Thursday, April 27, 2017

Shakespeare and Legal Positivism

            Despite his limited formal education, Shakespeare’s works display a great deal of legal knowledge.[1]  As a part of Shakespeare’s vast imaginative universe, his storylines and characters help us (among countless other things) to analyze the command form of legal positivism, a form of legal positivism holding that laws are commands of sovereigns backed by threats of punishment. Various scenarios in the plays help us see how such an approach cannot succeed.  As I plan to show in subsequent blogs, Shakespeare also: (a) beautifully lays out arguments for natural law only to demolish them; (b) centuries before Holmes formulated his prediction theory of law (the theory that the law is a set of predictions as to how the courts will act in certain circumstances), Shakespeare penned plays that help us see how such theory fails; and (c) Shakespeare otherwise gives us insightful bits and pieces from which we might begin generating a workable jurisprudence complying with the semiotics of law and its inherent restraints.[2]   In this first of four planned blogs (all four of which draw from my longer article Let’s Skill All the Lawyers), I’ll briefly explore the command theory form of legal positivism using insights from Shakespeare.

Monday, February 27, 2017

Neil Gorsuch? Originalism and the Ten Commandments

Current Supreme Court nominee Neil Gorsuch claims that judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be ....” On its face, this is at best an odd claim. Laws are generally forward looking in their desire to govern future behavior. And even if we could always focus back to determine legal meaning, why would we want to disconnect meaning from ongoing life in such a way? Why, for example, should the absence of email in George Washington’s day mean our modern use of email isn’t covered by our modern notions of “speech”? Excluding email from “speech” today would be silly and we have refined “speech” to include email in both law and in life. Of course, if we refine meaning for “speech” and “email,” why shouldn’t we do the same for other things in other contexts as they change with time? It’s hard to see how Originalism’s odd backwardness isn’t fatal from the outset.

Wednesday, February 15, 2017

Tuesday, February 7, 2017

Rethinking The Elect

                            The Elect

Take that long-suffering slave:  if she instead
Were master, could descent dissent and shed
Vile arrogance slaves shirk and in its stead
Renounce the life that life inherited?

Take that starved, broken pauper:  if instead
Of life so harsh he often would be dead
He had a fuller purse, was fuller fed
Would he have known to offer paupers bread?

Take that queer soul who's “different”:  if instead
He'd turned out “normal” would he think a dead
Queer's better than a live one, too, and spread
Intolerance majorities have bred?

Is this not Grace?  Spared from such tests as these,
Has God not favored his minorities?

In a time of Trump when I fear many devalue diversity and many more do not see the frequent grace in minority, struggle, and lack of material wealth, I highlight this poem from Charms and Knots.  I also highlight the poem for a time when many no longer appreciate the endless powers of formalist verse.  Apart from the inherent power of sonnet form, twelve same-rhymed lines followed by two fresh rhymes actually participate in the grace and rarity of difference (indexical expression of the point to use Peirce's terminology).

Sunday, February 5, 2017

Ekphrasis & Prose: Sonnet Translations of Poe & Hawthorne

I sometimes wonder whether a prose piece should have been verse from the outset.  Could the deep meaning have been more effectively captured and conveyed by poetic form than by prose?  I've wondered that, for example, in the case of Poe's "The Mask of the Red Death."  With no illusions that Poe's sonnet wouldn't have been much better, here's a concrete example of what I mean: 

Shadow After Poe 

We noticed there was pestilence about.
We played instead of passive victim an
Aggressive agent capable of plan
And execution.  In, we locked it out,

A simple action, really, which we sealed
With weighty velvet curtains drawn across
An iron door bolted tight.  “Our gain, Hell’s loss!”
We toasted with good bourbon and were steeled.

“God helps who helps himself,” we boasted till
We saw a shadow by a comrade still
And cold throughout the reverie.  It hid

As quick within the heavy draperies.  Did
Drink fool?  No.  Oh, no fancy has composed
Such vast lost voices in a single ghost.

I've also wondered the same about individual passages in longer works.  Here, for example, is a bit of Hawthorne's The House of The Seven Gables set to sonnet form:

Tuesday, January 31, 2017

Originalism and the Fall of Icarus

Well, here we go again. With Neil Gorsuch as the current Supreme Court nominee, once more we hear praises of “originalism” as a judicial interpretive philosophy. As Gorsuch puts it, judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” Since law generally looks forward to govern future and not past behavior, and since context drives meaning in much more complex ways than Gorsuch’s words suggest, I’m amazed that people take this backward-looking and overly-simplistic philosophy seriously. I’ve written at length about the problems with such an approach but now also wonder if an old painting might more quickly dispatch such error.

