Category: Blog Post

a banquet for the birds

I’ve admired the music of both Aaron Diehl and Darcy James Argue for years—the former as an inheritor of and innovator in the tradition of pianists like John Lewis and Mary Lou Williams, the latter as a composer and bandleader whose works stretch the idiom of American big band in cerebral directions while augmenting its musicality. Fantastic stuff all around.

This past weekend, Diehl (who took over the 92Y “Jazz in July” series from Bill Charlap last year) hosted Argue and his band for the final night of the concert series. After performances of some of their earlier works, they premiered Argue’s new three-movement suite “A Banquet for the Birds.” (Major thanks to the 92Y for continuing to sell digital access to concerts, even years after the worst of 2020’s ambulance sirens. I was so happy to be able to watch while on a trip to rural Michigan.) This new work draws inspiration from Emily Wilson’s recent translation of Homer’s Iliad (which I haven’t read yet), and Argue’s title comes from one of its opening lines, which recounts how the Trojan War “made men the spoils of dogs, a banquet for the birds” (αὐτοὺς δὲ ἑλώρια τεῦχε κύνεσσιν / οἰωνοῖσί τε πᾶσι).

The first movement (“The Sparrows and the Snake”) begins with a continuo organ, quickly giving way to trumpet flourishes that remind me of Kill Bill (complimentary!), a muslcal echo of the Iliad‘s martial backdrop. After just a minute so, Diehl plays—unaccompanied—over sparse harmonies whose mode recall Debussy’s Little Shepherd, with both perhaps drawing from the musical vocabulary of rustic Greece. The second half trades this simplicity for piano runs and chords less rustic and more Rachmaninoff-showstopper. Have we we entered a blood-and-guts scene from later in the Iliad? Those Tarantino flourishes return in the final measures of the movement, so yes, this is all drawn from Homer’s epic of gory swordfighting.

The second movement takes its title—”The Most Meaningful of Birds”—from Homer’s description in Book 8 of an eagle who proves ominous (as birds often do in Greco-Roman literature). As a side note, I’m interested in (but very open to) Wilson’s choice of “most meaningful” as the translation of τελειότατος (αὐτίκα δ᾽ αἰετὸν ἧκε τελειότατον πετεηνῶν)—perhaps “most perfect” or “most authoritative”? Anyhow, we begin with Diehl on the piano again. This time hamonies sound a little less foreign, less of-some-other-mode, but still with bare melodies. Especially when the band kicks in, Argue’s lone woodwind lines evoke something like Copland … or perhaps a Stravinsky chorale? (I love how both Argue and Diehl walk the tightrope between classical and jazz, and this movement is a great example of that balance.)

After some smoothed, almost gentle piano lines—is the eagle soaring away?—the final movement starts with disorderly, muted trumpets. Drums and piano and bass soon add to the chaos. So begins “A Tangled Cry,” the last movement. Diehl comes back with some of those Copland/Stravinsky cadences before returning to percussive chords—soon joined by more trumpet flourishes—that remind us that we’re still in the ninth year of the Trojan War. Indeed, the sombre saxophone and trumpet lines that come shortly before the final, grim harmonies of the suite signal how the Iliad is not a tale of Greek triumph or really even of Achilles’ kleos aphthiton but of the shared, tragic annihilation of warfare.

July 30, 2025

ad hoc, ad universitatem

Yesterday evening, Columbia announced that it had struck a so-called “deal” with the federal government—including a $200 million fine, audits of its undergraduate admissions, oversight of various academic programs, and other conditions. Even as the University regains some federal research funding (or perhaps just the opportunity to compete for it), its faculty have noted that deals “like Columbia’s […] are fundamentally inconsistent with the logic of academic freedom.”

That quote comes from Columbia Law’s David Pozen, writing at Balkinization, where he considers the troubling appearance of a phenomnenon he calls “Regulation by Deal”:

Without any clear grounding in the civil rights statutes themselves, the Trump administration has begun to effect another, more dramatic regulatory shift—away from guidance documents addressed to the entire sector, and toward bespoke deals foisted upon individual schools after summarily terminating or threatening their federal funds. It is important to emphasize that this shift does not reflect an increased interest in enforcement, leading to an increased number of consent decrees or out-of-court settlements. These deals will not be the product of thorough investigations or judicial findings of misconduct by the schools in question. No established legal process was followed for the Columbia agreement; no genuine legal dispute was resolved. The dealmaking is the main regulatory event from start to finish.

This emerging model raises profound concerns not just for universities’ budgets and independence but also for the rule of law. By relying on “particular transactions to effectuate government policy,” scholars have observed in other contexts, regulation by deal bypasses all of the “notice, comments, [and] due process standards that we ordinarily expect from public administration.” While guidance documents may share some of these deficits, they are not actually binding on regulated parties and at least aspire to uphold bedrock legal principles of “generality, clarity, publicity, stability, and prospectivity.” The style of regulation reflected in the Columbia deal is at once far more coercive and far more arbitrary—opaque in development, unpredictable in application, deeply susceptible to personalism and corruption, and only contingently connected to the laws Congress has written. As compared to the familiar fare of public administration, “one-off dealmaking is more about back-door terms, forceful results, and unequal application of standards, to the extent standards exist at all.”

