During the last week or so, Neil H. Buchanan has written some great essays for FindLaw’s Writ and Dorf on Law to address “the public’s perverse and misinformed attitudes about federal deficit spending.” I recommend that you read all of them in full, but here are some excerpts to get you interested.

From the first essay:

Once we understand the basics of deficit finance and the alternatives that we currently face, it becomes clear that the President need not apologize for the size of the deficit. If anything, we should be happy that he has thus far mostly ignored the “deficit hawks” (both in his own party and among the opposition), and we should support him if he decides that it is necessary to inject more stimulus into the economy later this year or next.

From the second essay:

My support for deficits during downturns is essentially rooted in my belief that deficit spending will create economic activity that would not otherwise have occurred and that the additional federal debt incurred in the process does not create harms that outweigh the short-run benefits.

Therefore, if there were evidence that deficits during recessions do not result in increased economic activity, then that would be a reason to oppose deficits. This can only happen, however, if the deficits are incurred by giving money to institutions or people who will not use the money to produce things or to hire people. This means that deficits are a bad idea if they are spent on people or things that do not add to economic activity.

From the third essay:

Unlike people (but like businesses), governments have no expected date of death, meaning that there is no need to wind down debt in anticipation of retirement. More importantly, governments can operate under longer time horizons that allow them to engage in investments that might pay off in decades rather than during the next quarter or fiscal year, and they can make those investments without worrying (as businesses must) about preventing the benefits that will flow from their investments from being enjoyed by other members of society.

Thus, for example, while businesses and families certainly understand that they will be better off if everyone has a minimum level of education, private actors must use the government to overcome group action problems and other barriers to investing in mutually beneficial projects. Basic research in the arts and sciences, public health initiatives, transportation improvements, etc. all fall into this category.

From the fourth essay:

[I]f we force ourselves only to engage in those long-term investments that we can currently finance, we will surely end up financing many fewer such investments. I would prefer not to tell our grandchildren that we passed up profitable investments because we could not pay for them up front, when financing would have been available. Their patience with our explanations that we were just being prudent will surely be limited. As well it should.

Professor Buchanan is both a lawyer and the holder of a B.A., an M.A., and a Ph.D. in economics, not some wag on cable news, so you should read his essays carefully. Enjoy.

Sam Harris said a couple years ago, and I can hardly disagree:

We should not call ourselves “atheists.” We should not call ourselves “secularists.” We should not call ourselves “humanists,” or “secular humanists,” or “naturalists,” or “skeptics,” or “anti-theists,” or “rationalists,” or “freethinkers,” or “brights.” We should not call ourselves anything. We should go under the radar—for the rest of our lives. And while there, we should be decent, responsible people who destroy bad ideas wherever we find them.

. . .

[One] problem with calling ourselves “atheists” is that every religious person thinks he has a knockdown argument against atheism. We’ve all heard these arguments, and we are going to keep hearing them as long as we insist upon calling ourselves “atheists.” Arguments like: atheists can’t prove that God doesn’t exist; atheists are claiming to know there is no God, and this is the most arrogant claim of all. As Rick Warren put it, when he and I debated for Newsweek—a reasonable man like himself “doesn’t have enough faith to be an atheist.” The idea that the universe could arise without a creator is, on his account, the most extravagant faith claim of all.

Of course, as an argument for the truth of any specific religious doctrine, this is a travesty. And we all know what to do in this situation: We have Russell’s teapot, and thousands of dead gods, and now a flying spaghetti monster, the nonexistence of which also cannot be proven, and yet belief in these things is acknowledged to be ridiculous by everyone. The problem is, we have to keep having this same argument, over and over again, and the argument is being generated to a significant degree, if not entirely, over our use of the term “atheism.”

During the last several months, I have mostly avoided the subject of religion-irreligion here, partly because I was so tired of having to deal with the same tired arguments again and again. There is nothing more tiresome about the endless debate over religion and the existence of supernatural entities than the participants’ perennial failure to advance the discussion into new territory. No one anywhere has any new arguments for or against the existence of supernatural entities. There may be decent arguments for why the social structure of religion is useful, even when emptied of theistic beliefs, but nobody with half a brain is going to adopt a fundamentally different outlook on existence just to obtain the social benefits of joining a church. So who cares?

