Akrasia

Nate Oman’s personal blog

ἀκρασία

"The Greek word 'akrasia' is usually said to translate literally as 'lack of self-control,' but it has come to be used as a general term for the phenomenon known as weakness of the will, or incontinence, the disposition to act contrary to one's own considered judgment about what it is best to do." --The Routledge Encyclopedia of Philosophy, Edward Craig, ed. 1:139

March 2010
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The Double Minded Essence of Mormonism

Posted By Nate Oman on April 10, 2009

A while ago I was reading some sermons from the 1880s in the Journal of Discourses. The 1880s, of course, is the decade when the anti-polygamy crusades were at their most intense. Thousands of Mormons were incarcerated, the Brethren were in hiding from the law much of the time, and every time you turned around there was a new law confiscating Mormon property or disenfranchising Mormon voters. Hence, I was surprised to come across a sermon in which George Q. Cannon spoke unironically of his admiration for George Edmunds. Edmunds was a Republican Senator from Vermont, and the chief proponent of harsher anti-Mormon legislation in Congress. Cannon noted that he disagreed with Edmunds and thought him mistaken. Nevertheless, he said in effect that he thought Edmunds an admirable man of principle. Cannon’s remarks reveal a deep double-mindedness in nineteenth-century Mormonism, a double-mindedness whose preservation surely counts as one of the triumphs of the modern Church. (more…)

Going to Cornell…

Posted By Nate Oman on April 7, 2009

I’ve blogged before about my great, great grandfather who was “called on a mission” by Wilford Woodruff in 1896 to study law at Cornell. 104 years later, I am going to be returning to his old stomping grounds to teach for a semester. I’m looking forward to it. I hear that Ithaca is wonderful in January and February.

Law and Tradition (herein of Iowa, Coke, Hale, and Selden)

Posted By Nate Oman on April 4, 2009

Coke.jpgIn the Iowa Supreme Court’s opinion declaring traditional marriage unconstitutional, the justices dealt with the claim that the law was justified because it protected the integrity of the tradition of heterosexual marriage. The opinion states:

A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification.

As presented by the Court (and for all I know as presented by the attorneys defending the law), the argument sounds circular and absurd. As a technical matter the court was applying intermediate scrutiny, but as presented by the Court the appeal to tradition would seem to fail even a rational basis test.

To anyone with a familiarity with the history of the common law, the notion that the appeal to tradition is circular or vacuous is striking. The classical common law theorists of the seventeenth century – Coke, Hale, and Selden – thought that tradition was the primary justification for the law’s authority. Independent of the particular issue of same-sex marriage, the Iowa Supreme Court’s opinion shows how far our legal thinking has traveled.

(more…)

Hayek, the True Sale Doctrine, and the Origins of the Financial Crisis

Posted By Nate Oman on March 31, 2009

Hayek.jpgHere is my theory du jour about the origins of the financial crisis, suggested by one of my students: blame it all on the true sale doctrine or rather on its evisceration.  Stick with me to the end, and I have some overly broad generalizations about expertise, property rights, and Hayek. 

The “true sale doctrine” is not a staple of the law school curriculum.  At best it makes a brief cameo in secured transactions and bankruptcy courses.  Notwithstanding this academic obscurity, however, its failure may have had a big role in the current melt-down of the banking sector and with it the world economy.  Here is the gist of the issue: 

Securitization is the process by which financial assets (essentially promises to pay money in the future) are transferred from their original holder to a special purpose vehicle such as an LLC or business trust, which then issues securities entitling the holder to some fractional right to the income from the transferred assets.  Hence, for example, a bank might transfer mortgage loans to an SPV, the SPV would then issue securities to investors, and the cash from the sale of these securities would flow back to the bank.  The investors in the securities have two ultimately inconsistent goals.  (more…)

Salon Loves Me…

Posted By Nate Oman on March 30, 2009

…or at least they liked my Co-op post on A Merchant of Venice. Cool.

