Book Review: An Introduction To Legal Reasoning

Case law: the law as established by the outcome of former cases, sometimes called common law or judge made law.

Statutory law: written laws that express the will of the legislature, as distinguished from case law and constitutional law.

Constitutional law: the law as established by federal and state constitutions and intended to reflect the will of the drafters.

In his 1949 book, An Introduction to Legal Reasoning, legal scholar and former US Attorney General, Edward H. Levy, describes his vision of the legal process, which is called American Legal Realism (ALR). His book begins with this opening paragraph:

“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.”

Levy is making a point that (i) legal reasoning and decision-making is not a simple application of a law to the facts of a controversy, (ii) ambiguity in the language of laws and the US Constitution is unavoidable but necessary for civil society, and (iii) the law changes over time to accommodate social change. Those three points are central to ALR, which is a process of evolution of the law over time. Although there are differences among scholars about exactly what ALR is, it is generally sees legal reasoning as a process where judges usually, but not always, decide a case on nonlegal grounds and then justify or rationalize their decision by reference to legal doctrines and the language of the applicable law.

Realism vs. formalism: The ALR vision of legal reasoning stands in contrast to legal formalism. Formalism holds that the process is a judge first resorting to the law and then applying the facts of the case to arrive at a decision in a case. Formalism recognizes that many legal principles are needed to account for all the decisions judges make. The core belief is that despite the complexity, there is an underlying logic to the myriad legal principles. The principles are both logically straightforward and easily applied to each case. Clearly, the quoted paragraph rejects formalism as the mechanism that applies to how judges decide cases. Former Supreme Court Justice Antonin Scalia was a prominent proponent of the branch of formalism called textualism.

Based on this reviewer’s professional experience with the law, judges decide on whatever process or mechanism they want when circumstances permit. That is particularly true for judges who are political ideologues and the issues at stake are core constitutional principles. Sometimes a law is not significantly ambiguous and the facts of the case make it all but necessary to decide on the basis of formalism. Most of the time, those cases settle out of court before the parties start formal in-court proceedings. Winners and losers in those cases are usually easy to spot, and going to court expends time and money. But for cases that do wind up being formally litigated, the process that ALR envisions is probably the process by which judges usually decide a case.

Levi was the first to recognize that if one ignores the easy cases, the distinctions between case law, statutory and constitutional cases decrease dramatically. That insight offered a different way to envision how the legal reasoning process actually operates.

Of the two opposing views, ALR is far better than formalism at accounting for the incremental changes in how laws are interpreted overt time. The changes tend to (i) accord with changing social norms, technology and the realities of how commerce is conducted, and (ii) the social impacts of changing technology and commerce. Levi is justified in asserting that “the mechanism is indispensable to peace in a community.”

A three-step process in four steps: Levi describe a three-step process of “reasoning from case to case” or “reasoning by example” by which the law evolves:

“The steps are these. Similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case.”

But after that, as society, technology and commerce change, the rule of law can become obsolete and lead to absurd or unintended results. In cases where a rule of law is made without considering larger principles or unforeseeable circumstances, things that are very easy to do, if not necessarily inherent, the rule usually winds up being short-sighted in some way. That raises the need to refine or change the rule, sometimes to the point of it no longer being discernable in cases that arise years or decades later. In some cases, a rule of law simply fades into oblivion. For Levi, reasoning by analogy is the main way that this sort of flexibility in the law evolves and adapts to new circumstances.

In essence, the rejection, change or refinement of a rule of law amounts to a fourth step that can constitute a new rule of law, a refinement of the first rule, or a complete rejection of the first rule.

Statutory and constitutional ambiguity: As is apparent from the foregoing, some or a great deal of ambiguity in statutory laws and the constitution is a necessary component for ALR to work as it does. Levi paints a picture of the legislative process as necessarily an ambiguity-creating machine and judges apply legal reasoning to try to specify what a law’s language actually means in a given situation:

“We [judges] mean to accomplish what the legislature intended. . . . . The difficulty is that what the legislature intended is ambiguous. In a significant sense there is only a general intent which preserves as much ambiguity in the concept used as though it had been created by case law. . . . . For a legislature perhaps the pressures are such that a bill has to be passed dealing with a certain subject. But the precise effect of the bill is not something upon which the members have to reach agreement. . . . . Despite much gospel to the contrary, the legislature is not a fact-finding body. There is no mechanism, as there is with a court, to require the legislature to sift facts and to make a decision about specific situations. There need be no agreement about what the situation is. The members of the legislative body will be talking about different things; they cannot force each other to accept even a hypothetical set of facts. . . . . Moreover, from the standpoint of the individual member of the legislature there is reason to be deceptive. He must escape from pressures at home. . . . And if all this were not sufficient, it cannot be forgotten that to speak of legislative intent is to talk of group action, where much of the group may be ignorant or misinformed.”[1]