Another reason I have substantially reduced the amount of time I spend writing about religion-irreligion here is that when religious people make their bogus, ignorant, and irritating claim that atheism is just another religion, they do have a decent point—albeit not the one they intended to make. By stating and holding a position as anti-theism or anti-religion, there is no way to escape the clutches of theism, religion, faith, and all of that. Being the anti- anything only locks you into a death grip with what you’re opposing. As Harris observes, “Why should we fall into this trap? Why should we stand obediently in the space provided, in the space carved out by the conceptual scheme of theistic religion?”

There are lots and lots of blogs and websites written by atheists. You can find all the explanations you need for why a growing number of people decline to believe in supernatural entities, feel no urge to practice a religion, and scoff at the false virtue of faith. Even though people on both sides have been making essentially the same arguments for thousands of years, a lot of people want to keep it up. And working through those arguments is a good thing—for atheist beginners. Lots of people who abandon theism, religion, and faith come to that abandonment somewhat intuitively, or by noticing a small tear in the curtain of belief, poking around to see what lies on the other side, and seeing a surprisingly bright world out there. Those people need to familiarize themselves with all the arguments, mostly because they will need the security and satisfaction of being able to explain themselves to their religious friends and family, who will almost certainly try to bring them back into the fold, but partly because they need to assure themselves that they have not missed anything, that there really are no slam-dunk arguments for the existence of supernatural entities, the efficacy of prayer, the occurrence of miracles, or whatever.

But the imbroglio quickly becomes tiresome. Once you understand why you are not religious, why you do not believe in supernatural entities, why faith is an always-meaningless, sometimes-harmful exercise, then spending your time rehashing the arguments again and again is not an attractive prospect. “Can I just get on with my life?” you wonder.

Becoming an atheist usually means becoming a not-Christian or a not-Muslim or a not-whatever-you-were-before, unless you never “were” anything before. (Literally, an atheist is a not-theist, but we all know that pure theism does not exist in the wild. It’s always embedded in some form of religion.) But if you want to develop even further, you need to become a not-atheist, too. That’s not the same thing as a skeptic becoming a skeptic of skepticism, which would not really address the question that unthinking pedants love to ask: Why aren’t skeptics skeptical of skepticism? (Think about that.) And it does not mean you turn into one of those blithering fools who claims that atheists are fundamentalists, too.

Becoming a not-atheist also does not mean that you stop criticizing the foolishness of theism, religion, faith, and all of that. It only changes your conceptual center, the place from which you exercise your skepticism, perform your analysis, and issue your criticism. Foolishness is still foolishness, but it stands or falls on its own, not because it compares unfavorably to something else. Religion is not bad because irreligion is better; if religion is bad, then it is bad for its own concrete reasons, which make sense without regard to your personal views about faith or belief or supernatural entities.

Here is a political analogy: If you are a liberal, you can criticize conservative ideas for not being liberal enough (or vice versa) and no one will perceive any problems with your positions. While there may be objectively good political ideas, most people who stop to think about it understand that, in many ways, a conservative is rightly defined as a not-liberal and a liberal is rightly (or leftly?) defined as a not-conservative, and the underlying ideological differences are essentially a matter of choice. Surely specific ideas promulgated under the banner of either side may stand on their own functionality or internal consistency, or fall on the lack of those qualities, but no true partisan will abandon the party because it had one stupid or problematic idea. Changes in allegiance are just changes in personal political ideology. And it’s difficult, if not impossible, to live in human society without having some political views because politics is about addressing the problems that inevitably arise when people live in society with each other. You might try to stake out a new set of political views that deviate from the established political spectrum, but to be a member of human society without any sense of how politics ought to work is probably an insurmountable contradiction.

