The Inherent Inseparability of Doctrine & Skills

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.

Speaker Meaning and the Interpretation and Construction of Executive Orders

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

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 & 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.

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:

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.)

 

"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.

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.

Gorsuch and Originalism: Some Critiques from Logic, Scripture, and Art

(This blog combines, expands, and end-notes two prior blogs)

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.

Parsing Babble in North Carolina's HB-2 and Calling Out the Need for Immediate Repeal

Read here my parsing of ambiguous bathroom provisions in North Carolina's HB-2 and the immediate need to repeal the flawed statute in light of further imminent threatened boycotts of the state.

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).

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:

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.

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.