Cubby creates a personalized study system you can rely on from day one of the semester through finals.

Cubby uses your course materials and permitted professor materials to tailor your practice to your class, so you’re not just practicing Contracts, you’re practicing for your Contracts exam.

Those paragraphs were edited in the last few days. According to the Wayback Machine, it formerly stated:

Cubby creates a personalized study system you can rely on from day one of the semester through finals. Powered by analyzing your professor’s teaching style, course materials, and past exams.

Upload your outline, notes, slides, and past exams. Cubby adapts to your professor’s teaching approach, emphasis, and exam style, so your practice mirrors how you’ll actually be tested.

Just last week the latter paragraph still stated:

Cubby trains on your professor's actual materials, past exams, and model answers so you're not practicing Contracts, you're practicing your professor's Contracts exam.

The original phrasing clearly encouraged students to upload materials provided by faculty, whether permitted or not.

I assume the latest edit was done, at least in part, because I sent Cubby a detailed demand letter explaining that their use of my materials, name, image, and likeness violated both state and federal law.

I know other faculty have also complained.

In a transparent attempt to avoid legal liability for theft of intellectual property, Cubby’s current web site includes a page attempting to put the burden on students who upload materials:

It is every student’s responsibility to understand their school’s specific honor code and follow it.

Some honor codes address how professor-created materials, such as syllabi, past exams and lecture slides can be used. Some schools restrict uploading these materials to third-party platforms, while others draw the line differently. These policies vary, and it’s your responsibility to understand your school’s specific rules.

If your honor code restricts uploading professor materials to third-party tools, that restriction applies across the board: Cubby, ChatGPT, Claude, Gemini, NotebookLM, or any other tool. We do not condone using Cubby in any way that violates your school’s academic integrity policies.

Note that Cubby’s website states:

If your school restricts uploading professor materials, Cubby works well with your own notes and outline.

The UCLA Honor Code

Sections 102.01 and following of the UCLA Honor Code identify the various sorts of conduct that violate the code. Section 102.04 provides:

102.04a: Theft includes taking without expressed permission or, misappropriation of, any property or services of the University or property of others while on University premises or at official University functions; or possession of any property that the Student had knowledge or reasonably should have had knowledge was stolen.

102.04b: Damage or destruction of any University property, or the property of others while on University premises or at official University functions.

Section 102.05b provides:

Violations of copyright laws, whether by theft, unauthorized sharing or other misuse of copyrighted materials such as music, movies, software, photos or text.

Section 102.23 provides:

102.23a: Unauthorized Use, Distribution, or Sale of Academic Materials

Selling, preparing, or distributing for any commercial purpose academic materials including, but not limited to, written, video or audio recordings of any course, or course materials, unless authorized by the University in advance and explicitly permitted by the course instructor in writing. The unauthorized sale or commercial distribution of academic materials including, but not limited to, recordings by a Student is a violation of the UCLA Student Conduct Code whether or not it was the Student or someone else who prepared the materials. This policy is applicable to any recording in any medium, including handwritten or typed notes.

102.23b: Copying Course Notes

Copying for any commercial purpose handouts, readers, or other course materials provided by an instructor as part of a University of California course unless authorized by the University in advance and explicitly permitted by the course instructor and the copyright holder in writing (if the instructor is not the copyright holder).

Thus, uploading the Cubby any of the PowerPoint decks, the sample exams, the handouts, and so on that I provide students would violate the honor code.

Students currently enrolled in a course may provide a copy of their own notes or recordings to other currently enrolled students for non-commercial purposes reasonably arising from participation in the course, including individual or group study.

At least here at UCLA, students who upload “their own” notes to anyone other than “other currently enrolled students” violate the honor code.

Copyright Law

I am the author and copyright owner of these course materials. Cubby’s business model relies on copying my work, uploading and processing it through its systems, and then using it to create derivative materials that it sells commercially. I have never authorized Cubby to use my work in this way.

These activities—including copying my materials, creating derivative works from them, and distributing them without my permission—implicate my exclusive rights under 17 U.S.C. § 106. The fact that a student may have uploaded a copy does not give Cubby permission to commercially exploit my work. A student’s access to my course materials does not give that student the authority to grant a commercial company a license or sublicense to use, reproduce, or create derivative works from them. As such, Cubby faces exposure for contributory infringement if it has knowledge (or reason to know) that users are uploading infringing copies and materially contributes to or induces that infringement. In addition, by charging subscription fees, selling advertising, or otherwise monetizing the AI teaching-assistant service while having the technical ability to filter or block infringing uploads would face heightened vicarious liability exposure.

Defenses that Won’t Work

Cubby may claim a fair use defense. Although teaching and similar educational uses are listed in § 107 as valid examples of fair use, the educational category applies more naturally to the student-user than to a commercial platform that profits from the arrangement.

Cubby might invoke the DMCA safe harbor for information stored “at the direction of a user” under § 512(c), but this defense has important limitations. To qualify for the defense, the platform must, among other things: designate a DMCA agent, adopt a repeat-infringer policy, lack actual knowledge or red-flag awareness of infringement, respond expeditiously to takedown notices, and not receive a financial benefit directly attributable to the infringing activity where it has the right and ability to control it. Critically, moreover, Cubby’s own model training, indexing, output generation, and deliberate reuse of uploaded material likely fall outside the “storage at the direction of a user” rationale. A platform that actively processes, trains on, and generates derivative outputs from copyrighted works is doing substantially more than passively hosting user-uploaded content.

California Education Code

California Education Code § 66450 prohibits anyone—including students and commercial business—from preparing, selling, distributing, sharing, or publishing, for any commercial purpose, notes or recordings of an academic presentation at a California university without the instructor’s authorization. The ban covers not just audio and video recordings, but also handwritten or typed class notes.

Outlines and study materials derived from students’ notes of my UCLA lectures, sold on a subscription basis, fall squarely within that prohibition. Note that this is another reason that uploading “their own” notes is not a defense. Uploading “their own” notes not only violates the UCLA honor code, but also California law.

California NIL Law

Misappropriation of name and likeness. Cubby uses my name to identify, organize, and market paid products tailored to “my” courses. They also use my image and likeness on their website. That is a knowing commercial use of my name and image without consent, which is actionable under California Civil Code § 3344 and California common law.

What I Would Like to See Happen Next

As noted, I sent Cubby a demand letter to which they have not responded. As a result, I am going to ask:

• The UCLA Law School to adopt a policy forbidding students from uploading professor-prepared course materials and class recordings covered by § 66450, to include so-called “personal notes” to any AI for use in training such service to provide any service.

• The UCLA campus administration to add a similar policy to the honor code.

• The UCLA School of Law to send a collective letter to Cubby informing them of our objection and demanding that they take down the infringing materials.

As for what I’m going to do, I plan to inform my students that uploading any of my materials to Cubby is a violation of both the UCLA honor code and California and federal law.

I also hope to gather together a group of like-minded legal academics to discuss bringing a class action lawsuit to protect our right.

Watch this space for further developments.

As I have discussed in past posts, one of my long standing areas of vocational interest is the intersection of theology, economics, and law. Usually the direction of travel is:

This is particularly true of my work using Catholic social thought to inform my analysis of some legal issue. See, e.g., Christianity and Corporate Purpose, in Christianity and Market Regulation: An Introduction 101 (Cambridge University Press; Daniel A. Crane & Samuel Gregg eds. 2021).

In this case, however, the direction of travel flipped into something more like this:

The result was Parable of the Talents, in Research Handbook on Fiduciary Law 97 (Edward Elgar Publishing; D. Gordon Smith & Andrew S. Gold eds. 2018) (AMAZON LINK), a working version of which is available on SSRN.

As Scott Pryor observed of this project:

His piece is not theological as typically understood. Instead, Bainbridge sets out to answer some legal questions: “What was the relationship between the master and the servant? What were the servants’ duties? How do the likely answers to those questions map to modern relations, such as those of principal and agent?” These questions are not merely some jejune inquiries from someone with nothing better to do. As Bainbridge notes, the modern common law of fiduciary relations is grounded more directly than any other field of private law on distinctly moral and even religious notions of duty. To understand the modern notion of fiduciary (= faithful) relationships, Jesus’ parable(s) in light of the legal backdrop of first-century Judea might prove helpful.

I think that’s mostly right. “Fiduciary law is aimed at allowing people to use the talents of strangers and reduce their cost of verification,”1 which is precisely the problem faced by the master in the Parable.

But I would offer, as a friendly amendment, the thought that I also hoped bringing to bear historical, legal, and economic analysis on the Parable would allow us to also better understand its theological implications.

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The Parable

On its surface, Jesus’ Parable of the Talents is a simple story with four key plot elements: (1) A master is leaving on a long trip and entrusts substantial assets to three servants to manage during his absence. (2) Two of the servants invested the assets profitably, earning substantial returns, but a third servant—frightened of his master’s reputation as a hard taskmaster—put the money away for safekeeping and failed even to earn interest on it. (3) The master returns and demands an accounting from the servants. (4) The two servants who invested wisely were rewarded, but the servant who failed to do so is punished.

The Theological Lesson

I am particularly struck by the juxtaposition in Matthew of the Parable of the Talents and the Parable of the Judgment of the Nations (a.k.a. the Parable of the Sheep and the Goats).

The basic theological lesson Jesus presumably intended those who heard the former is the obligation of his followers to earnestly labor in service of the Kingdom of God. His followers were not to hide their light under the proverbial bushel, but rather to use their talents (if you will pardon a weak pun) to the fullest extent of their abilities to fulfill the Great Commission. The latter drives home the message by starkly illustrating the fate of those who fail to care for those for whom Jesus had especial regard. As Paul Johnson observed in A Biography from a Believer:

Jesus immediately passes [from the Parable of the Talents] to the judgment where the unworldly are divided from the worldly: “And he shall set the sheep on his right hand, but the goats on the left” (Mt 25:33). He tells the sheep: “Come, ye blessed of my Father, inherit the kingdom prepared for you” (25:34). Jesus goes on to explain that those in this world who feed the hungry and the thirsty, and who take in homeless strangers, and who clothe the naked, and who visit the sick and the imprisoned shall be rewarded, and he makes the striking point that whoever befriends “the least of these my brethren, ye have done it unto me” (25:40).

The lesson is unmistakable, as Pryor observed:

[The Parable teaches that,] for God’s people in the about-to-be-inaugurated messianic age, the pattern of life would no longer be the pattern of the nation of Israel as a relatively static exemplar of God’s rule in the world. Instead, with the decoupling of God’s people from a single ethnic group and a single piece of land, and with the empowering of the Spirit, God’s people were to adopt an affirmative, outward-directed understanding of their place in the world. To be sure, Jesus wasn’t advocating a crass health-and-wealth gospel, such is to reduce the eschatological to the material, but he was (and is) urging on his followers a mission that will be characterized by world-wide growth and expansion with “profits” measured in terms of increasing numbers of followers from every tribe, tongue, and nation.

The Legal Backstory

The goal of Jesus’ parables was to stimulate thought, encourage people to think for themselves, and thus to puzzle out religious mysteries.

In order to facilitate that process, the parable was told as if it were a true tale—even if sometimes a highly improbable one—that the listeners could accept as a factual basis from which to extrapolate theological lessons. Put another way, Jesus’ parables were effective as teaching tools precisely because his listeners “could readily identify with the roles people filled, work that they did, relations that were broken and restored, losses they sustained and happiness they experienced.”2

Neither the master nor any of the servants make any appeal to legal standards, but it seems improbable that there was no background set of rules against which the story plays out.

The Parable of the Talents thus likely was premised on a legal backstory about the fiduciary duties of servants that would have been well understood by those who heard the Parable, which permits us to draw inferences about the contents of that background law.3

To the legal mind, the Parable thus raises some interesting questions: What was the relationship between the master and the servant? What were the servants’ duties? How do the likely answers to those questions map to modern relations, such as those of principal and agent? Curiously, however, there are almost no detailed analyses of these questions in Anglo-American legal scholarship.

My project sought to fill that gap.

The analysis leads to several conclusions:

1. Modern fiduciary law can be based on either proscriptive or prescriptive standards.

   1. Anglo-Australian law, for example, imposes only proscriptive standards. In particular, an agent’s sole fiduciary duty under their laws is that of undivided loyalty.

   2. In contrast, prescriptive standards impose affirmative duties, instructing the fiduciary what he must do. American and Canadian law, to cite two examples, includes both proscriptive and prescriptive standards.

   3. My analysis suggests that First Century Jewish civil law was closer to the American-Canadian model, as the master clearly expected the servants to affirmatively act in his interests.

2. How should we understand the severity of the sanction? How does the severity with which the unfaithful servant was punished contrast to modern law?

3. Agency-type relationships have the same basic structure and same basic flaws, regardless of time and place.

A Minor Digression

One of the interesting differences between the two versions regards the behavior of the lazy servant. In Matthew’s account, the servant “went off and dug a hole in the ground and buried his master’s money.” But in Luke’s account the servant “kept it stored away in a handkerchief.”

According to some scholars, Jewish law of the period would have treated the latter more severely than the former:

[B]urying was regarded as the best security against theft. If a person entrusted with money buried it as soon as he took possession of it, he would be free from liability should anything happen to it. For money merely tied up in a cloth, the opposite was true. In this case, the person was responsible to cover any loss incurred due to the irresponsible nature of the deposit.4

Presumably, a treasure carefully buried was regarded as being less susceptible to theft or other loss than one simply wrapped up in a cloth and left who knows where.

