|
ShenelEkiciFirstEssay 5 - 23 May 2025 - Main.ShenelEkici
|
| |
| META TOPICPARENT | name="FirstEssay" |
|---|
| |
<
< | Logomachy: A Functional Approach under Fascism | >
> | What's In A Name? | | | | |
<
< | -- By Shenel Ekici | >
> | -- By Shenel Ekici (revised May 22, 2025) | | | | |
>
> | Cohen traces how the literalization of abstract legal concepts prevents the law from engaging with real-world social and economic consequences. Cohen, Transcendental Nonsense, 35 Colum. L. Rev. 809, 814–15 (1935). Hobbes, who Cohen draws on for a competing concept of legal realism, characterized the state of nature as “any social relationship… exempt from governmental control,” until conflict demands otherwise. Id. at 809–10. To this once-English major, the paradigmatic social relationship is between humanity and language. | | | | |
<
< | The Metamorphosis
When my father asked why I wouldn’t go to law school, I used to say, “You raised me right.” No one in my family trusted the State. My father grew up in rural Turkey, born to an illiterate former indentured servant and a mine worker. My aunt, a political prisoner, was smuggled into Germany while heavily pregnant. My parents rejected marriage as a state tool to offload responsibility onto the nuclear family. We listened to Fox News in the car to understand how “they” thought. | >
> | As Cohen explains, the propertization of trade names creates monopolies over language. Id. at 814–16. As with other legal fictions, the underlying rationale is circular. A business gains recognition with consumers for a name or symbol; economic value is attached to the name. Because it has value, the name is property, and thus legally protectable. Yet paradoxically, this value often depends on the extent to which it receives legal protection. Id. Under the pretense of judicial modesty, courts often assume they are merely recognizing pre-existing property rights rather than actively creating them, by presenting legal rights as inherent qualities of words. Id. at 816. | | | | |
<
< | At Barnard, my disdain for institutions flourished through a steady diet of postmodern literary theory and gender studies. A professor used to say, “If you want to see the canon, cross the street and look at the names on Butler.” Law school, though a logical tool for accomplishing the work I wanted, felt incompatible. Now, I was the one in Butler, churning out mechanically correct writing, bowing to my professors’ favored policy considerations. It worked—too well. One December night, a cockroach skittered across my desk. I didn’t even leave until I finished my contracts practice exam. Was I doomed to be a cockroach too? | >
> | Yet as trade name protection expands, so do the implications for language. Should the right to use a name be governed by the first in time principle? Is the protected word so generic, or synonyms so lacking, that it forecloses competition? Does this expansion do anything to protect consumers, or merely create monopolies over language? At what point does the scope of trademark protection encompass so many words, symbols, or even colors as to lose all coherence? | | | | |
>
> | The deepest analytical flaw in this propertization of language is the assumption that language is static–that words can be neatly cordoned off in certain contexts, like butterflies pinned to a wall in an entomologist’s study. What words are, what they stand for, and how they function is constantly evolving, even more so in the almost-century since Cohen’s theorizing. Baudrillard rooted his study of representation—the association between word and meaning—in the Western faith tradition’s “wager…that a sign could refer to the depth of meaning…exchanged for meaning and that something could guarantee this exchange–God.” Jean Baudrillard, Simulacra and Simulation 5 (Sheila Faria Glaser trans., Univ. of Mich. Press 1994) (1981). But the secularization of culture displaced God as the broker of meaning, leaving the already-tenuous word-meaning relationship on shaky ground. Baudrillard saw potential in the process of problematizing this connection that he called simulation: the “radical negation of the sign as value…[the] death sentence of every reference.” Id. at 6. In his view, the word was evolving from the “reflection of a profound reality,” to a mask for the absence of meaning, to finally having “no relation to any reality whatsoever: it is its own pure simulacrum.” Id. | | | | |
<
< | Transcendental Nonsense | >
> | “To simulate is to feign to have what one doesn’t have.” Id. at 3. The legal fiction of propertization has accomplished exactly this, leading us to the final phase of the devolution of language. Trademark rights are hyperreal: symbols devoid of meaning other than exclusion, that only sustain themselves through circular logic. Yet despite this logic of private enclosure, these symbols are designed to circulate. They must, in order to keep generating economic value. If a tree falls with no one around to hear it, does it make a sound? If a trade name is not recognizable—i.e., widely shared in the public consciousness—can it still be trademarked? | | | | |
