Law in Contemporary Society
I was reading Prigg v. Pennsylvania, the case in our Con Law class about the Fugitive Slave Act, and I couldn't help but think of this class. It seems to be almost a caricature of a legal outcome based on legal principles which prides itself on its logic but in no way approaches a moral conclusion. Here's Justice Story combining abstract legal axioms with those that he claims underlie the Constitution to reach a "logical" conclusion within the boundaries of our legal system. And what do we arrive at when we build off of these principles that are so important to our society? That people can be captured as "property" and enslaved?

It's a mockery of the claim that the principles our legal system operates on lead us to ethical outcomes.

In property law as well, the assumptions made to reach legal conclusions are pissing me off. Action in waste, adverse possession and dispelling conditions in a fee simple absolute based on a desire for alienability are all entirely built on what is economically most efficient. If a person has a life estate of a property and I'm the remainderman and that person destroys my favorite barn because the value of the property is projected to rise, I have no right to protect it because there's no assumed diminution of value. Is that all that property is worth? Its present market value? What if all my childhood memories were in that barn?

The law treats us like robots operating in a world where our entire objective is how to grow our bank accounts and rationalizes all decisions based on assumed values I and many others don't share.

-- KippMueller - 02 Feb 2012

I haven't encountered Prigg yet, but I would say that most of the Constitutional cases I've read thus far are difficult to swallow when read with an eye toward the functional understanding of jurisprudence. I am thinking in particular of the cases involving standing. I (think) I understand the structural arguments underlying the doctrine and its purported purpose, but I can't get over the extent to which the Justices employ creative arguments having nothing to do with either those Constitutional concerns or the individual's complaint, all in the service of denying the plaintiff standing. In a number of these decisions, the abuse of the leeway granted by the ill defined doctrine is so egregious as to invite allegations of blatant manipulation by other members of the court. And yet, these opinions are precedent.

Bush v. Gore is another particularly egregious instance of Transcendental Nonsense. I was particularly interested in the public discourse surrounding it. In so many cases (particularly Constitutional ones), where the implications of the outcome are necessarily obscured by time and complexity, the public is willing to accept a court's pronouncement because they believe it to be the result sound and unbiased interpretation of the Constitution. Where the implications are so obvious and of such immediate interest to the public, however, this grant of faith recedes tremendously. Importantly, neither reaction is based on the "substantive" legal arguments contained in a decision.

-- PatrickOConnor

Dred Scott is another example of the use of legal axioms and Constitutional interpretation to condone patent racial discrimination. It seems that the beauty of ‘transcendental nonsense’ lies in the eye of the beholder - vacuous legal principles, divorced from political and social realities, can be manipulated to take on any ‘meaning’ in order to support a pre-determined desired outcome. The same principle or rule of law can be used to either bolster or destroy a holding – its purpose and effect really only depends on a lawyer/judge’s ability to eloquently and seamlessly insert it into argument/opinion in a way that makes it appear as though it can have no other logical application. Many judicial opinions look an awful lot like carefully constructed smoke and mirrors - maybe we are all just in training to become magicians.

-- MeaganBurrows - 05 Feb 2012


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r4 - 22 Jan 2013 - 18:13:45 - IanSullivan
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