The Bard of the Financial Crisis

Posted By Nate Oman on March 24, 2009

shakespeare.jpgOver the weekend, I re-read A Merchant of Venice, and I was struck by the fact that Shakespeare manages to include in the play virtually every element of the current financial crisis. Scene one begins with a discussion of risk assessment, and Antonio’s belief that he has managed to tame the vagaries of commercial fate through diversification. Asked by Salarino if he “Is sad to think upon his merchandise” (I.i.40), Antonio responds:

Believe me, no. I thank my fortune for it
My ventures are not in one bottom trusted,
Nor to one place; nor is my whole estate
Upon the fortune of this present year.
Therefore my merchandise makes me not sad. (I.i.41-45)

Having ignored the problem of fat tails and black swans, Antonio decides to engage in a bit of dodgy finance. He borrows in the wholesale market from Shylock under terms that appear favorable, but have a huge downside in the unlikely event of his default. Antonio, of course, is unconcerned. From his point of view he is getting cheap money by taking on what seems like an extremely remote risk. He then takes these borrowed funds and uses them to make what can only be described as a no doc, subprime loan. Bassiano wants money for a speculative venture — the wooing “In Belmont [of] a lady richly left” (I.i.161) — and Antonio agrees, in effect renting out his credit rating:

Try what my credit in Venice can do;
That shall be racked even to the uttermost
To furnish thee to Belmont to fair Portia.
Go presently inquire, and so will I,
Where money is; and I no question make
To have it of my trust or for my sake. (I.i.180-185)

Shylock, for his part, does not approve of the loose monetary policy in Venice, which he rightly blames on wild lending practices, such as Antonio’s loans:

How like a fawning publican he looks.
I hate him for he is a Christian;
But more, for what is low simplicity,
He lends out money gratis and brings down
The rate of usance here with us in Venice. (I.iii.38-42)

(more…)

Thoughts on Terrorism and Gitmo

Posted By Nate Oman on February 21, 2009

This is probably unwise, but I am going to post a letter that I recently wrote to my brother-in-law about the proposed closing of Gitmo and the law of terrorism.  I am putting it up here rather than at Co-op because it doesn’t make the sort of nods to the academic literature and the case law that seems to be required for respectablity there.  Still, it encapsulates my thoughts, for what they are worth. (more…)

Change We Can Believe In

Posted By Nate Oman on February 21, 2009

Mikero.com (whoever that is) has produced an image that manages to redeem at least some of the silly Obama-messianism for me.

darwin-1-sm

I’m temped to go to CafePress and get the t-shirt.

Thinking on What Hath God Wrought

Posted By Nate Oman on February 14, 2009

Not dense, just big.

Not dense, just big.

Having spent a fair amount of time over the last two days sitting in airplanes and airports, I had a chance to read a couple of big chunks of Daniel Howe’s What Hath God Wrought: The Transformation of America, 1815-1848.  When I mentioned to a friend of mine on the history faculty here that I was reading Howe’s book, his response was “It’s dense.”  Coming from someone who wades through 17th and 18th century French documents for a living, this was a bit intimidating.  I don’t think that he is quite right.  Indeed, one of the things that strikes me about Howe’s writing is how well he moves his narrative along and his skill in using the striking antectdote to illustrate a complex idea.  The book is not so much dense as voluminous.  Howe is covering a lot of material.

So far, I have gotten up through the material on the Missouri Compromise and the beginning of the Second Great Awakening.  The section on the birth of the Monroe Doctrine was, I thought, a compact gem, deftly capturing the mix of personalities and international politics, in particular the role of Russian expansion in the northwest quadrant of the continent, a story that I had not heard before.  The traditional narrative of the Monroe Doctrine, of course, is dominated by Latin America.  Other enjoyable bits include the account of Jackson’s invasion of Florida and the carefully constructed plausible deniabilityof the Monroe Administration.  Also, the sad and pathetic slide of Jefferson into a de facto defender of slavery is nicely alluded to without being heavy handed.  Nevertheless, the Sage of Monticello is seen counselling his son-in-law that a good female slave producing a child every two years is more valuable than a field hand.  (Her children could be sold to the cotton plantations farther south at a hansomeprofit later.)  We also see him making the the ultimately lame and hypocritical argument that extending slavery into Missouri will hasten its gradual decline by spreading it over a greater area, like butter scraped across toast so that it melts faster.  In other words, by the end of his life Jefferson had managed in a wonderful bit of self-deception to argue that slavery must be expanded in order to be limited.  Thus he could be both the prophet of human freedom, and the prophet of rising pro-slavery sectionalism.  Not being a big fan of Jefferson, I relished these tid bits.