Saturday, January 14, 2017

Iconic Translation & Interpretation of Text

I wanted to share a couple more slides and comments from my new Meaning & Interpretation course.  

This painting by Magritte first appears to be nonsense.  It pictures a pipe but in the print below says "This is not a pipe."  Despite first appearances, however, this initially-apparent nonsense succinctly presents several basic issues facing lawyers using and interpreting text.  I could go on at length but will limit myself to eight brief points. First, why do we consider this as one "text" instead of two?  Why aren't the iconic signifier of the pipe and the symbolic word signifiers entirely separate messages?  We can have, for example, two unrelated poems on the same page so why can't these be separate expressions?  Taken this way, there is not necessarily a contradiction since "This" might then refer to something else. Second, doesn't this first question demonstrate the naivety of overly-simple textualism which simply assumes that texts are merely given and require no interpretation in determining what constitutes the text to be interpreted in the first place?  Third, and along this same line, why not say that "This" refers to the sentence itself and not to the icon? Then of course we have no problem since the sentence truly is not a pipe.  Fourth, should we take it as a basic rule of interpretation that we should read things if possible in non-contradictory ways?  If so, does this mean we should read "This" to refer to the sentence and not the pipe?  But why should we do this--what if Magritte wanted to express mere nonsense?  Fifth, as one of my students has suggested, why assume that "Ceci" means "This" rather than, say, the name of Magritte's dog?  If that is so, then again there is no gibberish here.  Sixth, another student has wondered whether this is a perfectly consistent swipe at ordinary pipes of the type depicted.  Perhaps the message is a snobbish one that "real" pipes are much more expensive and ornate than this simple version.  Seventh, there's always of course the possibility of scrivener's error though "n'est pas" seems an awfully big fumble from "est."  Eighth, I think the work shows how pictures often trump words as signifiers.  If we take the two parts to be in conflict, won't most people "believe their eyes" instead of the words?  Isn't one lesson here that lawyers are better off introducing into evidence pictures of their client's damaged car rather than relying on their clients' testimony alone? 

William Blake's famous illustration generally called "Pity" also provides a fascinating subject for those interested in semiotics, translation, and interpretation.

The work is an iconic (picture) translation of five symbolic (word) lines from MacBeth that I've added above.  Are Blake's images (which can also be non-word symbols) acceptable if not even better signifiers of the message signified by Shakespeare's words?  In asking this, do we evaluate Shakespeare's words and Blake's images on their own and then compare them or do we combine both approaches for a deeper understanding of Shakespeare's message?  For example, doesn't "new-born babe" imply the mother Blake pictures but which Shakespeare omits? Or does Blake's translation effectively change Shakespeare's message by expressly setting out what Shakespeare left unstated?  Or perhaps worse, does Blake actually mistranslate Shakespeare?  Should the horses eyes be closed?  Does Shakespeare use "sightless" to mean that the winds are blind?  Or does he mean that the winds are invisible as Leo Damrosch or Johnson have suggested?  If so, why should any mentioned horses be blind?  To me at least, these are fun and fascinating questions for those honing legal and semiotic skills. And why shouldn't the study of law and semiotics be fun and fascinating?

Wednesday, January 11, 2017

Messing Around With Rene Magritte

Thought I'd share a playful slide from my new legal interpretation course.  The course begins with a brief overview of semiotics.

Saturday, January 7, 2017

Two Performance Review Mantras (“Mercy and Truth Are Met Together; Righteousness & Peace Have Kissed”)

I. Mantra For Myself

I smile if I have shown a light.
I smile if I if I have aimed at right.
I smile if I have done my best.
Imperfect, I’ve no other test.

II. Mantra For Others

I smile if they have shown a light.
I smile if they have aimed at right.
I smile if they have done their best.
Imperfect, they’ve no other test.

Saturday, December 31, 2016

Toilets, Trials, and Tolls: Cleaning Up After Pat McCrory

As Pat McCrory leaves office, read here some of my thoughts on the strengths of the North Carolina Constitution and its ability to help our new governor Roy Cooper begin to repair the damage done to North Carolina by McCrory and McCrory's party.

Saturday, December 10, 2016

Wake Forest Law Review Publishes "Revisiting Langdell: Legal Education Reform & The Lawyer's Craft"

The Wake Forest Law Review has published its 2015 Legal Education Reform Symposium volume entitled Revisiting Langdell: Legal Education Reform & The Lawyer's Craft.  The volume can be purchased here and I hope it will make a positive difference in legal education reform. 

