Law

“Doug Laycock retracts in Little Sisters”. That would have surprised me. Turns out: Ed Whelan thinks that Laycock ought to retract, because Whelan disagrees with Laycock. Less noteworthy. (Made me look!)

But I have a simple legal question. [click to continue…]

I recently learned something that I had been totally ignorant about: black and Creole women pre-Emancipation were required by law in many places to wear a headwrap in public. Obviously I’m familiar with the image of Aunt Jemima in her checkered kerchief. And my family has some etchings in S.C. of women hawking food on the street in Savannah, calling “swimpee, swimpee, nice and fresh” and the like. (The Gullah word starts with the voiceless alveolar /s/ and then has the rest said like we all say shrimp–according to the dictionary, but the mangled spelling of the etchings is actually a good approximation of how it sounds.) All the women depicted are wearing headscarves–and the women who sell sweetgrass baskets on the street in Charleston, wear them today. (People actually did hawk food on the street when my dad was a kid, which is kind of funny to think about.) Women in Louisiana were subject to the “tignon” law, which mandated a headwrap, starting in 1785. You will not be surprised to learn that the one-drop rule applied to the tignon law, so the many beautiful only-one-black-great-grandparent-having ladies in New Orleans also had to have them on. However, as this great, lavishly illustrated writeup details, it didn’t work out quite as planned,

In an effort to maintain class distinctions in his Spanish colony at the beginning of his term, Governor Esteban Rodriguez Miró (1785 – 1791) decreed that women of color, slave or free, should cover their heads with a knotted headdress and refrain from “excessive attention to dress.” In 1786, while Louisiana was a Spanish colony, the governor forbade: “females of color … to wear plumes or jewelry”; this law specifically required “their hair bound in a kerchief.” But the women, who were targets of this decree, were inventive & imaginative with years of practice. They decorated their mandated tignons, made of the finest textiles, with jewels, ribbons, & feathers to once again outshine their white counterparts.

Nice try, dicks. Free blacks were almost 20% of the New Orleans at the time of the Louisiana Purchase, but both enslaved and free black women had to wear the tignon. And, thinking about it, lots of women in the Caribbean wore/wear this style. You should definitely go read this post which is very detailed and has some superlative turban/hat combos to admire.

This Dahlia Lithwick piece on the Supreme Court abortion case, Whole Woman’s Health v Hellerstedt, is interesting in itself, and suggestive for the near future. We have an even 4-4 conservative-liberal split on the court but Thomas doesn’t talk, and Roberts, the Chief, regards it as his duty to be Chief. Roberts seems to care about being remembered as an effective Chief Justice more than he cares about being remembered as a reliable ideological partisan (like Scalia); this significantly constrains his self-presentation in oral argument. Anthony Kennedy is – Anthony Kennedy. Libertarian, hence mostly conservative, in that idiosyncratically reliable way of his. That leaves Alito, the rock-ribbed Republican voice on the court, if you will. On the other hand, we have Breyer-Kagan-Sotomayor-Ginsburg. Their collective partisan profile is moderate-left Democrat. They are much more judicially restrained than, say, Scalia. But the very fact that they do not espouse philosophically extremist positions – they are not judicial philosophical activists, to coin a phrase – means there are fewer cross-currents and counter-currents within their overall, moderate-left flow. They aren’t going to make bold, contrarian leaps; they’ll keep right on saying moderately liberal things, more or less in unison.

So we may see more cases in which the oral optics (pardon a synaesthetically mixed metaphor!) are: Republican Party (Alito) double, triple or even quadruple-teamed by the Democratic Party. Oral argument isn’t voting. It’s still 4-4 for voting, most days. I doubt Clarence Thomas is going to start voting with the liberals, even if he sees liberals dominating oral argument. I also don’t suppose Roberts will stand for seeing his partisan side being out-talked in some dramatic way. But his position constrains him. Possibly we will be hearing more from Thomas. That would be interesting, to say the least.

Scalia always had enough oral argument in him for any three Justices. Now it occurs to me that might have been literally the case.

I don’t really have a good sense about how the dynamics of oral argument feed into the obviously much more extensive, behind closed doors activities that result in decisions. But I’m sure it means something, if the character of oral argument shifts dramatically. What do you think?

There are plenty of absurd trademark cases out there, but I feel like this one is hitting new levels of crazy.

It [Delaware North] even trademarked the phrase ‘Yosemite National Park’ for use on T-shirts, pens and mugs, making one wonder why a private company should have exclusive rights over the name of a national treasure.