<
< | I first encountered Transcendental Nonsense in Civil Procedure, mentally filing it under “interesting but not a priority”—it wouldn’t be tested. Now, I have an academically sanctioned reason to revisit it. | >
> | The continued expansion of trademark law now functions as a control mechanism for managing desire. A name so famous you can only use it with permission is an artificial demand-generation tool that only survives because of the legal fiction underlying it. I think of how the Turkish soaps my family watches often blur out the logos on designer brands or coffee cups, in stark contrast to the flagrant product placement so pervasive in American media that it has become a self-referential wink. No matter which stage of simulation you pick—masking the symbol or highlighting it for its own sake—it still stands for nothing but the brand that owns it. Under capitalism, wherever you go, there you are. | | | | |
<
< | Cohen captured what I felt in law school: the paper-thinness of arguments grounded in principle alone, the “divorce of legal reasoning from questions of social fact and ethical value.” Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 814 (1935). I had always conceived of law in Hobbesian terms, commanding obedience not for its justice or rationality, but because of power. Id. at 837. The commingling of this with Coke’s “perfection of reason” was unsurprising, given the hubris of the profession, but until I got to CLS I had assumed we were all in on the joke. Id.
Cohen urges an interdisciplinary approach to ground legal decision-making in human behavior, allowing ethics to “come out of hiding.” Id. at 847. Yet my academic training warned that other disciplines suffered from the same affliction. For example, his striking analysis of trade names critiques their “thingification” for its lack of economic rationale. Id. at 815. But by focusing on economic impact, Cohen asks the wrong questions. Id. at 817. In a post-postmodern age swinging back into fascism, we must interrogate whether the words courts implicitly grant legal protection mean what we say they mean.
Strategic Misreading
From a deconstructionist perspective, “[l]anguage is structured as an endless deferral of meaning, and any search for an essential, absolutely stable meaning must therefore be considered metaphysical,” just like a transcendental approach to law. Toril Moi, Sexual/Textual Politics: Feminist Literary Theory (1985). Resorting to rhetorical hierarchy—the binary system of opposition—can undermine the very ethical concerns one might seek to remedy. See generally, Hélène Cixous, Sorties: Out and Out: Attacks/Ways Out/Forays, in The Newly Born Woman 63 (Hélène Cixous & Catherine Clément eds., Betsy Wing trans., 1986).
Marginalized groups, historically denied custodianship of truth, can weaponize this instability by constructing “strategic misreadings,” in ways that reflect their social realities. Gayatri Chakravorty Spivak, Displacement and the Discourse of Woman, in Displacement: Derrida and After 169 (Mark Krupnick ed., 1983). Yet another danger emerges: patriarchy “[d]etermines not only the game’s rules but…[its] parameters, so that those placed in the margin….are made to believe that this marginalization is, in fact, a participation in the game.” Jeanette McVicker? , Barthelme’s The Dead Father: Girls Talk, 17 Lit. Interpretation Theory 289 (2006).
The Game
The question, then, is how to play the game—how to approach law functionally without falling into rhetorical traps—in a world where words have been entirely divorced from meaning. “A fascist is unconcerned with the connection between words and meanings…the language serves him.” Timothy Snyder, What Does It Mean That Donald Trump Is a Fascist?, New Yorker (Nov. 8, 2024), https://www.newyorker.com/magazine/dispatches/what-does-it-mean-that-donald-trump-is-a-fascist. See also Baudrillard, Simulation and Simulacra.
Problematic as The Father was, at least he was predictable: “Death of the Father would deprive literature of many of its pleasures…Isn’t storytelling always a way of searching for one’s origin, speaking one’s conflicts with the Law?” Roland Barthes, The Pleasure of the Text (Richard Miller trans., Hill & Wang 1975). In contrast, “A liberal has to tell a hundred stories, or a thousand...A fascist just has to be a storyteller.” Snyder, New Yorker (Nov. 8, 2024). Fascism is unpredictable not just because we ignore it, but because it monopolizes language. Id. It may not be as sharp a tool as Cohen assumes.
