Hats, Rabbits, and Jurists’ Magic (Or Jurists’ Bright and Dark Magic)

I am grateful to Prof. Christine Corcos for inspiring to write an essay for her forthcoming second volume of Law and Magic which will be published by Carolina Academic Press. Here is a preview of the essay:

Abstract

This essay explores two senses of “magic” as they apply to the practice of law: magic as “the art of producing illusions by sleight of hand” and magic as “an extraordinary power or influence seemingly from a supernatural source.” 

Magic in the initial or “sleight of hand” sense overlaps with jurists’ emphasizing certain traits of a classification while hiding other nonconforming traits. For example, if the Great Blackstone classifies the Little Prince’s drawing of a boa eating an elephant as a drawing of a hat, the Great Blackstone must draw attention away from other contrary evidence such as the Little Prince’s asserted intent. Similarly, if he would classify Wittgenstein’s duck-rabbit as a rabbit, the Great Blackstone must also draw attention away from contrary evidence. (Thus, the use of “Hats” and “Rabbits” in this essay’s title.) 

Magic in the second or “supernatural” overlaps with jurists’ creation, modification, and rejection of categories and concepts (including conceptual metaphors). Categories and concepts (including conceptual metaphors) are creatures of language and not nature. Thus, jurists’ creation, modification, and rejection of categories and concepts (including categories and concepts about nature itself) are beyond nature and thus powerfully overlap with magic in the second, “supernatural” sense.  

To the extent jurists perform magic in either or both senses, such magic can be divided into either bright or dark magic. Jurists’ “bright magic” illuminates in ways that better and better organize experience (including moral experience). Lacking such light, jurists’ “dark magic” does the opposite. For example, stressing the role of commitment to and partnership with a loved one as essential to marriage while downplaying past opposite sex requirements would be bright magic to the extent such emphasis advances moral and social progress. Stressing past opposite sex requirements while ignoring core roles of love, commitment, and partnership would be dark magic to the extent inconsistent with advancing moral and social progress. Good jurists’ “magic” thus organizes experience (including moral experience) in better and better ways. Good jurist magicians are therefore good pragmatists: their bright magic organizes experience (including moral experience) in better and better ways. 

In examining such juristic magic, this essay also explores among other topics: (i) magic in legal imagination and in legal framing (foreground, background, and otherwise); (ii) magical insights for jurists from the art of translation and other humanities including the dark magic of using wrong or questionable translations of ancient texts such as the Bible when making tradition or other arguments (such as using wrong or questionable translations of "arsenokoitai" or "malakoi" or incomplete contexts for "para physin" when exploring same-sex rights and privileges) ; (iii) the dark magic of legal formalism; and (iv) dangers of juristic and political dark magic to democracy and rule of law.

Langdell and the Eclipse of Character

                                                                     Abstract

Christopher Columbus Langdell has not only damaged the study of law with his three follies: his legal formalism, his redacted appellate case method, and his notion that legal practice taints the professor of law. His three follies have also impaired character development critical for legal actors. This Article focuses on four such critical character traits and virtues impaired by Langdell: (i) imagination, (ii) empathy, (ii) balance, and (iv) integrity. Readers wishing to explore virtues beyond those addressed in this Article might note my earlier examination of the role of virtue in good legal analysis found here.

This Article also calls out potential character issues with two professor types inspired by Langdell: (v) the hazing professor who confuses intellectual rigor with intense discomfort and who uses the redacted appellate case method to inflict such discomfort at the expense of better pedagogy, and (vi) the professor without substantial practice experience who is substantially paid to teach what she has never practiced.

Agreeing with C.S. Pierce that the best argument is a cable rather than a chain, I end by weaving in a Langdell villanelle (from my Apology Box also shared on this Blog) to supplement the prose. I hope such a cable can help lift Langdell and his follies from legal education and the world.

This Article can be downloaded here.

Keywords: Langdell, law school reform, legal education reform, virtue, imagination, empathy, balance, integrity, hazing, experience, translation, formalism, character, concept, category, metaphor

Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis

                                                                Abstract

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning."

This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well.

Download the full text of this article here.

Keywords: legal analysis, virtue, skill, formalism, character, phronesis, concept, category, hermeneutic pragmatism, Peirce, Rorty, Putnam, deduction, induction, semiotics, legal education, rhetoric

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.

Abstract

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.)