Interview with:David M. Wagner [davidmwagner]
LAW
 | What did you study? What did you specialize in? Constitutional Law. Given my previous background in Medieval Studies (BA & MA at Yale), I also studied -- and like to continue studying -- legal history. |
| What has been your professional experience in the arena of law? How long have you been in the profession? Apart from a few amicus briefs, I have not been a practitioner, but rather (in chronological order) a legal policy analyst/speechwriter; a legal journalist; and a law teacher/academic. |
| Are there any links we can follow to see something more about you? http://ninomania.blogspot.com
But because law is not my only interest, I also maintain a blog about opera:
http://davidsoperablog.blogspot.com |
| What types of cases interest you most? First Amendment, esp. religious liberty
Separation of Powers
The intersection of Constitutional Law and Family Law |
| Is courage needed to practice your profession? All aspects of law involve advocacy, and advocacy will almost always tick somebody off. So -- yes, it does. |
| What is justice? Is there a way to measure it, or is it only a sentiment? I believe in the great tradition of natural law. It can't be reduced to sentiment, or to poliltics. On the other hand, it does not pre-decide all difficult questions. Where law becomes only sentiment (or only politics), all our rights are in danger. |
| Should the social repercussions of a sentence, i.e., the message that it sends to society, be kept in mind? It should be kept in mind, but not above the issue of the offender's objective deserts/guilt. If we use offenders only to "send a message," we are making a human being a means, not an end. The "retributive" principles of justice -- which sets a ceiling as well as a floor for punishment, a maximum as well as a minimum, as an essential component of a fairness in criminal justice. |
| DNA analysis has revealed some serious judicial errors in the past. Isn't that a sufficient argument for abolishing the death penalty? Perhaps. We have grown very used to DNA evidence exonerating defendants, including ones previously convicted, but there's no reason in theory why DNA evidence could not serve to *convict* defendants or *validate* convictions that are challenged.
The death penalty debate, on which I am conflicted, must stand on its own ground. DNA evidence solves particular cases, but not the issue as such.
Nor is DNA evidence a cure-all for injustices that are deeply rooted in the criminal justice system. It is terrible to, e.g., send a defendant to prison for ten years because of a mistaken "eye-witness." |
| Is it acceptable ethically to think of a lawsuit as a business opportunity? On the one hand, the Common Law (the U.S.'s legal inheritance from England) actually called this a crime, by the name of barratry (stirring up litigation). On the other hand, lawyers have gotta live too (and pay off law-school debt).
It would be lovely to return to an old-fashioned idea of law as a "learned profession" as distinct from a business, but the pressures toward the business model of law-practice are just too strong.
So I'd say that if the suit is honest, and pursued with honesty, it is not unethical to pursue that particular piece of work, and to be glad if he/she lands it.
Mention should be made here of the crisis of over-litigation in America. I believe it's real, and constitutes a major hidden tax on American business productivity. Tort lawyers say it's a myth; I respectfully disagree. |
| A video shows the guilt of the defendant, but because it was recorded illegally it is not admissible as evidence and the defendant goes free. Is this absurd justice? Was the illegal taping carried out law-enforcement authorities (the police or the prosecutors)? It makes a difference to the answer!
Even so, we've drifted so far from the original meaning of the Fourth Amendment (the source of our modern "exclusionary rule," banning the use of illegally obtained evidence) that it's not clear how we can go back. The Fourth Amendment is now interpreted so as to *require* warrants: a search with a warrant is a *good* search. But read the very short text of the amendment: it clearly doesn't like warrants! It bans "general warrants" outright, and it restricts other warrants to limited circumstances.
What circumstances? "Reasonable" ones. Who decides what's "reasonable"? Today, that's the federal judiciary. When the 4th Am. was written, it was -- juries! Aggrieved citizens were expected to sue offending law-enforcement officers -- and to win, if they could persuade the jury that the search wasn't reasonable!
How do we get back to a system like that today, as an alternative to the way we now enforce the 4th Am., i.e., the exclusionary rule? I wish i knew. |
| What do you see as the strengths and weaknesses of the jury system? The Framers clearly thought highly of it (see 7th Amendment; also 4th Am., where the presence of the word "unreasonable" signals the presence of jury issue to the late-18-th-century Anglo-American legal mind). Their judgment is entitled to respect.