In the Parable, however, Jesus flips that rule. The servant who wrapped the money in a cloth merely has the money taken away from him and must watch it being given to the first faithful servant. In contrast, the servant who buried the money is thrown “into the darkness outside, where there will be wailing and grinding of teeth.”

Perhaps Jesus introduced this twist to grab his audience’s attention and thereby drive home the message that there are severe consequences for those who fail to use their full talents in service of the Kingdom of God. Recall that the Matthean Parable—in which the servant buried the talent—is situated immediately before the parable of the sheep and the goats. The severe punishment of the unfaithful servant in the Matthean Parable thus may have been intended to help the audience grasp the fate awaiting the goats.

Yet, there may be a secular explanation as well. In First Century Judea and Galilee, Roman rule was facilitating a shift from an agrarian economy in which reciprocity was the dominant form of exchange to a more market-oriented economy in which trading was becoming dominant. The earlier period was dominated by a limited goods economy in which most goods were subject to a fixed level of supply and trade was a zero-sum game, so that making money meant that somebody else lost money. In the emerging new economy, however, trading and investing for a return were becoming commonplace.

The older rules made sense in the economic conditions of the period in which they developed, where protecting the value of the goods one already owned might have seemed more important—and socially responsible—than trying to increase their value. In the new increasingly market-based economy, where the supply of goods was no longer fixed and trade was facilitated by the increasing use of money as a unit of exchange rather than barter, however, trade was no longer a zero sum game. Instead, it could produce surplus wealth that came from wealth creation rather than wealth transfers. The Parable presumably reflects the expectations of a master operating in this new environment, while the unfaithful servant’s worldview was still based in the mores of the older period.

Options

I hope you read the essay. But you might prefer to watch a video I made on the project. In either case, I hope it is of interest.

Ingredients

• ½ pound ground beef (not ground sirloin, which is too low in fat)

• 1 tablespoon unsalted butter

• ½ yellow onion, peeled and diced

• 1 stalk celery, diced

• 1 medium carrot, peeled and diced

• 2 cloves garlic, minced

• 1 tablespoon tomato paste

• ½ pound cremini mushrooms, rinsed, trimmed, and diced

• 1 teaspoon dried thyme

• 1 tablespoon Wondra® flour

• 1 cup water

• 1 teaspoon Better than Bouillon beef stock base

• ½ tablespoon Worcestershire sauce

• 1 can condensed cream of mushroom soup

• ½ cup frozen peas

• ½ cup frozen corn

• ½ cup freshly grated cheddar cheese plus extra for topping

• ½ package frozen tater tots

• salt and pepper

Directions

Preheat oven to 375°.

Brown beef in a large sauté pan or skillet over medium-high heat. Transfer to a paper towel-lined plate to drain. Blot pan with paper towel without disturbing any fond that developed.

Reduce heat to medium. Add onions, celery, and carrots to the pan. Add a pinch of salt. Sauté until the onions are translucent and just starting to brown (about 7 minutes). Add garlic and tomato paste. Sauté an additional minute. Transfer to a mixing bowl.

Add mushrooms and thyme to pan. Season with salt and pepper. Cook until the mushrooms have softened, given up their liquid, and begun to color. Sprinkle with flour.

Whisk together water, bouillon base, and Worcestershire sauce in a small bowl. Add to pan. Raise heat and bring to a boil. Reduce heat and simmer 1 minute. Transfer to the mixing bowl.

Add beef, soup, and frozen peas and corn to mixing bowl. Add cheese. Taste and adjust seasoning as needed. I often add a dash of paprika, garlic powder, and onion powder at this point. Sometimes a splash of additional Worcestershire sauce. Mix well and transfer to a casserole dish. Top with more cheese and potatoes.

Transfer to oven and bake until potatoes are golden brown and mixture reads at least 160°. Should take about 25-30 minutes. Let cool for 10 minutes before serving.

Wine Pairing

Duckhorn Merlot (Napa Valley) 2022

As has become my practice with young reds, I took the bottle out of the cellar unit about 90 minutes before dinner to warm slightly. About 30 minutes before dinner I opened and double decanted the wine to open it up.

Deep ruby color. Good bouquet of plums, blackberry, and blackcurrant. Black fruits and warm spice on the palate. Smooth tannins. Nice match.

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• The ABA committee that evaluates nominees to the federal bench consistently treats liberal judicial nominees better than conservative ones.

• The ABA has supported:

  • Abortion rights

  • Affirmative action

  • Gun control

  • Claims that the ERA has been adopted

• The ABA council that accredits law schools has adopted a slew of mandates over the years relating to DEI and other issues that reflect progressive policy preferences.

A Heritage Foundation report on the ABA accreditation council details not only the council’s political biases but also the way it protects the legal profession cartel, documenting mandates that “serve the interest of ABA members while increasing costs for students.” In sum, the report concludes (correctly IMHO), that “the ABA uses its accreditation standards to infringe on law schools’ autonomy in ways that serve its own interests rather than the interests of students.”

The ABA Caves

Back in May, I reported that the ABA was considering ditching at least its DEI mandates in order to retain its status as the main law school accreditation body:

According to Bloomberg, the ABA has now done so:

An American Bar Association council that accredits law schools voted Tuesday to kill a diversity, equity and inclusion rule for law schools in a bid to protect its accreditation powers.

The now defunct rule, known as Standard 206, had required law schools to show “concrete” action toward gender- and race-based diversity and inclusion for students, faculty, and staff.

“The Council believes that national accreditation of law schools is in the best interests of law students, the legal profession, and the public, and we can best serve in this role with continued recognition by state supreme courts and the Department of Education,” council chair Melissa Hart said in a statement. “Repealing Standard 206 was necessary to preserve recognition by a growing number of state courts as well as the Department.”

So it seems that the ABA’s commitment to woke policies is skin deep.

Not a Profile in Courage

I recently ran across something actress and activist Alexandra Paul said about the folks who hold views different from hers:1

I actually respect folks who stand up for their beliefs — even if I disagree with them — more than the folks who do not care, are afraid to 'get involved', or who cannot be bothered. I admire passion and commitment. A woman once told me she could not watch those slaughterhouse videos because she 'loves animals so much' and it would upset her. I would prefer to hang out with a hunter who believes he is doing the right thing, than a wuss like her.

I get that. I admire it. I agree with it (not the part about veganism, of course).

So, candidly, I view the ABA with even greater disdain today than yesterday. It abandoned its purported principles, which it imposed with such smug sanctimony, so as to protect its position as the chief gatekeeper to the profession.

Spineless upper class twits.

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• 1 tablespoon red miso paste

• 1 tablespoon reduced sodium white miso paste (I like Yamasan Kyoto Uji; AMAZON LINK)

• 1 ½ teaspoons reduced-sodium soy sauce

• 1 ½ teaspoons dark soy sauce

• 1 teaspoon toasted sesame oil

• 1 teaspoon rice wine vinegar

• 1 garlic clove, crushed

• ½ teaspoon freshly grated ginger

• 1 tablespoon maple syrup

• 2 6-ounce salmon filets

Combine all ingredients except the maple syrup and the salmon in a small bowl. Transfer 1 ½ tablespoons of the mixture into a separate small bowl and reserve. Add the maple syrup to the larger portion and combine.

Either lube a quarter-sized sheet pan with a liberal spritz of Pam or place a silicon baking mat on the pan. Place the salmon filets on the pan and liberally brush about ⅓ of the glaze on each, reserving the remainder. Stick the sheet pan in the refrigerator.

The Mashed Cauliflower

• ½ medium head of cauliflower, cut into small florets

• pinch salt

• 2 tablespoons grated Parmesan Reggiano

• 1 ½ tablespoons butter

Using a medium pot and a steamer basket, steak the cauliflower for 10-12 minutes until fork tender. Drain cauliflower in a colander or strainer. Pat repeatedly with paper towels or a clean tea towel. Allow to air dry 5 minutes. Transfer to the work bowl of a food processor and puree. I don’t like a completely smooth texture, so I try to stop while there are still some discernible chunks.

Melt butter and add to bowl with reserved miso glaze. Mix into the cauliflower. Taste and adjust for salt and pepper as needed.

I made it ahead to this point several hours before dinner, stashed it in the refrigerator, and reheated it to warm but not piping hot in the microwave for service, stirring once.

The Cucumber Salad

While the glazed salmon is resting in the refrigerator, turn to the cucumber salad.

• ½ pound English cucumbers sliced very thin (Persian cucumbers would also work)

• ⅓ cup drained, rimsed, and chopped pickled onions

• 2 tablespoons drained and chopped pickled ginger

• ½ tablespoon toasted sesame oil

• ½ tablespoon rice vinegar

• ½ tablespoon reduced sodium soy sauce

• ½ teaspoon honey

• 2 green onions sliced

• ½ tablespoon toasted sesame seeds

Combine all ingredients in a medium and mix well. Place in refrigerator for at least 30 minutes (but not more than an hour).

Cook the Salmon

About 15 minutes ahead of time, remove salmon from refrigerator and preheat the oven to 400°. Put one of the racks in the tip third position. Brush the salmon with the reserved glaze.

When the oven is preheated, put the sheet pan with the salmon in the oven and bake for 10 minutes. Turn on the broiler and cook an extra two minutes.

Plate the mashed cauliflower, putting the salmon filet on top, with the cucumber salad to the side. Sprinkle the salmon with toasted sesame seeds.

The Wine

Sea Smoke Botella (Sta. Rita Hills) 2023. This is a lighter, more fruit-forward Pinot that Sea Smoke makes for you to drink while waiting for your bottles of Ten and Southing to gain some cellar age. I believe the bulk (all?) of the fruit comes from other growers rather than their estate vines. It gets less barrel aging and less new oak.

It suggests red fruit—raspberries and cherries—with a light dash of herbs. A touch of vanilla from the oak aging. Soft silky structure with refined tannins.

It likely will improve with short-term cellar aging, but double decanting about 30 minutes before service opened it up nicely and it’s very enjoyable now.

This is a great example of how you can drink red wine with fish. Indeed, the Botella made a great match for the salmon. It had enough acidity to complement the rich, oily texture of the salmon. The deep, savory umami flavor provided by the miso and soy was complemented by the Pinot’s fruit and herbs. The soft and modest tannins did not clash with the fish, as a heavier wine would have done.

He’s got a new short article on a case—Treasure Coast Classical Academy, Inc. v. Optima Foundation, Inc.1—that turned on the placement of a comma. It should be of interest for any readers curious about legal writing, contracts, or just how punctuation works.

Here’s the key sentence from the contract at issue in the case the article is about:

State Governing Law/Venue/Waiver of Jury Trial. The rights of all parties hereto shall be subject to the jurisdiction of and be construed according to the laws of the State of Florida, with venue in Collier County, Florida.

The question was whether bringing suit over the contract in Collier County was mandatory or permissive. Ken explains:

Because the provision at issue in Treasure Coast includes a comma before the venue provision, the appellate court said that "the importance of the comma in the clause here cannot be understated." It held that "'shall' applies only to the choice of Florida law rather than to venue selection."

Ken then proceeds to demolish the court’s interpretation of the contract. Go read the whole thing.

Comma Law

I’m a big fan of commas. I tend to sprinkle them throughout my writing.

Not surprisingly, one of my chief bugaboos is the serial comma (a.k.a. the Oxford comma).

My former colleague Eugene Volokh (of The Volokh Conspiracy fame) recently wrote a post, Punctuation Matters. At the Heart of This Case Is the Placement of a Comma, focusing on a case in which the issue was whether Remus Enterprises 1, LLC or Remus Enterprises, 1 LLC was the owner of a parcel of real property in Washington, D.C. The court explained that:

a consent judgment in another case established that a different entity with a name containing all the same words and letters but a differently placed comma—Remus Enterprises, 1 LLC ("Remus 2018")—was the real owner of the property.

The Serial Comma and the Law

Back in 2017 Eugene wrote a post, ‘A, B or C’ vs. ‘A, B, or C’ -- the serial comma and the law, focusing on “a dispute between a Maine dairy company and its delivery drivers” concerning “the scope of an exemption from Maine's overtime law.” Eugene explained:

The Maine overtime law excludes employees that are involved in “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” various perishable products. The question - should this be read as employees involved in

1. (a) canning, (b) processing, (c) preserving, (d) freezing, (e) drying, (f) marketing, (g) storing, (h) packing for shipment, or (i) distribution of those products - a broad interpretation, favored by the employer - or

2. (a) canning, (b) processing, (c) preserving, (d) freezing, (e) drying, (f) marketing, (g) storing, or (h) packing for shipment or distribution of those products - a narrow interpretation, favored by the employee drivers.

The court concluded that the provision was ambiguous ….

Maine’s official legislative drafting manual advised drafters of statutes against the use of the serial comma, which suggests that option # 2 was the correct one. But, the court observed, the statute included a single conjunction, which suggested that option # 1 was correct. Given that ambiguity and Maine case law suggesting that ambiguities should be resolved in favor of the drivers, the court opted for # 2. It concluded:

We would be remiss not to note the clarifying virtues of serial commas that other jurisdictions recognize. In fact, guidance on legislative drafting in most other states and in the Congress appears to differ from Maine's when it comes to serial commas. Some state legislative drafting manuals expressly warn that the absence of serial commas can create ambiguity concerning the last item in a list.

