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

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.

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.

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.

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.

LBJ's Villanelle: Old Chamberlain & Chambers of the Heart (Addition to "The Apology Box")

The Johnson name shall live forevermore

At home and overseas.  Of virile heart,

I shall not risk the loss of any war.

I’ll slay Jim Crow and poverty before

Another president can steel the part--

The Johnson name shall live forevermore.

I shall not ape old Chamberlain though war

Endangers plans at home. I've rhetoric's art--

I shall not risk the loss of any war.

No hypocrite, I've nitroglycerin for

Myself as well and lob it at my heart--

The Johnson name shall live forevermore.

Though pills roll out my mouth, I've countless more
To keep me standing as I ply my art:

"I shall not risk the loss of any war.

No, we shall overcome Jim Crow, the gore,

The jungles, and old chambers of the heart.
The Johnson name shall live.  Forevermore,

I shall not risk the loss of any war."

© Harold Anthony Lloyd 2016

  
The current contents of "The Apology Box" can be found here.

Ishmael's Sonnet: Built As "Normal" Boys (Addition to "The Apology Box")

            Ishmael’s Sonnet

                        

They called me Ishmael.  I was a first

Who wrestled with the "bastard" name though I
Was built as "normal" boys.  With Mother, I

Was cast into the desert.  Struggling first,

 

I'd often hide myself.  I'd lie about

My essence in some feint of normalcy

That let me pass.  As I was outwardly

A normal boy, I need not always out

Myself.  And yet the loss of me within

Such phantom lives did further damage. In

Such feints I slandered parents, slandered, too,

The Lord whose kingdom lay within me, too.

I therefore washed my mouth.  "I am" replaced
The "stain" of "bastard" washing had erased.

© Harold Anthony Lloyd 2016

  
The current contents of "The Apology Box" can be found here.

Abelard: The Peril & the Price of Careless Thought (Addition to the Apology Box)

                         Abelard’s Ballade

Thought is the cruelest place where charts mark no

Fixed latitude or constancy of shore

For shifting airy coasts and courses.  Though

Polaris holds without, within one's oar

Has no such brilliant constant marker for

Safe navigation.  Vague, obscure and fraught

With shifting inner shoals, one can’t ignore

The peril and the price of careless thought.

Did man precede the beasts?  Both “yes” and “no”

Say Testaments where just a pair yet more

Go in the ark, where Eve’s made second though

She’s simultaneous in lines before,

Where we’re commanded to love yet restore

Slaves to a master, where it’s said we ought

Not judge yet brook no sin.  We’re fodder for

The peril and the price of careless thought.

There’s such confusion--turn the cheek yet go

Acquire a sword as well?  Why wasn’t more

Care taken in the drafting?  All should know

That words have consequences.  Maimed, I bore

The scars of mixed-up syllables.  Before

More suffer needless butchery, one ought

To master language.  I explored, therefore,

The peril and the price of careless thought.

Lord, thus I did my volumes.  Since they store

All I discovered, I can rest.  Full taught

Below, no suffering here would teach me more

The peril and the price of careless thought. 

© Harold Anthony Lloyd 2016

The current contents of "The Apology Box" can be found here.

Confucius and Lao Tzu (Additions to "The Apology Box")

            Confucius’s Sonnet

Mere force brings no true order since forced change

Warps from without and thus can never fit

An inner nature that’s rejecting it.

Without such fit, there’s but apparent change.

As mere force is deficient, sages thus

Discount it.  Righting wrong, they find a way

To change a man by his own choices. Thus,

They speak and do precisely. Sages sway

With virtue and right language of the kind

They’ve learned in studies of the old archives

Of ritual and common mythic mind.

Their teaching teaches them. Example drives

Without a whip. On earth, in heaven, too,

Truth bans all thrashings hells purport to do.

            Lao Tzu’s Sonnet

Would breath that loathed to make a sound in life

Somehow reverse itself in airless death?

Would it somehow convert itself at last

Into fools’ terms?  No--death is muter still.

I’ve neither arrogance nor wish to harm.

I’d not presume an ant cares how my mouth

Might label it.  I all the more of course

Would not presume that heaven gives a damn.

Man’s categories cause him needless ill—

A man can’t covet or despise a thing

Some category’s not disjoined from him.

Man's words spread categories' ills about.

Without air heaven must be wordless.  Hence,

I'm mute where no decrees expel me hence.

© Harold Anthony Lloyd 2016

The current contents of "The Apology Box" can be found here.