Legal Philosophy

Lawrence Lessig has an article up to-day that makes this thread worth revisiting:,0

It’s an interesting piece by a smart man that has clearly given it some thought. The personal thread halfway through is scary as shit. Of course, he is a law professor and hence concerned with structural adjustments to solve the problem.

But, there is something he hints at and probably has an ideological block to revealing/exploring. He keeps referring to culture as the problem. That seems to also make it the cure. The reason “fair use” is so limited is because people didn’t want to push on those boundaries and have instead opted for a rights regime which then made “fair use” more and more limited and hence an unacceptable option. I like where this leads if only because it resonates with my overall sense of activisim as seizing and not negotiating. Take back “fair use”. Make Murdoch and others spend so much litigating it that it is not a cost effective means of copyright protection.

Slavoj Zizek.  (2008).  Violence.  NY: Picador Books.  90.

The subject does not envy the Other’s possession of the prized object as such, but rather the way the Other is able t enjoy this object, which is why it is not enough for him to simply steal and thus gain possession of the object.  His true aim is to destroy the Other’s ability/capacity to enjoy the object.

When this quotation is removed from the book it makes less and less sense.  Is this envy true of say, a hamburger?  Of course not.  The hungry man is envious of the hamburger and not just the ability of the other person to have a hamburger.

The example Zizek uses is a brother envious of his smaller brother suckling at the breast of their mother.  But the theory does not explain this triad.  The theory is about two subjects and an object, but the example if of three subjects and the rationing of the affections of one of the subjects.

Will McCain hate not the outcome of the election but rather Obama’s ability to enjoy the election?  No.  I do not think McCain dislikes Obama so much that he feels no compassion for his ability to mourn a grandmother or a lost election.  Instead McCain will hate the lack of a victory.  So even when there is a triad Zizek’s rationalization does not hold up.  Clear as mud, right?

Alain Badiou.  2008, October 17.  Le Monde.  partial translation at Infinite Thought.

We see, and this is what it means to see, simple things that we’ve known for a long time: capitalism is nothing but robbery, irrational in its essence and devastating in its development.  Its few short decades of savagely unequal prosperity have always been at the cost of crises in which astronomical quantities of value disappear, bloody punitive expeditions into every zone that capitalism judges either strategically important or threatening, and world wars that brought it back to health.

I can hear your skepticism now:  hold on there, SN, there have been no wars as a result of this latest crisis!

Haven’t there?  You are not looking closely enough.  I will not contend that the new administration will be more adventurous as a result of this latest calamity.  McCain would go into Iran regardless.  I do, however, suspect that Obama may suspend the withdrawal longer than he would have had the crisis not happened.  The withdrawal will be deadly and will bring blame on Obama, and in the midst of the crisis he will be more cautious to risk his mandate.

What is missing from Badiou’s argument, however, is that the current war was precisely the fix capitalism needs to sustain itself.  And it is this war which caused the very crisis.  The war jacked up oil prices.  The war devalued the dollar, forcing interest rates to rise which is why people in their fancy ARMs became unable to finance their payments.  From there it was an easy tumble into the current morass.  And here is where Badiou’s argument fails: wars do not revive a failing capitalism because of a Keynesian infusion of capital (read: confidence) but rather the wars resuscitate because the people know the story and buy into it.  Note the path of the status quo’s morass Badiou traces, in the beginning of the piece, from the cinema to the political.

This is not capitalism’s collapse because people see similarities with the Hollywood blockbuster.  Just as Ah-nuld or Matt Damon save the day, so too will Paulson and Sarkozy and the other usual suspects.  And this is all without analyzing the disastrous effects this has had on individuals: people thrown out of work, thrown out of their homes, a coming financial crisis among state receipts and the concominant social services funding cuts, etc…

These days I am making my way through season 1 of Deadwood. I am only on episode 5 and I must, literally ‘must’ as I do not want to admit it, say that I am hooked. Ian McShane is marvelous and I think he alone would make the show worthwhile watching. Another thing I really like about the show is its ambition. They speak of the show as depicting (actually, they speak in realist terms as though the show was really Deadwood, South Dakota and not a depiction) a lacuna of Law. The commentary with the show’s creator David Milch, however, shows us that he has a more realistic assessment: the show is not about an absence of Law but rather of the absence of law, attempting to cast the show as a study in other mechanisms of sociality. Too bad the show-sans-commentary does not impart this; the commentary is needed to realize the stated ambition of Deadwood is founded in a hubris.

