Wednesday, September 19, 2018

Making Good Sense: Pragmatism’s Mastery of Meaning, Truth, and Workable Rule of Law

Here is the abstract for my latest article forthcoming in the Wake Forest Journal of Law & Policy. In the article, I try to take a middle path between two types of error plaguing present times: "post-truthism" and formalism.


The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning,  (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities,  (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (6) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts.

Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules.  Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language.  Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact.

In addition to countering formalist error, such hermeneutic pragmatism thus timely counters troubling “post-truth” claims in certain segments of government and society. For example, The Washington Post tells us that President Trump is “known for trafficking in mistruths and even outright lies;” that “The president often seeks to paint a self-serving and self-affirming alternate reality for himself and his supporters;” that, through May 31, 2018; “Trump had made 3,251 false or misleading claims in 497 days--an average of 6.5 such claims per day of his presidency;” and that  Donald Trump, Jr. has posted poorly-doctored images making “his father’s Gallup presidential approval rating look [ten points] higher than it actually is” while claiming “I guess there is a magic wand to make things happen and @realdonaldtrump seems to have it.”  Additionally, the President’s attorney Rudy Giuliani has expressly claimed that “Truth isn’t truth.” Competent and ethical lawyers must of course reject such mendacity.

("Sense" in the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article.)

Saturday, May 19, 2018

Addition to Strings of Thought 5-19-2018

                               To Gadamer

Though eye must squint, eye must explore the bird
Who plays at the horizon of the word,
Whose far tints flash, far notes lag as it hops 
Beyond and back from where the language stops.

For the entire "Strings of Thought" as it currently stands, see here.

Saturday, March 24, 2018

Why Legal Writing Is "Doctrinal" and More Importantly Profound

It is high time that we end the disparate treatment of legal writing professors and the use of such disparaging labels as "non-doctrinal" for the profound and essential subject matters which they teach. It is also high time that we reject the absurd Langdellian notion that practice taints scholarship.  I discuss these points in more detail here.

Wednesday, February 7, 2018

Addition to "Strings of Thought" (2/7/18)

2/7/18 A legislative bill or other proposal isn’t simply a string of words on a page. Instead, a legislative bill or other proposal involves concepts (the signified) to which words (the signifiers) refer with varying degrees of precision.  Legislators debate the concepts signified and the signifiers as signifying such concepts.  Justice Scalia therefore oversimplifies how language works when he claims that “the only thing one can say for sure was agreed to by both houses and the President (on signing the bill) is the text of the statute.”  (Reading Law, p. 376) Justice Scalia oversimplifies here because any such text was adopted as part of a greater whole, as signifiers of concepts involved in the bill.  For example, a statute reading “All cars must drive on the write side of interstate roads” adopted by both houses of Congress and signed by the President no doubt likely means “All cars must drive on the right side of interstate roads.” It’s hard to believe that both houses and the President agreed on “write side” instead of “right side” of the road. I at least cannot “say for sure” that they did. Justice Scalia concedes the same by acknowledging what he considers “the rare case of an obvious scrivener’s error.” (Reading Law, p. 57)  In the real world, of course, obvious scrivener’s errors are hardly rare.

The entire text of "Strings of Thought" can be found here.

Tuesday, January 30, 2018

Addition to "Strings of Thought" (1/30/18)

Legislative Intent

1/30/18  Legislative “intent” lies in legislatures’ speech acts and not legislators’ speech acts.  That is, legislative “intent” is the speaker meaning of legislatures not legislators—confusing the two is a category mistake. For example, when the legislature adopts a rule requiring drivers to drive on the right side of the road, the legislature has performed a directive speech act adopting a rule to some end or purpose (such as changing driving patterns to enhance road safety).  When the legislature censures someone, it has performed an expressive speech act condemning someone for some end or purpose (such as discouraging future bad behavior on the part of public officials).  The different purposes (and the plans involved in such purposes) distinguish the different types of speech acts. Recognizing this distinction between legislature and legislator speech acts avoids pseudo-quandaries such as “How can we ever aggregate the subjective intent of countless legislators to determine legislative intent?” or “How do we include the intent of a legislator who votes for a bill for unrelated reasons?” Instead, we ask: “What is the objective bill or proposal (and the concomitant purpose or plan or both) properly adopted by the legislature?”  We also ask: “What are the objective concepts involved?” while acknowledging such concepts can have yet-to-be explored threads and extensions.