Neither are supposedly objective disciplines, like economics or political science. The disconnect between reported economic data and public perception in the 2024 election was initially dismissed as misinformation or irrationality. Yet traditional metrics failed to capture the economic hardships that fueled frustration with Democrats insistent on the strength of our economy. Eugene Ludwig, Voters Were Right About the Economy. The Data Was Wrong., Politico (Feb. 11, 2025), https://www.politico.com/news/magazine/2025/02/11/democrats-tricked-strong-economy-00203464.
Cohen’s perspective remains necessary, though more difficult to apply. Whether we can beat them at their own game remains an open question.
A really excellent beginning. You are too brilliant for your own good: piling sources atop one another is a game you play too well for the health of the underlying thinking. That's why you are left with a non-conclusion at the end of the draft: so many fireworks but not much lasting illumination.
The opening autobiography is compelling, but it doesn't lead anywhere either. So the editorial task is to get all this power and verve under control. There's loss in that, of course. It's as though an entire year's effervescent thinking by an energetic mind were bursting out in five genres at once. Now that we've watched an intense explosion in the world's greatest paint factory (a sight it would have been a shame to miss) let's try painting. A draft that picks one through line (maybe Cohen, it was a good choice), and sticks to it, leaving the smuggled aunt and the cockroach and perhaps even Helene Cixous for another day, and we shall see some serious light.
| >
> | Yet while trademark law attempts to control and commodify words, we live in an age where “art has returned to being something that must be shared to exist.” See Moglen’s Berlin Keynote. The participatory dynamics of the Internet, the public square where so much of culture and commerce occurs, simultaneously reinforce and erode corporate control. Though less directly policed by algorithms than copyrightable material, trademarks are consistently undermined by democratic content creation on platforms like TikTok? that blur origin and meaning. Virality creates a parallel simulation, where meaning is displaced or replaced outside the control of original rights holders. Content often reaches Baudrillard’s final orders of simulation: where the sign no longer has a clear origin and simply circulates because it appears meaningful—i.e., because it is shareable. Trademark law still clings to the fantasy of signs with fixed referents, while platforms like TikTok? reveal the postmodern truth that signs now function more as viral code than brand indicators. Trademark can try to enforce artificial symbolic scarcity, or entrench its dominance via corporate-approved sponsored content and shoppable links. Yet digital culture resists this, creating meaning outside of sanctioned legal-economic channels. | | | | |
>
> | However, the diminishment of the exclusionary halo around trademarked entities does little to de-propertize the word, symbol, or name itself. Social media users are just consumers taking a more active role in commodification—even turning the process on themselves. Through obsessive self-identification via aesthetic choices, users create elaborate lore for the personalities they seek to project, complete with shoppable links to “get the look.” See The Core-ification of Everything Ruins Identity Formation, Substack (Mar. 26, 2024), https://mayumiwrites.substack.com/p/the-core-ification-of-everything. Thus, consumers are merely “empowered” to do brands’ work for them: spinning their own simulacra encompassing not merely a brand name as a sign of quality, but as a lifestyle. Thus, they generate the economic value that allows the legal fiction to sustain itself. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
|
|
ShenelEkiciFirstEssay 4 - 27 Apr 2025 - Main.EbenMoglen
|
| |
| META TOPICPARENT | name="FirstEssay" |
|---|
| |
<
< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Logomachy: A Functional Approach under Fascism | | | Cohen’s perspective remains necessary, though more difficult to apply. Whether we can beat them at their own game remains an open question. | |
>
> |
A really excellent beginning. You are too brilliant for your own good: piling sources atop one another is a game you play too well for the health of the underlying thinking. That's why you are left with a non-conclusion at the end of the draft: so many fireworks but not much lasting illumination.