My introductory article in the volume highlights longstanding, substantial damage Christopher Columbus Langdell has inflicted on law schools and legal education. Much of this damage stems from three of Langdell’s wrong and counterintuitive notions: (1) law is a science of principles and doctrines known with certainty and primarily traced through case law; (2) studying redacted appellate cases is “much the shortest and best, if not the only way” of learning such law; and (3) despite Langdell’s own roughly fifteen years of practice experience, practice experience taints one’s ability to teach law. I briefly highlight problems with, and harms resulting from, each of these wrong notions. Among other things, I briefly explore: (A) contradictions, oversights, and wrong assumptions in Langdell’s views; (B) how the very meanings of “theory” and “practice” reject Langdell; (C) how the necessary role of experience in meaning itself rejects Langdell; (D) parallels between Langdell and unworkable Cartesian dualism; and (E) how the necessary role of framing in the law rejects Langdell. I also briefly survey some remedies suggested by reason, experience, common sense, and modern cognitive psychology. These include rejecting the redacted appellate case method as a primary mode of instruction, recognizing the necessary fusion of theory and practice, recognizing the need for practice experience in law professors, recognizing the embodied nature of meaning and the resulting role of practice and simulation in good legal education, embracing the humanities (including classical rhetoric) in legal education, abandoning meaningless distinctions such as distinctions between “doctrinal” and “non-doctrinal” courses, and abandoning “caste” systems demeaning those with law practice experience and elevating those who lack such necessary experience.  My introduction can be found here.

Friday, November 18, 2016

Pat McCrory Should Think Twice Before Trying To Pack The North Carolina Supreme Court

In this month’s North Carolina Supreme Court elections, Democrat Michael Morgan soundly defeated Republican Robert Edmunds thereby shifting control of the Court from Republicans to Democrats by a margin of one. With no Court vacancies “currently occurring” which Republican Governor Pat McCrory could fill to shift control back to Republicans, rumors are afoot that Pat McCrory will soon call a special session of the North Carolina General Assembly where the General Assembly will “create” two new Supreme Court “vacancies” for McCrory to “fill” with Republican justices. If this is true, it would not only be a stunning rebuke of democracy. It could well be unlawful under a best reading of the North Carolina Constitution.

                                                     Click here for remainder of post

Sunday, October 2, 2016

Blake Within Blake Within Blake Without End

As I have written before, the great William Blake magnificently employed signs beyond mere words in his poetry.  His powerful illustrations of verse add much additional meaning to his work.  As I have noted before, his symbols such as words are greatly supplemented by other types of signs such as the iconic signs of his drawings.  He applied these same principles in reverse in his great illustrations of the verse of other poets such as Thomas Gray and Edward Young.  Such illustrated verse injects blocks of symbols within Blake's icons, and it can be fascinating to replace these blocks of others' symbols with additional iconic expressions by Blake himself.  Blake's illustrations repeat common themes and can build on each other in such fascinating exercises.  I think Blake would enjoy seeing others doing this with with his icons, and I would enjoy seeing how others might attempt the endless possibilities of such substitutions.  For example, in the illustration above I have replaced Gray's verses about the "Stern Rugged Nurse" with one of Blake's illustrations of Urizen, the severe god of reason who traps the imagination with his compasses and strict categories.  The compass in fact is an awful symbol for Blake.  It's no accident that the "Stern Rugged Nurse" has one in her hand just like Urizen.

Sunday, September 25, 2016

Beyond Words Alone: Poets as Artists of the Intentional

In his wonderful The New Book of Forms, Lewis Turco tells us that poets “focus on mode, on language itself.”  Focusing on language, a poet in Turco’s view is therefore an “artist of language; his or her concentration is upon the language itself.”  Taken this way, “[p]oetry can thus be defined as the art of language.”

Though these definitions of poets and poetry are correct as far as they go, they do not go far enough. Poets are artists of the intentional; they are artists using signs that point to things beyond the signs themselves.  Since words are not the only signs, why should poets limit themselves to words?  Using C.S. Peirce’s terminology, there are in fact three kinds of signs: symbols (arbitrary signifiers such as words), icons (signifiers such as paintings that resemble what they signify), and indexes (signifiers like photographs or weathervanes that participate in what they signify).  In the realm of symbols, why should poets limit themselves to words?  In the broader realm of signs, why should poets ignore icons and indexes?  They should not of course, and William Blake gives us excellent proof.   

Saturday, September 17, 2016

Five Billion Dollar Pat McCrory


Click here for full blog.

Wednesday, August 3, 2016

Cognitive Emotion and the Law

Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.”