1/30/18 A legislature typically speaks best when it adopts a bill or other proposal (and any concomitant purpose or plan) after reasonable debate by legislators.   Although individual legislators’ speaker meaning in such debates can be highly relevant evidence of the legislature’s speaker meaning, legislators’ speech acts are not legislatures’ speech acts. 

The entire post of "Strings of Thought" can be found here.

Sunday, January 21, 2018

Addition to "Strings of Thought" (1/21/18)

Speaker Meaning

1/21/18 “Original” speaker meaning includes the unexplored.  Imagine I buy a netted device I categorize as “my hammock” before I unbox and see it.  On the next day, I unbox “my hammock,” count its strings, and note their makeup and weave. On the third day, I tie “my hammock” between two trees.  I broadly gauge its new shape when tied into the world. On the fourth day, I refine “my hammock’s” new shape:  it contradictorily resembles both a canoe and a crescent moon. On the fifth day, I wonder whether “my hammock” now qualifies as a bed and tentatively conclude that it does. On the sixth day, I lie down in “my hammock” and see interesting new views from its vantage point. On the seventh day, I rest with no hammock thoughts in my head.  The “original” meaning of “my hammock” thus casts a wide and variable net not captured from day one. Instead, day by day through day six, I have obtained fuller and fuller understandings of “my hammock” including how it intersects with (and provides vantage points to) the world to which it is tied.  Thus, any “original concept” signified by “my hammock” is larger than any “original conception” (or first-day conception) of something boxed and unseen, is larger than any second-day conception adding counted strings, their makeup, and their weave, is larger than any third-day conception of the hammock as tied, and so on.  Furthermore, for those seeking speaker meaning, any “original concept” and any preceding daily conceptions don’t sleep the seventh day.

The entire post of "Strings of Thought" can be found here.

Tuesday, January 2, 2018

Strings of Thoughts

Recognizing I’ll never have time to put in finished prose or verse all the things I’d like to explore, I’m starting some strings of thoughts unfinished as of the dates entered below.  I’d enjoy hearing others’ responses to any of the strings.

Thursday, December 21, 2017

Saturday, September 9, 2017

Speaker Meaning and the Interpretation and Construction of Executive Orders

Here is an abstract of my latest article posted on SSRN:


This Article explores the interpretation and construction of executive orders using as examples President Trump’s two executive orders captioned “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Two Executive Orders”).

President Trump issued the Two Executive Orders in the context of (among other things) Candidate Trump’s statements such as: “Islam hates us,” and “[W]e can’t allow people coming into this country who have this hatred.” President Trump subsequently provided further context including his tweet about the second of his Two Executive Orders: “People, the lawyers and the courts can call [the second of the Two Executive Orders] whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” 

Friday, September 8, 2017

William Blake's "Sun at His Eastern Gate"

William Blake's "Sun at His Eastern Gate:" Countless fascinations & possibilities wax daily for those who'll take the time to see and to imagine.

Tuesday, August 8, 2017

Tump World and "Promiscuous Devotion to the Untrue"

An interesting read.  I plan to write an article on two forms of postmodernism covering as well the genealogies of both forms from pre-modernism and then modernism.  I believe the sustainable form of postmodernism which pushes back with experience and social pressure will ultimately overpower the other insidious "anything goes" form of postmodern practiced by Trump, Carl Rove, and others.

Monday, July 10, 2017

President Trump & Word Association

As a lover of words, I am of course interested in the following Quinnipiac poll which asked responders "What is the first word that comes to mind when you think of Donald Trump?"  The list provides endless fodder for analysis of speaker meaning.  The top two answers were "idiot" and "incompetent."  Did the speakers mean some subtle difference between those terms?  What about any meant difference between those two terms and such other terms as "unqualified," "ignorant," "stupid," and "clown"?  The third most frequent response is "liar."  Was "liar" meant in a different sense from "dishonest" or "con-man" which pop up later in the list?  Is "leader" (fourth on the list) a complement or is it a factual statement such as "president"  (sixth on the list)?  What about "trying"?  Does that mean the man is attempting to succeed (my guess but it's only a guess) or that he is "causing strain, hardship, or distress" (American Heritage College Dictionary 4th ed.)?  I also wonder how Originalists like Neil Gorsuch would interpret and parse each word in this list.  Reasonable contemporaneous readers can of course draw wildly different conclusions about the meanings of these words.

