A quick screen shot of my brief bit in Linda Edwards' fantastic new book The Doctrine Skills Divide: Legal Education's Self-Inflicted Wound. I think the title speaks for itself, and the book should be required reading for everyone interested in reforming legal education today.
In addition to law and language generally, this blog explores philosophy, translation, poetry (including my own poetry and translations), legal education reform, genealogy, rhetoric, politics, and other things that interest me from time to time. I consider all my poems and translations flawed works in progress, tweak them unpredictably, and consider the latest-posted versions the latest "final" forms. I'd enjoy others' thoughts on anything posted. © Harold Anthony Lloyd 2024
Thursday, December 21, 2017
The Inherent Inseparability of Doctrine & Skills
Labels:
Case Method,
Category,
Charles Sanders Peirce,
Classical Rhetoric,
Descartes,
Experience,
Framing,
Humanities,
Jurisprudence,
Langdell,
Law,
Law School,
Legal Writing,
Meaning,
Practice,
Theory
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:
ABSTRACT:
ABSTRACT:
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!”
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!”
Labels:
Context,
Executive Orders,
Immigration,
Interpretation,
Islam,
Language,
Law,
Legislation,
Legislative Intent,
Originalism,
Politics,
Pragmatics,
President Trump,
Religion,
Semiotics,
Speaker Meaning,
Supreme Court
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:
Labels:
Afterlife,
Death,
Emily Dickinson,
Emotion,
Existentialism,
Fame,
Hamlet,
King Lear,
Life,
Macbeth,
Nabokov,
Philosophy,
Pragmatism,
Richard Rorty,
Sartre,
Shakespeare,
William James
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 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.)
*****
†(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.)
Labels:
Albion,
Art,
Buddha,
Christ,
Framing,
Freedom,
Imagination,
Interpretation,
Jerusalem Cross,
Jesus,
Meaning,
Poetry,
Religion,
Semiotics,
Sonnet,
Truth,
William Blake
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.
Labels:
Arden,
Framing,
Hamlet,
Interpretation,
Intolerance,
Jurisprudence,
Language,
Legal Theory,
Measure for Measure,
Merchant of Venice,
Morality,
Natural Law,
Philosophy,
Prospero,
Religion,
Shakespeare,
Tempest,
Ulysses
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.
Labels:
Command,
Divine Right of Kings,
Falstaff,
God,
H.L.A. Hart,
Hamlet,
Henry IV,
Jurisprudence,
King John,
King Lear,
Law,
Legal Positivism,
Macbeth,
Natural Law,
Philosophy,
Richard II,
Shakespeare,
Sovereign,
Threat
Sunday, March 5, 2017
Gorsuch and Originalism: Some Critiques from Logic, Scripture, and Art
(This blog combines, expands, and end-notes two prior blogs)
Labels:
Art,
Auden,
Balkin,
Bruegel,
Constitution,
Ekphrasis,
Gorsuch,
Icarus,
Interpretation,
Language,
Law,
Legal Theory,
Old Testament,
Originalism,
Poetry,
Pragmatics,
Religion,
Scalia,
Supreme Court,
Ten Commandments
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.
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