Delaware Law

As a corporate law guy, my chief interest is what Delaware courts do. In Daniel v. Hawkins,2 the Delaware Supreme Court explained that:

The rule of the last antecedent is a canon of construction which provides that:

“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence. Thus a proviso usually applies to the provision or clause immediately preceding it. A qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of only to the immediately preceding one.”

On the other hand, the Delaware Chancery Court has explained that:

A court applying Delaware law “will not allow the imprecise placement of adverbs and commas to alter the otherwise plain meaning of a contractual provision or to frustrate the overall plan or scheme memorialized in the parties’ contract.” Interim Healthcare, Inc. v. Spherion Corp., 884 A.2d 513, 556 (Del. Super.), aff’d, 886 A.2d 1278 (Del. 2005) (ORDER) ….3

Miscellany

According to Westlaw, there are 155 law review articles that reference the “Oxford comma.” In contrast, there are 161 that refer to the “serial comma.” National chauvinism at work?

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Bainbridge on Corporations

Mergers and Acquisitions Facts I Fail to Understand

I am working on a new edition of my book, Mergers and Acquisitions (Concepts and Insights) (AMAZON LINK). As part of the process, I have been reviewing the American Bar Association’s Private Target Mergers and Acquisitions Deal Points Study (2025). In doing so, I’ve run into a number of things I find puzzling. In hopes that kind readers will enlighten m…

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3 months ago · 4 likes · 3 comments · Stephen Bainbridge

I spent some time digging into those anomalies and examining them through the lens of incomplete contracting theory. It’s now a short (less than 5000 word) article, which has been posted to SSRN:

Abstract

This article uses the ABA’s Private Target Mergers and Acquisitions Deal Points Study to interrogate a puzzle that I initially took for evidence of bad lawyering: the persistent presence of undefined or unaddressed terms in sophisticated acquisition agreements.

Post-closing purchase price adjustments, representation and warranty insurance exclusivity, exclusive remedy provisions, and—most strikingly—the material adverse change (MAC) clause itself are all, in a nontrivial share of deals, left silent or vague on questions that seem central to what the parties are bargaining over.

Rather than treat these gaps as drafting failures, I turn to the incomplete contracting literature to ask what work silence and vagueness might be doing. I show that the literature offers not one explanation but several, and that they are not mutually exclusive: strategic vagueness (Choi and Triantis), renegotiation-lever theory (Denis and Macias, Quinn), risk-allocation architecture (Gilson and Schwartz), delegation to a trusted forum—here, Delaware’s accumulated MAC jurisprudence—stickiness and agency costs in boilerplate drafting (Anderson and Manns), and “agreeing to disagree” (Ben-Shahar).

Using the MAC clause as the central case study, I argue that the ABA data, properly read, actually vindicates rather than falsifies the strategic vagueness account. Ninety-eight percent of deals nominally “define” a MAC, but the core standard remains circular—defining a material adverse change by reference to materiality—while drafting effort is instead concentrated in an increasingly long and specific list of carve-outs. That two-part architecture is exactly what strategic vagueness predicts: precision where it is cheap and valuable across every deal, vagueness where specification cost is better deferred to the rare tail event that actually triggers litigation.

I then examine two harder cases that resist easy assimilation to strategic vagueness: the small percentage of deals with no MAC definition at all, and the larger percentage silent on RWI exclusivity. I argue that the first is genuinely underdetermined by the frequency data alone, admitting of several competing explanations that happen to generate the same observable correlation. The second, by contrast, is better explained as a structural or signaling gap than as vagueness properly understood, since exclusivity is a binary allocation question rather than an open-textured standard.

The larger methodological payoff is a caution against reading deal-points frequencies as revealed-preference evidence of efficient design without further cross-sectional data on deal size, structure, and counsel sophistication—data the published tables do not provide, and without which efficient deferral and lawyerly inattention remain observationally equivalent.

Keywords: incomplete contracts, contract theory, mergers and acquisitions, acquisition agreements

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But moved by a desire to be a good institutional citizen—a feeling to which I am unaccustomed, to be sure—I agreed to speak on a panel entitled “What is the Purpose of Legal Scholarship?”

Today I learned that there will be three rounds of topics during the panel and each panelist will have 2-3 minutes of speaking time per round. Those of you who have had the misfortune of hearing me speak will know that disaster looms. I need at least five or six minutes of preliminary throat clearing to start the engine.

But so be it.

In any case, here’s what I would have said if I have had more time.

Preliminary Throat Clearing

When I started out as a law professor I didn’t spend a lot of time thinking deep thoughts about what I was doing. I didn’t worry much about finding my scholarly voice. I was not very intentional about picking topics.

My former UIUC colleague John Nowak once told me I could get tenure by finding an interesting legal problem and offering up a plausible solution in an article with at least 300 footnotes and then repeating the process a couple times. Which turned out to be true. Probably not so much today, but while that’s a sad commentary on the state of the legal academy, it’s a story for another day.

My Orwellian Moment

Some years later, I encountered George Orwell’s essay Why I Write, and discovered that it was possible to be very intentional about the writing process.

In it, Orwell says there are four primary motives for writing, all of which seem to me to be relevant to the scholarly enterprise.

Sheer Egoism

“(i) Sheer egoism. Desire to seem clever, to be talked about, to be remembered after death . . ..”

We are all guilty of it. After all, as Professor Michael Smith observes, “Getting published in a sufficiently prestigious journal may be gratifying in its own right, and it may lead to positive attention from one’s colleagues, spouse, and friends.”1

But I think we need to be conscious of the errors to which egoism can lead. In particular, the desire to appear brilliant. Smarter than the average bear. Which leads to works like James Joyce’s Ulysses: impenetrable masses of jargon; choosing complexity over clarity; adopting tribal mores and memes so as to be accepted.

Aesthetic Enthusiasm

“(ii) Aesthetic enthusiasm. Perception of beauty . . . in words and their right arrangement.”

“Craftsman-like” is a kiss of death in a tenure letter, but I think we should all aspire to a high level of craftsmanship.

An analogy suggests itself. My maternal grandfather was a carpenter. As were his three sons, but my grandfather was especially talented. He made beautifully crafted things.

I’ve never read a law review article—let alone written one—that had the beauty of my grandfather’s work. Or of a great novel.

But there is beauty to be found in the law: A legal problem elegantly solved. A well-turned phrase.

Consider my favorite example of elegant legal writing:

Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions.2

There is beauty in those words.

Striving for Beauty

When I was a kid, I wanted to grow up to be a science fiction writer. As I got older, I realized two things: (1) I can’t write dialogue and (2) the vast majority of science fiction writers make almost no money. But I still think of myself as a writer.

And, as Orwell observed, “even a pamphleteer or writer of textbooks will have pet words and phrases which appeal to him for non-utilitarian reasons.”

I enjoy the process of trying to find just the right word. Of trying to be clear. Turning a good phrase. Developing a flow and rhythm to the work.

A Time to Cease Striving

I find it odd that a lot of law professors don’t seem to enjoy the writing process. They struggle. They view it as a chore. They labor endlessly over a project.

Perhaps they are striving for that elusive beauty. But, per Qoheleth, “there is a time to be silent and a time to speak.”

At some point you have to stop striving.

I have a friend—no longer in the academy—who worked on the same law review article for three years. I read multiple drafts and by the end it was very good. Perhaps not beautiful, but good.

Yet, my friend couldn’t seem to cut the cord. He was an editor, not a writer. And he bailed before getting tenure.

An analogy suggests itself. My grandfather did not labor endlessly over his projects. He got them to a stage at which they were the best work he could do and then he didn’t dither over trying to make them just a little bit better. Instead, he sent them out into the world for others to enjoy.

So there’s a balance to be struck between creating a work of merit and deciding that’s it’s as good as it’s going to get. Or, as an older friend told me when I started out, “you’re going to write a lot of juvenilia. We all do. You just have to be conscious of striving for maturity.”

Historical Impulse

“(iii) Historical impulse. Desire to see things as they are, to find out true facts and store them up for the use of posterity.”

One of the topics we will take up in the faculty rout retreat is going to be “the extent to which our legal scholarship serves public or social purposes.”

I think Orwell’s reference to “true facts” and “the use of posterity” is precisely the social purpose of legal scholarship.

Truth

I know that postmodernists—including some (Most?) of the crits—view truth as contextual, relational, and socially constructed rather than purely objective or absolute.

Suffice it to say that postmodernism gives me a headache.

I agree with Dan Farber that “truth is the key to good scholarship,” not just one of “a number of equally valid goals.”3 Hence, I also agree with Arthur Leff that what legal scholars should be striving for is to reach “those occasional moments when they say, in some concise and illuminating way, something that appears to be true.”4

Whose Use?

I am a law professor. I teach in a professional school not a graduate school. My students will go out into that profession. So I firmly believe that my scholarship should be accessible and useful to them. Academic lawyers should see the law as it is and then share that insight with our profession.

My Audience

This leads to a suggestion: Have a specific audience in mind. Have specific people you want to persuade. Hopefully, not just other law professors.

These days most of what I write has an intended audience of just 12 people: the seven members of the Delaware Chancery Court and the five members of the Delaware Supreme Court.

I find corporations endlessly fascinating. These legal fictions that are the most important economic actors in the world. Unlike most areas of American law, corporate law is dominated by a single, tiny state: Delaware. Even in these days of DExit, its courts remain the most important source of corporate law. So, my goal is to think deeply about the problems that court is confronting and persuade them to see those problems the right way (i.e., my way).

Political Purpose

“(iv) Political purpose—using the word ‘political’ in the widest possible sense. Desire to push the world in a certain direction, to alter other people’s idea of the kind of society that they should strive after.”

Obviously, this is the reason and motivation most relevant to legal scholarship. As it should be.

Much of my work is explicitly political (writ broadly). I have written about the intersection of conservative thought, capitalism, and corporate law. I’ve written about the differences between conservative and progressive corporate law scholarship. I’ve written about the insights one can draw from Catholic social thought for corporate law.

Much of my work is implicitly political, as well. Unless one is merely quoting what the court said (itself a political choice), one’s analysis inevitably rests on certain normative priors. The key thing—or so it seems to me—is to be transparent about those priors. I think capitalism is superior to socialism. I think corporations are, on balance, positive social actors. I think know director primacy is superior to shareholder primacy. It would be hard to read any of my scholarship and not see those priors doing their work in the background.

Yet, I think it is worth pondering the implications. We live in an increasingly tribal society. The legal profession is increasingly tribal. Even law schools show some tribalism, despite their dominant tendency towards monoculture. Are you just writing for your tribe? Or are you trying to persuade people who reside in other tribes? Because they require different styles and choices.

This relates back to my previous point; namely, who is your audience? My scholarship got a lot better when I realized that I had a target audience and that I needed to adapt my work to reach them. I see my job as writing them a letter that they will find useful and persuasive.

Find your audience and you’ll find your voice.

Conclusion

Lastly, legal scholarship should be joyous. As Arthur Leff observed:

I concede that people who write about law also have other reasons for doing what they're doing: getting promoted, illustrating the economic rationality of the common law, turning off the fishy stares of prolific colleagues, explaining to practitioners what article 9 now is all about, illuminating the necessary incoherence of the infrastructure of the late monopoly-capitalist state so as to hasten its eventual destruction. Whatever. But isn't it also true that what we all also want is the rush that occasionally comes from doing something very well which is very hard to do at all?

Legal scholarship is what legal scholars do. Like all craftsmen, some are luckier than others. Some, I suppose, never attain the grace of doing anything particularly well. Most do sometimes; some do more frequently; none does very often. But to have crafted, on occasion, something true and truly put—whatever the devil else legal scholarship is, is from, or is for, it's the joy of that too.

Find you joy.

And have fun.

After putting the spring 2026 semester to bed, I had completed 76 semesters of law teaching (some of which were spent on sabbatical to be sure). As the fall 2026 semester begins, I have just 5 more to go before I ride off into the sunset. One of which will be a sabbatical. It's been a long but rewarding and, for the most part, joyous career.

At this stage of my career, I have little to gain but even less to lose. And probably not a lot of time left in which to write.

So I’ve abandoned any effort to be strategic about my projects. If a project isn’t fun, I’m not doing it.

Consider my article Effecting Industrial Policy Via General Incorporation: Encouraging Privateering as Case Study, available at SSRN: https://ssrn.com/abstract=6065867. Yes, I think it makes a contribution to the literature by showing how the switch from special to general incorporation was a form of industrial policy. This is a new and, I think, useful way of understanding that switch.

But c’mon. When I was a kid I wanted to grow up to be a pirate. (I later went through a Godfather phase, but we don’t talk about that anymore.) With all due apologies to the taxpayers of California who pay my salary, I wanted to write that article mainly because I got to wallow in what had once been a career goal.

If you’re not having fun with your scholarship, you’re doing it wrong.

So here, I must disagree with Orwell. He wrote:

“Writing a book is a horrible, exhausting struggle, like a long bout of some painful illness. One would never undertake such a thing if one were not driven on by some demon whom one can neither resist or understand. For all one knows that demon is simply the same instinct that makes a baby squall for attention.”

This has not been my experience. To the contrary, my ideal day goes like this: Get up. Contemplate the meaning of life. Briefly. Put on some old cotton sweats. Go upstairs (our house is in some sense built upside down). Make a coffee on my fancy new espresso machine that’s 50% a flat white and 50% a latte. Eat a couple of egg sandwiches while reading the Wall Street Journal. More coffee. Devotions. Make another coffee and wander downstairs to my office. Feed my fish. Sit down in front of the computer and start researching or writing. Lunch. Back in front of the computer. Feed the fish. Dinner. Rinse and repeat.

