Re-Embodying Law

It was fun to watch the audience of mostly first-year students during Mark Johnson\u27s presentation. Seven weeks into their first semester of law school, this was clearly the most fun they had had so far. And it was easy to see why: law school takes place from the neck up, so to speak. It is so relentlessly about reason abstracted from the ordinary interests, passions, and other embodied considerations of everyday (not to mention college) life. This deracination of law is ritualized metaphorically in the black robes that enshroud our judges\u27 bodies as if to say, See, it is all from the neck up. And that is one of the most wonderful things about the work that Mark Johnson and George Lakoff have been doing: it reconnects us to ourselves in our embodied wholeness-as not just minds, but as embodied human beings. This classic Western opposition between mind and body-and its correlates, such as reason and the passion, logic and rhetoric, etc.-is mirrored in twentieth-century legal theory\u27s absorption with the problem of meaningful constraints on judicial decisionmaking and the consequent danger of unchecked subjectivity. The fear, conventionally identified with the Supreme Court\u27s infamous decision in Lochner v. New York, is that without constraints, judges and other powerful legal actors will be free to impose their personal values. On this view, law operates as law only if there is some disciplining, external constraint on the discretion of the legal decisionmaker. In Frank Michelman\u27s words, law is an autonomous force that provides an external untouchable rule of the game. This constraint may be an objective quality of the legal materials-that is, of the facts and holdings of the cases-or a higherorder reason grounded in general concepts or rules, the intent of the Framers, political theory, moral philosophy, or as is current today, the utilitarian rationality of microeconomics and rational choice theory. But, in each of these cases, the structure of legal reasoning is essentially the same: it strives to reduce a complex problem to a policy, principle, propositional rule, or some other set of necessary and sufficient criteria. In theory, these definitional criteria will allow professionals to delineate legal categories with greater precision, draw appropriate distinctions, and then make correct decisions

The Meaning of under Color of Law

The argument proceeds as follows. In Part I, I examine why the conceptual problem of who or what is the State is so intractable. In Part II, I present the historical evidence that establishes beyond doubt the pedigree and meaning of the phrase under color of law. I explain why Frankfurter would have indulged in such an obvious historical error to take the position he did. I suggest that, as was the case with the invention of modem standing doctrine, Frankfurter was here engaged in a stealthy, anachronistic campaign against the jurisprudence of the Lochner era - attempting to create doctrinal constraints on the federal courts\u27 power to invalidate necessary social legislation. In Part III, I examine the more complex metaphorical aspects of the meaning of the legal metaphor under color of law. I explore the conceptual bases of the metaphor, considering both the historical changes and the continuities in the socio-linguistic practices that underpin its meaning. The purpose of this linguistic analysis is threefold: first, to explain how the metaphor expresses the meaning that it does; second, to clarify why the meaning of the metaphor as it was incorporated in section 1983 is conventional to our culture, rather than arbitrary and contingent solely on the intention of the drafters; and third, to explore what the metaphor adds to our understanding of the conceptual problem at the heart of section 1983. The section closes with an analysis of what the historical and linguistic material implies for the interpretation of the statute. My intention in this article is not to argue for the drafters\u27 intent, but rather to employ a more faithful historical understanding of under color of law as a way of seeing and then seeing again. Thus, in Part IV, I consider some of the broader ramifications of the color of law conception. I examine how this metaphoric conception changes our view of apparently unrelated doctrinal issues concerning the scope and coverage of section 1983. In this renewed vision, we can relocate the social dimension of the meaning of state power in a tradition committed to self-governance and, therefore, to governmental accountability - to see what was there once, to see what can be there now

Making the Familiar Conventional again

In 1984, Gerald López published his groundbreaking and still remarkable Lay Lawyering, employing then-recent developments in cognitive science to reexamine and reconfigure basic questions of law and legal reasoning. Three years later, Charles Lawrence\u27s The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism used insights from cognitive and Freudian psychology to probe the problem of racism and the inadequacy of the law\u27s response. George Lakoff\u27s Women, Fire, and Dangerous Things appeared that same year. It was followed by a series of articles in which I examined a range of legal and theoretical issues in light of the new learning about categorization and human reasoning. Nineteen ninety-three saw the publication of articles by my colleagues Gary Minda and Donald Jones on, respectively, cognitive theory and the law of boycotts and the linguistic and metaphorical construction of race. Two years later, Gary L. Blasi\u27s What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory and Linda Hamilton Krieger\u27s The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity both appeared. More recently, Larry Solan has reexamined issues of statutory construction and criminal law in light of what cognitive science has revealed about how humans actually categorize and reason

Melville, Slavery, and the Failure of the Judicial Process

Pré-textuai