Pozen’s analysis has generated a lot of interesting conversation, including from other Columbia faculty. Adam Tooze, for instance, writes that inasmuch as the current “adminsitration’s governance by bullying is clearly a departure in style, tone, and ferocity,” it is nevetheless “part of a piece with the increasingly crude style of ‘lawfare’ and ad hoc deal-making that characterizes much of American corporate, business and public life today.” Tooze is correct that “ad hoc governance” has a history that extends further into the past than the beginning of the current century. But as I discuss in my recent book, the American public has had a tense relationship with this kind of irregularity (and especially legal irregularity) since the earliest days of the Republic. Today’s emergence of a broad practice of “Regulation by Deal” (rather than the rare ad hoc exception to general principle), in fact, reminds me of failed legislative philosophies from the America’s post-Revolutionary period.

In the third chapter of my book, I spend some time with the analysis of “equity”—here, understood as judicial discretion in interpreting statutes—laid out by Gordon Wood in The Creation of the American Republic 1776–1787 (1998 ed.). In the post-Revolutionary period, Wood explains, Americans were reluctant to empower judges to bend statutory language, for the people had just fought (and won) a war to craft their own laws. The appetite for popular sovereignty was strong. Wood writes, “Reform-minded Americans were thus committed to equity as the basis of law, but by resting their plans on legislative enactment they at the same time denied the juducial discretion that made equitable interpretations necessary and possible” (301). Judges, in other words, would take back seat to The People in determining what fair laws should look like in America.

Sidelining judges in this way had profound effects on the shape and application of statutes. By curtailing opportunities for judicial discretion and attaching themselves to the letter of law, post-Revolutionary Americans experimented with a legal system that demanded specific statutes to apply to specific situations. Without judicial discretion, laws could remain neither general nor in need of interpretive application.

But drafting statutes for every possible application and boxing out the possibility for fair-minded interpretation of the law proved disastrous. “It began to seem to some that Americans could not have specific legislative enactment and equity [that is, legal fairness] at the same time,” Wood explains. “When particular statutes had to be enacted for every circumstance, said Moses Mather in a Connecticut election sermon in 1781, the laws proliferated and resulted in a confusion that wicked men turned to their private advantage” (303). This legislative approach of relying strictly on “particular statutes” was “not always able to guarantee equity by their enactments, and in fact seemed to be becoming the greatest source of injustice in the society” (304).

Wood’s history of the early American experiment with a statutory approach that shunned general principles and privileged hyper-particularized statutes immediately came to mind as I read Pozen’s analysis. As I cite above, Pozen worries that the “style of regulation reflected in the Columbia deal is at once far more coercive and far more arbitrary—opaque in development, unpredictable in application, deeply susceptible to personalism and corruption, and only contingently connected to the laws Congress has written.” Americans have always had an uneasy relationship with the application of general statutes and ad hoc justice—real tensions that are inevitable with any commitment to the rule of law. But increasingly, the government pretends it can craft new standards, new regulations, new punishments, and new principles for every “deal” it strikes. If the state abandons principle for particularity, we may well end up again with a “confusion that wicked men turn to their private advantage.” That confusion, in fact, may already be upon us.

July 24, 2025

pure textualism and legal ambiguity

Commentators today have taken interest in a pointed footnote of Justice Jackson’s dissent in Stanley v. City of Sanford, Florida (p. 23, note 12). I’ve included below a screenshot of the note:

I find Jackson’s argument here fascinating (and compelling) in light of my recent writing on legal equity, particularly in the concept’s Aristotelian tradition. Above, Jackson criticizes the majority’s embrace of “pure textualism”—that is, the majority’s “refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve.” Such “pure textualism,” in effect, closes off a major method of grappling with the “ambiguous text” of a statute, empowering the Court to “disguise” their own interpretive practices in order to “secure the majority’s desired outcome.” In other words, tossing out any investigation into legislative intent leaves judges with little else to work with aside from their own presuppositions and personal aims, changing linguistic ambiguity from a question for research into a moment to exploit.

What caught my eye here is how a “refusal to try to understand … what Congress sought to achieve” is a rejection of Aristotle’s approach to legal interpretation in the Nicomachean Ethics. In that text, Aristotle foresees how general laws will need to be applied to unforeseen, particular cases. We will be left, he argues, to “rectify the deficiency [of the law] by reference to what the lawgiver himself would have said if he had been there and, if he had known about the case, would have laid down in law.” (This principle of “rectifying” the law by excavating its intent and bending it around individual cases is what Aristotle calls epieikeia, later translated as aequitas or “equity.”)

As I lay out in the third chapter of my book, Americans of the 1780s similarly understood how a law’s “consequences were not foreseen by the Legislature” and that, therefore, judges would need to reinterpret laws according to legislative intent (p. 81). In fact, it was understood even in this post-Revolutionary period that attending just to the strict text of the law “resulted in a confusion that wicked men turned to their private advantage” (p. 80). The American Founders and their contemporaries, then, would seem to agree with Justice Jackson. Groveling before the “pure text” of the law and refusing to consider “Congress’s aims” runs against both Greco-Roman attitudes toward statutory ambiguity and an early American embrace of legal equity as a necessary check on judicial corruption.

June 20, 2025