The opening autobiography is compelling, but it doesn't lead anywhere either. So the editorial task is to get all this power and verve under control. There's loss in that, of course. It's as though an entire year's effervescent thinking by an energetic mind were bursting out in five genres at once. Now that we've watched an intense explosion in the world's greatest paint factory (a sight it would have been a shame to miss) let's try painting. A draft that picks one through line (maybe Cohen, it was a good choice), and sticks to it, leaving the smuggled aunt and the cockroach and perhaps even Helene Cixous for another day, and we shall see some serious light.
| | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
|
|
ShenelEkiciFirstEssay 3 - 21 Feb 2025 - Main.ShenelEkici
|
| |
| META TOPICPARENT | name="FirstEssay" |
|---|
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By Shenel Ekici | |
<
< | Metamorphosis
When my father asked why I wouldn’t go to law school, I used to say, “You raised me right.” No one in my family trusted the State. My father grew up in rural Turkey, born to a former indentured servant and a mine worker, both functionally illiterate. My aunt, a political prisoner, was smuggled into Germany while heavily pregnant. My parents refused to marry, rejecting marriage as a state tool to offload responsibility onto the nuclear family. We listened to Fox News in the car to understand how “they” thought. | >
> | The Metamorphosis
When my father asked why I wouldn’t go to law school, I used to say, “You raised me right.” No one in my family trusted the State. My father grew up in rural Turkey, born to an illiterate former indentured servant and a mine worker. My aunt, a political prisoner, was smuggled into Germany while heavily pregnant. My parents rejected marriage as a state tool to offload responsibility onto the nuclear family. We listened to Fox News in the car to understand how “they” thought. | | | | |
<
< | At Barnard, my disdain for institutions flourished through a steady diet of post-postmodern literary theory and gender studies. My Modernism professor used to say, “If you want to see the canon, cross the street and look at the names on Butler.” Law school, though a logical tool for getting closer to the work I wanted, felt fundamentally incompatible with my academic foundation. Now, I was the one in Butler, churning out mechanically correct yet soulless writing, bowing to my professors’ favored policy considerations. It worked—too well. One December night, a cockroach skittered across my desk. I didn’t leave until I finished my contracts practice exam. Was there another way, or was I doomed to be a cockroach forever? | >
> | At Barnard, my disdain for institutions flourished through a steady diet of postmodern literary theory and gender studies. A professor used to say, “If you want to see the canon, cross the street and look at the names on Butler.” Law school, though a logical tool for accomplishing the work I wanted, felt incompatible. Now, I was the one in Butler, churning out mechanically correct writing, bowing to my professors’ favored policy considerations. It worked—too well. One December night, a cockroach skittered across my desk. I didn’t even leave until I finished my contracts practice exam. Was I doomed to be a cockroach too? | | |
Transcendental Nonsense | |
<
< | I first encountered Transcendental Nonsense in Civil Procedure, mentally filing it under “interesting but not a priority”—it wouldn’t be tested. Now, with an academically sanctioned reason to revisit it, I feel compelled to examine it against my prior scholarship. | >
> | I first encountered Transcendental Nonsense in Civil Procedure, mentally filing it under “interesting but not a priority”—it wouldn’t be tested. Now, I have an academically sanctioned reason to revisit it. | | | | |
<
< | Cohen captured what I had felt in law school: the paper-thinness of arguments grounded in principle alone, the “divorce of legal reasoning from questions of social fact and ethical value.” Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 814 (1935). I had always conceived of law in Hobbesian terms, commanding obedience not for its justice or rationality, but due to the power behind it. Id. at 837. The commingling of this with Coke’s “perfection of reason” was unsurprising, given the hubris of the profession, but I at least assumed we were all in on the joke. Id. | >