That’s my idea of fun (I fully realize YMMV). And pretty soon that’ll be every day.

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Two lower courts have ruled that Trump exceeded his authority when he tore down the East Wing of the White House in a matter of days last fall and immediately began construction on the ballroom without the approval of Congress. But he has been allowed to keep building while his administration pursued appeals.

In an emergency appeal to the Supreme Court last week, Trump asked the justices to let work continue on what the president now says is an integrated “military complex.” A preservationist group that is challenging it urged the justices to stop the project now, no matter that it is partially built.

On Friday, Chief Justice John Roberts issued a one sentence order staying the lower court injunctions.

The effect of which is that construction will continue, as the WSJ explained, so that “a 250-person construction crew [that] has been working nearly around the clock to erect what the administration says is a ‘concrete-and-steel superstructure’ that is impermeable and virtually impossible to deconstruct now” can keep working.

The net result is that the new monstrosity likely will be completed before the legality of the project can be determined, which will present the courts with a fait accompli.

Classic Trump.

Barr’s Points

Also in the latest WSJ is an op-ed on the ballroom project by former Trump AG William Barr. He makes some interesting points. But ultimately not persuasive ones.

The Ballroom is Necessary

The White House urgently needs security upgrades to defend against modern threats like drone attacks, missiles, high-powered weapons and cyberattacks. It also requires a more secure and capacious ballroom for official events.

Plausible.

The real bone of contention is the opponents’ objection to the project’s aesthetics.

Probably true, but can you blame them? Trump’s aesthetic sense is gaudy and tasteless.

The Plaintiff Lacks Standing

In this case, the National Trust, a private nonprofit organization, plainly lacks the standing mandated by the Constitution. To have standing, an organization like the trust must show that (1) it has members who have suffered a concrete injury sufficient to have standing in their own right, and (2) that the interest the members seek to vindicate is germane to the organization’s purpose. Here, the lower courts found that the trust had standing based solely on the fact that a single member who claims to walk near the White House about once a month expects to dislike the design of the new East Wing.

That does sound like a pretty bogus basis for standing. In a dissent from the DC Circuit’s order upholding the lower court injunction, Judge Neomi Rao likewise concluded that the National Trust lacked standing, explaining that:

As an association, the Trust must show that “(1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to [its] purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” …

… as a congressionally chartered nonprofit, the Trust “is required to pursue ... goals defined by statute.” Congress established the Trust to serve four defined purposes: (1) receiving donations of historic sites, buildings, and objects; (2) preserving and administering those sites, buildings, and objects; (3) accepting and administering gifts to carry out its preservation efforts; and (4) executing other statutory functions.1

She concluded that “are germane to a lawsuit challenging the building of a ballroom and updated security facilities on White House grounds.”

But while I’m not an expert on standing, I did find a 1988 Illinois supreme court decision holding that:

We have closely examined the functions vested in the National Trust, and we agree that Congress intended the National Trust’s functions to be extremely broad. …

The National Trust was thus created in part to … “to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people of the United States.” … It appears to us that in bestowing powers on the National Trust in order to further this broad national policy, Congress intended to permit the National Trust to, inter alia, object to the allegedly unlawful destruction of buildings such as the McCarthy Building, which the National Trust deems of national historic significance, even if those buildings have not been officially declared “national landmarks.”It seems essential that, in order to perform its congressionally mandated functions, the National Trust must be allowed to maintain suits in State courts to prevent unlawful destruction of buildings it deems of national historic significance. …

We thus conclude that Congress intended the National Trust to have standing to maintain actions such as this, and that such standing is necessary if the National Trust is to fulfill the functions Congress intended it to fulfill.2

On the other hand, a Virginia decision in which the National trust sought to protect the Wilderness Battlefield held that:

… the National Trust has no direct, specific interest in the Wilderness Battlefield property and no pecuniary or financial obligations that will be directly affected by the issuance of the SUP. Therefore, to find that standing has been established here would essentially mean that the National Trust has standing in any case where it unilaterally decides that it must participate in litigation to preserve or protect some historic or public interest in federal property. On this point, Mr. Rosenbaum conceded at oral argument that to prevail on this issue, the court would almost have to accept an “automatic standing” rule for the National Trust. The court respectfully declines to do this because it can find no decided case in which this rationale was successfully applied.3

Suffice it to say, perhaps, that the standing question is not as straightforward as Barr would have his readers believe. Which is hardly surprising:

• “the doctrine of standing is a convoluted and sometimes misunderstood doctrine”4

• “standing is one of the more convoluted doctrines in effect throughout the federal judiciary and simply cannot be explained in terms of concise requirements”5

Trump Acted Lawfully

President Trump has a solid legal and historical basis to rebuild the East Wing. There is a long history of presidents engaging in construction and renovation projects on the White House and its grounds. In 1942, for example, Franklin D. Roosevelt tore down most of the East Wing and rebuilt it from the ground up. Since FDR’s project, Congress passed a law recognizing that the president has authority to alter and improve the White House. It is under that authority, and consistent with the long sweep of history, that the president constructs the ballroom.

This strikes me as a perfectly plausible legal argument. But the question remains: who decides?

The Judicial Province and Duty

Barr followed that argument with this observation:

Moreover, the remedy called for here isn’t suitable for judicial administration. It would task a federal judge with deciding what is required for the president’s security. But federal judges are ill-suited to make these decisions or serve the role of chief architect and foreman over complex construction projects.

Which is certainly true. But also disingenuous.

The question is not whether the design of the new ballroom wing is attractive, beautiful, or architecturally appropriate.

The question is whether Trump had legal authority to unilaterally start demolishing the old East Wing and building a new one.

And that is a question for the courts:

It is emphatically the province and duty of the judicial department to say what the law is. … If two laws conflict with each other, the courts must decide on the operation of each.6

The Supreme Court Should Not Allow Trump to Create a Fait Accompli

Chief Justice Robert’s decision was a mistake. It will allow Trump to create facts on the ground—a fait accompli—that will be difficult, costly, and highly controversial to reverse.

Preventing such fait accomplis is precisely the purpose of the sort of injunctions the lower courts granted.

In City of Del City v. Harris,7 for example, the Oklahoma Supreme Court declined to grant a stay of an injunction pending an appeal, precisely to avoid allowing the party seeking the stay to “create a fait accompli by the time the appeal could be determined” and thus rendering the issues on appeal moot.

In the labor context, where “a party to a labor dispute seeks to maintain the status quo pending arbitration, of paramount concern is whether denial of an injunction would frustrate the purposes of arbitration by presenting the arbitrator with a ‘fait accompli.’”8 The same should be true of the stay of an injunction.

Conclusion

At his confirmation hearing, Chief Justice Roberts said it was jis job to call the balls and strikes.

In this case, Roberts failed to do his job.

Instead, he created a situation in which Trump can stroll around the bases, touch home plate, declare a touchdown, have the scoreboard record it, and then dare Roberts to undo the fait accompli.

Colombo is a prolific scholar, much of whose work can be easily grouped within the Christianity and the Law genre. So he’s well equipped to tackle a project like Petitionary Prayer.

Petitionary Prayer is a particularly ambitious interdisciplinary project. In it, Colombo argues that we can gain useful insights into the theology of prayer by examining it from a legal perspective.

To be clear, Colombo does not set out to prove that petitionary prayer works. Instead, he assumes arguendo that the mainstream Christian understanding of prayer is valid. He then asks whether statements such as “ask, and it shall be given you” (Matthew 7:7) can be understood as analogous to a legally enforceable promise.

The Chief Difficulty with Petitionary Prayer

Colombo identifies a dozen New Testament passages in which “the Bible records Christ telling his followers ‘ask, and it shall be given you,’ some variation thereof, or some advertence thereto.”1

The central difficulty with petitionary prayer is that God does not in fact always give us what we ask for. No matter how earnestly I ask God for a pony, it is highly unlikely that a pony will appear on my doorstep one morning.

Some commentators try to explain this apparent contradiction away by saying that “sometimes the answer is no.” But that really doesn’t work. After all, the promise is that if we ask, God will give.

Colombo’s Thesis

Colombo’s central insight is that the apparent contradiction between “God promises to answer prayer” and “prayers sometimes go unanswered” disappears if we look at petitionary prayer through a contract law lens.

The basic definition of a contract is “a promise the law will enforce.”2 Note that that definition implies that the law will not enforce all promises. That proposition is made explicit in the Restatement (Second) of Contracts’ definition of a contract, which is “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”3

The law will not enforce a contract that is not supported by consideration, for example. The law will not enforce a contract if one or both of the parties lack capacity. The law will not enforce promises to commit an illegal act. And so on.

Mapping Petitionary Prayer to Contract Law

The basic claim of Colombo’s argument is that petitionary prayer usefully maps onto contract law:

Unless all of these elements of an enforceable contract are met by the petitioner, the promise was not broken.

The Question of Conditions

Although Colombo works through all of the basic elements of an enforceable contract, to my mind the critical insight has to do with the question of conditions.

The law will not enforce a promise that is subject to conditions that have not been satisfied. “A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.”4 The Restatement offers the following illustration:

A contracts to sell and B to buy goods pursuant to a writing which provides, under the heading “Conditions of Sale,” that “the obligations of the parties are conditional on B obtaining from X Bank by June 30 a letter of credit” on stated terms. The quoted language is a term of the agreement (§ 5), not a condition. The event referred to by the term, obtaining the letter of credit by June 30, is a condition.

If B fails to obtain the letter of credit by June 30, the contract will be unenforceable.

Colombo asserts that Christ’s promise is a conditional one and identifies multiple conditions including faith, proper intention, perseverance, obedience, forgiveness, remaining in Christ, and conformity with God’s will. Thus, an unanswered prayer does not necessarily represent a broken promise by Christ, but rather may represent a failure by the petitioner to satisfy the promise’s conditions.

Some Questions

Is There a Bargain?

It seems to me that the paper’s chief vulnerability lies neither in its theological analysis nor in its statement of the law. Both are accurately and skillfully laid out. Instead, it seems to me that the core question is whether Colombo has adequately justified the move from theological promise → legal offer → enforceable contract.

Colombo argues that argues that Christ’s repeated statements—such as “ask, and it shall be given you”—satisfy the requirements of an offer because they communicate a willingness to provide what followers request. A conventional contractual offer is ordinarily understood as an invitation to enter a bargained-for legal relationship. But the pertinent biblical passages are embedded in religious teachings about faith, salvation, obedience, providence, and one’s relationship with God.

The idea of a bargained-for relationship with God is clearly apt with respect to God’s relationship with Israel in the Old Testament. It is repeatedly described as a covenant between God and Man. God promised Israel land and safety if the people follow His laws and warned of punishment if they break the Law.

Although Colombo devotes some attention to the question (see pp. 33-34), I’m doubtful that a Christian understanding of our relationship with God is one for which we have bargained with God. Indeed, at least as I understand it, Catholic theology rejects the idea that a human being can negotiate with, manipulate, or place God under a legal or financial obligation. Instead, Catholicism frames the divine-human relationship through the lenses of covenantal love, familial adoption, and the absolute primacy of unmerited grace.

I gather Colombo would respond that he’s talking about a specific aspect of our relationship with God not the entirety of that relationship. He would also point out that he argues at 33 that “bargained for” is a “legal term of art” that “does not necessarily connote haggling or similar such conduct colloquially associated with ‘bargaining.’” Rather, ‘bargained for’ means that the aforementioned benefit or detriment is what induced the promissor to make the promise in question.” In turn, he argues that God benefits because “God wants our prayers” and we suffer “[t]he detriment of perseverance in prayer . . ..”

Query, however, whether that approach is consistent with Augustine and Aquinas’ portrayal of petitionary prayer not as a way by which we supply information to God but rather as a means for our participation in divine providence and our own transformation.

Is the Framework Explanatory?

It’s fairly easy to identify the conditions on Christ’s promise. Some are stated fairly explicitly in the Bible, while others have been developed through the Magisterium. But this raises the question: Does the contractual framework genuinely explain unanswered prayer, or does it make virtually any outcome compatible with the original promise by continually adding conditions that cannot be independently verified? For example, “ask according to God’s will” is a recognizable theological qualification. But determining whether a particular request actually conforms to God’s will is extraordinarily difficult, as Colombo recognizes:

This is a factual question, and my inclination is, admittedly purely speculative, but it seems to me that few supplicants formulate their prayers “in Christ’s name” and maintain them with the proper level of perseverance.

I’m okay with that. After all, well-founded speculation is at the core of the academic enterprise.

I’m also okay with it because I don’t think Colombo is arguing that Christ’s promise is in fact a contract. Instead, I see Colombo as making an analogy-driven argument that contract doctrine provides a useful vocabulary for organizing theological explanations of unanswered prayer.

Conclusion

The paper’s most intellectually interesting move is not simply its comparison of prayer with contracts, but its attempt to transform a theological paradox into a question about conditional promises. Its considerable strength is that the legal analogy helps us to identify the qualifications already present in the biblical and theological material. Its principal weakness is that the legal analogy strains because crucial conditions—especially God’s will, salvation, and the ultimate goodness of an outcome—cannot be independently verified in the way contractual conditions ordinarily can.

Even so, I liked this paper a lot and highly comment it to your attention.