This LATimes story has the context.

Woop, I turn around for one second, completely ignoring my past self who was all, “Belle, just put some words or music or something on your blog! It’s not brain surgery, and Ben Carson is a brain surgeon, so….” and the result is that our blog stagnates! Well, no more of that. I’m saying stuff. Stuff like, you should listen to this insanely good Breakwater song, “We’re Going to Work it Out”!

So mellow, with a Latin swing thing happening. Also, this rubby-dubby sound like someone was rubbing on a balloon; what is that even, well-informed commentariat?

In not-mellow-at-all-bummer news we have this article on Deadspin documenting a case in which NFL player Greg Hardy assaulted his girlfriend. It’s an excellent piece that pulls together evidence that seems to have been publicly available for some time. Hardy was both charged and convicted (unusual for DV cases, especially with a powerful man involved), but the case was overturned on appeal and then expunged. I wasn’t aware this could even happen except when the Innocence Project proves that a person was unjustly put on death row, but in principle it’s an intuitive mechanism. The criminal justice system needs to be able to say, not merely “not guilty” but affirmatively “innocent.” This could be useful–in other cases.

There are photos of the woman’s injuries, and it may be that, as in the Ray Rice situation, the visual imagery will make an impact where the conviction (howsoever temporary) did not. Wait, except Ray Rice got the charges against him exchanged for some anger management or something? Well, we can say his career was permanently injured.

Greg Hardy is a better player than Rice and more valuable to his team, so they are probably backing him up all the way (even when he gets in a fight with coaching staff! Special Teams, tho, the B-list coaches.) Part of Hardy’s defense involved the ludicrous claim that, given how much stronger and bigger he was than the victim, the woman should have been much injured more seriously. Like, if he had assaulted her, her mere beatdown couldn’t have happened. This makes less than zero sense (people can’t hold back?) and I believe it has the dubious distinction of being shared with Mike Tyson’s DV defense back in the 90s. From the Deadspin post.

When asked to explain Holder’s injuries during his bench trial, he and Curtis would testify that Holder had jumped into the bathtub, then thrown herself on the couch, and then went crazy trying to attack Hardy. Hardy’s lawyer, Chris Fialko, would assert that Holder must have caused the injuries to herself. If the 290-lb. pass rusher had really wanted to hurt a woman who weighed well less than half what he did, his argument went, the damage would have been a lot worse.

Riiiiiight. My eyes are oscillating like unhinged gyroscopes, back, back, ever back. I can only see darkness and brain now.

The following statement came after the fight with the special teams coach, but listen to the leadershippy leadership of the owner of the world’s most hated football franchise: “[Greg Hardy’s], of course, one of the real leaders on this team and he earns it and he earns it with respect from all of his teammates and that’s the kind of thing that inspires a football team,” [Cowboys owner Jerry] Jones said. Mmm, taste the respect of a dude who flips the coaches clipboard up in his face on the field.

Although Deadspin is mostly a snarky sports blog that tells you why your NFL team sucks, it is also at times serious investigative journalism. They broke the Te’o Manti catfishing thing too. (I can’t summarize it, really.) In cases like these the established sports media seem disinclined to look too carefully into anything.

The NYT has been running a series of investigative reports on the spread of arbitration clauses that stipulate any conflict between an individual and the corporation or group be resolved outside court. Many times this means that instead of judges, plaintiffs have to plead their case to professional arbitrators who are hired to work repeatedly for the same companies. People often enter the agreements without knowing they have done so, because they may be hidden in something as banal as your purchase agreement for bamboo flooring. Many of the clauses seem to be notionally opt-in, but are in fact opt-out –it’s just that if you read through carefully and noticed you had a month to contest the terms and if it wasn’t the only job you could get to feed your family, you could, in theory, abstain from the agreement. It’s not just obvious conflicts of interest at work, though the Times does allude to how an arbitrator who awarded 1.7 million to a plaintiff was blacklisted. No, many of these clauses are religion-based, and you are forced to have civil disagreements judged in an explicitly religious “court,” in which Bible scripture can be quoted. In an extra FU move, a Christian school which lost in private arbitration decided they were Jesus-court in the streets, legal-system in the sheets, and tried to contest the ruling by filing a normal appeal. One poor sap is having his case against the Church of Scientology judged in…a Scientology-based religious court. Even though he’s on a list of “Suppressive Persons” and Scientologists are forbidden from having contact with him. Not sure how that’s going to work out. Someone must surely be willing to enter into an employment contract governed by a Muslim faith-based arbitrator, then suffer some harm, and then be forced to submit to religious arbitration of their case so that this BS can finally breathe life into the poorly-constructed scarecrow known as Sharia law? The law was enacted as a way to deter class-action lawsuits, and there are plenty of lawyers in the comments at the NYT defending the contracts that mandate arbitration on this basis. In what is a final indignity, this ruling (that such clauses in contracts) were constitutional came down under the tenure of Chief Justice Roberts, even though it seems as if he argued for the position in lower courts before joining the bench? Real labor and civil rights are being ceded to corporations, and judges have said “the first amendment made me do it” even in cases where they grant there has been serious injustice done.