Despite what some people claim (see the “atheism is a religion” crowd), the same is not true for theism, faith, or religious beliefs. Being human does not require a position on the existence of supernatural entities or their alleged participation or interest in human affairs. There is no voter registration for theism, religion, or faith. No one will come to your house with a questionnaire and say, “Now, look, either you do believe in supernatural entities or you do not, and there is no ‘decline to state’ box on this form, so just pick one and I’ll be on my way.” The “atheism is a religion” crowd would have us believe that no matter your outlook, no matter how you go about your business each day, you have some conceptual or emotional relation to the proposition that there are supernatural entities who participate, or are at least interested in, what you and all the rest of us are doing. In a limited way, they have a point: so long as you express your views as being “I do believe” or “I do not believe,” then we have to argue about what this “belief” stuff is, and the debate, with all the same, repetitive, pointless arguments will never, ever end. People will keep spending their time and energy and emotional resources fighting the same battles over and over and over.

But you can go about your business without ever worrying about whether you believe. I have done just that for quite a long time now. Life presents plenty of other problems, conundrums, and mysteries to occupy thoughts and provide for deeply satisfying contemplation. Consider the question: What is life and why does it matter? It spawns plenty of other questions: Who is asking? Why? Matter to whom? What if it doesn’t? None of those questions naturally suggests either the existence or the nonexistence of a supernatural entity.

And unlike political ideologies, religion, faith, and theism themselves, not just some of the ideas that people have while claiming adherence, can be made to stand on their own two feet or fall under the weight of their problems. There is no reason why anyone must assume from the beginning that religion, faith, or theism is or is not a good thing before performing a thorough examination. Just as scientists differentiate between philosophical and methodological naturalism, people who want to examine their religion need not make assumptions about their conclusions before diving into the problem. In fact, lots of formerly religious people, including this one, will tell you that their problems with religion, faith, or theism arose only after an examination prompted by a desire to shore up their beliefs. That is, lots of people abandon religion, faith, and theism not because they simply wake up one morning, assume that supernatural entities do not exist,  and go on the attack—as though an atheistic virus had invaded their minds overnight—but because they wanted not only to believe, but to understand their beliefs. They began not with the philosophical assumption of atheism, but with a methodological desire for clarity.

In a sense, then, a lot of atheists really begin their journey out of religion as not-atheists. Only when they find themselves at odds with their former friends and allies, struggling to explain the results of their searching to people who cannot or will not comprehend the possibility of abandoning a religious, faithful, or theistic framework, do they embroil themselves in the tiresome battle of repetitive argumentation. I suspect that this may be exactly what the religious, faithful, and theistic people want. As Harris suggests: “It’s as though, before the debate even begins, our opponents draw the chalk-outline of a dead man on the sidewalk, and we just walk up and lie down in it.”

The entanglement of religion and irreligion, theism and atheism, belief and unbelief obscures reality more than it reveals anything. While people are busy arguing about whether God exists and takes an interest in human affairs, we cannot just put those human affairs on hold until we have a definitive answer. I have heard lots of religious people suggest that I should spend some period of time in prayer, turning my thoughts to God, and in that time the existence of God will be revealed. (And I suppose that, by that method, one could employ the known cognitive biases of the human mind to stimulate sincere belief in just about anything. Spend a month imagining that your cat is communicating with you telepathically and you will probably find yourself believing that, too.) So I propose to them, and to other unbelievers, atheists, and irreligious people, that spending a month completely ignoring the question of whether God is there or takes an interest in what you are doing will reveal the refreshing insight you may actually enjoy your existence more when you pay attention to what you’re actually experiencing and stop worrying about what other people are thinking.

According to Snopes, there’s an email going around in which the anonymous author complains that President Obama, after telling corporate CEOs that “[y]ou can’t get corporate jets, you can’t take a trip to Las Vegas or go down to the Super Bowl on the taxpayers dime,” nevertheless had no problem with his wife and daughters doing some sightseeing in London with “[m]otorcycle outriders, armoured Chevrolets and bullet-headed men in raincoats.”

Michelle [Obama]’s motorcade shut down the London street above as the First Lady of the World and her children go for Fish and Chips at a pub in Mayfair. The entourage inside the restaurant was 15 people while dozens more wait outside. Include the dozens of Air Force personnel to fly and service the plane, embassy personnel and other staff and we are talking about a serious expenditure of tax payer dollars.

