When the law is not what it seems

Last year I read a case in my property textbook that has stuck with me.  It illustrates the ways that seemingly generic laws are used to empower the powerful at the expense of the weak.

Suppose Landlord has a piece of property. Tenant A is currently in possession and will be moving out, and Tenant B has signed a lease to takeover the premises. If Tenant A does not move out, who should be responsible for taking the time and trouble to evict Tenant A? The Landlord, or Tenant B who has already signed a lease and has the legal rights to the use of the property?

On its face it is a strait forward question. There are pros and cons on both sides. We simply need to pick a rule and apply it consistently so that the market will know what to expect. For some, as long as the rules are followed, that is justice. Which rule we use is not a question of justice. This is not a particularly moral question.

There is a certain logic to requiring the person who now wants to use the land, and who has the legal right to the land, the lease holder, to get rid of the person who has overstayed their lease. But who is more than likely to know that Tenant A will not be moving out, and is in fact three months behind on their rent. Would Tenant B know anything about this? In fact, it is quite possible that the Landlord might rent the property to Tenant B so he could get paid knowing full well that Tenant A was not going anywhere without a fight. Meanwhile, the Landlord is trying to collect rent from both parties, and has shifted this problem to the unwitting Tenant B who had no idea what was going on prior to him leasing the land.

What gets preached AND what does not - From the pulpit AND in my life.

I wrote the following to a friend this mourning and thought I would share it with the rest of you. (with a few edits)  It is about me, not him, so no worries on confidentiality.  Read this as a letter to a friend.

...But to be fair, I am a bit cynical in some respects. It is something I reflect on fairly often with the Spirit in my quiet times. How does one see the world as it really is... ideally through His eye's, and not become cynical?

I was visiting a church the other day and they were preaching on God's immutability. Malachi 3:6a was referenced. “I the LORD do not change."

Clearly there was nothing wrong with what was being preached. And God's character was being made appropriately relevant to the hear and now. But like usual I briefly scanned the rest of the chapter, and a problem immediately jumped off the page.

The issue I saw was not necessarily one for any given church, or any given sermon, but rather concerns our shared Evangelical culture. The issue that leaped off the page at me was what we preach, thematically speaking, over the course of a year, and what does not get preached over the course of a year.

Malachi 3 is a perfect example of this.
(Go ahead and read it here, it won't take long.)

Things more than likely preached over the course of a year.
Mal 3:5a - sorcerers, adulterers are evil - check
Mal 3:6 - God does not change- Check
Mal 3:8-9 - Tithe - Check
Mal 3:17-18 - God's Compassion - Check

What got skipped?

The latter half of Mal 3:5 - "So I will come to put you on trial. I will be quick to testify against sorcerers, adulterers and perjurers, against those who defraud laborers of their wages, who oppress the widows and the fatherless, and deprive the foreigners among you of justice, but do not fear me,” says the LORD Almighty."

Vanderbilt and the Catholic Church - Organizations limiting religious freedom

Introduction
Father Araujo suggests in his piece, What is Freedom, that the distinction between who is pursuing a self-serving course of action and who is pursuing the other-serving course of action is clear. I agree. The Catholic Churches decision to limit the religious freedom of the people it serves as an employer when it acts as public employer is perceived by many as being self-serving. The freedom that faith affiliated public institutions want in relationship to the federal government is the same freedom they are denying to their employees who have a different faith or no faith at all. While freedom of religion is paramount, and I will argue on behalf of religious freedom momentarily, public employers that hire a plurality of people with unique views have unique responsibilities to their employees. In this pluralistic context, religious views should not allow the employer to impinge on the freedom, often the religious freedom of the employee. While people should have the freedom to associate, that freedom should not hinder the freedom of people in the minority at public institutions or private organizations that are free and open to the public, such as a faith based public hospitals.

To be clear, I would like to draw a sharp distinction between distinctively faith-based organizations such as churches, and those that choose to be open to the public. When they become public employers, employing people of a variety of faiths or no faith at all, public organization take on special responsibilities to the community and to individuals, among them, the responsibility not to infringe on the liberty of their employees.

