»Unlabelled » Law & Humanities Blog

Law & Humanities Blog

Law & Humanities Blog

"From Hell's Dark Heart, I Stab At Thee!"

Posted: 15 Jun 2011 01:42 PM PDT

The Supreme Court of Texas has stabbed fatally at a tort reform provision intended to insulate a company from liability from its predecessor's action, and in finding that provision unconstitutional, one of the Court's Justices finds inspiration in Star Trek, among other worthy authorities (including Thomas Hobbes). Justice Willett writes in part,

Today's case is not merely about whether chapter 149 singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation. Distilled down, it is also a case about how Texans govern themselves. Delimiting the outer edge of police-power constitutionality has bedeviled Texas courts for over a century. The broader issue of a citizen's relationship with the State has confounded for centuries longer.
 From 1651: "For in a way beset with those that contend on one side for too great Liberty, and on the other side for too much Authority, 'tis hard to passe between the points of both unwounded."
From 1851: "It is much easier to perceive and realize the existence and sources of [the police power] than to mark its boundaries, or prescribe limits to its exercise."
From 1907: The question whether a law can stand as a valid exercise of the police power "may be involved in mists as to what police power means, or where its boundaries may terminate. It has been said that police power is limited to enactments having reference to the comfort, safety, or the welfare of society, and usually it applies to the exigencies involving the public health, safety, or morals."
Gauzy definitions such as these -- and laments over such imprecision -- offer scant comfort in this enterprise. The issue is elemental, but not elementary. Fortunately, we are not entirely without guidance.


Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that "the needs of the many outweigh the needs of the few." Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.


NB: The text of Footnote 21 is

See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book's opening and closing passages. Most memorable, of course, is Spock's famous line from his moment of sacrifice: "Don't grieve, Admiral. It is logical. The needs of the many outweigh . . ." to which Kirk replies, "the needs of the few."
Other footnotes omitted.


The case is Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126 (2010), 161-163. It has already gotten attention from the SFWA Blog and Techdirt, back in October when the Court decided the case, and from Constitutional Law Prof Blog in April when the Court formally released the opinion. Says Techdirt, "And so, Spock is now a legal authority on the Texas Constitution. Very logical." Well, not exactly. But interesting.

The Role of Legislators

Posted: 15 Jun 2011 11:40 AM PDT

Dan Svantesson, Bond University School of Law, has published What is 'Law', If 'The Law' is Not Something that 'Is'? A Modest Contribution to a Major Question. Here is the abstract.



Having proposed an alternative definition of what "law" (as a jurisprudential concept) is, this article seeks to demonstrate the impossibility of identifying "the law" (as in what law-makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is always a more or less abstract range of options.



Thus, law-makers, such as legislators and judges, do not express the law, but something less than the law – something limited by biases.



Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law-makers.
We need to remove the mystery that surrounds the law. Doing so will make clear that law-makers must be open about their unavoidable biases – we need greater transparency. The article concludes that this transparency can only be gained by requiring law-makers to declare their inescapable biases where they impact on their lawmaking.Download the paper from SSRN at the link.

Deciphering Logic in Law

Posted: 15 Jun 2011 08:05 AM PDT

Maria Francisca Carneiro, Federal University of Paraná, has published Notes on a Way of Thinking in Paraconsistent Logic in Law. Here is the abstract.


This works deals with the evolution of a way of thinking in paraconsistent logic in Juridical Sciences, as a result of studying. It focuses on different types of paraconsistent logic that can be applied to Juridic questions, aiming especially at solving the contradictions frequently found in law.
Download the paper from SSRN at the link.

The Development of Constitutions

Posted: 15 Jun 2011 07:39 AM PDT

Kaarlo Heikki Tuori, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity, has published The Economic Constitution Among European Constitutions as Helsinki Legal Studies Research Paper No. 6. Here is the abstract.


The paper starts from the (hypo)thesis, that European constitutionalism should be examined as a diversified process where each stage receives its particular colouring from a particular constitution (or constitutional dimension). Reflecting the temporal and functional primacy of economic integration, the first wave proceeded under the auspices of economic constitution; in the second phase, the emphasis shifted to juridical constitution; during the third wave, the focus was transferred to political constitution; and finally, in our contemporary age, since, say, the Treaty of Amsterdam the pacemaker role appears to have been taken over by security constitution. Such a temporal succession should not be interpreted in the sense of an emerging constitutional aspect replacing or supplanting the previous one; rather, the constitutional dimensions complement each other. Thus, the latent and manifest development of economic constitution has not stopped, and the economic constitution retained its functional primacy. Constructing a common (internal) market has been the motor of the whole integration process and, correspondingly, the non-economic constitutional dimensions have largely developed as a response to demands raised or consequences set off by the economic one. Here we can talk of relations of implication. Finally, relations between aspects of constitution can also be of a conflictual nature. Thus, the normative implications of economic constitution may clash with those of, say, political or social constitution. Before the European Court of Justice, such conflicts often assume the guise of contests between different types of rights: between, on the one hand, rights related to market freedoms and, on the other hand, civil and political or social rights.
Download the paper from SSRN at the link.

The Faculty Workshop As System and Symptom

Posted: 15 Jun 2011 07:31 AM PDT

Pierre Schlag, University of Colorado Law School, has published The Faculty Workshop as University of Colorado Law Legal Studies Research Paper No. 11-12. Here is the abstract.



This essay explores the ubiquitous law school institution, "The Faculty Workshop," as an entrée into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought - at once governance system and symptom. We close by discussing "Stage 4."
Download the paper from SSRN at the link.
Bookmark and Share

Blog Archive