Two Birds and Reader-Based Originalism

Speaker intent governs speaker meaning. Hearer meaning doesn't. Thus legislative intent controls, not contemporaneous reader meaning (even if there were such a thing).

Very Nice Little Post on Lawyers & Poets

                                                         From "Lawyer Poets"

                                              https://ahthesea.com/lawyer-poets/

"The description printed on the Lawyer Poet box muses: 'What other profession [than the law] is more concerned with the nuance of language, the intricately-crafted sentence, the passage that needs to be re-read a dozen times to be even remotely understood?' Well, leave it to me to let one cheeky bit of marketing copy send me on a thoughtful journey. What well-known poets have also been lawyers? I wondered. For the curious, here’s what I found (along with links to their poetry) . . . ."  

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.

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.

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!” 

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.

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.

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.

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.

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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.

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:

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.

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.