ETA: I think this can best be summed up as companies thinking that if they cross their fingers behind them they can call “backsies” on all existing labor and product liability laws.

The recent news about VW has made me question some pretty fundamental things. I think cheating on this scale required, not just massive amounts of fraud, but a massive amount of complicity. No one at a lower level in the organization would take on the risk of freelancing a scheme of this nature. The benefits coming to you would be attenuated, and the danger would be great. This means that (minimally, some) people at the very top of the organization had to know about the software. Software powerful enough to determine when the car was being tested is complex and requires input from many sensors. This means (minimally, not a small number of) people had to know about the software. The person writing the proprietary code governing the steering wheel’s performance would have to be involved at least enough to have been told, “create an alert when the wheel hasn’t been moved in 2 minutes but the engine is running hard.” But it has always been my belief that, by and large, complex, dangerous conspiracies involving many people simply don’t happen. The more danger attaches to a criminal conspiracy–and here the danger seems in the worst case scenario actual dissolution of the company–the more the conspirators must be benefiting. Why would they do it otherwise? So, price-rigging among a small number of cartel members, for example, is easy to understand. But the larger the number of people involved in the conspiracy becomes, so, too does the benefit incline to decrease, but more obviously, the likelier it is that someone will screw up. If you are the director for a certain division of engines you might get a bonus that rises and falls with sales, or with the time and ease with which you meet projected goals. But it will have to be a pretty damn good bonus to risk being put in jail, right? And on the second point, each new person who knows about the conspiracy seems to exponentially increase the odds someone will blow the whistle. And yet here no one talked. They were only discovered by a pro-diesel group who wanted to tout the idea of getting more diesel cars on the road in the interests of cleaner energy expenditure! What the hell? And, do we think everyone else’s proprietary software is soft and rotten and fretted by maggots beneath a smooth and impenetrable DCMA surface? One can only imagine the EPA will be having a look…

Sometimes it seems as if Richard Dawkins is on a crusade to prove that atheists can be just as narrow-minded as religious people. He’s winning. He’s a hyuuuge, classy winner at this crusade. (Of crusades generally, the Children’s Crusade is at the bottom, because it was a loser crusade. For LOSERS! Barely any of those kids even made it back. Ask Donald Trump about whether POWs can be heroes. TIP: THEY CAN’T.)

As you assuredly know, a young man in Texas was recently arrested for a “bomb hoax.” Some people think it’s hoaxes all the way down. Dawkins and his compadres are making extraordinary claims, which require…well, any evidence at all, one feels. Let us imagine Ahmed Mohamed’s family has engineered a stunt. Ahmed makes (for some value of make which includes tinkering with maker modules or disassembling and reassembling old electronics. I mean, if you call that making. Which, tbh, I do.) Wait, that wasn’t a sentence. Anyway, he makes a ‘looks-like-a-bomb-on-purpose-but-is-a-clock.’ This thing, note, is in fact: a clock. Although the young man claims deep insight into the nature of time, he is obviously just aping Heidegger in a juvenile fashion, but so be it–so long as it be noted that I have noted he didn’t provide the police a fully satisfactory answer about what the passage of time really entails, I mean, what does the clock tell you when it tells you that another minute has passed and that now, it is now. My rigorous honesty compels me to denigrate his “clock,” simply because I am devoted to The Truth. It’s like this asshole some guy says:

Because, is it possible, that maybe, just maybe, this was actually a hoax bomb? A silly prank that was taken the wrong way? That the media then ran with, and everyone else got carried away? Maybe there wasn’t even any racial or religious bias on the parts of the teachers and police.

