- Journal Details
- First Published
- 16 Apr 2016
- Publication timeframe
- 2 times per year
- Open Access
Page range: 167 - 191
2020 marks the 400th anniversary of the planting of Plymouth Colony. Although the literature about Plymouth is voluminous, the discussion about law and religion has been inappropriately superficial to date. This article addresses the Pilgrims’ conception of law on matters of religion and the new insights into the Pilgrims’ story that can be ascertained by focusing on law.
“Law” has been defined in many different ways by many different people throughout history. Aristotle, Cicero, Thomas Aquinas, and other proponents of natural law argued that law is the exercise of reason to deduce binding rules of moral behavior from nature’s or God’s creation. The renowned English positivist John Austin, in contrast, maintained that law is the command of the sovereign. To Karl von Savigny and other proponents of the so-called historical school, law is the unconscious embodiment of the common will of the people. To the philosophical school, law is the expression of idealized ethical custom. The dominant contemporary view seems to be that law is the reflection of social, political, and economic interests.
For the Pilgrims of Plymouth Colony, law was both the memorialization of their commitment to the Word of God and an instrument for exercising social control so as to effectuate that commitment. The Pilgrims, of course, used law to regulate the more mundane aspects of life as well. Indeed, quantitatively speaking, more laws were enacted by the Pilgrims that addressed the day-to-day activities of life in Plymouth Colony than memorialized the Pilgrims’ commitment to eternal glory in the afterlife, but the latter was unquestionably more important, qualitatively speaking, than the former. In the oft-quoted words of a young William Bradford, “to keep a good conscience, and walk in such a way as God has prescribed in his Word, is a thing which I must prefer before you all, and above life itself.”
- Plymouth Colony
- colonial America
- Open Access
Page range: 193 - 233
The purpose of regulating any profession is to assure competent practitioners, particularly where its absence can cause irreparable harm. Regulatory “licensing” ideally achieves such assurance, while at the same time avoiding unnecessary supply constriction. The latter can mean much higher prices and an inadequate number of practitioners. Regrettably, the universal delegation to attorneys of the power to regulate themselves has led to a lose/lose system lacking protection from incompetent practice while also diminishing needed supply. The problem is manifest in four regulatory flaws:
First, state bars—in combination with the American Bar Association—require four years of largely irrelevant higher education for law school entry. Most of this coursework commonly has nothing to do with law.
Second, and related, these seven-years of mandatory higher education (that only the United States requires for attorney licensure) impose extraordinary costs. Those costs now reach from $190,000 to $380,000 in tuition and room and board per student—driven by shocking tuition levels lacking competitive check.
Third, attorney training focuses almost entirely on a few traditional subjects, with little attention paid to the development of useful skills in most of the 24 disparate areas of actual practice (e.g., administrative, bankruptcy, corporate, criminal, family, taxation, et al.). And schools often pay scant attention to legislation, administrative proceedings, or the distinct areas of law that will be relevant to a student’s future practice.
Fourth, state bars rely on supply-constricting bar examinations of questionable connection to competence assurance. In the largest state of California, the bar examination fails about 2/3 of its examinees. This system has fostered an opportunistic cottage industry of increasingly expensive preparatory courses that further raise the cost of becoming an attorney—even after 7 years of higher education.
Meanwhile, the bars regulating attorneys in the respective states:
Do not treat negligent acts as a normal basis for discipline (outside of extreme incapacity); Do not require malpractice insurance—effectively denying consumer remedies for negligence; Do not allow clients injured by malpractice to recover from “client security funds”; Do not require post-licensure “legal education” in the area of an attorney’s practice; Do not test attorneys in the area of practice relied upon by consumers—ever; and Respond to cost-effective, technology-centric solutions to legal problems not by regulation to assure consumer benefit, but by attempts to categorically foreclose them in favor of total reliance on often unavailable/expensive counsel.
Do not treat negligent acts as a normal basis for discipline (outside of extreme incapacity);
Do not require malpractice insurance—effectively denying consumer remedies for negligence;
Do not allow clients injured by malpractice to recover from “client security funds”;
Do not require post-licensure “legal education” in the area of an attorney’s practice;
Do not test attorneys in the area of practice relied upon by consumers—ever; and
Respond to cost-effective, technology-centric solutions to legal problems not by regulation to assure consumer benefit, but by attempts to categorically foreclose them in favor of total reliance on often unavailable/expensive counsel.
No area of state regulation has more openly violated federal antitrust law than has the legal profession. The United States Supreme Court held in 2015 that any state body controlled by “active market participants” in a profession regulated is not a sovereign entity for antitrust purposes without “active state supervision.” Yet four years later, attorneys continue to regulate themselves without such supervision, overlooking the threat of criminal felony and civil treble damage liability.
- Consumer Protection
- Attorney Regulation
- Legal Education
- Student Debt
- Open Access
Page range: 235 - 247
This essay analyzes the response of one of America’s pre-eminent judges, Henry Friendly, to one of the most far reaching constitutional developments of his time and our time, the incorporation of the Bill of Rights into the Fourteenth Amendment’s Due Process Clause. In the course of addressing the issue, Friendly raised profound concerns about constitutional construction, federalism, the rule of law, and individual liberty that continue to resonate decades later.
- Bill of Rights
- Open Access
Page range: 249 - 288
In this article, I provide a cultural history of some of the critical predicates of corporate personhood. I track the Hobbesian lineage of the corporate form, but also the ways the corporation, ascribed with numinous agency and personhood, has filled the cultural space vacated by our transcendence of anthropomorphic notions of god and Nature.
