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.  Her many 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.

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?

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: