15 August 2017

Too Little, Too Late

for Charlotte School of Law.

Go here to read the latest news about Charlotte School of Law (CSL). Notwithstanding the fact that earlier this month the federal Department of Education changed course to permit CSL students to borrow federally-backed student loans (previous post here, although whether the DOE really opened the spigot is now a matter of dispute), today came the news that CSL's accrediting agency, the American Bar Association (ABA), had rejected the school's "teach-out" plan. Rubbing salt into the wound, the Board of Governors of the University of North Carolina (BOG) declined to renew CSL's operating license.

This result is terrible for CSL's few remaining students. One assumes they stuck with CSL either because they were tied to the city or because no other law school would take them or, most painfully, they were within fewer than 60 credit hours of graduating. Transferring students can't graduate from another law school unless they take 60 credit hours of courses there. They could take fewer than 60 hours at another school and have them transferred back to CSL except that after today's news there's no CSL to which they can be returned. That's a brutal result.

It's not clear why the ABA rejected CSL's teach-out plan. Perhaps a new one can pass ABA muster but at this point it may be too late for the remaining dominoes--access to federal student loans and an operating license from the BOG--to be put into place.

14 August 2017

Divine Worship: Tragedy or Comedy?

Carl Trueman has a fine piece here commenting on the declining place of the tragic in Christian worship. What can he possibly mean?

Christian worship should immerse people in the reality of the tragedy of the human fall and of all subsequent human life. It should provide us with a language that allows us to praise the God of resurrection while lamenting the suffering and agony that is our lot in a world alienated from its creator, and it should thereby sharpen our longing for the only answer to the one great challenge we must all face sooner or later.
In other words, the better we comprehend how bad things (including us) really are, the better we can comprehend how great is the good news of the gospel. Christ descended before he ascended; he died before he was raised; and he was humiliated before he was exalted.

Perhaps the ho-hum attitude of many Christians to the glorious truths of God's work of redemption can be explained in terms of their ignorance of just how parlous is their current state. Of course, it's easy to forget how bad things are when they aren't. The contemporary Western upper-middle class surfeit of material goods and pre-packaged experiences preoccupy many. Many Christians turn to the Church of Moral Therapeutic Deism (see here and hereand non-Christians to transhumanism (here) but for just about everyone, discussing the reality and meaning of death remains off-limits in polite company.

Trueman goes on to describe contemporary funerals, as I have lamented here and here, that fail to acknowledge that the person playing the lead role is really dead:

Even funerals, the one religious context where one might have assumed the reality of death would be unavoidable, have become the context for that most ghastly and incoherent of acts: the celebration of a life now ended. The Twenty-Third Psalm and “Abide with Me” were funeral staples for many years but not so much today. References to the valley of the shadow of death and the ebbing out of life’s little day, reminders both of our mortality and of God’s faithfulness even in the darkest of times, have been replaced as funeral favorites by “Wind Beneath My Wings” and “My Way.” The trickle down economics of worship as entertainment has reached even the last rites for the departed.
Christian worship doesn't end with tragedy, of course, but with audible and tangible participation in victory. Confession of sin is followed by assurance of pardon and the Word preached is followed by the Word consumed. And all worship ends in the blessing of benediction. But we must pass through the valley of the shadow of death if we hope to understand what it means to travel the road to paradise.

09 August 2017

Just Because You Don't Like Something ...

(Warning: Inside Presbyterian and Reformed baseball.)

... doesn't mean it isn't true.

I've not reviewed Brad Littejohn's recently published book, "The Two Kingdoms: A Guide for the Perplexed" but I'm familiar with it and Brad's thesis: that what today passes as "Reformed Two Kingdoms" (R2K) theology bears only a limited resemblance to the historic doctrine. (For a sampling of my comments on R2K go here or here.) The historic or classical Two Kingdoms approach was taught by the magisterial Reformers in the sixteenth century and was part and parcel of confessional Protestantism through the seventeenth century. R2K, by contrast, is largely a late-twentieth-century construct.

Kyle Dillon has read Littlejohn's book and you can read his review here. I'd vote it an excellent summary of the difference between classical Two Kingdoms and R2K. Here is Dillon's summary of Littlejohn's conclusion:

Several characteristics that set classical Two Kingdoms apart from R2K: while the invisible church is still tied to the spiritual kingdom, the visible or institutional church belongs mostly to the temporal kingdom, along with all other realms of human activity. This move has the effect of “de-sacralizing” church authorities—they are no longer seen as governors of the spiritual kingdom—and expanding the realm of adiaphora or “things indifferent to salvation” in the church. Littlejohn sees this as liberating the church from an oppressive precisianism that demands explicit biblical warrant for every church practice.
Yet Dillon's ultimate conclusions surprised me. After acknowledging the cogency of Littlejohn's criticisms of R2K, the fundamental distinction between creation and redemption, the reality of natural law and the redemptive focus of the Bible, Dillon hastens from the classical Two Kingdoms conclusion that the civil state has substantial claims to govern the outward conduct of its citizens. In other words, Dillon likes modern Liberalism.