The corporation was created through the consent of the sovereign, and its charter was formulated to reflect not only its uses, but its potential threat, particularly with regard to its concentration of power. Established under the aegis of individual states, the U.S. corporation was initially restricted to specific functions for limited periods. But corporations in many contexts not only have supplanted the Hobbesian state that created them, but displaced the individual person.
Corporations have become super-persons and forms of sovereigns themselves, in part by acquiring human rights and “personalities” and tethering them to the corporation’s inhuman attributes. However, corporations don’t just mimic human behaviors; at best simulacra, or imitations of human life, corporations challenge and destabilize the status of personhood, and what it means to be a person.
In the process, corporations have amassed not just wealth, but personhood (for example, in perhaps surprising ways, the personhood of African Americans). In many ways, the ever-increasing wealth gap in the United States is actually a personhood gap. The overarching effect of corporate personhood, which operates in tandem with privatization, is to dehumanize people, turning them into things that have no rights. Created to encourage entrepreneurial (or reckless and socially irresponsible) risk-taking and minimize personal liability, the corporation evolved into an entity that dynamically diminishes the personal.
The corporation represents a collective, transcendental body that has taken on the role of a deity, and, in U.S. ontology, of nature. The relationships between human and corporate personhood and identity implicate fantasies of the supernal; the superhuman; immortality; and the transcendence of individuality. For these reasons, I treat the corporation not primarily as a commercial enterprise, but as a cultural phantasm, a kind of black hole that draws in more and more cultural phenomena into its orbit. The modern corporation has come to guarantee certain rights at a price, in much the way the Hobbesian state once did. People barter their attributes to corporations; but they are no longer trading liberty for security, but “souls” for identity. As the corporation comes to serve as the de facto guarantor and distributor of culture, it remains amoral at best, and in practice serves as a dominant pathological personality that helps reduce all human endeavor to commercial interest.
- Corporate Personhood
- Thomas Hobbes
- Critical Legal Theory
- Citizens United case
- Open Access
To Kill a Mockingbird and Legal Ethics: On the Role of Atticus Finch’s Attic Rhetoric in Fulfillment of Duties to Client, to Court, to Society, and to Self
Page range: 289 - 325
- Atticus Finch
- Harper Lee
- Professional Conduct
- Open Access
(Mis)judging Ordinary Meaning?: Corpus Linguistics, the Frequency Fallacy, and the Extension-Abstraction Distinction in “Ordinary Meaning” Textualism
Page range: 327 - 369
Rarely is a new yardstick of legal meaning created. But over the past decade, corpus linguistics has begun to be utilized as a new tool to measure ordinary meaning in statutory interpretation and original public meaning in constitutional interpretation. The legal application of corpus linguistics posits that an examination of every use of a term in a wide variety of documents can yield a more complete, impartial understanding of a word than can dictionaries, intuition, or an unsystematic survey of sources. Corpora could supplement, or even supplant, dictionaries and native-speaker intuition in legal analyses. For originalism in particular, legal corpus linguistics promises to offer what would be a more scientific methodology for a point of view which, until now, has lacked one.
However, corpus linguistics, as applied to legal problems, falls prey to a fatal methodological criticism – the frequency fallacy. The criticism states that in a corpus, an unusual meaning can have many corpus entries while a perfectly ordinary meaning can be completely absent from the corpus. That is, frequency is not a good measure of meaning. Since legal corpus linguistics relies on frequency, the corpus cannot inform legal meaning.
This article parries this otherwise fatal critique. It argues that while the frequency fallacy is self-evidently true, the fallacy is not inherent to the corpus, but rather is an artifact of misinterpreting the corpus by treating it like a dictionary. This defense consists of a number of steps. The first step distinguishes between two different methods of discerning ordinary meaning: extension and abstraction. As illustrated by Yates v. United States and United States v. Marshall, extension entails extending the statutory term to varying facts, while abstraction keeps the facts constant and abstracts out key qualities to find an appropriate term. Critically, this article argues that abstraction offers a way to avoid the frequency fallacy. Second, to use abstraction properly, one must analyze not only the presence of the legal term in question but also its absence; that is, one must determine the presence or absence of other terms to describe a similar factual scenario to distinguish between artifacts of language and facts about the world.
This article concludes by arguing that this method has a beneficial emergent quality. Not only does this answer make legal corpus analysis methodologically sound, but it also paves the way for the first tool to approximate how an ordinary person would read the law, thus potentially furthering the rule of law.
- Corpus Linguistics
- Statutory Interpretation
- Legal Interpretation
- Interpretative Methods
- Open Access
Page range: 371 - 398
This paper explores the many facets of Rennard Strickland’s comparison between Sir William Blackstone, author of the 1765–69 Commentaries on the Laws of England, and Felix Cohen, architect of the 1942 Handbook of Federal Indian Law. It consists of a side by side analysis of both authors’ master works, political and educational projects, as well as general contribution to jurisprudence. It reveals that despite the stark differences between Blackstone’s work on the English common law from his professorship at Oxford in the late eighteenth century, and Cohen’s endeavors on the US federal law concerning Native Americans as a civil servant at the turn of the 1940s, there are remarkable similarities in the enterprises of legal scholarship the two jurists took on, the larger political projects they promoted, and their role in the development of legal thought. The idea that “Felix Cohen was the Blackstone of Federal Indian Law” has stylistic appeal and could have been little more than a gracious way to celebrate Cohen. An in-depth comparative examination of legal history and jurisprudence however corroborates and amplifies the soundness of the comparison.
- Legal History
- Comparative Law
- Native American Law
- Legal Education