Friday, July 29, 2016

Fourth Circuit Strikes Down Discriminatory Provisions of Gov. Pat McCrory's North Carolina Voter Suppression Law

The Fourth Circuit Court of Appeals has struck down provisions of Gov. Pat McCrory’s “omnibus” election law requiring photo identification in form blacks are less likely to have and requiring changes to early voting, same-day registration, out-of-precinct voting, and preregistration all in ways carefully calculated to adversely affect black voters.  The full text of the opinion merits careful reading and can be found here. The bill’s “almost surgical precision” (the Court’s words) in disenfranchising black voters should shock everyone’s conscience regardless of party affiliation.

Though highlights of the opinion are no substitute for reading the entire opinion, I realize not everyone will have time to read the entire opinion.  I therefore have redacted some of the critical language and insert it below in the order appearing in the opinion.  I have omitted or shortened internal citations and have bolded certain provisions that seemed particularly important to me.  Although this is no substitute for reading the opinion in full, here goes:

Wednesday, July 6, 2016

The "Fix" Is In: Tweaking House Bill 2 (And Workers, Too)

The North Carolina legislature recently passed legislation partially restoring state-law employment discrimination claims eliminated by House Bill 2. Here is what the partial "fix" restores and what it cuts back. The partial "fix" did not address other matters in House Bill 2 that I previously covered in McCrory's House Bill 2: A Brief Outline of Its Five "Parts." It thus does nothing to address moral and other issues raised by those parts. 

Sunday, June 26, 2016

The Brexit Vote Was "No" Not "Yes"

In any reasonable sense of a "federal" referendum, the United Kingdom did not vote to quit the European Union.  (I put "federal" in quotes because I know that the United Kingdom is not a federation in the American sense.  However, I use the term because I believe that the United Kingdom must figure out a workable federalism if it is to survive.)

Tuesday, June 21, 2016

Langdell Defends Langdell With A Villanelle (An Addition To "The Apology Box")

Though I've gone after Langdell several times in prose (Exercising Common Sense, Razing Langdell, and Days of Auld Langdell), I've not attempted it in verse till now.  The Villanelle seemed a good form and I felt he would speak of himself in the third person were he writing it.  Of course, even in the more polished form of a villanelle, I still disagree with Langdell's thoughts on casebooks, experienced teachers, law's nature, and more.  Law is not a certain science.  Law practice experience makes better, not worse law professors.  Theory is blind if separated from practice.  Practice is empty without theory.  Law schools are therefore elevated rather than "dumbed down" by teaching practice and theory both.  The hypocrisy of Langdell's practicing for fifteen years while saying practice taints is of course not lost on me either.  I couldn't bear including a photo of the man so I have instead substituted a page from his infamous contracts casebook.

Wednesday, June 15, 2016

How the "Ten" Commandments Refute Originalism & Fundamentalism (With Some Help From Herod, Caiaphas & Ahab's Additions to "The Apology Box")

Conservatives often like to claim that texts speak for themselves.  A review of the Ten  Commandments is an easy way to see how such claims are false.  First, such a review nicely shows that we must interject our own judgment even before we start reading a text because we first have to decide what the text is.  When we look for "Ten" Commandments in the Bible, we won't find such a neat list.  Instead, we'll find two places in the Bible (Exodus 20:1–17 and Deuteronomy 5:4–21) which support such a list though we could come up with a different number depending on what we expressly include (for example is not bowing down to other gods included in not putting other gods first or is it a separate command?) and depending upon how we group what we find.  The number 10 is thus in that sense arbitrary.  

Second, once we've used our judgment as to the content and number of the list, reading the commandments still requires much interpretation.  For example, read literally they say that we cannot kill.  That would mean we could not cut down a tree much less kill a wild beast attacking us.  Of course, no reasonable person would take these words that literally and thus no honest person who is reasonable would claim we don't have to use our minds and hearts when we read a text.  Instead, what we generally want to do when reading the words of others is to figure out what the speaker meant by those words.  This involves engaging in what philosophers of language call pragmatics, a topic that I have written about elsewhere.  Have Ahab, Herod, and Caiaphas really tried to understand and follow speaker meaning in the poems that follow? 

Third, the Ten Commandments also remind us of another wrinkle in cross-language cases.  The Commandments are in an ancient language that most of us cannot read.  We must thus rely on translations, and translations also involve judgment and often are erroneous or questionable at best. Anyone who tells us that we can and should take a translation literally and without question is thus wrong on multiple levels.

Judas & Pilate Defend Themselves (Additions to "The Apology Box")

Monday, June 13, 2016

Anselm's Short Ballade (An Addition to "The Apology Box")

Five Warriors: Hannibal, Charlemagne, Roland, William the Conqueror, & Henry V (Additions to "The Apology Box)


Three Religious Warriors: Richard I, Saladin, & Charles Martel (Additions to "The Apology Box")

Three British Ghosts: Geoffrey of Monmouth, Henry II, & Thomas Becket (Additions to "The Apology Box")