Showing posts with label Politics. Show all posts
Showing posts with label Politics. Show all posts

Wednesday, September 19, 2018

Making Good Sense: Pragmatism’s Mastery of Meaning, Truth, and Workable Rule of Law

Here is the abstract for my latest article forthcoming in the Wake Forest Journal of Law & Policy. In the article, I try to take a middle path between two types of error plaguing present times: "post-truthism" and formalism.

Abstract


The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning,  (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities,  (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (6) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts.

Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules.  Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language.  Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact.

In addition to countering formalist error, such hermeneutic pragmatism thus timely counters troubling “post-truth” claims in certain segments of government and society. For example, The Washington Post tells us that President Trump is “known for trafficking in mistruths and even outright lies;” that “The president often seeks to paint a self-serving and self-affirming alternate reality for himself and his supporters;” that, through May 31, 2018; “Trump had made 3,251 false or misleading claims in 497 days--an average of 6.5 such claims per day of his presidency;” and that  Donald Trump, Jr. has posted poorly-doctored images making “his father’s Gallup presidential approval rating look [ten points] higher than it actually is” while claiming “I guess there is a magic wand to make things happen and @realdonaldtrump seems to have it.”  Additionally, the President’s attorney Rudy Giuliani has expressly claimed that “Truth isn’t truth.” Competent and ethical lawyers must of course reject such mendacity.

("Sense" in the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article.)

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:

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!” 

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.

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

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:

Tuesday, May 31, 2016

Razing Babel: Two Sonnets For Too Xenophobic Times




In these Xenophobic times, we should recognize that Razing Babel was a blessing not a curse.   The punishment of imprisonment within a single, narrow tongue proves much, much worse than the inconvenience of dealing with others who don’t speak our native language.  Here’s why:

Sunday, May 29, 2016

Sewing & Sowing Words



 
We’re artisans who sew and sow words.  We sew and sow words for, among other things, organizing, molding, and embellishing the world in which we’re thrust and thrust ourselves.  Words are powerful tools that must be handled with care.  And, yet, too often when sewing and sowing language:

Thursday, May 26, 2016

Beyond Rawls’ Fiction: The Veil of Ignorance Is Real

Archive of Blog Originally Posted 3/2/2016 in The Huffinton Post


Justice Scalia, Queen Anne, and the Pragmatics of Interpretation

Archive of Blog Originally Posted 2/18/2016 in The Huffinton Post

Biting the Hand That Feeds: Entitlements and the Fundamental Attribution Error

Archive of Blog Originally Posted 5/12/14 in The Huffinton Post



Obamacare and the Self-Made Man

Archive of blog originally posted 3/26/2014 in The Huffington Post


A friend left me a note last night: “My life has been crazy—But with God’s help it will get better.” I’ll come back to my friend. Let me first turn to another quote that drives many Americans crazy and as a result is endangering the life of my friend:

“Every American regardless of his means must have access to reasonable health care. In the absence of a single-payer system, every American regardless of his means must purchase health insurance in the marketplace to guarantee such access.”

What in these words (and their equivalents) raises such ire in decent folk? Americans on the whole are decent folk and selfishness or other immoral motives therefore do not likely underly their anger. Instead, I believe much of their anger turns on the myth of the self-made man. Let me explain.

Americans are proud of their country as a land of opportunity where all can succeed if they just work hard enough. We all know stories of those who rose from rags to riches. We also of course know our own “hardship” stories of pinching pennies to make it through law school or medical school so that we could be the lawyers or doctors that we are today. We pat ourselves on our backs for our hard work and our sacrifices.

By running such gauntlets, we believe that we’ve proved our self-sufficiency. We are self-made men. It’s of course nonsensical to tell self-made men (and those who are on their way to such status) that they must buy insurance. Such persons have already proved that they need no such patronizing. Furthermore, by our example we believe that we’ve proved that others can be self-made men, too, if they will just work as hard as we did. We shouldn’t therefore just “hand” out insurance to those who could have worked for a better status in life. Such “handouts” would encourage laziness. Like self-made men, all other Americans should strive to be self-made men (or the lucky children of self-made men).

Self-made men. What, though, does that phrase really mean? At first blush, it seems a straightforward reference to those of us who relied on ourselves alone, who didn’t whine when we were down, who worked as hard as we needed to work to achieve our goals, as a result achieved them, and thus became self-made men.

However, this “straightforward” definition doesn’t withstand even a sliver of real scrutiny. We are all subject to natural and social forces beyond our control. Despite our best efforts, we get sick and we suffer setbacks. If we made it through law school or medical school by pinching pennies and by hard work, those of course aren’t the only reasons that we made it through law school or medical school (or whatever other school or task you might wish to substitute). The pinched pennies and hard work numerically pale in comparison to the endless number of other factors involved. In addition to all the things beyond our control that could have gone wrong before we even stepped through the doors of law or medical school, we were lucky enough to keep our health throughout the process. We were lucky enough to have the teachers, parents, and other supporters that we had. We were lucky enough to have the fellow students from whom we also learned. We were lucky enough to have the police, military forces, and fire departments that kept us safe as we studied and whose expenses we therefore did not generally mind paying in the form of taxes. (Isn’t it interesting that we generally don’t question taxes to protect the health of our structures but go into a tizzy over taxes to protect the health of the persons inside?) We were lucky enough to have the roads that let us get to school and to have the safe food to eat (however cheap) that allowed us to survive. I could go on but the reader should get the drift by now: no one can be a self-made man in this contingent and interrelated world.

