Hauerwasian Christian Legal Theory

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like. After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy

Odious Debts or Odious Regimes

Odious regimes have always been there. That there is no silver-bullet solution that will prevent odious regimes from arising, or stymie them once they do, is evident from the plethora of responses employed by the international community once a regime\u27s odiousness becomes clear. Current odious debt doctrine dates back to a 1927 treatise by a wandering Russian academic named Alexander Sack. The Sack definition contemplates a debt-by-debt approach to questionable borrowing. If a loan is used to benefit the population--to build a highway or water-treatment plant, for instance--the obligation would be fully enforceable, no matter how pernicious the borrower regime. Here, Bolton and Skeel attempt to fill the vacuum: a regime is odious if it engages in either systematic suppression or systematic looting

Divided by the Sermon on the Mount

This Essay, written for a festschrift for Bob Cochran, argues that the much-discussed friction between evangelical supporters of President Trump and evangelical critics is a symptom of a much deeper theological divide over the Sermon on the Mount, where Jesus told his disciples to turn the other cheek when struck, love their neighbor as themselves, and pray that their debts will be forgiven as they forgive their debtors. Divergent interpretations of these teachings have given rise to competing evangelical visions of justice. One side of today’s divide—the religious right—can be traced directly back to the fundamentalist critics of the early twentieth century movement known as the Social Gospel. The other side does not trace back to the Social Gospel; however, as some have suggested, it has much stronger points of contact with another famous evangelical of the era, William Jennings Bryan. Bryan was not a Social Gospeler—Jesus was a Savior, in his view—but Bryan’s vision of justice was closer to the Social Gospelers than to his fellow traditionalists. Given their affinities with Bryan, the Essay calls Russell Moore, Timothy Keller, and other leaders of the emerging alternative to the religious right “neo-Bryanites.” This Essay concludes by considering the political, demographic, and theological factors that may shape the future of the two perspectives

The Corporation as Trinity

This Symposium Article takes Adolf Berle\u27s cue in several respects. Most importantly, it will look to Augustine for guidance in developing insights into the nature of the corporation—in particular, corporate personhood. Where Berle drew inspiration from The City of God, this Article looks to a different Augustinian masterpiece, The Trinity, which has played a pivotal role in Christians’ understanding of who God is. Christian theology, as brilliantly explicated in The Trinity, states that God consists of three different persons—the Father, the Son, and the Holy Spirit—but is a single divine being. This Article argues that corporate personhood has similar qualities and that the analogy is not accidental. Part I explores the debate over corporate personhood that Citizens United and Hobby Lobby prompted. Both sides in the debate work from implausible concepts of the corporation. Conservatives characterize corporations as having rights but few responsibilities, whereas liberals believe they have responsibilities but few rights. Part II develops the Trinitarian concept of the corporation. As those who are familiar with the historical debate over corporate personhood will recognize, the Trinitarian concept of the corporation can be seen as combining attributes of each of the two most prominent traditional theories, one of which characterizes corporations as the aggregate of their individual shareholders, while the other sees them as a “real entity.” The distinction is that the Trinitarian concept insists that both theories are needed, rather than one or the other. After outlining a Trinitarian conception of the corporation, Part III explores its implications for a variety of issues, including: the personhood of “closely held” corporations, whether noncorporate entities have personhood, and whether a corporation can have a religious identity. The final section returns to Berle’s analysis to discuss the current debate over corporate political involvement

State Bankruptcy from the Ground Up

The nineteenth-century English poet William Wordsworth famously defined poetry as the spontaneous overflow of powerful feelings ... recollected in tranquility. 1 By this definition, there is something a little poetic about the recent debate as to whether Congress should enact a bankruptcy law for states. In late 2010, as the extent of the fiscal crisis in many states became clear, a handful of commentators and politicians proposed that Congress enact a bankruptcy law for states.2 If Congress does its part by enacting a new bankruptcy chapter for states, one advocate concluded with a somewaht hyperbolic flourish, California governor Jerry Brown will be in a position to do his part by using it. 3 These proposals met immediate, passionate resistance. One law professor denounced state bankruptcy as a terrible idea. 4 [I]f we in fact create ... a state bankruptcy chapter, another critic testified to Congress, I see all sorts of snakes coming out of that pit, as [b]ankruptcy for states could — would cripple bond markets.\u27