In criminal cases, I think the fact that the state may (subject to plea-bargaining) be forced to prove its case beyond a reasonable doubt to a jury is a major protector of our rights.
In civil cases, the benefits of the jury system may have waned over the decades. Juries are as good at deciding straightforward tort and contract disputes as they ever were, but increasingly they are being asked to weigh in on issues where expert bureaucrats have already weighed in via regulations. That doesn't make sense. Either get juries out of those issues -- or else, get rid of the bureaucrats. But I don't see the latter happening, so.... |
| Is it necessary to maintain a costly and slow justice system in order to avoid a flood of irrelevant cases? Well, all cases are "relevant" to their parties. That said, cost and slowness are not options that the system deliberately takes: they are the result of many factors, including over-litigation. One proposal that has been made to deal with this is to adopt some sort of "loser pays" (or "English rule") system. "Irrelevant" cases would not be filed if a higher percentage of their costs were born by those who file them (or their attorneys). I don't expect to be invited to trial lawyer conventions for saying so, but I'm certainly not alone in this! |
| How do you see the defense of royalties in an increasingly digital future? I think the answer to this will come from technology and its producers, not from lawyers. Just when the slogan "Information wants to be free" seemed to be carrying all before it, new ways have begun to emerge to make information worth paying for. Economical online music-buying services proved more effective than heavy-handed lawsuits at taking business away from pirates. And so on.
As a fan of the arts and a friends of creative and recreative artists, I care that they be able to live by their work. I think that will remain possible, though the shape of the future will, as always, defy pop futurologists. |
| Is the amount of attention paid to crime by the mass media excessive? I feel like it's the non-lawyer side of me that wants to answser: my Dad was leading creative executive at CBS TV in its glory days; I myself am a writer as well as a lawyer; and I consume (some) mass media like everyone else. On that basis, and not on the basis of my legal studies or experience, my answer would be no. Crime and criminals have always been interesting. Crime stories, at their best, reaffirm the moral universe: there's a moral law, somebody breaks it, and something has to be done. People have always loved such stories. |
| What continuing education do you receive in order to keep up-to-date? The legal profession has an answer: "CLE" -- continuing legal education -- administered through a variety of nonprofit and for-profit providers, subject to acceptance by one's state bar.
But since I'm also in academia, i consider my "real" continuing education to be the conference I go to, the papers I write, the research I work on, etc.
In the field of constitutional law, one has to keep up with what the Supreme Court is doing and saying. Digitization has made the easier than ever! |
| Where are you headed professionally? What would you like to be doing five years from now? I'd like to be doing basically what I'm already doing -- teaching Constitutional Law, Administrative Law, and Legal History -- only better, and with more media and speaking engagements on those things and/or on my other passion, opera. |
| What advice can you give someone with an interest in pursuing this profession? First, do something besides law for a year or two after college. Most law students do. Remember that there are a lot of unhappy lawyers out there, and some of them are very "successful" in conventional terms. By and large these are people who just *assumed* they would be lawyers without giving it much thought. I was a non-lawyer journalist and speechwriter for four years before going to law school, and that was *after* two years in graduate school (Medieval Studies). I certainly didn't rush into law, and I'm glad of that.
Second, I would remind interested students that a law degree is not a money spigot. It's amazing how that idea gets around. Yes, some lawyers earn a crapton -- and work themselves to death doing it, and hate it. Others earn not much more, or even less, than people in other professions -- and some of them work themselves to death too!
After that discouraging stuff, I would say that, yes, it's an intrinsically interestingly field. It's all ultimately interconnected, and the work you do in first-year Contracts will definitely help you if you ever handle a high-level patent issue, for example. Just a few days ago as of this writing, the U.S. Supreme Court handed down a 5-4 decision in a case that dealt with concepts we generally study in first-year Property, and then again for the bar exam, and then never think of again!