His discussion of law so far as been deft but shallow.  He provides good narratives of a couple of key Supreme Court cases — McCullogh v. Maryland and Hunter’s Leasee are the ones that I have read so far — but as is so often the case in survey books the only law that is treated is constitutional law.  For example, in his chapter on “The World that Cotton Made,” which describes the economic forces at work in the decades after the War of 1812, he deals with the rise of textile mills in New England.  A discussion of the revolution wrought on private property rights by this development through measures like the Mill Acts would have fit in seamlessly with his narrative.  Likewise, one of the ways in which the “imagined community” of America was created in the opening decades of the nineteenth century was in part through the authoring of treatises like Kent’s Commentaries and St. George Tucker’s edition of Blackstone, which began to articulate a vision of American common law.   Indeed, given the speed with which legal jurisdictions multiplied after the War of 1812, the paucity of case law and legislation, and the scarcity of law books one of the striking features of the period is the extent to which lawyers all over the country were reading the same books.  Obviously, I think that the story needs more law, specifically more non-constitutional law.

One of the things that Howe does wondrefully, however, is include religion.  The story of early disestablishment in New England is told.  I am not yet up to the materials in the 1830s and I am hoping that he spends a bit of time on the contentious legal battles over disestablishment in Massachusetts and the role of Lemuel Shaw.  We’ll see.  It is good, however, to see figures such as Finney and Beecher put forward as representing major forces in American life.  Needless to say, I am curious to see how he will treat the rise of Mormonism (and the other radical movements coming out of the Second Great Awakening) but that is still a couple of chapters off.

So far this is one of the better bits of history that I have read for a while.  Whether I will be able to make may way through the remainder of this brick any time soon, however, awaits to be seen.

How I Came to Read Poetry

Posted By Nate Oman on February 10, 2009

I enjoy reading poetry. This has not always been the case. I still remember one of the most traumatic experiences of my freshman year of college as a writing assignment in which I had to comment on a poem. A couple of years ago, however, I discovered that I had an ear for poetry. I could enjoy its rhythm and cadence and the intensity of meaning, like a chocolate truffle. I think that I was prepared for poetry by two things. The first was the experience of law school and legal practice. Don’t get me wrong; I love the law. I love its filigreed intricacy, and the constant, unending stream of argument and counterargument. Still, at some point I found myself craving something less linear, analytic, and logical. Hence, while working on K Street, I bought The Oxford Book of English Verse and The Complete Poems of John Donne. Donne, in particular, I remember devouring during lunch, when sometimes I would walk around the corner from my office to Lafayette Park.

The other thing that prepared me for poetry was scripture. At some point in my early twenties I discovered that the kind of religious devotion that I loved best was the close reading of scripture and the enjoyment of its language. While serving as a missionary in Korea I fell in love with the Psalms, which I read through several times. Of course what I had discovered was the beauty and power of Hebrew poetry. Scripture accustomed me to opaque language, layered meaning, and the play of imagery and rhythm. It accustomed me to poetry.

I want to be careful about how I think about this. The danger, of course, is two fold. On one hand one can experience scripture in purely aesthetic terms, a kind of purely literary devotion that lacks power and authority as worship in my opinion. On the other hand, there is the danger of divinizing the aesthetics of poetry, granting prophetic status to pseudo-prophetic poseurs like Byron or Shelly. (Although, I might be persuaded to admit Milton, Wordsworth, or Blake into the pantheon of the prophets; especially Milton.) I think that religious and aesthetic experience, for all the ways in which they can intertwine and reinforce one another, are ultimately different. Still scripture midwifed poetry in my life.

A few nights ago, I pulled down my copy of the Iliad and read a few pages. I was in the midst of working on a literature review for a scholarly paper. In that moment I found myself craving Homer. I wanted to read something written without the anxiety of influence, the ur text that has managed to hold writers in its orbit for two and half thousand years. Of course, I realize that the the perception of primal origins is an illusion. Homer no doubt played off of his tradition, and it is only the accident of having been written down that makes his text seem so primal. Still, in that moment I reveled in the illusion an unmoved literary mover, and enjoyed the chant of the rage of Achilles and the blasphemy of Agamemnon. It was a moment of a kind that I didn’t have just a couple of years ago. Poetry has been one of the great intellectual and aesthetic discoveries of my adulthood.