The response from Snopes does little more than confirm that these events actually occurred and note the statement from the first lady’s spokeswoman that “[t]he Obamas are committed to following all relevant rules and regulations regarding the reimbursement of travel expenses.”

But the complaint in that email merits another response. Because of security concerns, the President of the United States and his family are constantly enclosed in a protected zone and surrounded by security personnel—what the writer of the email blithely calls an “entourage.” Everything the first family does occurs inside that zone, which surely costs an enormous amount of money to maintain. Their mere presence is expensive to the taxpayers. The first family just staying at home watching television like ordinary middle Americans costs the taxpayers a bundle.

So complaining that stopping off in London for a few days with all these added expenses is somehow hypocritical entirely misses the point: if you want taxpayers to avoid the high cost of presidential family activities, then your complaint should be directed at the maintenance of that 24/7 security bubble. Otherwise, you’re essentially saying that, since everything the first family does is so expensive, they should not get to do anything. In other words, get yourself elected to the highest office in the land and your family should be imprisoned in the White House. But that’s ridiculous.

Anyway, Snopes usually does a good job, but in this case I think they left out an important detail.

Here is Jeff Sessions, Republican senator from Alabama, on Fox News, talking about the confirmation hearings for Judge Sonia Sotomayor (flabbergasting bits in boldface):

I think in the American system of justice, a judge takes an oath to be impartial between the rich and poor alike. She’s made a series of speeches that are extraordinarily troubling to me, just flabbergasting, really, over a decade, in which she says that a judge’s own personal feelings and background, even their prejudices and sympathy will affect how they rule. And to me that is unacceptable. It’s also consistent with the liberal activist view of the judiciary that judges can push the law and there’s no real firm meaning in the law—she’s made words to that effect—which suggests that they feel then free to make it say what they would like it to say, to effect a policy they believe in.

. . .

We need to know that this nominee is going to be fair, that will give each party a just day in court, and if not, if they can’t convince this committee, every senator, that she believes she must set aside her biases, her background, her prejudices, her sympathies and give objective judgments to each party before the court, they should not be confirmed.

The senator’s confusing misuse of pronouns (who exactly is “they” in that last sentence?) can be forgiven as a product of having to speak extemporaneously under the bright lights of a television studio. But how can he keep a straight face and claim to be flabbergasted that “a judge’s own personal feelings and background, even their prejudices and sympathy will affect how they rule”? Someone who used to be a practicing attorney should know better.

It’s hard to tell whether the senator is just playing politics or whether he really does have a tin ear for human nature. Either way, I’m not impressed.

Judges are human, which means they come with personal feelings, background, prejudices, and sympathies. It also means they are, probably by definition, incapable of being “objective.” But the messy humanity and natural subjectivity of judges is not an evil.

The law often is indeterminate, especially in cases that make it all the way to the United States Supreme Court. Even in the local superior court I have seen a surprising number of disputes where the law was, in my opinion, indeterminate. In those cases, a robot judge without feelings, background, prejudices, or sympathies would be useless. “Sorry, folks. No decision today, but thanks for filing. You’ll just have to fight this one out among yourselves. Better luck next time.”

We need judges to have a little messy humanity, partly because the law is written in words, which every writer knows are deceptively slippery when you try to say something clearly and unambiguously. The law is also written by people, for people, whose ideas about what should happen in court are hardly a rock of consistency. As I wrote a couple months ago:

Most people want justice for themselves, but they want the law applied to others. Law simplifies reality. Law says, “You can consider these things, but not those things.” But justice requires you to think about all those other things. We’re all intimately familiar with the mitigating factors that should result in justice for ourselves, but for others, we want everything simplified. You stole a loaf of bread? Criminal conviction for you! Don’t tell me why. Don’t tell me your family was starving. That doesn’t matter. Irrelevant! But if I stole a loaf of bread? Please, let me explain!

People often have different ideas about the best outcome in a dispute, but even when they agree that the law should govern, instead of their personal sense of fairness, the law may not provide as clear an answer as the one they desire. When things are not clear, when the law does not provide an answer, the judge needs to be able to fall back on the foundation of his or her humanity. That’s probably why 24-year-old law school graduates with no experience, even the technically brilliant ones, are not appointed to the bench. Intuition is the human key to overcoming legal indeterminacy—and that requires experience and background, which inevitably includes prejudices and sympathies.