Similarly, Levi paints a written constitution as another unending source of ambiguity:

“In addition to the power to hold legislative acts invalid, a written constitution confers another and perhaps as great a power. It is the power to disregard prior cases. . . . . The problem of stare decisis [legal precedent] where a constitution is involved is therefore an entirely different matter from that in case law or legislation. This is often overlooked when the court is condemned for its change of mind. A change of mind from time to time is inevitable when there is a written constitution. There can be no authoritative interpretation of the Constitution. The Constitution in its general provisions embodies the conflicting ideals of the community. Who is to say what these ideals mean in any definite way? Certainly not the framers, for they did their work when the words were put down. The words are ambiguous. Nor can it be the Court, for the Court cannot bind itself in this manner; an appeal can always be made back to the Constitution. Moreover if it is said that the intent of the framers ought to control, there is no mechanism for any final determination of their intent. . . . . The major words written in the document are too ambiguous; the ideals are too conflicting, and no interpretation can be decisive.”

Obviously, for formalists, this vision of the Constitution is completely wrong. For those people, the Founder’s intent can clearly be found by applying formalist analytical techniques, such as the textualism that Scalia and others advocate. Despite that, Levi is clearly correct to say that the US Constitution is often ambiguous and there is no mechanism to definitively decide. On this point, formalism gets it wrong. And therein lies one of the bases for difference of opinion that is tearing American society apart today.

If one looks at the disputes the Founders never resolved among themselves in their lifetimes, one can see the origins of both ALR and formalism, both of which still compete for supremacy in both the law and in politics. From this reviewer's point of view, ALR is much better suited to modern American society and the economic and technological challenges this country faces. Given the reality that the legislative process is too slow, too ambiguous and driven more by re-election than courageous governance, there seems to be no workable choice but to resort to some form of realism.

Footnote:
1. Commenting last September on the legislative process and why Supreme Court nominations are so bitterly contentious, radical right conservative Senator Ben Sasse (R-NE) said this during the Senate confirmation hearing for Brett Kavanaugh: “. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”

This is part of Sasse's relentless anti-government rhetoric, but he has a good point about congress being incompetent when it comes to doing its job.



B&B orig: 12/26/18 DP: 8/17/19

Learning About Interoception

The not interception system: Most data processing in the brain is unconscious -- more recent estimates put conscious processing at about 10-fold higher than the numbers shown for at least some of the kinds of conscious processing

Interoception is the process sensing of the internal state of one's body. It is different from processing external (non-self) inputs such as vision, hearing, touch or smell because the inputs arise in the body itself, not from non-self stimuli outside the body. Interoception is currently hypothesized to be a fundamental source or influence on (i) motivation, (ii) emotions and feelings and the behaviors they generate, (iii) social cognition, and (iv) self-awareness. Inputs to the brain can arise from the various body areas and sources shown below.

Much of the knowledge about interoception arose in the last 20 years or so. A recent study described brain scanning data to help identify the area of the brain that receives inputs from the heart and lungs when a person experiences heart palpitation and labored breathing (dyspnea) associated with panic.[1] The scan data showed that a specific area of the brain (right mid-insular cortex) 'lit up' when subjects experienced palpitation and dyspnea.

In this study, the subjects in the experiments did not experience emotions (anxiety or happiness) and only felt palpitation and dyspnea.

Interoception research focuses on the role of body monitoring in brain function. This research is shaping perception of the brain and internal signals from the body as a highly integrated system that influences emotion and behavior. Dysfunction or mistakes in interpreting internal states, or a disconnect between the body's signals and the brain's interpretation and prediction of those signals, have been suggested to underlie some mental disorders such as anxiety, depression, panic disorder, anorexia nervosa, bulimia nervosa, posttraumatic stress disorder (PTSD), obsessive compulsive disorder (OCD), autism spectrum disorders, somatic symptom disorder, and illness anxiety disorder.