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Vice President JD Vance would seem to have little in common with J.D. Rockefeller (1839-1937), once the wealthiest man in the world. But the two Republicans have in common a belief that capitalism doesn’t work for the American people. Mr. Vance has little faith in market competition, which Rockefeller called “a sin.” …

Where Mr. Buchanan in the 1990s railed against the North American Free Trade Agreement, Mr. Vance attacks free-market icons such as Milton Friedman. …

It’s telling that in his new book, “Communion,” … Mr. Vance says that while Friedman’s ideas might have worked “in a world where there are Christian guardrails on everything,” they are ill-suited for our more secular age.

McGurn goes on to opine that it’s “especially curious to find such critics of capitalism on the right.”

In fact, however, conservative skepticism of capitalism is nearly as old as both capitalism and conservatism. And, IMHO, Vance’s economic views fit into a traditions older than that of Pat Buchanan. I see him as trying (probably subconsciously) to create a blend of early 20th Century Teddy Roosevelt-style progressive Republicanism and the Southern Agrarian perspective.

Kolozi’s Thesis

Peter Kolozi’s Conservatives Against Capitalism challenges one of the central assumptions about modern American conservatism: that conservatives have always been enthusiastic champions of capitalism. His argument is that skepticism about capitalism has been a recurring feature of conservative thought rather than an aberration. Over the course of American history, many prominent conservative thinkers have worried that capitalism, for all of its economic virtues, can erode morality, weaken communities, undermine tradition, and destabilize society.

My Overall Reaction

Kolozi’s book is (at least, IMHO) a thoughtful, well-researched, and generally fair account of this neglected intellectual tradition. Although Kolozi writes from a progressive perspective, he treats his conservative subjects with respect and takes their arguments seriously.

Where I part company with him is over his explanation for why conservatives ultimately made their peace with capitalism. Kolozi argues that conservatives embraced capitalism because it reinforces hierarchy and inequality. I think the better explanation is far less ideological: conservatives accepted capitalism because, despite its many shortcomings, it has consistently proven to be the least imperfect economic system available.

The Rising Conservative Discontent with Capitalism

One of the questions that motivates both Kolozi’s book and my review is the apparent contradiction between the Republican Party’s longstanding celebration of capitalism and the growing unease many conservatives have expressed about it in recent decades. Republican platforms in both 1984 and 2016 praised entrepreneurial capitalism as the foundation of American prosperity and liberty. Yet by 2016, Republicans were also denouncing “crony capitalism”—the cozy relationship between politically connected corporations and government that distorts markets and rewards favoritism rather than competition.

The financial crisis of 2008 further exposed this tension. Polling showed that a surprisingly large number of conservatives had developed negative views of capitalism, particularly as they watched Wall Street receive government bailouts while ordinary Americans struggled. Donald Trump’s 2016 presidential campaign amplified those concerns, channeling conservative frustration with globalization, multinational corporations, financial elites, and an increasingly disconnected political establishment.

Kolozi’s Explanation

Kolozi’s central insight is that these developments did not represent a dramatic break with conservative tradition. Rather, they revived themes that have appeared repeatedly throughout conservative intellectual history. On that point, I think he is exactly right. Modern observers often assume conservatism has always been synonymous with unqualified support for free markets, but the historical record is considerably more complicated.

Kolozi traces this tradition through six major schools of conservative thought. He begins with the antebellum Southern defenders of slavery, including John C. Calhoun, James Henry Hammond, and George Fitzhugh, before moving to Progressive Era conservatives such as Brooks Adams and Theodore Roosevelt. He then examines the Southern Agrarians, postwar traditionalists like Russell Kirk and Robert Nisbet, Reagan-era neoconservatives, and finally modern paleoconservatives such as Patrick Buchanan and Samuel Francis.

Recurring Themes

1. Capitalism and Materialism

Perhaps the most persistent conservative complaint is that capitalism encourages materialism by reducing people to little more than economic actors motivated by self-interest. That concern appears again and again throughout the conservative tradition. It also appears to drive at least part of Vance’s thinking.

The antebellum Southern writers—in their efforts to defend the indefensible; i.e., slavery—argued that the Northern system of wage labor was itself exploitative and socially corrosive. While I obviously reject both their conclusions and their proposed alternative, they laid a foundation for future conservative thinkers to view industrial capitalism as a profound moral problem rather than simply an economic one.

The Southern Agrarians made a similar argument from a very different perspective. They believed work ought to contribute to human flourishing, not simply maximize efficiency or output. Industrial capitalism, in their view, displaced meaningful work, weakened communities, and produced alienation alongside economic growth.

Nor were these concerns confined to Southern thinkers. Theodore Roosevelt criticized the selfishness and excessive materialism that he believed accompanied modern capitalism. Later, Russell Kirk argued that economic life should be “humanized” rather than organized solely around profit maximization. His admiration for aspects of Catholic social teaching reflected his belief that markets should serve moral ends instead of overwhelming them.

2. Markets Need Moral Limits

Closely related is another recurring conservative theme: economics is important, but it cannot become society’s highest value.

Traditional conservatives generally defended private property and market exchange. What they rejected was the notion that every human relationship should be governed by market principles or that every good should be bought and sold.

Russell Kirk expressed this point particularly well. He argued that certain things—including pornography and illicit drugs—should not simply be treated as commodities because markets must remain subordinate to human dignity and the common good. Conservatives have long distinguished between economic liberty and moral permissiveness, insisting that a free economy still requires moral boundaries.

3. Capitalism’s Disruptive Effects

Many conservative thinkers also worried about capitalism’s tendency to disrupt established communities and social institutions.

John C. Calhoun believed capitalism fostered class conflict and social instability. Theodore Roosevelt feared that concentrated wealth undermined responsible civic leadership. The Southern Agrarians lamented the destruction of rural communities and traditional ways of life during the rapid industrialization of the early twentieth century. More recently, paleoconservatives have criticized globalization for weakening national identity, local communities, and long-standing cultural traditions.

These concerns point toward what I regard as one of capitalism’s central characteristics: what Joseph Schumpeter famously called “creative destruction.” Capitalism is extraordinarily innovative precisely because it constantly replaces old industries, firms, jobs, and even communities with new ones. That relentless process generates enormous prosperity over time, but it also produces continual disruption. It should therefore come as no surprise that conservatives, whose instincts generally favor continuity and stability, often view capitalism with considerable ambivalence.

4. Distrust of Big Business

One of the more surprising themes in Kolozi’s account is how frequently conservative thinkers criticized concentrated economic power. The familiar stereotype portrays conservatives as instinctive defenders of big business.

Indeed, that stereotype drives McGurn’s critique of Vance. But the historical record is considerably more complicated.

Teddy Roosevelt believed monopolies and excessive concentrations of economic power required restraint, to cite but one example. My hero Russell Kirk likewise criticized the rise of corporate oligopolies and never suggested that large corporations deserved automatic conservative support simply because they operated in a market economy.

Indeed, many of these thinkers distrusted both big government and big business at the same time. The Southern Agrarians feared that large corporations would inevitably capture an expanding administrative state, allowing each to reinforce the power of the other. Their preferred alternative was neither socialism nor corporate capitalism but a more decentralized economy built around smaller communities, local institutions, family farms, small businesses, and independent producers.

Where is Vance?

Of the thinkers described above, I would argue that JD Vance is closest to the Southern Agrarians of the 1930s, albeit with some important qualifications.

Like the Southern Agrarians, Vance is deeply skeptical of an economy organized solely around efficiency, GDP growth, and consumer choice. Like them, Vance emphasizes the importance of family, community, stable work, local institutions, and the social costs of deindustrialization. But, unlike the Agrarians, however, he does not romanticize agriculture or oppose modern industry. He wants a manufacturing-based industrial economy, not a return to a rural republic.

Having said that, however, Vance takes some aspects of Teddy Roosevelt’s Progressive Republican thought. Vance shares Roosevelt’s economic nationalism, willingness to challenge large corporations, support for tariffs, and belief that government should shape markets in the national interest. Like Roosevelt, moreover, Vance rejects laissez-faire policies when they conflicts with national strength or the welfare of ordinary workers.

The Accommodation

Despite persistent criticism, nearly every conservative tradition eventually accepted capitalism. I think Vance does too and for much the same reasons.

Southern slaveholders opposed revolutionary attempts to overthrow market society. Roosevelt rejected socialism. Southern Agrarians accepted moderate industrialization despite their reservations. Cold War traditionalists gradually embraced democratic capitalism because opposition to communism united diverse conservative factions.

Even then, however, Russell Kirk continued advocating a middle course inspired by German economist Wilhelm Röpke that emphasized small businesses, family farms, artisans, cooperatives, and local communities rather than large corporations.

Why the Accommodation

Kolozi explains the accommodation by arguing that conservatism fundamentally seeks to preserve social hierarchy, making capitalism attractive because it reinforces inequality and allows dominant groups to maintain power.

I don’t buy it.

First, defenders of free markets argue that voluntary exchange benefits all participants rather than allowing one side simply to dominate another. The enormous improvements in global living standards over the past two centuries demonstrate capitalism’s productive capacity.

Second, conservatives generally value both order and social mobility. While they oppose revolutionary upheaval, they do not necessarily endorse rigid class systems.

Third, capitalism itself undermines hierarchy through creative destruction. Successful firms fail, new entrepreneurs emerge, industries disappear, and wealth constantly shifts. If preserving hierarchy were conservatism’s primary goal, capitalism would be an unusually unstable instrument for achieving it.

In my view, conservatives accepted capitalism because alternative economic systems—including socialism, communism, anarchy, and various utopian schemes—have consistently failed to deliver comparable prosperity and liberty. Capitalism survives because experience has repeatedly demonstrated its relative superiority.

The Failure of Conservative Alternatives

To the conservative mind the collectivism of socialism is abhorrent. Plus, as Michael Novak observed, major socialist nations, many of which were once net exporters of food, proved unable to feed themselves due to institutional and economic stagnation.

But what about the conservative alternatives to capitalism.

Only two conservative traditions seriously proposed comprehensive alternatives to capitalism:

• Antebellum Southern slavery.

• Southern Agrarian localism.

Both envisioned decentralized agricultural societies dominated by small farmers and artisans. And both are impractical and morally indefensible.

Slavery is ethically unacceptable. Full stop.

Southern Agrarian localism cannot realistically organize a modern industrial, technological, globally interconnected economy. Its nostalgic vision resembles Tolkien’s fictional Shire more than a workable twenty-first-century economy. Moreover, many Southern Agrarian ideas were intertwined with objectionable assumptions regarding race and class.

Improving Capitalism

I don’t deny that capitalism has serious shortcomings.

Income and wealth inequality have widened dramatically. Financial and technological elites have accumulated extraordinary wealth while many workers experience stagnant wages. Many forms of modern work have become increasingly dehumanizing. As far as I can tell, Vance agrees.

These economic developments contribute to social problems, including declining labor-force participation, substance abuse, and community decline. Economic displacement—not merely moral decline—helps explain many contemporary social pathologies.

My defense of capitalism is akin to Winston Churchill’s defense of democracy—it stinks, but it stinks less than all the other systems humans have tried.

So what we need is tinkering to make capitalism less odiferous. Instead of abandoning capitalism, conservatives should improve it by addressing crony capitalism, monopolistic behavior, and rent-seeking while preserving market dynamism.

In particular, and here I think Vance and Kirk would agree with me, markets require moral constraints. Religious ethics can help ensure markets serve human dignity, family life, and community rather than treating every aspect of life as a commercial transaction. In particular, conservatives should ponder Catholic social thought that, at its best, supports private property and markets while resisting the commodification of all human relationships.

Conclusion

Throughout American history, conservative thinkers repeatedly criticized capitalism for encouraging materialism, weakening communities, concentrating economic power, and undermining moral and cultural traditions. Nevertheless, those same conservatives generally concluded that capitalism remained preferable to available alternatives because it best combined prosperity with liberty.

Rather than abandoning capitalism, conservatives should recover older traditions emphasizing family, community, moral responsibility, meaningful work, decentralization, and religious ethics while preserving the productive strengths of market economies.

The future challenge is not choosing between capitalism and socialism but creating a version of capitalism that is economically dynamic, socially humane, morally grounded, and resistant to both corporate concentration and government favoritism. In my view, Kolozi’s historical survey provides valuable resources for that ongoing project, even if I ultimately rejects Kolozi explanation for why conservatives accommodated themselves to capitalism.

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Which inevitably prompted this:

I like it. A lot.

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In reciting the Nicene Creed, we affirm our belief in “one holy, catholic, and apostolic church.” If we recite the Apostles’ Creed, however, we affirm our belief in “the holy catholic church.” Let’s think about what the two great creeds have in common and how they differ.

One Church

Jesus prayed that his followers “may be one.”1 (John 17:22) He intended from the beginning that the Church be unitary. It is the Bride of Christ. Not the Brides of Christ.

Bishop Barron explains:

God is using the Church to draw the whole human family into the divine life. … In the Bible, God is presented consistently as a gathering force, drawing a people Israel to himself so that, through them, he might eventually gather in all the nations. (131)

Having said that, however, the Church is not a monolith. To be sure, as Marthaler observes, there is a tendency to confuse unity and uniformity.” (297) But Christ told us that “In my Father’s house there are many dwelling places.” (John 14:2) There is room in the Church for a certain amount of diversity, just as there are a diverse assortment of cells in a body. To be sure, they must cohere into a single body, but within that body that are many different ways of experiencing and expressing the faith.

Or, as Marthaler puts it, “Ideally the church is called to mirror the tri-unity of God, the indivisible unity that binds Father, Son, and Spirit, and at the same time acknowledges the distinctive properties of each.” (298)

Sadly, of course, Christianity long has been divided in ways that call the single body metaphor into question. As the Catechism recognizes, “large communities became separated from full communion with the Catholic Church—for which, often enough, men of both sides were to blame.” (817) Catholics accept as brothers and sisters “those who at present are born into these communities [that resulted from such separation] and in them are brought up in the faith of Christ.” (818) We pray for the ultimate “reconciliation of all Christians in the unity of the one and only Church of Christ.” (822)

We are thus gladdened by the ecumenical strides that have been made, especially in the post-Vatican II period.

A Note on Crossing the Tiber

In addition to great ecumenical efforts between the various churches, the unity of the church is also effected by individuals. As an adult convert to Catholicism from a sort of generic Protestantism, I have found inspiration in stories of others who have made the same journey:

• Thomas Howard, Evangelical is not Enough (AMAZON LINK)

• Evangelical Exodus: Evangelical Seminarians and Their Paths to Rome (AMAZON LINK)

• Scott & Kimberly Hahn, Rome Sweet Home: Our Journey to Catholicism (AMAZON LINK)

• Stephen Ray, Crossing the Tiber: Evangelical Protestants Discover the Historical Church (AMAZON LINK)

Holy

We know that “all have sinned and come short of the glory of God.” (Romans 3:23 KJV) The Catechism thus recognizes that “All members of the Church, including her ministers, must acknowledge that they are sinners. In everyone, the weeds of sin will still be mixed with the good wheat of the Gospel until the end of time.” (827)

The priest abuse scandals of the last few decades have brought home that this is just as true of the highest officials of the Church as well as the laity. But, as Bishop Barron observes, “the holiness of the Church … is not dependent upon the vibrant sanctity and moral excellence of the baptized” or the lack thereof. (134)

The Catechism thus also teaches that:

... the Church gathers sinners already caught up in Christ’s salvation but still on the way to holiness: The Church is therefore holy, though having sinners in her midst, because she herself has no other life but the life of grace. If they live her life, her members are sanctified; if they move away from her life, they fall into sins and disorders that prevent the radiation of her sanctity. (827)

In other words, as Marthaler puts it, “The church’s holiness is the expression of divine love that will not allow itself to be defeated by human willfulness and weakness.” (302)

Catholic

Growing up in a Protestant church, I rarely recited the Nicene Creed (for reasons discussed below). Instead, we mainly used the Apostles’ Creed. Even so, having all too often been taught that Catholics were not saved Christians and that the Catholic Church was not a Christian church (I ran into a lot of the execrable Jack Chick tracts in those days), I thought it odd that we would recite a creed affirming that we were “catholic.”2

Of course, I later learned that there is an important difference between small-c and large-c catholic. The former does not mean Roman Catholic. It simply means universal. In turn, the unity and, hence, the universality of the church is inherent in The Great Commission:

Go, therefore, and make disciples of all nations, baptizing them in the name of the Father, and of the Son, and of the holy Spirit, teaching them to observe all that I have commanded you. (Matt. 28: 19-20)

Apostolic

As I grew older, I realized that the real stumbling block for most Protestants is not the word catholic but the word apostolic. Apostolic succession is the claim that modern bishops are part of an unbroken, continuous line of ministerial authority and leadership. Their authority traces back directly to the original 12 Apostles of Jesus Christ through the laying on of hands in ordination.

The Catechism thus teaches that, “in order that the full and living Gospel might always be preserved in the Church the apostles left bishops as their successors. They gave them their own position of teaching authority.” (77)

In order that the mission entrusted to them might be continued after their death, [the apostles] consigned, by will and testament, as it were, to their immediate collaborators the duty of completing and consolidating the work they had begun, urging them to tend to the whole flock, in which the Holy Spirit had appointed them to shepherd the Church of God. They accordingly designated such men and then made the ruling that likewise on their death other proven men should take over their ministry. (861)

Just as the office which the Lord confided to Peter alone, as first of the apostles, destined to be transmitted to his successors, is a permanent one, so also endures the office, which the apostles received, of shepherding the Church, a charge destined to be exercised without interruption by the sacred order of bishops." Hence the Church teaches that "the bishops have by divine institution taken the place of the apostles as pastors of the Church, in such wise that whoever listens to them is listening to Christ and whoever despises them despises Christ and him who sent Christ. (862)

Christ governs her [the Church] through Peter and the other apostles, who are present in their successors, the Pope and the college of bishops. (869)

To be sure, the Roman Catholic church is not the only church that accepts the principle of apostolic succession. The various Orthodox churches, the Anglican church, and Scandinavian Lutheran churches all believe their current bishops are successors of the apostles.

But Protestant denominations descended from the Reformation reject the notion of apostolic succession. They believe that the apostolic office ended with the death of St John (who they believe to be the last surviving of the original apostles).

Although most Protestants claim that the Bible does not teach apostolic succession, and it admittedly is true that apostolic succession is elaborated in the Tradition, there are in fact biblical bases for it. In Acts 1:21-26, for example, the remaining disciples elected Matthias to the office of apostle, demonstrating their ability to appoint successors. In 1 Timothy 1:6 and 4:14, Paul reminds Timothy of how the latter had been appointed as a bishop through the laying on of hands.

There is also the evidence of the Church Fathers, as Thomas Howard explains:

The history of the early Church makes clear that they all accepted this picture [of an apostolic lineage] and that these bishops, all around the Mediterranean as the gospel advanced, recognized each other as sharing in the unique apostolic ministry. The Church was “one” under them, scattered as the churches were, inasmuch as teaching and discipline had to be agreed upon by these bishops in council.

Conclusion

In his General Audience of June 14, 2000, Saint Pope John Paul II expounded at some length on the meaning of the phrase “one holy, catholic, and apostolic church,” breaking down the four component parts.

He concluded:

The one, holy, catholic and apostolic Church is the People of God, the Body of Christ and the Temple of the Holy Spirit. These three biblical images point to the Trinitarian dimension of the Church. In this dimension are found all disciples of Christ, who are called to live it ever more deeply and in an ever more intense communion. … In the Church, then, we find a magnificent epiphany of Trinitarian glory. Let us therefore accept the invitation which St Ambrose extends to us: "Rise, you who were lying fast asleep.... Rise and hurry to the Church: here is the Father, here is the Son, here is the Holy Spirit"

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In this post, I’m going to point you in the direction of some of my work in the area. In a future post, I’ll discuss some sources I’ve found very useful.

Bob Cochran on Law and Lawyering: A Catholic Perspective, 47 Pepperdine Law Review 371 (2020). Available at SSRN: https://ssrn.com/abstract=3421790. Like Bill Stuntz, my friend Bob Cochran was a towering figure in. the development of Christian legal studies. This essay was written for a festschrift in his honor. One strain of Law and Christianity scholarship focuses on normative critiques of substantive legal issues based on Christian theology. In other words, it seeks to make the civil law more moral; i.e., to conform Man’s Law to God’s Law. A second strain seeks to help lawyers deal with the difficulties inherent in being a Christian and a lawyer. As Cochran has put it, one might ask “whether there is a connection between religious faith and what ordinary lawyers do in ordinary law offices on ordinary Wednesday afternoons.” Cochran’s work has intersected both possibilities. In Part I of this Article, I tackle his analysis of the extent to which we should strive to harmonize God’s and Man’s Law. In Part II, I turn to Cochran’s analysis of the Christian lawyer’s vocation. In both parts, I come at his work from the perspective of a Roman Catholic called upon to give religious assent to both Christian scripture and, where I differ from Cochran, the Church’s Magisterium.

Christianity and Corporate Purpose (December 1, 2019). Available at SSRN: https://ssrn.com/abstract=3496850. I’m pretty happy with this article. I think it reflects a much more mature and much better informed perspective. The essay compares and contrasts the law governing corporate purpose with the pertinent Christian teachings from Scripture and Tradition, with a special focus on Catholic social thought.

Restoring Confidence in the Roman Catholic Church: Corporate Governance Analogies (2018). Available at SSRN: https://ssrn.com/abstract=3249236. This was one of the articles in which I looked at the implications of the law for the Catholic sex abuse scandals. Much of my work has been about how Catholic social thought and Christianity more broadly inform our understanding of the law. This article and its ilk point in the other direction; namely, what impact does the law have on the Church. I argue herein that the Catholic Church’s sexual abuse crisis reflects not only failures of reporting but, more importantly, failures by Church leaders to act on reports they received. I propose anonymous reporting channels, stronger whistleblower protections, and mandatory reporting by priests, but my principal recommendation is to create diocesan and national disciplinary bodies led by expert lay members with final authority over abuse cases. Drawing on the corporate audit committee model, I argue that independent lay oversight would provide greater accountability than relying on the existing hierarchy.

The Parable of the Talents (August 15, 2016). Available at SSRN: https://ssrn.com/abstract=2787452. This is one of the pieces of which I’m proudest. I use the Parable of the Talents to explore the legal relationship between the master and his servants. Although the story focuses on the servants’ differing use of entrusted assets and the rewards or punishment that follow, I argue that it also raises important questions about their underlying duties, the legal rules governing their relationship, and how that relationship compares to modern concepts such as principal and agent. I also note that these issues have received surprisingly little attention in Anglo-American legal scholarship.

Must Salmon Love Meinhard? Agape and Partnership Fiduciary Duties (October 8, 2013). 17 GREEN BAG 2D 257 (2014). Available at SSRN: https://ssrn.com/abstract=2337659. This one was fun. Meinhard v. Salmon is one of my favorite partnership cases; actually, it probably is my favorite. I love teaching it. I wrote it for a conference on agape and the law, which was a great conference at Pepperdine sponsored by by friend Bob Cochran. In it, I imagine what partnership fiduciary law would look like if it were organized around agape, or self-renouncing love, drawing on Cardozo’s famous opinion in Meinhard v. Salmon. I conclude that agape is too demanding and indeterminate to serve as a legal duty, but it remains a valuable ideal because partners who act with trust and selflessness can reduce monitoring costs and strengthen their relationships. Agape therefore should not be imposed by law, but the law should encourage it as a best practice. (Which I suspect is the only time any best practice recommendation has invoked agapic love.)

The Bishop's Alter Ego: Enterprise Liability and the Catholic Priest Sex Abuse Scandal. Available at SSRN: https://ssrn.com/abstract=901663. In this article, I touch on how law impacts not Church teaching per se but rather Church rules about how to structure the Church in civil society. Specifically, I examine whether victims of clergy sexual abuse can reach the assets of separately incorporated Catholic parishes and other diocesan entities through the alter ego doctrine. I conclude that, although courts are constitutionally permitted to apply alter ego principles to church organizations, the doctrine will rarely be appropriate because bishops typically lack the necessary day-to-day control over separately incorporated parishes and because religious-liberty concerns may weigh against expanding liability. I argue that other legal doctrines, especially fraudulent transfer law, are generally better suited to addressing efforts to shield diocesan assets from creditors.

Catholic Social Thought and the Corporation (October 22, 2003). Available at SSRN: https://ssrn.com/abstract=461100. This brief essay explores Catholic social thought on corporate governance. Human dignity and freedom are central principles of Catholic social thought. This essay argues that preserving the economic freedom of corporations to pursue wealth is an essential part of effective means for achieving human freedom. To the extent prudential judgments about corporate regulation are required, the Church and civil society should strive towards a nuanced balancing of freedom and virtue.

The Bishops and the Corporate Stakeholder Debate (April 2002). Available at SSRN: https://ssrn.com/abstract=308604. I wrote this article while going through RCIA (now called OCIA). Twenty-plus years later, I would be more sympathetic to the Catholic social thought arguments made by the Bishops. But I still think their pastoral letter on economic justice was really bad economics. In it, I critique the U.S. Catholic Bishops’ position on corporate social responsibility, focusing on their view that corporate directors should consider stakeholder interests alongside those of shareholders. I evaluate three possible ways to translate that position into public policy and conclude that none would improve existing law: one would be ineffective, another would raise agency costs, and the strongest version would be impractical, threaten economic liberty, or both.

Corporate Decisionmaking and the Moral Rights of Employees: Participatory Management and Natural Law (September 28, 1998). Available at SSRN: https://ssrn.com/abstract=132528. This is another one that I’d like to go back and do over. I was still a Protestant when I wrote it (oddly enough, it was working on this article that first got me thinking about becoming Catholic) and I was too poorly versed in Catholic social thought to really appreciate it. In any case, in this article I examine participatory management as a major development in industrial relations. By participatory management, I mean systems that involve employees in corporate or workplace decision-making, an approach that thousands of U.S. firms have adopted in various forms. I suggest that participation may foster trust between employers and employees, promote workplace democracy, or protect employees against opportunistic behavior by employers. I conclude that only the anti-opportunism argument is genuinely plausible, but even that argument is insufficient. Although employee participation may help protect workers from employer opportunism, I do not believe this establishes a persuasive case for government-mandated employee participation in corporate governance.

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Bill was one of the smartest, most well read, insightful, thoughtful, creative minds I ever knew. He’s aptly been described as “an intellectual giant,” “an influential legal scholar known for his counterintuitive insights,” and “one of the most influential legal scholars in recent American history.” Yet, he was also one of the least egotistical legal academics I’ve ever known. In a profession with much more than its fair share of prima donnas, Bill was temperate, kind, considerate, and caring. He also was a Christian with a profound faith and a drive to share that faith. Our mutual friend David Skeel’s encomium to Bill notes how he blended the two as a pioneer in the study of the intersection of Christianity and the law. My own efforts to work in that area were inspired by Bill’s example.