I don’t know any of these things. But I’m intellectually mature enough to admit I don’t know, and to also be OK with that. I don’t feel a need to take the first exit to conclusionville. But I do like to find facts where I can, and prefer to let them lead me to conclusions, rather than a knee jerk judgement based on a headline or sound bite.

Wow. Much openminded. So scientific. OK, sorry, I keep getting off-track for some reason. Right, this hoax is designed to get Ahmed Mohamed reprimanded at school, then arrested, and then become an internet cause celébrè, and then get invited to the White House. First of all, Ahmed and his family have to have judged the over/under for “young brown man thought armed with deadly weapon getting shot by the police” vs. “grievance-mongerer fêted by liberal elitists” a safe bet. I, like, would not take those odds at all. Secondly, for this plan to work, the teachers and police officers have to act like morons all up and down the line. There’s no other way. Really, it has to be a Confederacy of Dunces down there. Do these Clock Truthers realize their grim vision of Texan society is far, far more cynical than mine? Dawkins’ zealotry has obviously clouded his judgment, something which often befalls fundamentalists. To be undeservedly fair, Dawkins has perhaps been walking this back but, you know how it is. You’re a well-respected biologist–but ONE pig. It happens to, like everyone. It’s an experimental phase!

OK for real this is maybe the best thing in a newspaper ever: “David Cameron will not ‘dignify’ allegations that he once ‘inserted a private part of his anatomy’ into a dead pig’s mouth with a response, Downing Street has said.”

Also, this is why I could never be elected to higher office. If I had a wang I would so totally have stuck it in a roast suckling pig by now.

I realize our blog was curiously silent when we were all thinking, “gay marriage–in your FACE bitches!” And, “isn’t it a good thing that not quite enough Supreme Court justices were swayed by a ludicrously weak argument first tendered in the spirit of ‘0bummercare’ on IIRC the Volokh Conspiracy; at the same time, wasn’t that scary? Still, in your FACES hypocritical Jesuitical bastards!” And, “oh Lord why in the church why? How did he steel himself to it after they welcomed him and he did bible study for an hour. An hour! What kind of mordant acid of racism could etch a stain so black on the filth-splattered escutcheon of Dixie?” And, “I love the president of the United States of America. I am crying watching YouTube. There is snot on my face.” And, “holy shit, people are giving a crap about the confederate flag?! Are you serious? No, really, what?” I’ll be honest as a girl born in Savannah “home of the official platinum-level flag of bigotry” GA; a girl whose step-father was Edmund Kirby-Smith (the fourth and only)—this last one has me reeling. Also, has me realizing that I wasn’t cool in the 90s when I used a metal Dukes of Hazzard lunchbox as a purse for like 3 years. I was a dick. Well, truth be told I was going to post about the evil of Tom Bombadil, but then I felt like I needed to explain myself, so I’ll just wait a short while (and don’t you steal my thunder!).

The thing was, we flew to my in-laws in Eugene, OR (via HK and SF) and then I found out I had to do something in Indonesia so I flew back another 24 hours maybe six days later, to Singapore and then Bali, and now I’ma sort this out, fly back to Singapore, fly HK to SF to Eugene, and then the next day fly from Eugene to SF to Newark New Jersey to Savannah, and then 6 days later to Dulles, then National, then Martha’s Vineyard? No, I must have to fly to Boston. Whyyywwyyyy? OK, some people have real problems that don’t involve them flying around the world to beautiful places, so I’ll stop moping and let’s join in a carefully composed round of huzzahs and somber reflection and sore winner uncharitable triumph, shall we? In short, America: F@#k Yeah.

I had been planning to write this post in part about the killing of Freddie Gray in Baltimore before rioting broke out there. My mom was in Baltimore on Monday, actually, at Johns Hopkins; I talked to her and my sister and aunt in the morning. Goddamn. Then I thought I would post about a number of killings of unarmed black citizens by police and this one case in particular was so messed up that my post got too long, so I’ll leave it here for the moment. On Monday the 20th, Chicago police officer Dante Servin was found not guilty of all charges in a directed verdict from a bench trial for the fatal shooting of 22-year old Rekia Boyd. He was charged with involuntary manslaughter, reckless discharge of a firearm, and reckless conduct after shooting two people, one fatally, on March 21 of 2012. Servin lives near a park where people often gather at night and hang out. He had called in a noise complaint to 911 and then went out in his car (passing by on his way from getting food in one account, though this wasn’t clear, since most other articles discuss him putting his trash out (which involves one’s car in Chicago?!). They were right behind his house, it seems, and it’s a pity that, as lead detective on the case Officer Ed Heerdt said, Servin did have cameras mounted on his home but “he told me the system was inoperable and I was satisfied with that.” [So you didn’t check, then, or anything? Ah.] He took with him an unregistered 9mm handgun, and drove by slowly telling people to keep it down.

