Wednesday, July 18, 2018

Was Jesus a Pacifist: The First Generation of Followers and the Sword at Gethsemane


For 1700 years or so it has been the consensus among Christians that Jesus was no pacifist. This is hardly surprising given the number of wars fought, directed, and instigated by sincere, doctrinally orthodox, Christians.  History would make no sense, and neither would the political commitments of most contemporary Christians, if Jesus were a pacifist. 

Yet there is some reasonably strong textual support in the gospels for the proposition that pacifism of some variety was part of Jesus’s message: “But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.” (Matthew 5:39. Nearly the same: Luke 6:29.) “[F]or all they that take the sword shall perish with the sword.” (Matthew 26:52).

The exegetical enterprise bent on demonstrating that these passages do not mean what they say has been determined and well credentialed.  Sometimes it is a little crude, but sometimes it displays strong scholarship and not implausible arguments. Still, I think the tradition has been somewhat more confident than is warranted in its conclusion that Jesus was no pacifist. 

Thursday, July 5, 2018

Once More The Crime-Fraud Exception Before and After the Crime

In my last post I argued that the crime-fraud exception to attorney-client privilege is really a very different thing when it  is cited to by police or prosecutors before the crime has been committed from when it is resorted to in post-crime litigation. It follows that the elements of the exception should be different in the two different settings – if there should be a post-crime exception at all.

A particular case, suggested but not developed in that post, dramatizes the point: 

Monday, July 2, 2018

Crime-Fraud Exception: Stopping Crime and Prosecuting Crime

In my post “Trump, Cohen and the Crime-Fraud Exception to Attorney-Client Privilege,” 4/13/18, I opined that a lawyer’s informing her client that intended conduct was criminal could fall under the crime-fraud exception. I was mostly wrong as to the way the law is. As to the way the law of this privilege should be, it’s more complicated. 

The crime-fraud exception serves two purposes. The compelling purpose is the prevention of crime. The less compelling purpose is to get hold of a lawyer’s most confidential papers to convict her client.

My thesis here is that the pre-crime and post-crime crime-fraud exceptions should have very different rules – if there must be a post-crime exception at all.

Wednesday, June 6, 2018

“In God We Trust” and the Establishment Clause


No one really knows what started the Great Islamic Conversion of Arkansas, but once it got going, it was unstoppable. Not that everyone in Arkansas became a Muslim, of course.  There remained some atheists, agnostics, and none-of-the-aboves, especially around centers of higher learning and middle learning. Steadfast Christians remained in greater numbers, although they held a plurality in only three of the less populous counties. Many Christians moved out of state. 

That North Dakota went through its neo-pagan revival starting just two months later, has, of course, multiplied the conspiracy theories – theories involving exotic mixtures of political, religious and extraterrestrial agents with pharmacological, viral-genetic, and hypnotic agencies.  As there is precious little hard evidence supporting any of these theories, I will not here descend into that altercation, which is so completely consuming our cable news and internet. 

My interest, instead, is in a relatively minor legal issue arising from the new state mottos of Arkansas and North Dakota. The latter state has adopted: “In Gods We Trust,” while the Arkansans prefer “In Allah We Trust.”  Both states display their new mottoes prominently on official documents, and in state offices, drivers’ license bureaus and court rooms.

Sunday, May 20, 2018

Libertarianism and Open Borders


There are some who think of themselves as Minimal Government Libertarians who nonetheless believe in restrictive immigration policy, or, at least, are perfectly happy to vote for politicians committed to such policies.  On its face, this is inconsistent.  Restrictive immigration is state use of force and coercion to keep people from going where they would go and from entering into labor contracts that both sides would enthusiastically execute. Libertarians are great friends of labor contracts, condemning such government interferences as minimum wage and overtime laws. You can’t have a free market in labor without open borders. So how can any libertarian have anything to do with a restrictive immigration policy?

Friday, April 13, 2018

Trump, Cohen and the Crime-Fraud Exception to Attorney-Client Privilege


Private communications between lawyer and client for the purpose of giving and receiving legal advice are normally privileged.  Currently in the news is a restriction on the privilege called the “crime-fraud exception.”