There are also a lot of different things you can do in law. Don't take a "linear" view in which all roads lead to a law firm of some kind. Many do, others don't. It opens many doors, and closes almost none. |
CULTURE
| What do you currently have in your MP3 player? OPERAS! Specifically: the '62 Knappertsbusch PARSIFAL; the Karajan AIDA; RIGOLETTO w. Milnes, Pav, & Sutherland; the Bychkov ELEKTRA starring Polaski; the Karajan BORIS starring Ghiaurov (Talvela as Pimen!!); Act I of WALKURE under Walter, w. Melchior, Lehmann, & List; two complete LOHENGRINs, one under Sawallisch (Bayreuth '64, Jess Thomas), & a new one under Bychkov; a strange (but commercially released) TOSCA with Nilsson, Corelli, & Fischer-Dieskau; Bartok's BLUEBEARD'S CASTLE w. Gergiev; the Barbirolli BUTTERFLY w. Scotto & Bergonzi; and Ildebrando Pizzetti's opera of Eliot's MURDER IN THE CATHEDRAL (ASSASSINIO NELLA CATTEDRALE) (Thomas Becket + Eliot + Italian post-Verismo: what can go wrong?)
Symphonically speaking, there's some Elgar, Bruckner, and (William) Schuman. (Gotta get me some Shostakovich.)
Of course this supplements, rather than constitutes, my opera & classical collection.
AND I've got some pop/rock too. I'm a huge Blondie fan (love ya, Debbie -- MWAH! Yo, Chris!), so I have a lot of their stuff on the iPod. I've got Alkaline Trio's Agony & Irony (whole album), and Bad Romance as a single. |
| What books are you currently reading? CRIME AND PUNISHMENT (3rd or 4th time)
Agostino von Hassell, ALLIANCE OF ENEMIES
Bradin Cormack, A POWER TO DO JUSTICE: Jurisdiction, English Literature, and the Rise of the Common Law
Herta Muller, THE LAND OF GREEN PLUMS
Isabel de Madariaga, IVAN THE TERRIBLE
Jack Rackove, ORIGINAL MEANINGS: Politics & Ideas in the Making of the Constitution
(Ummm, I tend to have a lot of bookmarks going at once; it's more likely ADHD than voracity) |
| Places in the world that you have visited recently. Budapest, and Oradea (Romania) -- 2010
Strasbourg and Paris (France) and Offenburg (Germany) -- 2009
London -- 2007
Seoul, and Ulaanbataar (Mongolia) -- 2006
London and Gloucester (England) -- 2006
Rome -- 2002 |
| What is that special film you never tire of watching? BECKET
Can I get in another? A MAN FOR ALL SEASONS
Oh and LOVE AND DEATH! :) |
| What do you use: Mac or PC and why? PC. I was once on a job site I didn't like and they used Macs there. Also Macs are perennially trendy, and Apple fanboys are annoying.
Despite all that, I have an iPhone, and I like it. My next laptop will probably be a Sony VAIO, but I'm not scratching Macbook off the list (that is, if Apple still makes laptops by then -- if they haven't sunk all their non-phone business into the iPad).
I like Steve Jobs's recent public persona. I approve of his no-dirty-apps stance. |
| What is to come after consumist society? Meaning "consumer," or "consumerist"? Well, on this I have mainly been influenced by the recent Popes. On what *should* come after the consumerist society, I believe they would use the expression (first coined by John Paul II) a "civilization of love."
Of course, taken just as words on a screen, this could sound like hippie-ish, like the Sixties again. That is the wrong interpretation, not only because JP2 and B16 would never mean that, but moreover because the Sixties were just an alternative consumerism: the "grown-ups" were consuming in certain ways, so the "kids" would consume in other ways: all were hedonists. The majority American view sees the 60s as a period of idealism. I dissent.
The Catholic "civilization of love" makes the concept of "free gift of self" central to the purpose of life, rather than self-fulfillment, which fosters consumerism. Actually I think the "free gift of self" is ultimately self-fulfilling in the extreme, but it doesn't start that way: self-fulfillment is something NOT found by seeking it.
