Studying Ancient Law In Philosophy Of Law

This semester in my philosophy of law class, I’ve begun the semester with a pair of class sessions devoted to ancient law: Mesopotamian, Biblical, and Roman. (My class is reading excerpts from a standard law school textbook: Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications by Stephen E. Gottlieb,  Brian H. Bix, Timothy D. Lytton, & Robin L. West.) I chose these sections for class reading and discussion because as the authors put it, “First, it is useful to know about the origins of law….Second, the legal documents from the Ancient Near East offer you a comparative perspective…you will find illuminating points of similarity and difference with our own system of laws, and that will help you to identify seemingly universal features of law and to spot particular characteristics that distinguish our own legal system, characteristics that you may have assumed were universal. Third…studying the earliest attempts to impose law gives us an opportunity to examine the reasons for using law as a means of governing….we will find…hints about the original reasons for choosing law, as opposed to other methods of ruling.” Moreover, these excerpts offer us some of the “earliest attempts to reflect on the rule of law…[they] pose a set of questions that have defined the field of jurisprudence ever since….In contrast to contemporary jurisprudence these ancient writings offer clear distinctions between the different approaches: they present arguments about positivism and natural law in purer form.”

These considerations offer a series of compelling arguments for why the study of ancient law should be included in a philosophy of law course; the description of law as a historically evolving and contingent technology of governance is one that every student of law–philosophical or otherwise–should be familiar with. (I regret never having including these sorts of materials in my previous iterations of this class; philosophy of law anthologies for their part, do not include material on ancient law.) If today’s vigorous class discussion–on a preliminary reading of the laws of Ur-Namma, Lipit-Ishtar, Hammurabi, and Yahdun-Lim was any indication, this syllabus selection has been a hit with my students as well. My students were particularly enthused by an introductory exercise that asked them to write a prologue, a few laws, and a conclusion in the style of these legislators; we then discussed why they picked the prologue and the laws that they did; this discussion allowed me to introduce the concept of the ‘expressive impact of law’ and also the so-called four-fold model of behavioral modification, which shows that law is but one modality by which behavior can be modified (the others are social norms, market pressures, and architectural constraints.) Moreover, these legislative excerpts are written in a very distinctive style, which permitted a preliminary discussion of legal rhetoric as well.

I often get syllabi wrong; and much remains to be done in this semester, but for the time being I’m reasonably pleased that this class–which sputtered so spectacularly last year–is off to a bright start in this new year. Hope springs eternal.

Catharine MacKinnon’s Feminist Jurisprudence In The Classroom

Next week, students in my Philosophy of Law class will read and discuss Catharine MacKinnon‘s ‘Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence‘  (Signs, Vol. 8, No. 4 (Summer, 1983), pp. 635-658). MacKinnon’s writings have featured once before on my reading lists–for my graduate ‘Nature of Law’ seminar at the City University Graduate Center in 2015. She is always a teaching challenge: she is provocative, invariably evoking strong reactions from her readers, and often, a dense read. No matter what the class’ reaction to the assigned reading as students read it on their own, I’m reasonably hopeful that passages like the following will provoke discussion when we gather in the classroom:

Feminism does not begin with the premise that it is unpremised. It does not aspire to persuade an unpremised audience because there is no such audience. Its project is to uncover and claim as  valid the experience of women, the major content of which is the devalidation of women’s experience.

This defines our task not only because male dominance is perhaps the most pervasive and tenacious system of power in history, but because it is metaphysically nearly perfect. Its point of view is the standard for point-of-viewlessness, its particularity the meaning of universality. Its force is exercised as consent, its authority as participation, its supremacy as the paradigm of order, its  control as the definition of legitimacy. Feminism claims the voice of women’s silence, the sexuality of our eroticized desexualization, the fullness of “lack,” the centrality of our marginality and exclusion, the public nature of privacy, the presence of our absence. This approach is more complex than transgression, more transformative than transvaluation, deeper than mirror-imaged resistance, more affirmative than the negation of our negativity. It is neither materialist nor idealist; it is feminist. Neither the transcendence of liberalism nor the determination of materialism works for us. Idealism is too unreal; women’s inequality is enforced, so it cannot simply be thought out of existence, certainly not by us. Materialism is too real; women’s inequality has never not existed, so women’s equality never has. That is, the equality of women to men will not be scientifically provable until it is no longer necessary to do so. Women’s situation offers no outside to stand on or gaze at, no inside to escape to, too much urgency to wait, no place else to go, and nothing to use but the twisted tools that have been shoved down our throats. If feminism is revolutionary, this is why.

I hope to write here next week on the how the classroom discussion went.

Big Business and its Friends on the US Supreme Court

An academic study conducted by Lee Epstein, William Landes and Richard Posner confirms something many of us have only intuited till now:

[T]he business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.

In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

Whether the Roberts court is unusually friendly to business has been the subject of repeated discussion, much of it based on anecdotes and studies based on small slices of empirical evidence. The new study, by contrast, takes a careful and comprehensive look at some 2,000 decisions from 1946 to 2011.

Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.

The Supreme Courts’ pro-business orientation finds its most vivid expression in its ruling in an antitrust class action brought against Comcast by its subscribers who had charged that ‘the company had swapped territory with other cable companies to gain market power and raise prices.’ Justice Scalia ruled that plaintiff’s evidence did not permit them to proceed as a class; that they should pursue instead, individual litigation unlikely to be attractive to trial lawyers because of the smaller damages involved (thus effectively ensuring such litigation would not occur):

Plaintiffs’ lawyers…say class actions are the only way to vindicate small harms caused to many people. The victim of, say, a fraudulent charge for a few dollars on a billing statement will never sue. But a lawyer representing a million such people has an incentive to press the claim.

“Realistically,” Professor Miller wrote, “the choice for class members is between collective access to the judicial system or no access at all.”

So the Supreme Court’s rulings making it harder to cross the class-certification threshold have had profound consequences in the legal balance of power between businesses and people who say they have been harmed.

Furthermore, by reaffirming Wal-Mart v. Dukes, which had also thrown out a class-action suit, it further narrowed the scope of class-action suits and made them even more unlikely in the future.

All in all, a grand slam for big business.  Dubya is gone, but not forgotten.