Senator Jeff Sessions, who is an attorney admitted to the bar of the State of Alabama (and a onetime failed nominee to the federal bench), ought to know and understand all this. That’s why I wonder if he is just playing politics and pandering to constituents who don’t know better. But while that may be politically expedient, and maybe even fine for a senator who is not an attorney, it strikes me as wholly inappropriate for a person admitted to practice law. As someone with “insider” knowledge about the legal system in a prominent position within a society where most people are woefully ignorant about that legal system, senator Sessions ought to use his position to educate people about the court system. Instead, he goes on Fox News and says he’s shocked—shocked!—that judges are human beings whose personal baggage influences their decisions. Please.

Yes, judges should always strive to impartiality, and almost all of them do. (And the ones that don’t are probably in danger of losing their jobs.) But having background, prejudices, and sympathies is not the same thing as being partial, and they will never achieve untainted objectivity or leave their humanity behind when they take the bench anyway.

Complaining about “liberal activist” judges is an easy sport. Recognizing the complexity of law and the problems of actually judging real cases is much more difficult. Cultivating that understanding may not be helpful to the aspirations of an individual politician, but it would definitely be helpful to the betterment of society as a whole. A nation filled with people running around half-cocked with a bunch of simplistic ideas about the fundamental mechanisms of law—the glue that holds their society together—will have a hard time rising above petty squabbles to solve real problems.

Senator Sessions and other “insiders” to the legal system should spend more time trying to explain how our courts work and why and less time leading people along by the nose to shore up their own political power.

Yesterday I read Batlan v. Bledsoe (In re Bledsoe) and afterward couldn’t help but spend a long time thinking about marital property and the nature of law. Bledsoe is a bankrtupcy case, but it relates to marital property law in Oregon, which is not a community property state (as my state of California is). That may or may not be important.

Before I get to the part that really made me think, I should probably explain some of the basic legal doctrines in play, in case you are interested enough to be reading this, but not interested enough to enroll in a law school.

First, divorce. People generally accumulate property. They also like to marry each other. So no one should be surprised that people frequently marry each other and continue accumulating property. But everybody knows that people also get divorced, which generally means they want to go their separate ways and take all their accumulated stuff. So, naturally, the stuff has to be divided.

In community property states, like California, property accumulated by the spouses during marriage, which we call the “community estate,” with a few exceptions, must be divided equally between them when they divorce—also with a few exceptions. In other states, however, like Oregon, the property must be divided equitably, which is supposed to provide more wiggle room for judges presiding over divorce cases. There are other methods of division, depending on the state and the history of its marital property laws, but the important thing to remember is that when people divorce, their stuff has to go somewhere.

Now, bankruptcy. Under the Bankruptcy Code, which is a federal law, not a state law, when a person files a bankruptcy petition, a trustee is charged with gathering up the “bankruptcy estate.” The bankruptcy estate includes everything the debtor (the person who filed the petition) owns, with some exceptions and exemptions. In cases under chapter 7 of the Bankruptcy Code, also known as “liquidation” cases, a big part of the trustee’s job is to sell everything in the bankruptcy estate and use that money to pay off creditors of the debtor. The more stuff the trustee can sell, the more the trustee gets paid, which means the trustee has an incentive to scoop up as much property into that bankruptcy estate as possible.

Congress has given bankruptcy trustees a lot of power. For example, the trustee can look back through the period covering two years before the bankruptcy petition is filed and root out “fraudulent transfers.”  There are a couple ways to make a fraudulent transfer: by transfering property to another person with the intent to “hinder, delay, or defraud” a creditor, or by transfering property for less than a “reasonably equivalent value.” If the debtor made such a transfer while insolvent, or the transfer made the debtor insolvent, or the debtor intended or expected to incur debts beyond his or her ability to pay, and in a couple other circumstances, the trustee can “avoid” that transfer by filing a lawsuit against the person who received the property and demanding return of the property, so it can be included in the bankruptcy estate. The idea is that we don’t want people going out and transferring all their favorite assets to Cousin Joe, filing for bankruptcy to have their debts wiped out, and then getting their stuff back from Cousin Joe and going along their merry way while their creditors get shafted.