Footnote:
1. The authors summarize their results like this: "The mid-insula findings in the present study are especially noteworthy because it has been identified as the most commonly activated insula subregion across all prior studies of cardiac interoception involving directed attention to heartbeat sensations under resting physiological conditions (Schulz, 2016) (Figure 5a). Furthermore, our replication of asymmetric right insula activation during sympathetic stimulation, and hemispheric switching to include left insula activation during the recovery period, corroborates prior animal findings and a theoretical perspective positing a critical role of the right and left insula for mapping sympathetic and parasympathetic arousal, respectively (Oppenheimer and Cechetto, 2016). Taken together, these findings represent compelling evidence that the right mid-insula is a key node in the interoceptive attentional network, one that is essential for both stimulus-driven (bottom-up) and goal-directed (top-down) sympathetic viscerosensation."

B&B orig: 7/5/19

Some Observations On Lying In Politics

Hannah Arendt’s 1975 book, Crises of the Republic, consists of four essays that describe Arendt’s view on American politics in the 1960s and 1970s. The essays are Lying in Politics, Civil Disobedience, On Violence, and Thoughts on Politics and Revolution. The comments here are from Lying in Politics. That essay was inspired by the release of the Pentagon Papers and it explores an explanation for government deception about the Vietnam War in light of the information the Pentagon Papers revealed.

Wikipedia on the Pentagon Papers: “The Pentagon papers is a United States Department of Defense history of the United States’ political and military involvement in Vietnam from 1945 to 1967. The papers were released by Daniel Ellsberg, who had worked on the study; they were first brought to the attention of the public on the front page of The New York Times in 1971. A 1996 article in The New York Times said that the Pentagon Papers had demonstrated, among other things, that the Johnson Administration ‘systematically lied, not only to the public but also to Congress.’ ”

Excerpts from Lying in Politics (empahsis added):

Secrecy--what diplomatically is called “discretion,” as well as the arcana imperii, the mysteries of government­--and deception, the deliberate falsehood and the outright lie used as legitimate means to achieve political ends, have been with us since the beginning of recorded history. Truthfulness has never been counted among the political virtues, and lies have always been regarded as justifiable tools in political dealings. Whoever reflects on these matters can only be surprised by how little attention has been paid, in our tradition of philosophical and political thought, to their significance, on the one hand for the nature of action and, on the other, for the nature of our ability to deny in thought and word whatever happens to be the case. This active, aggressive capability is clearly different from our passive susceptibility to falling prey to error, illusion, the distortions of memory, and to whatever else can be blamed on the failings of our sensual and mental apparatus.

A characteristic of human action is that it always begins something new, and this does not mean that it is ever permitted to start ab ovo, to create ex nihilo. In order to make room for one's own action, something that was there before must be removed or destroyed, and things as they were before are changed. Such change would be impossible if we could not mentally remove ourselves from where we physically are located and imagine that things might as well be different from what they actually are. In other words, the deliberate denial of factual truth-the ability to lie--and the capacity to change facts--the ability to act--are interconnected; they owe their existence to the same source: imagination.

Hence, when we talk about lying, and especially about lying among acting men, let us remember that the lie did not creep into politics by some accident of human sinfulness. Moral outrage, for this reason alone, is not likely to make it disappear. The deliberate falsehood deals with contingent facts; that is, with matters that carry no inherent truth within themselves, no necessity to be as they are. Factual truths are never compellingly true. The historian knows how vulnerable is the whole texture of facts in which we spend our daily life; it is always in danger of being perforated by single lies or torn to shreds by the organized lying of groups, nations, or classes, or denied and distorted, often carefully covered up by reams of false­hoods or simply allowed to fall into oblivion. Facts need testimony to be remembered and trustworthy witnesses to be established in order to find a secure dwelling place in the domain of human affairs. From this, it follows that no factual statement can ever be beyond doubt--as secure and shielded against attack as, for instance, the statement that two and two make four.

It is this fragility that makes deception so very easy up to a point, and so tempting. It never comes into a conflict with reason, because things could indeed have been as the liar maintains they were. Lies are often much more plausible, more appealing to reason, than reality, since the liar has the great advantage of knowing beforehand what the audience wishes or expects to hear. He has prepared his story for public consumption with a careful eye to making it credible, whereas reality has the disconcerting habit of confronting us with the unexpected, for which we were not prepared.

The results of such experiments when undertaken by those in possession of the means of violence are tenable enough, but lasting deception is not among them. There always comes the point beyond which lying becomes counterproductive. This point is reached when the audience to which the lies are addressed is forced to disregard altogether the distinguishing line between truth and falsehood in order to be able to survive. Truth or falsehood-it does not matter which any more, if your life depends on your acting as though you trusted; truth that can be relied on disappears entirely from public life, and with it the chief stabilizing factor in the ever-changing affairs of men.