Vanderbilt and the Catholic Church
A similar example of this can be seen in the recent Vanderbilt University case. In that case, a private organization that is open to the public, has taken the position that no student organization can discriminate against any student that wants to be a member of, or even an officer of a student organization, based on race, religion, sex, etc… The result is that it is possible for a person of Jewish faith to hold the position of treasurer in an Islamic affiliated organization, or an atheist to head a Christian organization. As a result, the Christian Legal Society (CLS) has advocated against this position because their constitution states that one has to be a Christian to be an officer of the Christian Legal Society.

The irony is that Vanderbilt’s position corresponds to the Catholic Churches position.

What did you learn in law school today Daddy?

Kids and law or hilarious.  I often ask my five-year-old Nicholas what he learned in school today.  So when he turned it around and asked what I learned in [law] school.  I had to think for a second.

"Suppose you have a sucker and I take it away.  Then mommy gives you a new sucker because I took yours.  Should I have to give your sucker back, since you already have a new sucker" I asked. (The collateral source rule)

"No," he says.

"Why not" I ask, going all socratic on him.

"Because that would be too much sugar." (What is wrong with this kid!)

"What if you get to save the second sucker for later?" I ask.

"Yes, then you have to give me back my sucker."

"Well that's what I learned in school today" I replied.

Finding Purpose

About a month ago I attended a lecture by Michael Schutt on the “drudgery of law school.”  He was discussing the endless reading, writing and fact checking and the mundaneness of it all, and how we can respond.  During the lecture he highlighted four issues: dualism, sloth, pride, and as mentioned, drudgery, that is, being frustrated and not enlivened by what we do.

Dualism is that habit we all have of separating our professional life from our spiritual life or values.  There is no separation between what we eat and how that impacts our life, and in the same way, there is no separation between what goes into our spiritual life (or not) and the telling results.  If we pursue professional goals that are at odds with what we say our ethical values are, there will be consequences, not just outwardly, but in our inner life as well.  That does not mean all lawyers should be doing public interest law, not at all.  Only that there has to be consistency between what we believe, whatever that is, and what we do.

Justice like a River: Why development needs justice

Moving stuff in this article, Justice like a River: Why development needs justice by Jamie McIntosh and Hiroko Sawai

For those of you interested in international law or development, this is both interesting and saddening.  The article lays out several different areas where a lack of justice leads to increased poverty and suffering.  Fortunately it goes on to describe some of the solutions as well.  The authors have found that the case model, working with people at the ground level, is having a significantly better effect than broad efforts at judicial training and reform.  It seems these efforts are often a mile wide and an inch deep, whereas getting into the details of specific cases helps to establish precedent and makes an example for others to follow... or rightfully be afraid of.

Selected excerpts.

Introduction

Without legal protection from violence, the lives and the livelihoods of the global poor are at perpetual risk. Four billion people on our planet live in that risk.

"Torts", "Civ Pro", Say What?

Law school naturally has its own lingo, and short hand.  This semester I'm taking four classes.  Torts, Civil Procedure, Contracts, and Lawyering Skills.  So what exactly am I studying?  Here is a brief overview.

Why Law School - The Honest Version

The following appeared on this blog in a post titled On Church and Public Policy, What is the Church's Role, and is probably a more accurate reflection of why I am going to law school.

"So in all honesty, part of my decision to attend law school is born out of my dissatisfaction with the ability of the church to effect real change.  I'm probably a little jaded in this area, but I think statistics concerning behavior of church attenders and non-church attenders would back me up."
 

"That said, in-spite of everything, I believe in the church.   I love the church, and despite my reservations, I know that it can be a change agent in the culture and in public policy."

Why Law School - The Polished Version

So how is law school going?  Good.  I have been here for a couple of weeks, and thus far it has been a positive experience.  I enjoy the rigors of thinking critically about tough issues, and the fact that at St. Thomas, issues of justice and equity are usually not far off.  There is a healthy sense of community here.  While law schools are not always the most friendly environments, as one of the proffs put it, "You have both scissors and a needle in hand.  You can knit a stronger community, or cut it apart.  It is up to you." Here at St. Thomas, there seems to be more of the latter.  Each new class has to decide for itself what kind of community it will be, and how it will integrate itself into what has come before.  While things are not perfect, I have seen more positive indicators than not, suggesting this will be an enjoyable, and supportive community of learners, thinking critically about law and life.