The trustee can also avoid transfers that are “voidable under applicable law,” which includes transfers that would be void under state law.

With all that in mind, here is what happened in Bledsoe. Husband and wife lived in Oregon. Husband filed for divorce. Wife refused to participate in the proceeding, so the court could not have “a meaningful trial” to determine how to make an “equitable division” of their property. In the procedural equivalent of throwing up its hands in frustration with an intransigent litigant, the Oregon court just decided to treat wife like a defaulting defendant (i.e., one that doesn’t bother to show up at all) and enter a default judgment of dissolution. Husband received a lot of property, but wife received very little. The trustee in the later bankruptcy action said that husband received stuff valued at $93,737, while wife received stuff valued at only $788. (Note: This is why it is never a good idea to ignore court papers or fail to participate in a lawsuit in which you are a party, including a divorce case.)

Not surprisingly, since the vast majority of bankrupcty petitions filed by ordinary people are the result of being decimated by a divorce or unexpected and uninsured medical expenses, about a year after the divorce judgment, wife filed for bankruptcy.

Maybe you see what’s coming. The trustee, trying to beef up wife’s bankruptcy estate, looked back over the past two years and saw this divorce judgment. Poor husband, who was probably glad to escape from a non-starting divorce case with a sizable chunk of assets, suddenly found himself at the defendant-y end of a lawsuit filed by the trustee. The trustee made two arguments. First, either the hugely unequal judgment violated the Uniform Fraudulent Transfer Act in Oregon law, or it was a fraudulent transfer because wife did not receive “reasonably equivalent value” for her property claims in the divorce case. (He did not argue that wife intentionally obtained an unfair judgment with the purpose of hindering, delaying, or defrauding her creditors.)

The bankruptcy court disagreed, so the trustee started up the appellate ladder by seeking review from the federal district court. It also disagreed with the trustee, so he took his argument to the 9th Circuit Court of Appeals.

The 9th Circuit affirmed the lower courts in a short, well-written opinion. First, the divorce judgment cannot be attacked under state law because Oregon requires a showing of “extrinsic fraud” to attack a judgment, even when the attack is based on the Uniform Fraudulent Transfer Act. In the unhelpful words of the Oregon Supreme Court, quoted by the 9th Circuit, “Extrinsic fraud consists of collateral acts not involved in the fact finder’s consideration of the merits of the case.” In real life, extrinsic fraud means doing something dishonest to keep another person from asserting his or her rights in court. Nobody in Bledsoe believed that husband did anything like that in the divorce case, so this argument went nowhere.

Second, the 9th Circuit held that an unequal division of property in a divorce is not a fraudulent conveyance so long as it follows “a regularly conducted contested proceeding”—which includes a default judgment entered in a divorce where there is “no suggestion of collusion, sandbagging, or indeed any irregularity in the dissolution proceedings.” In other words, the federal bankruptcy court does not get to swoop down from on high and reexamine the judgments of a state divorce court.

That’s all well and good, but you may be thinking what Justice Diarmuid O’Scannlain was thinking: Wait, how is a division of property in a divorce a transfer at all? In his concurring opinion agreeing with the result but not the reasoning of the majority, he wrote:

In this case, the debtor, [wife], received an award from the Oregon court judgment that dissolved her marriage to [husband]. That was the “property received.” But what was the property transferred, and who owned it before? In a sense, the married couple once owned the entirety of the marital res [which is just Latin for "thing" or "object"—"the marital res" is "the marriage," sort of the way a corporation is a "legal person," but in a property sense instead of a "person" sense], over which [wife] no longer had any claim; but, of course, the married couple no longer existed after the divorce. Thus, to speak of a transfer fits uncomfortably with the reality of what happens in a divorce proceeding.

