prior probability

As part of my course of graduate studies at Rollins College, I was assigned all 24 chapters of Caroline Alexander’s new translation of the ancient Greek epic poem The Iliad, so I will be spending most of the upcoming holiday weekend reading this great work, and I have to say, it is riveting! (To get the full sensory experience, I am listening to the audiobook version of Homer’s epic via Audible and following along with the text.)

https://en.wikipedia.org/wiki/Confessions_(Augustine)

Time out! Today (28 August) is the Feast Day of Saint Augustine or the “Solemnity of Saint Augustine”. To commemorate Augustine’s life and work, here is his Wikipedia page as well as his Stanford Encyclopedia of Philosophy (SEP) page. Among other things, Augustine, who lived during the 4th century A.D., is famous for his autobiography, the Confessions, where he recounts his conversion to Christianity after hearing the command, Tolle lege, tolle lege: “Take up and read, take up and read”! (For future reference, below is a free “audiobook” of Augustine’s Confessions.)

Last week, I mentioned that attorney Derrick Valkenburg and I would be exploring the natural law origins of affirmative defenses. We also posted some introductory materials to get the ball rolling, including the Wikipedia entry for “affirmative defense” (see here) as well as a laundry list of such legal defenses (here).

First off, however, we want to make a preliminary observation. Some legal defenses are universal — i.e., applicable to any type of claim — such as laches (unreasonable delay in bringing a claim), failure to state a claim, and res judicata, just to name a few. Other defenses, by contrast, are “subject matter specific”, i.e. specifically connected to certain types of law claims or theories of liability. By way of example, the common law defenses of assumption of risk, consent, and waiver are relevant to tort claims (i.e. cases alleging the commission of a wrongful act resulting in an injury to one’s person or property), while the defenses of duress, mistake, and promissory estoppel are relevant to claims alleging a breach of contract.

So, what should we make of this particular distinction? Why are some defenses subject matter specific, while others are universal? Do all defenses nevertheless share the same logical structure, or are there deep differences between specific versus universal defenses? We will take a closer look at these questions in the days ahead …

I “shazamed” this song earlier this summer, while I was dining at a steakhouse on Calle Thames in the Palermo neighborhood of Buenos Aires, La Carniceria.

Last Saturday (8/17), I featured two college courses as well as a law school seminar: (1) Taylor Swift and Her World, (2) Forbidden Courses, and (3) Jurisprudence. Via Twitter, below are two more syllabi that have caught my attention:

Moral and Political Economy (John Hopkins):

Statutory Interpretation (Pepperdine):

I will resume my series on “natural law affirmative defenses” in the next day or two; in the meantime, click on the cartoon below to enlarge.

Following up on my previous post, below is a laundry list (in alphabetical order) of affirmative defenses; source: Rule 8(c)(1) of the Federal Rules of Civil Procedure:

• accord and satisfaction

• arbitration and award

• assumption of risk

• contributory negligence

• duress

• estoppel

• failure of consideration

• fraud

• illegality

• injury by fellow servant

• laches

• license

• payment

• release

• res judicata

• statute of frauds

• statute of limitations

• waiver

Hmm. Aside from necessity and mistake (again, see my previous post), what other legal defenses are missing from this list?

According to Wikipedia (links in the original), “An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.” By way of example, Rule 8 of the Federal Rules of Civil Procedure (see here) contains a laundry list of 18 affirmative defenses, including laches, duress, and estoppel, just to name a few. (Oddly, two important legal defenses, those of mistake and necessity, are not included.)

What neither Wikipedia nor Rule 8 tell us, however, is, Where do these defenses come from? As it happens, one of my sabbatical projects this fall is to write up an essay with attorney Derrick M. Valkenburg exploring the natural law origins of Anglo-American common law affirmative defenses in law cases, so stay tuned!