That’s all well and good but it’s not classical Two Kingdoms theology. In other words, Dillon rejects the view of the civil magistrate envisioned by Calvin and the un-bowdlerized Westminster Standards. Dillon may be right: Calvin, the magisterial Reformers, and everyone but for the Anabaptists could have been wrong but he should own up to his own rejection of classical Two Kingdoms theology.

Perhaps Dillon lays his Kingdom cards on the table when he urges readers of his review to consult the works of Abraham Kuyper and Klass Schilder. Never mind that Kuyper's followers deposed Schilder from church office while he was hiding from the occupying Germans during WWII, Dillon conflates both men into the neo-Kuyperian "one Kingdom" theology that runs counter to both classical Two Kingdoms and R2K.

In any event, I commend Littlejohn's book to the attention of my readers. It's good to see that what evangelical (and especially Reformed) Christians take for granted in terms of Church-State relations today differs markedly from what their tradition originally taught.

03 August 2017

More Props for the Most Musical Founder

Go here to read an interview by John Fea of Kate Brown, author of the new book "Alexander Hamilton and the Development of American Law." Given my Federalist leanings, it's no surprise that I like the fellow who's on our ten dollar bill. (For some earlier shout-outs to Hamilton go here, here, and here.)

Far more than the inconsistent agrarian Thomas Jefferson, and even his right hand man, James Madison, Hamilton saw where the United States were going and how they were going to get there: commercial capitalism. Yeoman farmers were fine but seriously, they weren't what all Americans should aspire to be.

It is regrettable that Hamilton didn't live to see the "market revolution" described by Charles Sellers and the rise of corporatism but the focus of Brown's book is on something closer to my heart: the law. While I haven't read her book, I plan to do so and would invite any of my readers who are interested in the law and American history to do the same.

01 August 2017

Charlotte School of Law Investors ...

... gotta love Donald Trump.

After Barack Obama's Department of Education turned off the spigot of easy money for Charlotte School of Law in December (earlier comments here), all eyes turned to Donald Trump's choice for head of the DOE, Betsy Devos. As I wrote here,
Go here to read a post at the Faculty Lounge blog that reports CSL's side of the story of its impasse with the DOE. Of particular interest with respect to the law school's strategy: "Their current plan is to substantially cut costs and try to ride things out this semester, while appealing to the incoming Trump administration, which Infilaw expects to be more friendly to the for-profit education industry [sic]."
Waiting and seeing has apparently paid off. The spigot has been opened to at least a trickle. Read all about it at Above The Law here. The Charlotte Observer story is here. Being able to gouge students for more money at government expense was a great return on the investment of $50,000 CSL paid The Podesta Group, a high-priced (and Trump (via Paul Manafort)-connected) lobbying organization.

On the bright side, Charlotte Law has admitted no new students for this fall. Thus, this loan money is--so far--going only to folks who haven't been able to transfer out. Let's hope that's all it is and soon CSL will be no more than a sad memory of the intersection between greed, gullibility, and government subsidized higher education. (Here, with embedded links.)

30 July 2017


I think I've read only one negative review of Christopher Nolan's film Dunkirk. After seeing it for myself, I wonder if that reviewer had seen the same movie. In any event, let me add to the chorus of of raves. Dunkirk tells three intersecting stories of the greatest military evacuation in history. But those three stories take place over three spans of time (an hour, a day, and a week) and three locations (land, water, and the air) so pay attention to the on-screen cues at the outset.

Nolan's Dunkirk avoids explaining what's going on There are no voice-overs, diaries, letters, or inside-the-war-room cut-aways. There aren't any backstories for any of the characters. Nolan thus (re)creates the harrowing experiences of the film's characters. There's enough heroism and cowardice, bravery and fear, triumph and failure to go around but it's seen from a quotidian and human point of view, without the godlike omniscience that can characterize war films.

And without much blood. To be sure, there's plenty of death but it's not of the close-up, in-your-face-sort. Instead, it's death (and the happenstance of survival) from the perspective of the numbed multitudes on the beaches, the focused attitude of a father and son on their small boat, and the high-stress cockpits of two RAF Spitfires. Although we know the ultimate outcome of this week in 1940, Dunkirk's direction and musical score let viewers experience the utter uncertainty of its individual participants.