A bystander, Antonio Cross, who was on the phone with his cousin, says that he thought Servin was trying to buy drugs and said “f$%k you.” The cousin confirms this. Then Servin, thinking the phone in Cross’s hand was a gun, pulled out his weapon and fired over his shoulder into a group of people, shooting Cross in the hand and Rekia Boyd in the head. By this description people mean, I take it, that Servin was sitting in the car with the window down, drew the gun and fired over his left shoulder, turning around in the seat. He claimed via lawyers to have felt something “touch the back of his head”–i.e. his contention is that Cross put the phone there pretending it was a gun, just to scare him. Maybe that’s his contention? He also claimed (via others) that Cross merely “waved” the phone in such a way as to make it look like a menacing gun. The defence also, separately and quite at cross-purposes, argued that Cross’s cousin thought he heard 8-12 shots, while Servin only shot five times–so they muttered darkly about an undiscovered gun. (I think it is otiose for me to say no gun other than Servin’s was ever recovered at the scene.) The thing is, there sort of would have been shells, too, and places that got hit by bullets, and stuff like that. And if there had in fact been a gun barrel touching Servin’s head and then the gun were fired the results would have been noticeable. Well, when I say the defence said this and the defence said that, they didn’t have to work too hard, because this was a directed verdict from a bench trial. The judge (no jury) just stopped it right there after the witnesses had testified, said not guilty, and sent Officer Servin (yeah, he’s been a cop this whole time) home a free man. Why wasn’t it a jury trial? Apparently the accused can choose a trial before a judge. And what a prince of a guy Judge Porter is, because this is a totally reasonable thing to say to a grieving family:
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Oh God, I don’t even think this is funny enough to have a vaguely humorous headline. Let’s just say it’s black humour goddammmit mordant. You may have lost track of which black man got gunned down by which police just lately, but historically famed home of racial harmony Tulsa, OK, has seen one of the worst shootings in a while. (I say this and then I don’t even know because there are so many that are so bad. This is bad in a special way, though.). 73-year-old reserve Deputy Robert C. Bates shot and killed Eric Harris during an undercover, illegal gun-buy sting operation.

Well, more like Eric Harris ran from the for-real county deputies when they tried to arrest him, then two of them got on top of him while he was face-down on the ground, then Barney Fife shouts “taser, taser!” and shoots the man. “Oh! I shot him, I’m sorry!” he says. He’s apologising to the other cops, you understand. Not the guy he just shot. To be over-generously fair, he owes them an apology too because his dumb ass might have shot them as easy as anything, but it hardly seems like the main problem. (You can watch the video here. I can’t handle these usually, but there’s a description too if you don’t want to watch an actual human be mortally wounded and then treated worse than an injured dog.) The Tulsa County Sheriff’s spokesman has explained that the two deputies “did not hear” the shot. [Um. I have uh… Guns are loud, is what I’m saying.] They did hear Eric Harris say he had been shot, because they heard him say “he shot me” eight times before saying “I’m losing my breath,” to which the cop replies, “fuck your breath.” They were kneeling on the man’s head and his lung was filling up with blood and that was the last he ever heard from another human being. My daughter and I have asthma and that makes this particularly vivid and awful to imagine, just like with Eric Garner, struggling just to get one good intake of breath. They didn’t try to render first aid to him. When the EMTs/firemen came they had to uncuff him and set him upright to try to help him but it was too late. What? Even if you thought you were justified in shooting someone, why would you be indifferent as to whether he lived or died? And if there were any question in your mind…wouldn’t you want the person to live?
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“This is the thrilling romance of Orthodoxy. People have fallen into a foolish habit of speaking of orthodoxy as something heavy, humdrum, and safe. There never was anything so perilous or so exciting as orthodoxy.” – G.K. Chesterton

Long post, hastily hammered. I’m hammering, specifically, a Rod Dreher post, since (I admit) I have become quite addicted to watching him chew the theological scenery re: the Indiana stuff. But, in criticizing, I’m not just piling on with more pizza parlor people snark, I hope. I think he’s confused, but what he says does raise interesting issues. I will attempt to be only mildly sarcastic around the edges, in the hopes of good conversation all round.