In the alternative, consumerism could self-perpetuate indefinitely, or it could lead to human annihilation. The Catholic "civilization of love" sounds better to me. |
| Do you find the saturation of advertising in the media excessive? Excessive, compared to what? And judged by whom? We can all easily wish for less advertising, and for advertising that concentrates less on exciting our baser emotions. In an earlier answer I discussed the modern Catholic concept of the "civilization of love," and obviously it's hard to reconcile that with much of what goes on in modern advertising, both in quantity and in substance.
But the creative arts don't pay for themselves; even government-sponsored creativity has costs, beginning with the danger of government control.
So no, I'm going to hold off on calling the saturation of advertising in the media excessive, until I know who's going to decide what "excessive" is, what they plan to do about it, and what checks and balances there are on such an authority. (And no, I don't want the Church to do it: that's not her job.) |
| Do you believe there is excessive sex and violence in the media? Yes. However.
Standards that may seem strict have never had the effect of forcing dangerous themes out of literature, drama, etc.: what they force, instead, is a certain subtlety; more or less, depending on the standards of the era. "Carmilla," a novella by Victorian-era author Sheridan LeFanu, is about a lesbian vampire -- but nothing in it would offend the strictest homeschooling fundie mom: that's how thoroughly sublimation and symbolism work. It takes artistry. In the age of Victorian prudery, even authors of potential shockers had to be artists.
As we all know, the U.S. once banned Joyce's ULYSSES. Here's my question: was literary culture in better shape back when ULYSSES marked the outer boundary of what could be imported into the United States? Or, is it better now? With all due respect to present-day authors, I think the answer is easy. There are now almost no boundaries, and our literary culture has not been the winner for their absence.
Banning ULYSSES again wouldn't solve anything. (Besides, T.S. Eliot praised it, and that's good enough for me. And anyway I liked it myself when I finally read it, on & about the centennial of "Bloomsday.") Rather, I'm encouraged whenever there's a movie or TV show that goes easy on the s&v and is nonetheless a hit. |
| What were your favourite subjects when you were in primary/secondary school? English, above all. History (which became my major in college) drew up even around 4th grade, with English holding its own co-equally.
I went to schools where French was given equal time with English (tho' this was entirely in the U.S.), and though there was more labor in French class than in English, the achievement of bilingualism (round about 3rd grade, in my case) was unbelievably heady. |
| Do you think video games, chat rooms, etc. have a dangerous addictive
effect on teenagers? No. -- Well, maybe than can, but I think the word "addiction" has become drastically overused. There are some things that some people like to do a lot, while other people aren't that into them. Nothing wrong with that -- until the latter start to label the former "addicted" and start to medicalize their situation.
Do many teenagers today spend too much time with videogames and other online diversions, displacing both human interaction and other forms of education? Yes, maybe they do. When I was a teenager, I spent long hours under my headphones listening to various forms of classical music, mainly Wagnerian opera. Did I spend too much time with that, displacing both human interaction and other forms of education? Yes, maybe. Do I care? No.
And any educational specialists who came around theorizing that my Wagnerian opera-listening might have a dangerous addictive effect on me would have gotten Wotan's spear right through their interfering little hides.
You know what? I think the tendency to label other people's cultural passions as "dangerously addictive" has a dangerously addictive effect on educational theorists, psychologists, Euro-parliamentarians, and other types we could use less of. I think we should do something about it. |
| Has there been a personal-growth book that has transformed your life? No. I'm very suspicious of that genre. Somehow, the people with lives I'd want to live (if I weren't living my own) are never the people who write them. |
| Have you ever bought works of art? What type of art? What compels you to purchase art? I've never had that kind of money, but I admire great collectors. I've even known a couple of them (a Met opera star and her husband) -- minor players compared to some, but a collectors nonetheless.
If I could do it, I think I would emphasize re-uniting altar-pieces that have been disassembled over the centuries, with a specialization in those of late medieval and early Renaissance Italy. |
| Do you defend urban graffiti? I certainly don't plan to get in its way. Oh you mean, as art? Well, everyday decoration from centuries earlier is now highly prized, and uncontroversially so. Give it a few centuries, then, and I'm sure present-day urban graffitti will be able to compete at that level. |
| What magazines do you frequently read? I started regular magazine-reading at 15 with *the* conservative classic, National Review. And I read my parents' copies of The New Yorker, just for the cartoons -- excuse me, "drawings."