And without any triumphant or soaring music. The unsettling score was never intrusive but nonetheless contributed to the viewer's sense of uncertainty, tension, and incompleteness. Read about it here.

In short, I highly recommend Dunkirk.

20 July 2017

Picking Up On Drop Shipping

Warning: Deep inside commercial finance baseball.

Drop shipping, for those not in the business of wholesale distribution, is the term applied when a middleman (typically a wholesaler) buys goods from a manufacturer and has them delivered directly to a retailer. In other words, the wholesaler buys but never takes physical possession of the goods. Wholesalers do this for two reasons: it saves them the cost of (re)delivery and they typically require payment from their retailer before their payment is due to the manufacturer. Playing that margin of perhaps 30 days can add up to measurable interest when we're talking about sales of millions of dollars of goods.

But what if the wholesaler files bankruptcy between the time the manufacturer "drops" the goods on the retailer but before the manufacturer has been paid? Does such a manufacturer simply find itself in the pool of all other unsecured creditors, getting perhaps 10 cents on the dollar (if it's lucky)? Or does it have the power to reclaim the goods themselves?

Congress, in its search to advance the common good, wanted to protect manufacturers (and other sellers) generally and so granted sellers who deliver goods to a buyer within 20 days of the bankruptcy filing a limited "priority" over other unsecured creditors. But what if the goods are delivered within the 20-day window but to the wholesaler's retailing buyer, not the wholesaler itself? SOL, per the bankruptcy court in Delaware. The Bankruptcy Code's priority provision speaks in terms of delivery to the buyer-debtor and so doesn't protect the manufacturer who innocently agrees to drop ship directly to the retailer. Read all about it in Bill Rochelle's piece here.

In addition to Bankruptcy, I regularly teach Secured Transactions. And, as I regularly explain to students in both courses, there's a much better way for a seller to protect itself from the risk of a bankrupt buyer: retain a purchase-money security interest.

I won't bore folks with the technicalities of a PMSI except to raise one question: Does a seller get the benefit of the extra 20-day window in which to perfect when goods are drop shipped? Pre-shipment perfection plus a subordination agreement from the holder of a conflicting security interest will always work but sometimes in the flurry of business activity the seller doesn't get around to perfecting (much less getting a senior secured creditor to subordinate) until some point post-shipment.

Here's the relevant text of UCC 9-317(e):
[I]f a person files a financing statement with respect to a purchase-money security interest before or within 20 days after the debtor receives delivery of the collateral, the security interest takes priority over the rights of a buyer, lessee, or lien creditor which arise between the time the security interest attaches and the time of filing.
You'd think--or at least I'd think--that the intersection of delayed perfection and drop shipments would be resolved in the text of the statue, its Official Comments, or the case law. If this question has been answered, I can't find it.

If I can go out on a limb and predict what I think most courts would answer it would be like what we see in connection with the bankruptcy priority: "delivery" to a debtor means physical delivery to the wholesale debtor, not to a retail buyer from the debtor. I'm not sure this makes any sense from the perspective of the policy of Art. 9 (or bankruptcy law for that matter) but that's my bet for now.

(For my earlier discussion of a similar topic--consignments--in connection with the first bankruptcy of Family Christian Stores go here. If you're interested in an overview of this area of the law, you can read my article, How Revised Article 9 Will Turn the Trustee's Strong Arm into a Weak Finger that can be downloaded here or here.)

18 July 2017

Perversely Good News For Some Student Loan Borrowers

Toward the back-end of the previous decade, as the mortgage loan crisis hit bottom, a number of entities seeking to foreclose mortgages found themselves in a pickle: they didn't have the promissory note evidencing the debt secured by the mortgage. Mortgages are recorded in the real estate records of the county in which the property is located. Promissory notes, however, are (or should be) held by the lender or the entity to which the lender sells the debt.

Many folks may not understand that their initial mortgage lender within a month sells the promissory note and assigns the underlying mortgage (or deed of trust, it amounts to much the same thing). Initial lenders don't want to wait 30 years to get paid. They'd prefer to take a discount from a long-term investor for immediate cash. In theory, the note is endorsed or assigned to the buyer and physically transferred as well. If and when it comes time to foreclose, at least in the half of U.S. states that require foreclosures to go through a judicial process, failure of the foreclosing buyer to have possession of the note may be fatal to the action.

Why wasn't possession of the promissory note always transferred to the buyer of the loan? Carelessness, mostly. After all, in the run-up to the mortgage crisis, no one believed it could ever happen. And if there would never be a need to foreclose, failure to have possession of the note wouldn't be a big deal.

It turns out the same sort of sloppiness has occurred with some student loan notes. Go here to read the story in the New York Times. Turns out that some buyers of bundles of private student loans (which make up a relatively small portion of the student loan market) have been as careless as their mortgage-loan forbears. And they too have been met with the successful defense of "show me the note."

A pleasing result to the borrower, no doubt, but one that raises a moral question: should a borrower who has received a loan be entitled to avoid repayment on a "technicality?" If it makes any difference, this so-called technicality is an old one; it's been part of the law of negotiable instruments for hundreds of years.

(For some of my musings on morality in this general ballpark go here and here.)

13 July 2017

Nine Into Eleven X 2

Did you miss my post here about my latest article? That addresses common interest communities (think condo and home owner associations) in bankruptcy?

33 Emory Bankr. Dev. J. 455 (2017)

Don't fret. To the right you can see a picture of the snappy cover of volume 33 of the Emory Bankruptcy Developments Journal. And if you go here or here, you can download my article for your own collection. Or for that of your association lawyer.*

* Can you identify the biblical allusion in Emory's seal?

11 July 2017

A Quarter Million

Even though page-views on my blog will never approach the number of hits on Jim Duane's YouTube sensation, it has passed the 250,000 views post.

I'm pleased that a number of folks have read at least something of my idiosyncratic takes on this, that, or the other thing. Neither of the webmasters at the law schools where I've taught have known how to classify my random thoughts, which is okay with me. As I observed some time ago here and here
Blogging has forced me to write, and thus think, more clearly about what I've read. It is one thing to read through an article; it is another to read it with enough care to restate, analyze, and critique the author's thesis. Blogging has also occasioned more complete reading. To blog about a book or an article makes it more likely that I have read the whole. Non-scholarly blogging about, say, places I've visited or movies we're seen, also tends to focus my attention on the experience, to be a more active observer. Finally, blogging spreads the audience for my scholarly works. The audience for articles published by law review is naturally small but blogging has gotten a few non-academics to read some of what I've written.
So, I plan to keep on. Blogging has been a net positive for me as I hope it will continue to be for you.

10 July 2017


I'm gratified to learn that my "guilty pleasure" of continuing fondness for Progressive Rock has been echoed by another source, The Economist (here) no less. Since my post a half-decade ago here, you may be happy to know that I've acquired a turntable and so can listen to my old vinyl to my heart's content.

03 July 2017

A Pre-Independence Day Thought

Merely some links with brief comments. First, go here to read a nice post by James Bratt (on whom I posted in another context herehere, and here). Bratt discusses three Colonial models of the relationship between adherents of one or another Reformed Christian tradition and the civil government in their particular polity. Bratt does a good job of explaining why, for example, we cannot extrapolate from Puritan New England to the middle colonies to the South. There was no unity of approach among the colonies and their residents on such matters.

On the first hand,
New England Puritans aimed at making the visible and invisible churches as synonymous as possible. At the same time their churches were state-supported to the exclusion of all others with the aim of thoroughly reforming not only church but also state and society. This was to be a "Bible commonwealth" founded on covenants both civil and ecclesiastical, drawn at once with each other and with God.

On the second,
The Middle Atlantic region of New York, New Jersey, and Pennsylvania constituted the most ethnically and religiously pluralistic society in North America, and the five Reformed groups who settled in the area (Dutch, Huguenot, German, Scots, and Ulster Irish) had to make their way in a patchwork society. Here any claim of religious establishment was a pipe-dream while civil politics plumbed the depths of factionalism and self-interest. ... Conflict of all sorts was endemic in these circumstances, and a tenacious defense of rights well indicated. Order and harmony had to be achieved by measures that rose above the designs of any particular group. The Calvinist solution lay in its old strain of constitutionalism and due process ...

In the Deep South Presbyterian and Reformed settlers dwelled in a different environment still, one predicated on slavery from the very beginning. ... South Carolina quickly became the only mainland colony with an enslaved majority... Evangelizing efforts in the slave quarters were only accepted once it had become clear that conversion did not entail manumission. Evangelical religion made its advances in this region by accepting a twofold contract: that the most slavery-dependent region of colonial America would be run in the name of the purest libertarian ideology, and that civil government would be free of any carping from the church

Bratt goes on to provide his take on some present-day applications of a blend of these three models. My point here, however, is only to make us aware that there were three models and that none encompassed the whole of Colonial America and that it’s a fool’s errand for Christians of any stripe to take any one as the model for what should be the relationship among the Christian faith, civil government, and society in the twenty-first century.