> | Cohen captured what I felt in law school: the paper-thinness of arguments grounded in principle alone, the “divorce of legal reasoning from questions of social fact and ethical value.” Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 814 (1935). I had always conceived of law in Hobbesian terms, commanding obedience not for its justice or rationality, but because of power. Id. at 837. The commingling of this with Coke’s “perfection of reason” was unsurprising, given the hubris of the profession, but until I got to CLS I had assumed we were all in on the joke. Id. | | | | |
<
< | Cohen urges the incorporation of disciplines like psychology, economics, and political science to ground legal decision-making in human behavior, allowing ethics to “come out of hiding.” Id. at 847. Yet my academic training warned that these disciplines suffered from the same affliction Cohen sought to remedy. His striking analysis of trade names critiques their “thingification” for its lack of economic rationale. Id. at 815. But by focusing on economic impact, Cohen asks the wrong questions. Id. at 817. In a post-postmodern age swinging back into fascism, we must interrogate whether the words courts implicitly grant legal protection mean what we say they mean. | >
> | Cohen urges an interdisciplinary approach to ground legal decision-making in human behavior, allowing ethics to “come out of hiding.” Id. at 847. Yet my academic training warned that other disciplines suffered from the same affliction. For example, his striking analysis of trade names critiques their “thingification” for its lack of economic rationale. Id. at 815. But by focusing on economic impact, Cohen asks the wrong questions. Id. at 817. In a post-postmodern age swinging back into fascism, we must interrogate whether the words courts implicitly grant legal protection mean what we say they mean. | | |
Strategic Misreading
From a deconstructionist perspective, “[l]anguage is structured as an endless deferral of meaning, and any search for an essential, absolutely stable meaning must therefore be considered metaphysical,” just like a transcendental approach to law. Toril Moi, Sexual/Textual Politics: Feminist Literary Theory (1985). Resorting to rhetorical hierarchy—the binary system of opposition—can undermine the very ethical concerns one might seek to remedy. See generally, Hélène Cixous, Sorties: Out and Out: Attacks/Ways Out/Forays, in The Newly Born Woman 63 (Hélène Cixous & Catherine Clément eds., Betsy Wing trans., 1986). | |
<
< | Marginalized groups, historically denied custodianship of truth, can weaponize this instability by constructing “strategic misreadings,” drawing meaning from texts in ways that reflect their social realities. Gayatri Chakravorty Spivak, Displacement and the Discourse of Woman, in Displacement: Derrida and After 169 (Mark Krupnick ed., 1983). Yet another danger emerges: patriarchy “[d]etermines not only the game’s rules but…[its] parameters, so that those placed in the margin….are made to believe that this marginalization is, in fact, a participation in the game.” Jeanette McVicker? , Barthelme’s The Dead Father: Girls Talk, 17 Lit. Interpretation Theory 289 (2006). | >
> | Marginalized groups, historically denied custodianship of truth, can weaponize this instability by constructing “strategic misreadings,” in ways that reflect their social realities. Gayatri Chakravorty Spivak, Displacement and the Discourse of Woman, in Displacement: Derrida and After 169 (Mark Krupnick ed., 1983). Yet another danger emerges: patriarchy “[d]etermines not only the game’s rules but…[its] parameters, so that those placed in the margin….are made to believe that this marginalization is, in fact, a participation in the game.” Jeanette McVicker? , Barthelme’s The Dead Father: Girls Talk, 17 Lit. Interpretation Theory 289 (2006). | | |
The Game | |
<
< | The question, then, is how to play the game—how to approach law functionally without falling into rhetorical traps—in a world where words have been entirely divorced from meaning. See Baudrillard, Simulation and Simulacra. “A fascist is unconcerned with the connection between words and meanings…the language serves him.” Timothy Snyder, What Does It Mean That Donald Trump Is a Fascist?, New Yorker (Nov. 8, 2024), https://www.newyorker.com/magazine/dispatches/what-does-it-mean-that-donald-trump-is-a-fascist. | >
> | The question, then, is how to play the game—how to approach law functionally without falling into rhetorical traps—in a world where words have been entirely divorced from meaning. “A fascist is unconcerned with the connection between words and meanings…the language serves him.” Timothy Snyder, What Does It Mean That Donald Trump Is a Fascist?, New Yorker (Nov. 8, 2024), https://www.newyorker.com/magazine/dispatches/what-does-it-mean-that-donald-trump-is-a-fascist. See also Baudrillard, Simulation and Simulacra. | | | | |