Bill’s been gone for 15 years now, but I still think of him quite often. I often wish we had spent our careers on the same side of the country so that I could have seen more of him, but I am confident that we will have an eternity to catch up.

In any event, I got to thinking about Bill this week when I ran across an essay Bill wrote reviewing Christian Perspectives on Legal Thought (Yale University Press 2001) (AMAZON LINK), to which I contributed an essay on law and economics. Bill observed that:

Christianizing the legal profession might have a much larger effect on law practice than on law. To see why, consider Jesus’s occupation for most of his adult life: he made tables, or whatever it was that ancient Middle Eastern carpenters made.

Were the tables he made distinctive? Did he use different wood or a different manufacturing process than other carpenters used? The likely answer is no—at least, the gospel accounts offer no reason to think otherwise.

Now change the question: focus less on the noun and more on the verb. Instead of asking whether Jesus’s tables were different, ask whether he made the tables differently—whether his motivations and attitudes toward his work, the ways he treated his customers and his coworker, differed from the practices of other carpenters. The answer to that question is surely yes. (19)1

Reading that essay called to mind Gaudium et spes (literally “joy and hope,” but formally referred to as The Pastoral Constitution on the Church in the Modern World), one of the key documents to emerge from Vatican II. In it, the Council write:

They are mistaken who, knowing that we have here no abiding city but seek one which is to come, think that they may therefore shirk their earthly responsibilities. For they are forgetting that by the faith itself they are more obliged than ever to measure up to these duties, each according to his proper vocation. Nor, on the contrary, are they any less wide of the mark who think that religion consists in acts of worship alone and in the discharge of certain moral obligations, and who imagine they can plunge themselves into earthly affairs in such a way as to imply that these are altogether divorced from the religious life. This split between the faith which many profess and their daily lives deserves to be counted among the more serious errors of our age. Long since, the Prophets of the Old Testament fought vehemently against this scandal and even more so did Jesus Christ Himself in the New Testament threaten it with grave punishments. Therefore, let there be no false opposition between professional and social activities on the one part, and religious life on the other. The Christian who neglects his temporal duties, neglects his duties toward his neighbor and even God, and jeopardizes his eternal salvation. Christians should rather rejoice that, following the example of Christ Who worked as an artisan, they are free to give proper exercise to all their earthly activities and to their humane, domestic, professional, social and technical enterprises by gathering them into one vital synthesis with religious values, under whose supreme direction all things are harmonized unto God’s glory.

Secular duties and activities belong properly although not exclusively to laymen. Therefore acting as citizens in the world, whether individually or socially, they will keep the laws proper to each discipline, and labor to equip themselves with a genuine expertise in their various fields. They will gladly work with men seeking the same goals. Acknowledging the demands of faith and endowed with its force, they will unhesitatingly devise new enterprises, where they are appropriate, and put them into action. Laymen should also know that it is generally the function of their well-formed Christian conscience to see that the divine law is inscribed in the life of the earthly city; from priests they may look for spiritual light and nourishment. Let the layman not imagine that his pastors are always such experts, that to every problem which arises, however complicated, they can readily give him a concrete solution, or even that such is their mission. Rather, enlightened by Christian wisdom and giving close attention to the teaching authority of the Church, let the layman take on his own distinctive role.

I wonder what Bill would make of that passage. I think he would agree with much of it. Bill frequently made use of the example of Jesus’ work as a carpenter is discussing the vocation of the Christian lawyer and law professor. At one of the Christian law professor fellowship conferences, for example, I heard him say that Jesus doubtless took pleasure and an appropriate amount of pride in his work as a carpenter. He thought Jesus undoubtedly strived to master his vocation. Bill thus would certainly have agreed with the argument that we “should rather rejoice that, following the example of Christ Who worked as an artisan, [we] are free to give proper exercise to all their earthly activities and to [our] humane, domestic, professional, social and technical enterprises.”

I wonder, however, if Bill would have agreed with the statement that “it is generally the function of [the laity’s] well-formed Christian conscience to see that the divine law is inscribed in the life of the earthly city.” To no profession is the Church here speaking more directly that to our profession as lawyers and legal academics. Yet, as I read Bill’s work, I suspect he likely would be somewhat skeptical about the Church’s statement:

People fear the claim that right answers exist—that God is God, that he is sovereign, that Christ’s ownership of all time and space is total. Those are strong claims, and they are not readily susceptible to secular argument. The fear makes sense, though, only if another claim follows: that the speaker knows—really knows—what all the right answers are. The second claim does not follow from the first. The proposition that God’s agenda governs (the idea for which Scalia was castigated) does not entail the proposition that Christians know what that agenda is. Indeed, for Christians the real implication is nearly the opposite. My conclusions are suspect because the reasoning that produces them is tainted by my sin. My faith makes me less confident about my views, legal and otherwise, not more so. (25)

Bill and David Skeel refined those ideas in their article Christianity and the (Modest) Rule of Law.2 In it, they contended that there are “two kinds of law: one for hearts and minds, and the other for code books and courtrooms. Only God's law is fit for the former purpose. Law that operates in the latter territories must have more humble ambitions.” (812) As John Breen explains:

Arguing from an Evangelical perspective, they contend that the law is ill-suited to address a number of social ills to which it is frequently directed, including, conspicuously, the problem of abortion. They criticize the practice of enacting merely symbolic laws, a vice they term “legal moralism.” Because these sorts of laws are seldom enforced, they cannot teach the public the values that they purportedly embody. Moreover, because these laws often take the form of extensive moral codes, they undermine the rule of law as a whole by vesting an inordinate amount of discretion in the hands of public officials.3

So, I assume Bill would have doubts about the extent to which we can discern “the divine law” well enough to inscribe it into positive human law. And I am confident that he would argue that, even if we could do so, immorality and illegality are not coextensive:

So the positive law can forbid only a small fraction of what the moral law forbids, if the moral law is seen in Christian terms. Jesus made this clear by defining murder as anger and adultery as lust. A decent society could aspire to punish all murder, but all anger? Perhaps, in some imaginable society (though certainly not ours), law enforcers could punish adultery while avoiding selective prosecution. But not lust. (39)

...

The point is not that morals and law don’t mix. They plainly do. Rather, the point is that when morals are contested—when the populace is divided about the relevant rights and wrongs—the side that gets its hands on the law’s weapons often finds that those weapons backfire. Backlashes against this kind of legal moralism are not the exception in American history. They are the rule. That pattern suggests that moralists should usually target the culture instead of the law. (42)

...

Law may sometimes be an effective moral teacher, though I confess to having some doubts; I suspect that law follows the culture, not the other way around. Even if I am wrong, law surely teaches best when the relevant legal norms are enforced across the board, and when the moral precepts on which those legal norms rest are widely shared. In the spheres conservative Christians tend to emphasize most—reproduction, sexuality, physician-assisted suicide—the relevant morals are not widely shared. Where that is so, agnosticism—a poor moral stance, but often a wise legal posture—may be the law’s best option. (43)

I wonder whether there is something inherently Protestant about Bill’s approach to the question. (Bill was an evangelical who attended Park Street Church in Boston, a large and historic Congregational church.) I ask that because Gaudium et spes rather clearly thinks that there is a discernible Christian view, if not always an immediately obvious Christian solution.4

Note, for example, Bill’s suggestion that “law follows the culture, not the other way around.” As John Breen observes, “the Second Vatican Council made ‘culture’ a center point of the Council’s Pastoral Constitution on the Church in the Modern World, Gaudium et Spes.” (338-39) According to Breen, moreover, John Paul’s thought likewise gives priority to culture over law: “legal doctrines and institutions … come into existence and are sustained in the legal and political order because of some set of antecedent values that subsists in the culture.” (347)

As Breen demonstrates, however, Catholic social thought does not teach that law should always be modest and/or agnostic. “John Paul recognized the ‘sometimes decisive role’ that law plays ‘in influencing patterns of thought and behaviour.’” (372) “John Paul knew that law had a crucial role to play in combating the ‘structures of sin’ and securing the dignity of every human being.” (373)

When in doubt, my rule is to go with JPII. Even vis-à-vis a Harvard man.

At the end of the day, however, I’m just a little ol’ country corporate lawyer. This sort of stuff is mostly argued at levels above my pay grade.

But even so, I wish Bill was alive so I could pursue this with him.

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In this post, I’m focusing on the portion of the Apostle’s Creed that reads:

He descended into hell; the third day He arose again from the dead. He ascended into heaven, and sits at the right hand of God, the Father Almighty.

The corresponding portion of the Nicene Creed reads:

For our sake he was crucified under Pontius Pilate, he suffered death and was buried, and rose again on the third day in accordance with the Scriptures. He ascended into heaven and is seated at the right hand of the Father.

As the Catechism explains (§ 512):

Concerning Christ’s life the Creed speaks only about the mysteries of the Incarnation (conception and birth) and Paschal mystery (passion, crucifixion, death, burial, descent into hell, resurrection and ascension).

And it further explains that it is through “the great Paschal mystery—his death on the cross and his Resurrection—[that Jesus] would accomplish the coming of his kingdom.”

What is the Paschal mystery?

The word Paschal comes from the Greek word pascha, which in turn came from the Hebrew word pesah (or pesach) and the Arabic word pascha, is usually translated as “passover.” In using the term Paschal mystery to describe Christ’s salvific sacrifice, the Church asserts that the preservation of the Israelites at the first Passover was a foreshadowing of the salvation to be offered all by Christ Jesus. Christ was the perfect sacrificial lamb foreshadowed by the lambs sacrificed by the Israelites at Passover, as Justin Martyr explained:

“The mystery, then, of the lamb which God enjoined to be sacrificed as the passover, was a type of Christ; with whose blood, in proportion to their faith in Him, they anoint their houses, i.e., themselves, who believe on Him. Justin Martyr Dialogue with Trypho Chapter XL

The word mystery also requires explication. Catholicism is not a Gnostic religion in which only believers have access to secret knowledge. When the Church refers to a mystery, it is talking about a revealed truth that we cannot fully understand or prove by human reasoning alone.

The Four Parts

The Paschal mystery has four key parts:

• The Passion: Jesus’ suffering in the Garden of Gethsemane and his subsequent trial and crucifixion.

• The Death: Jesus’ ultimate sacrifice on the cross to bridge the gap between humanity and God, conquering the power of sin.

• The Resurrection: Christ’s triumph over the grave, offering humanity the hope of eternal life and proving that love and grace conquer death.

• The Ascension: Jesus’ return to heaven in his glorified body, opening the gates for all people.

The Emergence of the Term

The Constitution of the Sacred Liturgy, one of the key documents of Vatican II, put the Paschal mystery at the heart of the liturgy, recognizing the emphasis laid on it during the liturgical reforms of the last century:

… for well-disposed members of the faithful, the liturgy of the sacraments and sacramentals sanctifies almost every event in their lives; they are given access to the stream of divine grace which flows from the paschal mystery of the passion, death, the resurrection of Christ, the font from which all sacraments and sacramentals draw their power.

But the term is not entirely new, as Father Daniel Eusterman explains:

Though the term “Paschal Mystery” was not widely known 100 years ago, the content of this term is not altogether novel to the history of the Church. Rather, by magisterially adopting aspects of the theology from the Liturgical Movement, the Church has recovered an ancient understanding of what is today named the Paschal Mystery.

The earliest known use of the phrase Mysterium Paschale goes back to a bishop of the second century, Melito of Sardis, who, like many of the Fathers, examined the life and death of Christ in light of the Old Testament types. Melito recognized in the life and death of Jesus the final and eternal fulfillment of the sacrifice of the Jewish Passover lamb.

The Paschal Mystery in the Liturgy

The centrality of the Paschal mystery to the post-Vatican II liturgy is suggested by the Catechism’s reference (art. 3.VI) to the Mass as “the Paschal Banquet.” In doing so, it reflects the Constitution of the Sacred Liturgy, which stated that “the Church celebrates the paschal mystery every eighth day; with good reason this, then, bears the name of the Lord's day or Sunday.” (§ 106)

Accordingly, as Kately Javier explains:

At every Eucharist, the drama of redemption is made present anew as Christ offers his Body for the salvation of the world. The Paschal Mystery by which our redemption is accomplished is re-presented on the altar. … Christ commanded that we celebrate the Mass as an act of remembrance of the Paschal Mystery he was to undergo and by which he reconciled us with God the Father.

… At the Eucharistic celebration, the Paschal Mystery breaks through the limits of time, space, and even human reason as we are made present to the moments in which Christ suffers, dies, rises from the dead, and ascends into heaven.

Although we encounter the Paschal Mystery every Sunday in the Mass, the Easter Triduum is unique. Indeed, Easter is what Marthaler calls “the principal celebration of the Paschal mystery.”

As Father Eusterman notes:

Though the reality of the Paschal Mystery is present and accessible in all of the liturgies of the Church, it is during the celebrations of the Sacred Triduum in which the lines seem to fade away between our own personal histories and Christ’s saving event, fulfilled in history. The liturgies of Holy Week display the Paschal Mystery in word and gesture most explicitly. From Genesis to Jesus, the scriptural narrative invites us to walk (and even fall down) with Christ. Holy Thursday marks the free handing over of the Son as he institutes the saving Eucharist and Priesthood for sacrifice and service. Good Friday sets our own suffering on the redemptive way of the Cross, to witness the central act of self-gift of the God-Man in his Passion and death. Then, at the Vigil, with the Paschal Candle aflame and darkness in flight, the announcement of our glorious salvation in Jesus’ victory rings out: “This is the night, when Christ broke the prison-bars of death and rose victorious from the underworld.”