Dreher writes: [click to continue…]

UPDATE: REDOUBLE YOUR EFFORTS AT MAOIST SELF-CRITICISM, COMRADES; DO NOT BE GULLED BY MY MOPING. TELL US YOU BELIEVE SOMETHING CRAZY. IT IS A NEAR-CERTAINTY!

In the thread to one of my string of unfailingly well-intentioned, generous–not to put too fine a point on it, let’s just say, kind posts on Political Correctness, some of us discussed what it would be like if I were actually kind we had a “safe” thread in which we could discuss feminism without worrying we would ban ourselves from polite society by saying The Wrong Thing. Now, I cannot actually bring it about that other commenters will not remember what you said in this thread and be a dick to you about in some future thread. I can fight the tendency by asking everyone who participates to do so in a spirit of truthfulness and generosity; by banning unpleasant arguments in this thread; and by ruthlessly deleting future comments of this sort when they are made to one of my own posts. If the comment is not made to my own post I can still upbraid the person for violating what is meant to be a minor experiment in honesty and, yes, kindness. However, if you feel what you have to say is truly incendiary you can always just make a burner pseud for the occasion. The tradition followed at unfogged is that regular commenters donning a pseudonym of convenience choose some past political leader. I think it would be nice if we took up floral banners for the day and became Lady Clematis or some such, but I leave the details to you.

Now, I must tell you my own “I have the possibly wrong” opinion on a feminist issue, but it won’t make sense without context. This may seem like a silly tic of mine, this constant introduction of my actual life, blobs and swirls of ink floating on water and ox-gall, and slashed at, just so, with a fork, yielding marbled paper on which the posts are hard to read at times when compared with the black on white clarity of some of my co-bloggers. But this is the secret: the personal really is the political.

When I got raped at college I knew a lot about some things and nothing about others, but being a teenager I pretended to know mostly everything. I wasn’t a college student, even; the National Cathedral’s School for Girls sent two girls every year to study at New College, Oxford during the summer between junior and senior year, with a bunch of college students from Ohio. These programs are just money-farms for Oxford and the professors do not take them very seriously at all. When I got the reading list, I was 16, so I took it completely seriously. I read everything. All the books on the list. I didn’t understand that you’re not really supposed to. I read Ulysses. I did not understand it hardly at all and I just read that damn thing anyway, on my spring break, in the hammock on the sleeping porch at my dad’s in South Carolina, one leg pumping idly against the white uprights between which the screens are stretched, birdsong and cicada up there enough to be loud. So loud! The experience of forcing myself through hundreds of pages of something that I don’t understand is unique to my adolescence. Three Shakespeare plays. Secondary literature I had to get at the big library downtown in D.C.
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Not surprisingly, the US Supreme Court’s non-decision on equal marriage has caused plenty of debate, including John H’s smackdown of NR’s Matthew Franck.

The discussion got me thinking about the broader problem of legal reasoning, at least in its originalist and textualist forms, and also in precedent-based applications of common law. The assumption in all of these approaches is that by examining (according to some system of rules) what was legislated or decided in the past, lawyers and judges can determine the law as it applies to the case at hand. There are all sorts of well-known difficulties here, such as how words written a century ago should apply to technologies and social structures that did not exist at the time. And it often happens that these approaches produce results that seem unacceptable to most people but for which a legislative or constitutional fix is impossible for some reason.

It’s always seemed to me, though, that there is a much bigger problem with this approach, namely the implicit assumption that “the law” actually exists. That is, it is assumed that, if the appropriate procedure is used to interpret the inherited text, and applied to the problem at hand, it will produce a determinate answer. But why should this be true? The same law might contain contradictory clauses, supported by contradictory arguments, voted in by different majorities, and understood at the time of its passage in contradictory ways. Most notably, the same constitution might grant universal freedoms in one place, while recognising slavery in another.

At a minimum, such contradictions mean that there is no determinate law on the particular points of difference. But the problem is worse than this. The law rarely prescribes an exact answer in a specific case. The standard view of legal reasoning is the principles can be extracted from case law, then applied to new cases. But contradictory laws and contradictory cases produce contradictory principles. The ultimate stopping point is the paradox of entailment: a contradiction implies anything and everything.

I don’t have a fully worked out answer to this problem but I think it underlies a lot of the disquiet so many people feel about legal reasoning (apart from the ordinary disappointment when the answer it produces isn’t the one we want).