<
< | Problematic as The Father was, at least he was predictable: “Death of the Father would deprive literature of many of its pleasures…Isn’t storytelling always a way of searching for one’s origin, speaking one’s conflicts with the Law?” Roland Barthes, The Pleasure of the Text (Richard Miller trans., Hill & Wang 1975). In contrast, “A liberal has to tell a hundred stories, or a thousand...A fascist just has to be a storyteller.” Snyder, New Yorker (Nov. 8, 2024). Fascism is unpredictable not because we ignore it, but because it monopolizes language. Id. It may not be as sharp a tool as Cohen assumes. | >
> | Problematic as The Father was, at least he was predictable: “Death of the Father would deprive literature of many of its pleasures…Isn’t storytelling always a way of searching for one’s origin, speaking one’s conflicts with the Law?” Roland Barthes, The Pleasure of the Text (Richard Miller trans., Hill & Wang 1975). In contrast, “A liberal has to tell a hundred stories, or a thousand...A fascist just has to be a storyteller.” Snyder, New Yorker (Nov. 8, 2024). Fascism is unpredictable not just because we ignore it, but because it monopolizes language. Id. It may not be as sharp a tool as Cohen assumes. | | | | |
<
< | Neither are supposedly objective disciplines like economics or political science. The disconnect between reported economic data and public perception in the 2024 election was initially dismissed as misinformation and irrationality. Yet, as we now know, traditional metrics failed to capture economic hardships that fueled frustration with Democrats proclaiming a strong economy. Eugene Ludwig, Voters Were Right About the Economy. The Data Was Wrong., Politico (Feb. 11, 2025), https://www.politico.com/news/magazine/2025/02/11/democrats-tricked-strong-economy-00203464. | >
> | Neither are supposedly objective disciplines, like economics or political science. The disconnect between reported economic data and public perception in the 2024 election was initially dismissed as misinformation or irrationality. Yet traditional metrics failed to capture the economic hardships that fueled frustration with Democrats insistent on the strength of our economy. Eugene Ludwig, Voters Were Right About the Economy. The Data Was Wrong., Politico (Feb. 11, 2025), https://www.politico.com/news/magazine/2025/02/11/democrats-tricked-strong-economy-00203464. | | | | |
<
< | Cohen’s perspective is more necessary than ever, yet more difficult to apply. Whether we can beat them at their own game remains an open question—but not an impossible one. | >
> | Cohen’s perspective remains necessary, though more difficult to apply. Whether we can beat them at their own game remains an open question. | | |
|
|
|
ShenelEkiciFirstEssay 2 - 20 Feb 2025 - Main.ShenelEkici
|
| |
| META TOPICPARENT | name="FirstEssay" |
|---|
| |
<
< | | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
<
< | Logomachy | >
> | Logomachy: A Functional Approach under Fascism | | | -- By Shenel Ekici | |
<
< | Section I | >
> | Metamorphosis
When my father asked why I wouldn’t go to law school, I used to say, “You raised me right.” No one in my family trusted the State. My father grew up in rural Turkey, born to a former indentured servant and a mine worker, both functionally illiterate. My aunt, a political prisoner, was smuggled into Germany while heavily pregnant. My parents refused to marry, rejecting marriage as a state tool to offload responsibility onto the nuclear family. We listened to Fox News in the car to understand how “they” thought.
At Barnard, my disdain for institutions flourished through a steady diet of post-postmodern literary theory and gender studies. My Modernism professor used to say, “If you want to see the canon, cross the street and look at the names on Butler.” Law school, though a logical tool for getting closer to the work I wanted, felt fundamentally incompatible with my academic foundation. Now, I was the one in Butler, churning out mechanically correct yet soulless writing, bowing to my professors’ favored policy considerations. It worked—too well. One December night, a cockroach skittered across my desk. I didn’t leave until I finished my contracts practice exam. Was there another way, or was I doomed to be a cockroach forever?
Transcendental Nonsense | | | | |
<
< | Subsection A | >
> | I first encountered Transcendental Nonsense in Civil Procedure, mentally filing it under “interesting but not a priority”—it wouldn’t be tested. Now, with an academically sanctioned reason to revisit it, I feel compelled to examine it against my prior scholarship. | | | | |
>
> | Cohen captured what I had felt in law school: the paper-thinness of arguments grounded in principle alone, the “divorce of legal reasoning from questions of social fact and ethical value.” Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 814 (1935). I had always conceived of law in Hobbesian terms, commanding obedience not for its justice or rationality, but due to the power behind it. Id. at 837. The commingling of this with Coke’s “perfection of reason” was unsurprising, given the hubris of the profession, but I at least assumed we were all in on the joke. Id. | | | | |
<
< | Subsub 1 | >
> | Cohen urges the incorporation of disciplines like psychology, economics, and political science to ground legal decision-making in human behavior, allowing ethics to “come out of hiding.” Id. at 847. Yet my academic training warned that these disciplines suffered from the same affliction Cohen sought to remedy. His striking analysis of trade names critiques their “thingification” for its lack of economic rationale. Id. at 815. But by focusing on economic impact, Cohen asks the wrong questions. Id. at 817. In a post-postmodern age swinging back into fascism, we must interrogate whether the words courts implicitly grant legal protection mean what we say they mean. | | | | |
<
< | Subsection B | | | | |
>
> | Strategic Misreading | | | | |
<
< | Subsub 1 | >
> | From a deconstructionist perspective, “[l]anguage is structured as an endless deferral of meaning, and any search for an essential, absolutely stable meaning must therefore be considered metaphysical,” just like a transcendental approach to law. Toril Moi, Sexual/Textual Politics: Feminist Literary Theory (1985). Resorting to rhetorical hierarchy—the binary system of opposition—can undermine the very ethical concerns one might seek to remedy. See generally, Hélène Cixous, Sorties: Out and Out: Attacks/Ways Out/Forays, in The Newly Born Woman 63 (Hélène Cixous & Catherine Clément eds., Betsy Wing trans., 1986). | | | | |
>
> | Marginalized groups, historically denied custodianship of truth, can weaponize this instability by constructing “strategic misreadings,” drawing meaning from texts in ways that reflect their social realities. Gayatri Chakravorty Spivak, Displacement and the Discourse of Woman, in Displacement: Derrida and After 169 (Mark Krupnick ed., 1983). Yet another danger emerges: patriarchy “[d]etermines not only the game’s rules but…[its] parameters, so that those placed in the margin….are made to believe that this marginalization is, in fact, a participation in the game.” Jeanette McVicker? , Barthelme’s The Dead Father: Girls Talk, 17 Lit. Interpretation Theory 289 (2006). | | | | |
<
< | Subsub 2 | | | | |
>
> | The Game | | | | |
>
> | The question, then, is how to play the game—how to approach law functionally without falling into rhetorical traps—in a world where words have been entirely divorced from meaning. See Baudrillard, Simulation and Simulacra. “A fascist is unconcerned with the connection between words and meanings…the language serves him.” Timothy Snyder, What Does It Mean That Donald Trump Is a Fascist?, New Yorker (Nov. 8, 2024), https://www.newyorker.com/magazine/dispatches/what-does-it-mean-that-donald-trump-is-a-fascist. | | | | |
<
< | Section II | >
> | Problematic as The Father was, at least he was predictable: “Death of the Father would deprive literature of many of its pleasures…Isn’t storytelling always a way of searching for one’s origin, speaking one’s conflicts with the Law?” Roland Barthes, The Pleasure of the Text (Richard Miller trans., Hill & Wang 1975). In contrast, “A liberal has to tell a hundred stories, or a thousand...A fascist just has to be a storyteller.” Snyder, New Yorker (Nov. 8, 2024). Fascism is unpredictable not because we ignore it, but because it monopolizes language. Id. It may not be as sharp a tool as Cohen assumes. | | | | |
<
< | Subsection A | >
> | Neither are supposedly objective disciplines like economics or political science. The disconnect between reported economic data and public perception in the 2024 election was initially dismissed as misinformation and irrationality. Yet, as we now know, traditional metrics failed to capture economic hardships that fueled frustration with Democrats proclaiming a strong economy. Eugene Ludwig, Voters Were Right About the Economy. The Data Was Wrong., Politico (Feb. 11, 2025), https://www.politico.com/news/magazine/2025/02/11/democrats-tricked-strong-economy-00203464. | | | | |
<
< | Subsection B | >
> | Cohen’s perspective is more necessary than ever, yet more difficult to apply. Whether we can beat them at their own game remains an open question—but not an impossible one. | | |
|
|
|
ShenelEkiciFirstEssay 1 - 19 Feb 2025 - Main.ShenelEkici
|
|
>
> |
| META TOPICPARENT | name="FirstEssay" |
|---|
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Logomachy
-- By Shenel Ekici
Section I
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|