Men who act, to the extent that they feel themselves to be the masters of their own futures, will forever be tempted to make themselves masters of the past, too. Insofar as they have the appetite for action and are also in love with theories, they will hardly have the natural scientist's patience to wait until theories and hypothetical explanations are verified or denied by facts. Instead, they will be tempted to fit their reality--which, after all, was man-made to begin with and thus could have been otherwise--into their theory, thereby mentally getting rid of its disconcerting contingency

Arendt argues that lying becomes counterproductive for the liar once (i) politics has obliterated any distinction between truth and lies, and (ii) belief in lies is a matter of life and death. Once politics has reached that level of degeneration, what comes next arguably is chaos and conflict. If that is true, and despite being awash in an ocean of lies, Americans can still call out political lies as lies and survive. Some might lose their jobs, but at least so far, they won't be forced into poverty, jailed or murdered.

The good news: That implies, (1) American politics still has a fair amount of degenerating to do, and (2) it must lead to an authoritarian government, presumably oversees by a dictator-president. To make belief in lies a matter of survival seems to require a dictator willing to silence opposition by force.

If that logic is sound, we're still in good shape because people can call out President Trump's lies and other political lies and survive.

B&B orig: 7/6/19

Teaching Global Warming in a Deep Red State

One of the best apparent ways to nudge societies toward long-term survival, sustainability and a reasonable level of well-being seems to be via public education. As time passes, the value of teaching important topics and critical thinking skills is increasingly important. The problem is that public education is politicized for some topics and that makes it difficult or impossible to teach in some places. Global warming is one of those topics.

The Washington Post reports on the care needed to teach global warming to public school children in Oklahoma:

The students didn’t know it yet, but they were about to engage in some myth-busting about perhaps the biggest menace to their futures: climate change.

[Melissa] Lau, 42, has taught science for seven years at Piedmont Intermediate School, which is housed in an airy, modern building overlooking a wheat field and serves predominantly middle-class families, many of whom work in the oil and gas industry. For much of that time, she has sought to acquaint students with the basics of the planet’s warming.

On this next-to-last week of the school year, Lau was squeezing in a lesson exploring the link between increased carbon emissions and extreme weather events such as floods and hurricanes. A goal was to give students the knowledge to debunk the argument often made by climate change deniers that a few frigid days disprove climate change; even in a warming climate, there will still be many cold days.

The science behind climate change is complicated and evolving, and most teachers aren’t prepared to teach it well. Many textbooks don’t touch the topic, according to science educators.

Then there are the politics, especially in ruby-red Oklahoma. Educators here say they occasionally receive questions and pushback from parents when classes cover climate change. A state agency funded by the oil and gas industry pumps money into teacher training and classroom materials, including books featuring a cartoon character called Petro Pete, with the goal of promoting fossil fuels. State lawmakers also routinely introduce bills that critics say would encourage teachers to spread misinformation on evolution and climate change.

“Every year, we have to fight one or two bills,” Lau said. But she added that even here in Oklahoma, there's a growing hunger for accurate information on climate change, saying: “I don't get the resistance I got at the beginning of my career because it's getting harder and harder to deny.”

Teaching about climate change got a boost six years ago with the release of the Next Generation Science Standards, which instruct teachers to introduce students to climate change and its human causes beginning in middle school. To date, 20 states plus the District have adopted the standards, and many other states have embraced a modified version. All told, 37 states and the District recognize human-caused climate change in their science standards, says the National Center for Science Education.

Oklahoma’s standards are based on the Next Generation Science Standards, but while they discuss human effects on the environment, they do not directly attribute climate change to human activities. Even so, some state legislators called the language on climate science “one-sided.”

Jewel, the sixth-grader, said the second day of the lesson left her more worried about the Earth’s warming. “Now that I know more about the facts of climate change, it’s a little bit easier to believe,” she said. “It feels like more of a threat.”

Her classmate Dan Nguyen had a darker outlook. “Now, I’m thinking that we’re in a crisis.” It made him a little angry, he said, and he felt people “should be more careful of what they are doing, what they are using.”

Dan’s fears aside, there’s something of a disconnect between the urgency of the scientific view of climate crisis and the relatively dispassionate manner in which Lau must talk about it. Globally, children have been among those raising the alarm on climate change and calling for action, through a lawsuit and school walkouts. But Lau’s students are still young, far from voting age, and she says she has to tread carefully, to find a way to teach the subject “compassionately but head-on.”

The good news is that it has become significantly harder for climate science deniers to deny the climate situation. Petro Pete and the “other side” appears to be increasingly less plausible and influential.

B&B orig: 7/8/19