I finished watching the episode where Jack McCall is tried for Hickcock’s murder and the in-show commentary, delivered by Ian McShane’s character, is wrong. The trial did not mark the introduction of law into Deadwood, precisely because everyone knew the law and civility of the trial was, like its outcome, a sham. What the show did was to show that Deadwood is not a lacuna of the law but that all of the US was lawless. Instead of the law there is only a mask of the law. Zizek sums it up better than I do (keep in mind that Carnivale was another HBO show):

[T]he logic of the social carnival brought to the extreme of self-reflexion: anarchist outbursts are not a transgression of Law and Order; in our societies, anarchism already is in power wearing the mask of Law and Order – our Justice is the travesty of Justice, the spectacle of Law and Order is an obscene carnival (Zizek 2008, 192)

In a strange coincidence (I should not be surprised to find an articulation between Palahniuk and Zizek) I am working on the new Palahniuk book and it is – I am only about a third of the way through the book so this my thoughts may change – also about this mask. At the moment I am meeting the characters as they speak about Cassie. What is interesting is that the characters are in a waiting room bidding time for their chance to be with Cassie, and Palahniuk has yet to introduce me to Cassie. Will he? Is Cassie a transcendental in the book? None of the characters think of her as a transcendental, they all have plans to affect her. But at the same time they all dismiss the others as in-affective, reaffirming her transcendental condition. Does Cassie even exist? Is she instead some mask, some fantasmic inflatable sex doll lifelessly willing to receive their intrusions?

I am not sure where Palahniuk will go with this, but there will be drama and action in the waiting room among the characters, and Cassie, the supposed structuring principle of the story, will be revealed to be an ineffective structuring agent.

This comment is without significant impact except for a more rigorous theory of criminal procedure.  Laudan (2007?) makes the following comment in footnote 4:

It is sometimes suggested that this potential loss of liberty [the convicted innocent] represents a risk that the citizen runs under the rule of law that he did not run while in a state of nature.  That is dubious since it seems plausible to suppose that, even in a stateless society, there would be plenty of surrogate and unofficial forms of vigilante-ism that would mete out a primitive form of justice that would frequently result in persons being punished for actions that they did not commit.

My contention is that vigilante-ism does not occur in the State of Nature.  A cursory examination makes it appear to be the State of Nature, since there is not a government “met[ing] out the primitive form of justice” but there is a supposed social code on behalf of which the vigilante is acting.  The risks in the State of Nature are a passionate violence and preemptive violence, not justified violence acting In The Name Of.  It is possible, likely even, that the punisher and the punished have not discussed this code and do not share this code, but the vigilante presumes the code to apply nonetheless.  This problem of a lack of shared code is not necessarily resolved by the Social Contract.

So, the contention Laudan is responding to is accurate: in the State of Nature there is no risk of a wrongful conviction, because there are no (juridical) convictions in the State of Nature.  This is not to say, however, that the State of Nature is preferable to a regime that can wrongly convict.

Works Cited

Laudan, Larry.  (2007).  The social contract and the rules of trial: Re-thinking procedural rights.  While this a working draft and ‘not for quotation” I have determined this to be an acceptable use of reference.  If the author disagrees and wishes the discussion to be removed I will gladly do so upon request.

“[T]he law, like any other field, is little more than the people who live it, and that lawyers – as well as the law they make and practice – are significantly affected by the way they were first received into the profession. If I am right about that, then the first-year experience should be of interest to everyone, for it bears on the law that bounds and guides our whole society.” (Turow 1977, xiii)

What an interesting thing to say in this book. Presumably people interested in going to law school will already be sold on reading this book, but this quotation is a call for a larger study, a call for a larger audience than potential law school students.

I do believe there is some accuracy to Turow’s description of the moods of the legal workers. Although the purpose of the law is to create a regimented system which excises mood and bias rendering an objective result, we all know that does not happen. It seems the danger of the Turow comment is in the solutions: 1. more rules do not remove the dourness from legal workers and 2. making first year curriculums less intense, less dour, fails to remove all but the best and the brightest. Law school should be hard precisely because it binds “and guides our whole society.” Is there a way out? I am not sure. Does there need to be a way out? I am also unsure, but I am tempted to say no. This is a guiding question of my intellectual curiosity.

Works Cited

Turow, Scott. (1977). One L. NY: Warner Books.

Edelman (1988) begins his book, more than begins as the book is about, a pessimistic assessment that your SN team has found more and more accurate as we have aged: the answer is not more communication. Many disagree thinking “citizens who are informed about political developments can more effectively protect and promote their own interests and the public interest. That response takes for granted a world of facts that have a determinable meaning and a world of people who react rationally to the facts they know. In politics neither premise is tenable…” (Edelman 1988, 1)

We would like to replace ‘rationally’ with ‘predictably’ (there are plenty of actions that are rational but not predictable because a person’s value system might be different than the observer), but aside from that modification we find Edelman to be so correct that his statement easily transcends political discourse into communications generally. This provokes some obvious concerns, but especially interesting is what this does to legal theory. Due Process is, after all, “the right to be heard” (Subrin et al. 2004, 1). If Due Process is founded on untenable premises then what happens to those very procedural protections?