I believe it makse more sense to say that both spouses owned the property before dissolution, but that, because they were getting divorced, the dissolution judgment assigned the assets of the marital res to each spouse individually as the state court found to be equitable. That is to say, a dissolution judgment determines, for the first time, what each spouse owns on an individual bases. Therefore, the debtor ex-spouse does not transfer or receive anything, because there is no transfer for fraudulent conveyance purposes. A divorce court simply determines that, in equity, each ex-spouse owns a certain share of the marital res.

In footnote, O’Scannlain also points out that, under Oregon law, a judgment in a marital dissolution case is “a partitioning of jointly owned property.” “In other words,” he continues, “the married spouses jointly owned the whole, but after divorce individually own only a part. . . . Because the partition is equitable and therefore not always 50/50 . . . it is unclear ex ante [Latin for "beforehand"] how much each spouse owns individually. The dissolution judgment answers that question.”

That got me thinking about California law. We have a community property regime, which Oregon does not, but do the property divisions in our divorce judgments follow the same or a similar theory? Here is how the California Court of Appeal for the Fourth Appellate District explained our system in In re Marriage of Hillerman (1980) 109 Cal.App.3d 334:

The interest of each spouse in the assets of the marital community [is] “present, existing and equal” during the continuance of the marriage. Upon dissolution each spouse possesses an equal and absolute right to one-half of the community property. The division of community property by the court merely distributes that which each party already owns by virtue of the marriage relationship.

Same thing? In context, because of the precedent relied on by the majority in Bledsoe, Justice O’Scannlain was concerned with comparing the function of the court in a judgment of dissolution to the function of a foreclosure sale. A foreclosure sale, he points out, has the function of “value discovery,” or determining how much money the property is worth, while a property division in a judgment of dissolution is about ownership, not value. That is probably still true in California, even with our equal-division rule, but it often doesn’t seem like that in practice, when divorce cases often require value determinations and appraisals before the court can make an equal division.

But the problem of spouses’ ownership rights against the marital res or the community estate snaps to the fore when you file a petition for dissolution of marriage in California. As soon as you get that petition served on the opposing party, several “automatic temporary restraining orders” spring into effect, and one of them prevents either party from “transferring income and or concealing or disposing of any property real or personal whether it be community or quasi community or separate property without the other parties written consent or Court order except in the usual course of business or for the necessities of life.” That restraining order makes a lot of sense: we don’t want a sudden free-for-all, with each spouse running around and snatching up assets to keep them from going to the other one.

Aside from the practical value of the order, however, the underlying theory is interesting, too. If both spouses have “present, existing, and equal” interests in the community estate during the marriage, but only by virtue of their being a married couple, then, as Justice O’Scannlain points out, once they separate and cease being a married couple—because even though legal marital status is not terminated until after the judgment is entered, “the marriage” ends on the date of separation—then that community estate is left hanging out there without a clear owner. The former spouses are now outside the marriage, even though they still do not have the legal status of “unmarried individuals,” so their property claims against the community estate become what I suppose might be called “unliquidated claims,” or claims without a specific value. That would seem true even though we require an equal division in California because we don’t typically just divide every individual asset in half. We generally have to determine the value of each asset, then see if we can divvy up the assets equally, sometimes with one person receiving more stuff and then being ordered to make an “equalization payment” to the other spouse to make up for the excess. A spouse may not know from the outset exactly how much he or she will receive in the final division of property. Saying that his or her share wil be “equal” to that of the other party does not mean much.

But then wouldn’t that mean a judgment of dissolution adjudicating those claims and dividing the marital property be a determination not just of ownership but also of value? While Justice O’Scannlain makes a persuasive argument that divorce judgments are about ownership, not value, I am not convinced the theory is bulletproof. (He may not be, either.)

None of this really matters in practice, either for dissolving marriages or for deciding avoidance actions in later bankruptcy proceedings. But the fact that what seems to me like theoretical indeterminacy in the law does not prevent a court like the 9th Circuit coming to what is clearly the right result is, in my view, evidence that “law” does not “go all the way down.” By that I mean that it may be impossible to come up with a consistent, unambiguous set of rules that can be reduced to—or derived from—any universal, underlying principles. We can only do what works. Meanwhile, creative people like the trustee in Bledsoe will always probe the deep waters of legal theory looking for uneven spots to grab hold of and anchor. It’s a fascinating process.