I still take National Review, but my favorite political magazine is now The Weekly Standard. The American Spectator (I get its Twitter-feed only) has returned to quality status since the says of its investigate-Bill-24-7 format. Human Events has gone downhill, except for its ace political reporter John Gizzi, who alone makes a subscription worthwhile if you like the integration of you-are-there election reporting and long memories for related story-telling!
There's a new London-based conservative intellectual magazine called Standpoint that I would totally subcribe to if a U.S. subscription didn't cost a second mortgage. I get its Twitter-feed.
But what magazine do I find myself reading most carefully, and most looking forward to in the mailbox? One I only recently started subscribing to: The New York Review of Books. No, I haven't changed; I think the NYRB has, somewhat (e.g. it's OK now for its writers to diss communism). And yes, some of what they publish is eye-roll time for me. But over the years their stable of contributors has gotten so good, they can no longer put out a boring issue if they tried.
Then there are my academic/professional journals: The Harvard Journal of Law and Public Policy (quarterly of the Federalist Society); Speculum (quarterly of the Medieval Academy of America); Historically Speaking (magazine of The Historical Society); Legal History; Administrative Law Review. I read these insofar as a given article may be useful or interesting. The book review section of Speculum is always tons of fun, and a way for me to keep a finger on the pulse of the Medieval Studies world.
Oh and did I mention Opera News? Opera News! |
| Piracy continues to grow: What will happen to the music and film
industries and culture in general? I think I answered this one in the Law category! Anyway, my take there was that piracy will *not* continue to grow, that technology will reduce the prices of alternatives to it, so that law enforcement in this area will have an easier time providing whatever disincentives remain necessary. I think technology *rather* than law can and should be relied on to solve the problem.
If I'm wrong, then I guess creative artists will create, if at all, only privately, for rich patrons. Just like the Middle Ages. Good thing I have some clues about the Middle Ages. |
| How do you explain the rise in "fame" culture? Short attention sp |
| What do you have in your wallet right now? Mini-icons of Our Lady and of St. Thomas More; some pix of my kids; coupla credit cards; coupla insurance cards; K of C membership cards; bagel shop discount punchcards; farecards for DC; farecards for NYC; maybe some money, I don't know... |
| How do you kill time? Blogging, Facebook, Twitter, doing social-network interviews that pop up from time to time if they look kosher like this one does; trying to read but actually falling asleep; reading late at night when I *should* be falling asleep |
| In which city do you live? What are your favourite and least favourite things about it? Virginia Beach, Virginia. My favorite thing about it, by far, is where I work, which is also the reason we moved here: Regent University School of Law. Reason enough for many people -- faculty and students -- to come here. Second: the beach (it's a beautiful, ocean-facing one, and well maintained by the City; family-friendly, too), and the Virginia Opera.
Least favorite things: fact that it isn't New York or Washington, and all that that implies (I'm an insufferable urbanist snob, notwithstanding my "red state" convictions); fact that it's almost exactly four hours from a remarkably long list of places I often want to go: on that list would be DC; numerous locations in northern Virginia; Front Royal, Va., (great friends and goddaughters live there, and there's a great little Catholic college there, called Christendom); Camp Lejeune, NC (used to drive my Marine son there and back); Longlea (a Catholic retreat center near Culpepper, Va.); Annapolis (my Marine son once did a summer program at the Naval Academy). Yessiree, four hours from Virginia Beach will get you to A LOT of places you might actually want to be! |
| A YouTube video about something that was significant to your life. http://www.youtube.com/watch?v=pKdSkYYZ-MY |
| Where have you thought of going for your next holiday? London. I miss it. That's because I'm not there.
Munich. Didn't get enough last time.
Rome. You NEVER get enough.
Spain -- except I know there'd be a lot of changes I wouldn't like (last there in '77)
Vienna, or really anywhere in Austria. Never been.
Israel. Never been, and Catholics who have go bats**t over it.
Other countries high on my never-been-but-want-to list: Ireland, Poland, Greece, Russia |
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David M. Wagner
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