Works Cited

Edelman, Murray. 1988. Constructing the political spectacle. Chicago: University of Chicago Press.

Subrin, Stephen N., Martha L. Minow, Mark S. Brodin, & Thomas O. Main. 2004. Civil procedure: Doctrine, practice, and context (2nd ed.) NY: Aspen Publishers.

I have been asked to comment on a proposal for SCOTUS action based on the Chemerinsky 2003 article found in the North Carolina Law Review. Please note that while I am making some arguments, this essay is not to be cited. I still have friends and interests in certain activities and this essay’s citation would require a discussion with which I am not concerned. This essay is a vehicle for me to help organize some thoughts and a place to begin research on the issue at hand.

There is a call among some scholars for the Supreme Court of the United States to overturn Milliken v Bradley (1977) on the grounds that the requirement for proof of discriminatory intent places an undue burden on the plaintiffs instead requiring proof of discriminatory impact. I think this approach is inadequate and an imprecise reading of the Chemerinsky article.

It needs to be clarified at the outset that Chemerinsky, at least in this article, makes no call for Milliken’s overturning. The closest he comes is when he lists an alternative decision among a litany of other alternative decisions as things that would have caused a substantially less resegregated public school system. At no point is there an argument that reinterpreting Milliken would rectify the harms contributed to by the earlier decision. That genie has left the bottle and other facts presented in the Chemerinsky article prove this.

Chemerinsky finds Milliken irrelevant in Southern States, because it is easy for plaintiffs in those cases to demonstrate de jure segregation. The Milliken problem is in the northern states where state policies are discriminatory in their impact and not necessarily in their intent (a discriminatory housing policy may cause a segregated school district but because it is not an educational policy it is deemed to not intentionally cause a segregated school district.)

Chemerinsky’s discussion of more recent court decisions proves the ineffectualness of the proposed Milliken decision. Courts are no longer willing to issue new desegregation orders, even in the face of irrefutable proof of school resegregation. Milliken provides the court with a type of remedy to mandate upon school districts, but a lack of court willingness to even issue a desegregation order means the Milliken revision would do nothing. Chemerinsky discusses 3 cases that halt the issue of new orders; the Milliken revision would need to be accompanied by action on these precedents. Voluntary desegregation efforts fall under a different problem, one which was recently addressed in oral argument before the Supreme Court and the fate of which is still unknown.

Even if the court were to overcome a failing of the above plan and be able to order school districts to implement multi-district desegregation remedies, there are still some problems. The white flight problem is not entirely circumvented as there will be boundaries marking the limits of the interdistrict cooperation. A student in downtown Detroit cannot be bused to Ann Arbor because the drive would take too long. White flight would then still be a possibility, it just means the flight will go further out than just a single school district boundary.

Chemerinsky also tries to head off the private school argument. He contends people do not go to private schools to flee the desegregation efforts because they did not. Private schools account for 17% of status quo segregation (Chemerinsky cites a source which I have not investigated because of a lack of need.) Assuming this 17% figure is accurate we need to remember that it is a measure of white flight when there is a viable alternative (relocation to a suburb). If Chemerinsky is correct that Milliken overcomes the white flight possibility then the 17% would increase as private schools become more than they are in the status quo to those that do not want to be part of a desegregated school district. Overall, white flight would still be a problem which could easily mitigate a significant portion of any gains the Milliken revision might have accrued.

The ultimate limitation upon the judiciary to bring about social change is easily seen in this instance. People may be racist and want segregated schools and will act to make it happen. There are so many other decisions on the periphery of the issues at play in Milliken that actual enforcement will never happen without more comprehensive judicial revisions. An example would be the complicated school financing issue. Even if some districts cooperated to end segregation there would still be inequities in school financing which can cause the very ills desegregation is supposed to resolve.

One possible action Chemerinsky does advocate however needs to be discussed. I am curious how after reading this article someone can contend it argues for a change in the burden required by Milliken. What there is a call for is to recast education as a fundamental right. The court found in these education cases that a strict scrutiny standard is inappropriate because there is neither a suspect classification at work (the poor is not a suspect class) nor a violation of a fundamental right. Chemerinsky hints that the solution lies in getting to the strict scrutiny standard.

I do not want to argue that education is not a fundamental right, but Chemerinsky is right about why the court does not make that determination: because then there would be an increase in burdens placed on the government. Recasting education as such would force a heightened standard and arguably one that would cause Milliken and the other cases mentioned above to be recast. This is the appropriate mechanism for action on Milliken and the better reading of the 2003 Chemerinsky article. While this solution would open a whole new can of worms, it is the only possible action on Milliken alone that can overcome the deficiencies I have illustrated with the limited Milliken ruling.

This is a diverse and interesting body of literature and I am surprised someone has decided to make a call for SCOTUS action based upon this one article. It is even further disconcerting that the reading of this single article is a poor reading and too simplistic for the complexity at work.