Monday, June 5, 2017

Embracing Life: Shakespeare and "Existentialism"

              Sartre claims that existence precedes “essence,” that “being-in-itself” is thrust upon us, that we have our subsequent brief existence to create our identities or “essences” (our “beings-for-itself”).[1]   The great American pragmatist William James also notes that we are thrust into a swirl of experience which we try to predict and organize with concepts and theories as our “tools.”[2] 

            Many years before James and Sartre, Shakespeare’s Macbeth, Lear, Hamlet, Jaques, and other diverse characters also opine on one’s brief moments thrust upon life’s “stage.”  Lear’s naked babe, for example, cries when tossed upon that “stage.”  Interestingly, the infant has feeling and tears for coming to a “great stage of fools”[3] even though it presumably lacks language and concepts such as “stage” or “fool.”  Shakespeare’s babe suggests a pre-conceptual link to the swirl of experience—a feeling link which James’s concepts and theories for predicting and navigating experience could then supplement and build upon. (For those interested in feeling and emotional connections to the world, I have explored the subject further in my Cognitive Emotion and the Law .)

            Lear’s babe also gives us moral as well as epistemic insight. The infant “comes to” rather than “brings” foolishness to a “great stage of fools.”  Not choosing to navigate this swirl of experience, the babe can’t be a fool for just being born--any foolishness it may display must come after mere birth itself.  As Emily Dickinson also notes, mortals born into the swirl aren’t given an initial “Skipper’s” or “Buccaneer’s” choice in the matter:

Wednesday, May 17, 2017

A Sonnet on the Jerusalem Cross

For me, the Jerusalem Cross is endlessly inspiring:  Christ before Paul; the Kingdom that’s within; the wisdom of the Buddha; William Blake and all he tried to do, say, draw, and paint; the semiotics of the endless signified and signifier; the freedom and choice in how we frame; the crosses we bare and bear; the number 5 that I somehow took as “my” number when I was a child.  Such crosses cross beyond mere prose:

               The Jerusalem Cross

Her references are kingdoms built within,
Are centers of what is, are plots of peace,
Are emanations of Blake’s Albions,
Are heavenly vistas of Jerusalems,

Are fresh imaginations testing worlds,
Are fourfold noble truths, are eight crossed paths
That frame a centered cross that wisdom bares
To study all the crosses that it bears.

Her signifiers are two crossing lines,
Four smaller pairs, too, eight paths framing round

Just four right angles centering sixteen more
That also form at most a single square--

Or four or five depending on the count.


(The cross's lines are personal as well
  In ways they interweave both "H" and "L,"
  In ways they cover Everyone with "E"
  Should some find some initials tough to see.)

Saturday, April 29, 2017

"Nature Hath Framed Strange Fellows" William Shakespeare and Natural Law

A. Introduction
             Natural law theorists might turn to The History of Troilus and Cressida to start building their case.  They might begin with Ulysses’ lofty outline of the “natural” order:

The heavens themselves, the planets, and this center          
Observe degree, priority, and place,                            
Insisture, course, proportion, season, form,                    
Office, and custom, in all line of order,                       
And therefore is the glorious planet Sol                        
In noble eminence enthroned and sphered                         
Amidst the other; whose med'cinable eye                         
Corrects the influences of evil planets
And posts, like the commandment of a king . . . .[1]                      

Such theorists might then use Ulysses’ further stirring words to blend such “natural physical order” with a “natural order” in law and morality as well:

Take but degree away, untune that string,                      
And hark what discord follows. Each thing meets                
In mere oppugnancy.  The bounded waters                          
Should lift their bosoms higher than the shores              
And make a sop of all this solid globe;                         
Strength should be lord of imbecility,                          
And the rude son should strike his father dead;                 
Force should be right; or rather right and wrong,             
Between whose endless jar justice resides,                    
Should lose their names, and so should justice too.[2]                             

As far as it goes, it is hard to imagine a more eloquent case for natural law than this.

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?