These liturgies invite us, with St. Paul, the Church Fathers, and every century of the Church’s celebration, to actively participate in the reality of the Paschal Mystery made present and tangible within the Holy Mass.

A Note on the “Facticity” of the Death

By the by, Bishop Barron writes of the Death that:

Over the centuries, there have been fanciful attempts to show that Jesus did not die on the cross but swooned, only to be revived later. That a dreadfully wounded man, staggering half-dead out of his tomb, would ever be mistaken for the risen Lord is, of course, beyond ludicrous. The Romans were skilled executioners, and if there were any doubt that the cross had done its terrible work, the lance-thrust into the heart of Jesus should have eliminated it. It is interesting to note that the Gospels themselves and numerous summary statements of the Paschal Mystery throughout the New Testament make special reference to the burial of the Lord, presumably to hammer home the facticity of his death.

… Balthasar … means that the downward trajectory of the Incarnation reaches its limit here, in the tomb of Jesus, when the Son of God enters into the experience of having no experience, into the negation, the nonbeing, of death. Having hit rock-bottom, the Son of God finds solidarity with all those human beings who have come to that same awful place.

Put together, the Paschal mystery thus is the central act of Christ’s ministry on Earth. It is the sequence of events—each essential—that collectively constitute his salvific intervention in human history.

The Paschal Mystery and the Trinity

Marthaler makes an interesting observation by connecting the Paschal mystery to one of the other great mysteries of the faith; namely, the Trinity. Specifically, he argues based on the Pauline epistles, the Paschal mystery “is the work of the Triune God acting in concert.” (P. 198). The Father lifts up the Son, who is now seated at the Father’s right hand, and from whom proceeds the Holy Spirit.

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As an adult convert to Catholicism, I found this tweet deeply offensive.

Don’t get me wrong. I agree with the substance of Nichol’s critique of many of J.D. Vance’s pronouncements on the intersection of faith and religion. As many folks have observed, not just Nichols, Vance has a tendency to “mansplain” Catholicism to priests, bishops, and even the Pope himself. Not infrequently, moreover, Vance gets it wrong.

The trouble I have with Nichols—and many others—is the incessant harping not on what Vance says but when Vance became a Catholic. E.g.:

Why exactly does it matter when Vance learned the creed? Why do commentators like Nichols incessantly harp on Vance’s status as an adult convert? Why do they repost comments that feed into and perpetuate stereotypes about adult converts?

So let’s think about some of those stereotypes.

Stuff Cradle Catholics Say About Adult Converts

Charles Pierce:

It is considered axiomatic among cradle Catholics that adult converts are the worst. … [T]oo many adult converts see all of this incense-stained filigree as the real message of the gospels. And the American members of the species are also particularly interested in political power and the means to acquire it.”

Jana Bennett (herself a convert):

I have heard people complain that converts do not really understand Catholic theology because they bring Protestant habits with them about reading scripture, about discussing topics like God and that good old faith versus works debate; I have been privy to a few academic searches where people have discussed whether a convert would really be a good fit for a department; I have heard converts denounced as people who ruin the church because they are “more conservative” than the “real” Catholics.

Paul Chu and V. J. Tarantino in an open letter to JD Vance:

There is a familiar nostrum, applied to certain new converts to Catholicism – to wit, that they think that they’re more Catholic than the Pope. While such may not be a fair evaluation in most cases, let it be said that you have today, in this respect, set a new benchmark.

Lady Pent:

Being more Catholic than the Pope is annoyingly common behavior from converts, especially converts with Evangelical backgrounds. It’s very odd.

Some Data

Catholic converts are slightly more likely to attend Mass weekly, pray daily, and got to confession:

Those numbers are disappointing on both sides, of course.

With reference to the repost that started me on this discussion, note that the percentage of adult converts who regularly contribute to their parish is 16 points higher than that of cradle Catholics.

With respect to practicing what the Church teaches, adult converts are more likely to believe in a core teaching of the Church; namely, the Real Presence:

As noted by the Center for Applied Research in the Apostolate (CARA) at Georgetown University, which was the source for the above data:

Why would adult converts be more knowledgeable and believing than other Catholics? Perhaps it was the eight months to a year they spent studying intensively in an RCIA program? … It appears that having an intensive religious education experience as an adult has a more lasting effect than relying on religious education in the childhood years alone.

The Point

My point emphatically is not that adult converts are better Catholics than cradle Catholics.

My first point is that the stereotypes about adult converts we encounter in social media and the news media are sweeping generalizations frequently motivated less by faith than by politics.

My second point is that maybe all of us who are Catholics—whether as adult converts or from the cradle—should think before we speak. We should emulate Christ, who prayed that his Church “may all be one, as you, Father, are in me and I in you, that they also may be in us.”

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In this post, I take up a key line from the Nicene Creed:

[We believe] in one Lord Jesus Christ, the only Son of God, begotten from the Father before all ages,
God from God,
Light from Light,
true God from true God,
begotten, not made; of the same essence as the Father.

Compare that lengthy description of Jesus’ nature to the much simpler one in the Apostles’ Creed:

[I believe] in Jesus Christ, his only Son, our Lord ….

The longer Nicene text was necessitated as a response to one of the Arian heresies circulating in the early part of the fourth century. Arius taught that Christ did not come into existence until after the events of Genesis 1:1 (“In the beginning, when God created the heavens and the earth ....”). Instead, Christ was created by God thereafter. Arius regarded Christ as the “first born” of God’s creatures, but insisted Christ was a creature and therefore neither co-eternal with God nor partaking of God’s essential nature.

Most of the relevant passage speaks to the Arian heresy. “True God from True God,” for example, confirms that Jesus shares God’s nature as do the other statements. But I’ve always found the word “begotten” interesting in this context.

What immediately comets mind is the series of “begats” that begins Matthew. One function of the Creedal statement this is to affirm that Jesus was not begat of Joseph, but was begat of God the Father. More important, however, “begotten” also affirms orthodox (lower case o) Christianity’s rejection of Arianism. But to see why requires us to dig into the meaning of “begotten.”

The Greek word translated as “begotten” is monogenes, which some linguists argue connotes a unique relationship. “One of a kind.” This translation makes sense in this context, since it conveys the unique relationship between God the Father and God the Son.

Other linguists translate it as “to generate,” which in this context could be understood not as creation (bringing something out of nothing) but as the process of bringing something of of something. Hence, Jesus proceeds from the Father--is generated by the Father out of the divine essence.

Christ thus proceeds from the Father, but is of the same nature. Christ thus is simultaneously God but also a distinct person begotten by the Father.

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We know what we believe, so why the need to recite it every Sunday?

Malcolm Gladwell famously said that to master something, you must do it 10,000 times. (More, precisely, he said you must practice it for 10,000 hours.) Repeating the Creed every week is like practicing an instrument regularly, It helps us internalize the Creed and to make it as natural a part of life as playing the instrument. It becomes part of the muscle memory of our faith.

Why is it important for the Church to be able to point to scripture to back up the Creed?

Here’s a common Protestant take on Catholic beliefs:

… official Catholic doctrine is so far removed from biblical moorings the Catholic Church cannot be a true church. …

Because the Catholic Church has rejected fundamental Biblical doctrines such as justification, by faith alone, worshiping and praying to God alone, Christ as the head of the Church, and Christ’s sacrifice for all sins of his people, I believe the Catholic Church is a false church.

But Catholics in fact believe that Scripture is the divinely inspired word of God. While the Church teaches that God’s revelation did not end when the canonical order and content of the New Testament were finalized, no statement of faith or belief that is contrary to the Scripture can be regarded as truly orthodox. It is the touchstone against which our beliefs are measured.

What is the difference between the Nicene and Apostles Creeds?

There are some important differences between the two Creeds:

As Marthaler relates (83ff), the additional language in the Nicene Creed does not reflect a change in doctrine but rather a rejection of heresy. The authors of the Nicene Creed elaborated the Church’s theology of the Trinity and the Godhead by making it more precise, albeit at the cost of complexity. “Begotten of the father” rebuts the heresy that claimed there was only one God with three names or modalities. “God from God” affirms that Christ’s nature was fully divine, as does the statement that Christ was “begotten not made,” which reaffirms that he is God and not a creature. “Became man” confirms that Jesus was also fully human, while simultaneously being fully divine.

Hence, it seems to me that the Apostles’ Creed likely an earlier creed that was largely settled before the controversies to which the Nicene Creed is addressed.1 The Apostles’ Creed lacks the developed theology—especially the more fully developed Christology—that is present in the Nicene Creed. As a result, Unitarians accept the Apostles’ Creed because of its lack of an explicit Trinitarian statement. Likewise, Arians (if there are still any) can accept the Apostles’ Creed because of that absence.

Marthaler explains that “The Apostle’s Creed came to have more of a pedagogical than a liturgical function.” Given that we use the Apostles’ Creed in the liturgy part for the liturgical year,2 I initially found this unenlightening. On further examination, however, I take his point. The Nicene Creed functions as a detailed test of orthodoxy, while the Apostle’s Creed is better suited for teaching new converts and the young, because it gets across the basics without getting to deeply into into the complex mysteries of the Trinity.

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Steve, I have a rather unconventional question. I find a great void in life without the meaning that God and salvation give it. And I always want to believe this is the reality, but the very fact that I want to believe it makes me think I am biased when weighing the facts. So you tell me, how do you believe in God? These days, I need this more than ever.

Or, as one of my nieces once asked me, why do I believe in God?

I sort of stumbled through an answer, which I fear was not terribly coherent. But it’s a question I’ve been thinking about a lot lately. I am quite sure that I believe in Jesus Christ as Lord and Savior. I am quite sure that I believe in the tenets of Christianity set out in the Nicene Creed. But why?

Starting With Lewis

People smarter than I and far more deeply versed in theology and philosophy have tried to make rational arguments for the existence of God. Works that I found particularly helpful in my own faith life include C.S. Lewis’ Mere Christianity. Among the various arguments Lewis advances in it, I found his so-called trilemma especially convincing:

A man who was merely a man and said the sort of things Jesus said would not be a great moral teacher. He would either be a lunatic—on the level with the man who says he is a poached egg—or else he would be the Devil of Hell. You must make your choice. Either this man was, and is, the Son of God: or else a madman or something worse. You can shut Him up for a fool, you can spit at Him and kill Him as a demon; or you can fall at His feet and call Him Lord and God. But let us not come with any patronizing nonsense about His being a great human teacher. He has not left that open to us. He did not intend to.

Granted, there are those who assert various logical fallacies in Lewis’ argument, most notably the purportedly false dilemma, but I think those critics have been rebutted quite effectively.

Other Smart Folks

Other works I’ve found helpful include Paul Johnson’s The Quest for God and Jesus: A Biography from a Believer, Timothy Keller’s Making Sense of God, and Bishop Barron’s To Light a Fire on the Earth.

I will not try to recapitulate their various arguments here. But I point out the existence of such arguments first to counter those who claim there is no logical rason to believe in God and second because St. Paul told us that “Faith comes from what is heard, and what is heard comes through the word of Christ.”

Belief is fostered through the authority and witness of others. We all have the ability to sense whether certain people are truthful and credible.

Apply that ability to what you read and hear. Whether we receive God’s message through written texts (such as those above) or spoken words (Bishop Barron’s YouTube videos are a great place to start), we gain access to truths that are rooted in trust—trust in what and whom we have heard and experienced firsthand.

Intuiting God Experientially

At the end of the day, however much merit the various rational arguments for God may have, “faith is the substance of things hoped for, the evidence of things not seen.” Ultimately, I think, we—or, at least I—intuit God experientially.

Put another way, my belief in God rests as much—if not more—on personal experience rather than rational discourse. Of course, skeptics have often vehemently opposed justifying faith solely through religious experiences, a stance that is understandable. Indeed, they raise a legitimate question: Can religious experience, without additional evidence, sufficiently validate faith? One must also acknowledge that relying solely on emotion, feelings, and personal experience can lead us astray into believing falsehoods.

Yet, I concur with theologian Alvin Plantinga, who drew on what John Calvin called the “sense of the divine” to argue that belief in God may be considered a “properly basic” belief. In other words, belief in God is a foundational belief requiring no further justification to be held rationally.

I also concur with St. Paul, who posited that the world around us reveals God’s “eternal power and divine nature, invisible though they are” (Romans 1:20). In other words, St. Paul believed in the ability of the senses to reveal truths. He maintained that through philosophical reflection following sensory experiences, we could grasp God’s existence. Our senses guide us towards the ultimate reality—the singular God who exists in simplicity and infinity.

Begin with Beauty

I think this insight is what Bishop Barron has in mind when he argues that belief in God begins with beauty:

The pattern is more or less as follows: first the beautiful (how wonderful!), then the good (I want to participate!) and finally the true (now I understand!). A young man watches a skillfully played game of baseball, and it awakens in him a profound desire to play as well as those whom he admired; and then the actual playing of the game teaches him, from the inside, the rules and rhythms of baseball. A completely inadequate way of drawing a kid into the world of baseball would be to start with a clarification of the rules or with a set of drills. Rather, show him the beauty of baseball, and he will want to play, and having played, he will know.

Conclusion

I would not claim profundity for anything I just said. To the contrary, I would disclaim it.

It is simply the best answer I have today to the most basic question of life.

I hope it helps.

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