THREE HUNDRED AND THIRTY FIVE

Lon Fuller in Legal Fictions (379).

“It is easy to say, ‘Fictions are makeshifts, crutches to which science ought not to resort.’ So soon as science can get along without them, certainly not! But it is better that science should go on crutches than to slip without them, or not to venture to move at all.”

THREE HUNDRED AND THIRTY ONE

From the kind of law professor we should all hope to have, or should all strive to be:

Premise: You are not paying for my opinion.
Critique: You are not paying me to pretend I don’t have one.

Premise: There is something called “Law” that is objective, fixed, and detached from and unaffected by the society in which it functions.
Critique: Law has no meaning or relevance outside of society. It both shapes and is shaped by the society in which it functions. Law is made by humans. It protects, controls, burdens, and liberates humans, non-human animals, nature, and inanimate physical objects. Like the humans who make it, Law is biased, noble, aspirational, shot-sighted, flawed, messy, unclear, brilliant, and constantly changing. If you think that Law is merely a set of rules to be taught and learned, you are missing the beauty of Law and the point of law school.

Premise: You know more about legal education than I do.
Critique: You don’t.

TWO HUNDRED AND THIRTY THREE

“Paradoxically, the better a metaphor is, the worse this kind of problem threatens to become … a good metaphor may be so compelling that it altogether subverts its referent’s original meaning. No longer recognized as a metaphor, it redefines truth on its own limited terms.”

From Bernard J. Hibbitts, “Making Sense of Metaphors, Visuality, Aurality and the Reconfiguration of American Legal Discourse” in Moyse’s « Propriété  : un acte de foi ? ».

TWO HUNDRED AND TWENTY

Imagine a world where judges always wrote and worked with empathy. From R. v. Armitage:

[55]            If I could describe Mr. Armitage as a tree, his roots remain hidden beneath the ground.  I can see what he is now.  I can see the trunk.  I can see the leaves.  But much of what he is and what has brought him before me, I cannot see.  They are still buried.  But I am sure that some of those roots involve his aboriginal heritage and ancestry.  They help define who he is.  They have been a factor in his offending.  They must be taken into account in his sentencing.

[56]            It is also obvious that this tree is not healthy.  The leaves droop and appear sickly. It does not flourish regardless of the attention paid upon it. The tree needs healing.

[57]            A part of any sentencing for an Aboriginal offender is to see if there is a way to further that healing.  Of the offender and of the community he lives in.

[58]            One important thing I must consider is the past injustices done to the aboriginal peoples in this country.  How that has affected the present.  How that has affected Mr. Armitage.  I must also consider the present problem of the over-incarceration of aboriginal offenders.

[62]            I find that Mr. Armitage appears before me as a dispirited man.  He has really no self-esteem.  He does not think of himself as important.  As a result, he does not seem to care about what he does.  The harm he has caused to others.  The harm he has caused to himself.  His spirit has fallen ill. Although I cannot say exactly how or describe it in easy to understand words, it strikes me that Mr. Armitage is a metaphor for what negative effects colonization has had on many First Nations people and communities.

TWO HUNDRED AND FOURTEEN

Every time they kick this robot I feel a really vivid emotional reaction, like it’s vulnerable and needs protection. It makes me think about Kate Darling‘s work:

“This effect already comes into play when objects are not specifically designed to evoke these feelings. For example, when the United States military began testing a robot that defused landmines by stepping on them, the colonel in command called off the exercise. The robot was modeled after a stick insect with six legs. Every time it stepped on a mine, it lost one of its legs and continued on the remaining ones. According to Garreau (2007), “[t]he colonel just could not stand the pathos of watching the burned, scarred and crippled machine drag itself forward on its last leg. This test, he charged, was inhumane.” Other autonomous robots employed within military teams evoke fondness and loyalty in their human teammates, who identify with the robots enough to name them, award them battlefield promotions and “purple hearts”, introduce them to their families, and become very upset when they “die”. While none of these robots are designed to give emotional cues, their autonomous behavior makes them appear lifelike enough to generate an emotional response. In fact, even simple household robots like the Roomba vacuum cleaner prompt people to talk to them and develop feelings of camaraderie and gratitude.”

TWO HUNDRED AND ONE

From Joseph Alfred v. Walt Disney Co.

This matter is before me on the Defendants’ motions to dismiss a complaint sounding in contract, filed by the Plaintiff, Mr. Alfred, pro se. That Complaint is remarkable. It is in my experience a unique example of the pleader’s art. It cites to the epic of Gilgamesh, Woody Guthrie, the Declaration of Independence, Noah and The Great Flood, Game of Thrones, Star Wars Episode V: The Empire Strikes Back, Star Trek, President Obama, and Euclid’s proof of the Infinity of Primes, among other references. It is well-written and compelling. In fact, it can be faulted only for a single—but significant—shortcoming: it fails to state a claim on which relief could be granted. Therefore, I grant the Defendants’ Motions to Dismiss.

The Plaintiff, in succinct and pith-perfect fashion, stated the gravamen of his action as follows: “If the Plaintiff needed to sum up this entire case in one sentence, it is this: Two executives of the Disney Company are stalling the next evolution of human transportation on this planet.”

In other words, the Defendants are holding back the flying car.

ONE HUNDRED AND NINETY ONE

John Frank Weaver‘s Artisanal Attorney:

“How is an artisanal attorney different from any other attorney? Like other artisans, I pay close attention to my ingredients and process; I am intimately involved in all stages of creation. Other attorneys print their documents on paper they buy in mass-produced boxes, tens of thousands of sheets at a time, using ink that mechanically jets onto the page. I make my own paper by hand, using the traditional methods of 14th-century book publishers, who printed their works on linen and vellum. The flax for the linen grows along the sides of a nearby swimming hole, and the plants’ growth is influenced by the laughter of children in the summer, when I pick it by hand. The vellum comes from the grass-fed cows of an area farm; to give the cows more agency in the vellum-making process, I let them choose the pumice I will treat their hides with after slaughter. I also make my own ink, using the ink of squid I raise myself in a PETA-approved salt-water aquarium in my office. You can meet all my squid during our initial meeting and pick which one you want for the ink on your will or healthcare power of attorney.

After crafting your paper and extracting your ink, I painstakingly draft your legal documents using the tools and techniques of an 18th-century barrister. A feather quill will write the motion to dismiss your traffic ticket on a beautiful vellum sheet in large, ornate letters that will appear familiar to you if you’ve looked at a reproduction on the “Conftitution.” S’s will look like f’s, the first word of each paragraph will be comically oversized in the historic manner, and all documents will be rolled up like a poster, just like the Declaration of Independence and Constitution.”

ONE HUNDRED AND FIFTY SIX

I don’t have the luxury of writing notes by hand anymore — the time it would take to digitize the volumes of notebooks I’d produce would just be overwhelming. So, I’ve switched to typing in lectures, sacrificing quality for the Command-F function.

There’s still something so beautiful about reading someone else’s handwriting though.

May I ask you to understand that I did not read the contract before doing so. I only did it for your legal dept’s benefit.

Johnny Cash, 1964, from Letters of Note.

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