue is a willingness on the part of sincere participants to change their commitments, and to follow the exchange of views wherever it leads. Otherwise dialogue is merely a tactic, all the more cunning for sounding so benign.

The conservative legal movement, despite its severe failings, at least adopts an internally consistent theory of judicial motivations and an internally consistent account of the relationship between politically oriented legal theorists and the judges who consume their output. The conservative legal academics who offer originalist arguments to conservative judges in effect provide those judges with theoretical tools to rationalize their policy preferences. But neither the academics nor the judges ever admit that this is what happens, perhaps because of norms against so admitting, or because of self-deception and cognitive biases that militate against self-awareness. Whatever the causes, it is an essential condition for the success of the conservative legal movement that this should be so. It must believe in the innocence of its reasons, or at least pretend to believe in them. The conservative political inflection of originalism is a truth that dare not speak its name, and it only succeeds because it is such.

We are left with a puzzle. The Constitution in 2020 is not only less than the sum of its parts, but also much less than the progressive legal movement requires. Why is this? The contributors to the volume are legal theorists of goodwill and intelligence, sincerely dedicated to the common good as they see it. But they have little that is new to contribute to legal theory, beyond vague talk of "justice" and "dialogue," and a few reflexive tics of the progressive legal academy, such as the repeated insistence that a "substantive" constitutional vision is both necessary and unavoidable--a kind of contentless meta-conviction that something or other simply must be believed. The clearest conviction that emerges from these pages is the belief that if originalism has worked for conservatives, there must be a left-wing doppelganger that will work for progressives--but this is a wish, not an idea.

The central problem for today's progressive legal movement is that successful institutions, manifestos, and political programs must draw their strength from theoretical innovation, and not the other way around. The basic concepts of the conservative legal movement, above all originalism, are in our view pernicious innovations, theoretically untenable and applied selectively in practice: about this we agree with the progressive critics. But the conservative legal movement did one big thing exactly the right way. Its theoretical ferment and innovation, while inspired by politics and funded by groups with political agendas, preceded the institutionalization of the movement and the development of its catechisms.

Judging by the evidence here, the progressives have not as yet found a coherent alternative to the conservatives' originalism. Wishing for alternatives and talking a great deal about a "living constitutionalism" and "justice" are not enough. What might be enough is a prolonged exile in the wilderness, chafing against an extreme conservative-originalist Court. A progressive Long March would generate the deeply felt political anger and sense of desperate isolation--as opposed to the cozy, mutually supportive, semi-serious progressive outrage so evident during the Bush years--that impelled the initial creative phase of the conservative legal movement. Progressive scholars might do well to hope for things to get worse, so as to get better. If Obama's victory is a triumph for progressive politics, it may portend disaster for progressive legal theory...."

Eric A. Posner is Kirkland & Ellis Professor of Law at the University of Chicago. Adrian Vermeule is John H. Watson Professor of Law at Harvard Law School.