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
Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts
Saturday, February 23, 2019
Fantastic Cognitive Emotion & the Law Symposium Held at Wake Law 2/22/19
Many thanks to the thoughtful speakers and Wake Law Review students who made possible this engaging February 22, 2019 symposium on the inseparability of emotion and reason in legal and other reasoning. The symposium volume will be forthcoming. Read more about cognitive emotion and the law here.
Wednesday, February 7, 2018
Addition to "Strings of Thought" (2/7/18)
2/7/18 A legislative bill or other proposal isn’t simply
a string of words on a page. Instead, a legislative bill or other proposal involves
concepts (the signified) to which words (the signifiers) refer with varying
degrees of precision. Legislators debate
the concepts signified and the signifiers as signifying such concepts. Justice Scalia therefore oversimplifies how
language works when he claims that “the only thing one can say for sure was
agreed to by both houses and the President (on signing the bill) is the text of
the statute.” (Reading Law, p. 376) Justice Scalia oversimplifies here
because any such text was adopted as part of a greater whole, as signifiers of
concepts involved in the bill. For example,
a statute reading “All cars must drive on the write side of interstate roads”
adopted by both houses of Congress and signed by the President no doubt likely
means “All cars must drive on the right
side of interstate roads.” It’s hard to believe that both houses and the
President agreed on “write side” instead of “right side” of the road. I at
least cannot “say for sure” that they did. Justice Scalia concedes the same by
acknowledging what he considers “the rare case of an obvious scrivener’s
error.” (Reading Law, p. 57) In the real world, of course, obvious
scrivener’s errors are hardly rare.
The entire text of "Strings of Thought" can be found here.
Labels:
Concept,
Interpretation,
Jurisprudence,
Language,
Law,
Legislation,
Legislative Intent,
Meaning,
Original Meaning,
Originalism,
Pragmatics,
Semiotics,
Signifier,
Textualism,
Words
Thursday, December 21, 2017
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.
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
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.
Wednesday, February 15, 2017
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.
Labels:
Child Labor,
Corruption,
Discrimination,
Ethics,
Gender,
HB 2,
Interpretation,
Intolerance,
Law,
LGBT,
Meaning,
Minimum Wage,
North Carolina,
Pat McCrory,
Poltical Corruption,
Republican Party,
Workers Rights
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.
Labels:
Art,
Auden,
Bruegel,
Category,
Context,
Ekphrasis,
Ethics,
Framing,
Gorsuch,
Icarus,
Icon,
Interpretation,
Language,
Law,
Meaning,
Originalism,
Scalia,
Semiotics,
Symbol,
Textualism
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
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.”
As we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar.
Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions.
The article can be found here.
Labels:
Anger,
Cognitive Emotion,
Contempt,
Disgust,
Emotion,
Envy,
Fear,
Guilt,
Hatred,
Langdell,
Law,
Law School,
Lawyers,
Legal Education,
Legal Practice,
Malice,
Neuroscience,
Philosophy,
Pride,
Rhetoric
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:
Wednesday, June 15, 2016
How the "Ten" Commandments Refute Originalism & Fundamentalism (With Some Help From Herod, Caiaphas & Ahab's Additions to "The Apology Box")
Conservatives often like to claim that texts speak for themselves. A review of the Ten Commandments is an easy way to see how such claims are false. First, such a review nicely shows that we must interject our own judgment even before we start reading a text because we first have to decide what the text is. When we look for "Ten" Commandments in the Bible, we won't find such a neat list. Instead, we'll find two places in the Bible (Exodus 20:1–17 and Deuteronomy 5:4–21) which support such a list though we could come up with a different number depending on what we expressly include (for example is not bowing down to other gods included in not putting other gods first or is it a separate command?) and depending upon how we group what we find. The number 10 is thus in that sense arbitrary.
Second, once we've used our judgment as to the content and number of the list, reading the commandments still requires much interpretation. For example, read literally they say that we cannot kill. That would mean we could not cut down a tree much less kill a wild beast attacking us. Of course, no reasonable person would take these words that literally and thus no honest person who is reasonable would claim we don't have to use our minds and hearts when we read a text. Instead, what we generally want to do when reading the words of others is to figure out what the speaker meant by those words. This involves engaging in what philosophers of language call pragmatics, a topic that I have written about elsewhere. Have Ahab, Herod, and Caiaphas really tried to understand and follow speaker meaning in the poems that follow?
Third, the Ten Commandments also remind us of another wrinkle in cross-language cases. The Commandments are in an ancient language that most of us cannot read. We must thus rely on translations, and translations also involve judgment and often are erroneous or questionable at best. Anyone who tells us that we can and should take a translation literally and without question is thus wrong on multiple levels.
Second, once we've used our judgment as to the content and number of the list, reading the commandments still requires much interpretation. For example, read literally they say that we cannot kill. That would mean we could not cut down a tree much less kill a wild beast attacking us. Of course, no reasonable person would take these words that literally and thus no honest person who is reasonable would claim we don't have to use our minds and hearts when we read a text. Instead, what we generally want to do when reading the words of others is to figure out what the speaker meant by those words. This involves engaging in what philosophers of language call pragmatics, a topic that I have written about elsewhere. Have Ahab, Herod, and Caiaphas really tried to understand and follow speaker meaning in the poems that follow?
Third, the Ten Commandments also remind us of another wrinkle in cross-language cases. The Commandments are in an ancient language that most of us cannot read. We must thus rely on translations, and translations also involve judgment and often are erroneous or questionable at best. Anyone who tells us that we can and should take a translation literally and without question is thus wrong on multiple levels.
Judas & Pilate Defend Themselves (Additions to "The Apology Box")
Acrostic of Judas
Justice never punishes a deed
Unless it's evil, willed, and freely done.
Did I betray? I did. But fate forced me,
And thus I did unfreely what the Lord
Set up instead as I shall briefly show.
Impelled by love, God had to make a world
Since isolation is love’s opposite.
Creation needed freedom all around--
An object of one’s love is not enslaved
Raising a contradiction: what is free
Is free to sin and has a license that
Offends morality. God's fix required
The incarnation penalty--not me.
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