In fact, the more we try to speak of ourselves as self-made men, the more we contradict ourselves. Virtuous “self-made men” are understandably proud of their property which they hopefully charitably share with others. Yet property cannot exist without society — if there are no other people around it makes no sense to speak of property. If there is no one you can ask to get off your land, what could it possibly mean to say that the land is yours? To be a self-made landowner, you therefore require others. But then how can you be a self-made man? As John Dewey puts it, “...[T]he more we emphasize the free right of an individual to his property, the more we emphasize what society has done for him: the avenues it has opened to him for acquiring; the safeguards it has put about him for keeping...” To claim to be a self-made man is thus to renounce the claim.

Once we finally take the myth of the self-made man for what it is, we can begin to be sensible about health care not only for others but for the sake of “self-made men” as well. That’s right, I did say for the sake of “self-made men” as well. The “self-made man” also benefits from universal health care. He, too, could lose all his wealth and actually need his health insurance for necessary care. He, too, should not then simply go to the emergency room and stick the rest of us with his bill. He, too, could catch diseases universal health care could have prevented. His stock portfolio, too, is harmed by the lowered productivity of ill workers and by the lowered productivity of those with pre-existing conditions stuck in jobs that do not maximize their potential. Things that hurt our GDP hurt all of us including the “self-made man.”

Though the “self-made man” should also embrace universal health care, more humble persons concern me as well. This brings me back to my friend I quoted above. She is a woman who has worked hard all her life and who is under no illusion that she is a “self-made woman.” The Republicans who recently took control of North Carolina’s state government have refused to join the Medicaid expansion under Obamacare. This hard-working woman is now ineligible for state Medicaid assistance and she does not make enough to qualify for subsidies under Obamacare. The March 31 Obamacare enrollment deadline is looming and in the meantime she has no health care coverage. Though not a “self-made woman” of means, she has done nothing wrong. She goes to church, works hard, takes care of her elderly father, is helping put her daughter through college, and is a blessing to this earth. As the minutes tick down to the end of the month, legal aid workers and kind law students at Wake Forest Law School are trying to provide this hard-working American with access to medical care. They understand that we (including “self-made men”) are all in this together. The rest of us should be as clear-headed.

Thursday, May 19, 2016

My Thoughts in the Washington Post on HB 2

“This is really a devious bill that harms workers under the guise of regulating bathrooms,” said Harold Lloyd, a professor at Wake Forest University School of Law. See the full article here in the Washington Post.  Katie Zezima did an excellent and thorough job with this piece.

Saturday, May 14, 2016

McCrory’s House Bill 2: A Brief Outline of Its Five “Parts”


When non-lawyers hear Pat McCrory’s claim that North Carolina’s House Bill 2 is just common sense while at the same time they hear the Department of Justice attacking part of it as illegal, I can understand how easy it is for such non-lawyers just to take the word of the political party they prefer. They probably aren’t sure where to look for the Bill and even if they lack this doubt they understandably might imagine the Bill has much too much legalese for them to tackle.

For remainder of blog, click here.


Sunday, May 8, 2016

Cicero and Classical Rhetoric: A Good Man Is Still Fluent Dead


Much needless suffering (including physical carnage) flows from our inability to persuade with words rather than force.  Much of that verbal inability comes from a lack of basic instruction in the rhetorical arts that the Greeks and Romans perfected long ago.  Their manuals (such as the Rhetorica ad Herennium and Artistotle's Rhetoric) lie too often untouched  though freely available online and in libraries all around us.  Ignoring such works makes no sense, and I hope one day the vast majority of us will rediscover and value what the ancient rhetoricians have given us.  I wonder how Cicero might speak to us now about the power of word over sword (of dropping the "s" from "sword" and using the resulting "word"), and about the need to read, ponder, and perfect the teachings his earlier generations have kindly left us.  I've written the following sonnet hoping to capture some wisdom from that man of words who was murdered by men of swords and whose hands and head were cut off and nailed up for public view.

Saturday, May 7, 2016

Cincinnatus: The Other Political Archetype


As we watch today's political nastiness, we should remember there is a better political archetype.  There is the Cincinnatus figure who serves out of duty when he'd rather be doing something else. In the legendary case of Lucius Quinctius Cincinnatus (who died ca. 438 B.C.) that something else was farming which he twice abandoned out of duty to serve.  Can we not find such persons today to serve?  Perhaps wanting a political office should in itself be disqualifying.  Perhaps at Judgment Day all good politicians will speak as I imagine Cincinnatus speaking at his Judgment Day in this sonnet I have written: