The standard party line of the legal positivists goes that laws are created through social behavior and, while in some distant sense express a normative moral will of the people, don’t latch on to any transcendental virtues. By examining the work of Jurgen Habermas and Axel Honneth I conclude that a legal positivist must also recognize the positivistic creation of legal persons.

Conceptual Groundwork

Habermas articulates a theory of communication founded on Mead’s sociology of language and Wittgenstein’s theory of rule adherence. Together, these theories lay the groundwork for the positivists’ program, inasmuch as intentionality allows for language, and language allows for rules.

• Language

Following Mead, an individual’s speech acts are only self-understood as an anticipation of another’s reaction. Language, therefore, is the intuitive internalization of a semantic understanding of oneself as bringing about actions from another. Social relations, then, result from both participants in a conversation appreciating linguistic behavior as laced with action-inducing, and therefore communicative intent.

• Rules

Rule creation and adherence is the result of the argumentative relationship between two rule-competent interlocutors. Following Wittgenstein, as all communication is rooted in expectation of another’s response, intersubjective agreement over whether the rule was followed in a given circumstance is dependent on the degree to which each observer feels sufficiently certain that their conception of the rule will be followed in similar circumstances.

Logical Expansion

The structure of the law is essentially founded on, and has evolved through the invocation of, Wittgensteinian rule controversy. Once the governmental power structures lent authority to rules sufficiently agreed upon, the body of common law as we are faced with today was able to develop. These rules of common, statutory and constitutional law have created fundamental rights for all persons. The universal application of these rights to all individuals have created, in the social context, universally recognizable legal persons operating behind all interaction.

Conclusion

From the positivist proposition the law is created by persons I have concluded that one aspect of the person has been created by the law.

The BC Legal Assistance Bureau (BCLAB), site of BC Law School’s Civil Litigation Clinic, Housing Law Clinic, and Community Enterprise Clinic, has part-time work study positions available for AY 2012/2013.

The positions involve working directly with clients in a broad range of civil matters (housing, public benefits, family law, elder law, social security disability law) and transactional matters (representing low/moderate income entrepreneurs, small businesses, first time home buyers, non-profits).

2Ls and 3Ls are encouraged to apply

7-10 hrs/week; $10.50/hr

AY work-study required

Clinical faculty supervise

The Legal Assistance Bureau is located in Waltham, a 15 minute drive from the law school.

If interested, send resume and cover letter to Lynn Barenberg, BCLAB’s Social Worker

barenber@bc.edu

617-552-0257

DEADLINE:  Friday, May 18

We will continue to post during the exam period; however, the number of posts will decrease.  Please feel free to take advantage of our outline database, which has tons of outlines and continues to grow.  The database is only as helpful as the outlines it contains, so if you found it useful please take the time to upload your outlines for the benefit of the BCLS community.

Eagleionline does not publish regularly over summer vacation, although our writers and others will still post from time to time. Daily articles will resume in September 2012.

Regards,

Eagleionline

photo courtesy of facebook.com/Obamacare411

Oral arguments were heard two weeks ago on whether the minimum coverage provision of the Health Care Reform Act, passed by congress during the Obama presidency, is constitutional. (Find oral arguments here). Constitutional on this issue is being judged, inter alia, on whether the law regulates existing commerce or forces non-market participants to enter the health care insurance market.

The first question for General Verrilli, representing the US Department of Health and Human Services and defending the constitutionality of the law, asks whether everyone in the country is already in the healthcare market or not. His response is something like, it’s empirically more probable than not that everyone will be in the market.

The question then becomes whether this proposition justifies congress in requiring individuals to preemptively purchase financing for their participation in that market in the form of health insurance. Verrilli continues that Congress has the power to regulate interstate commerce under Article I, with both sides conceding that under this power Congress is able to require individuals to pay for any actual, realized health services with an insurance policy.

The question then becomes, in order to effectuate that regulatory policy, is it necessary and proper for congress to require every individual to purchase such financing before they actually need it? Verilli responds that yes, it is necessary because an individual will not be able to purchase such financing, i.e. insurance, after they are injured.

Scalia seems to think that while possibly necessary, such a requirement is not proper.

Below is the press release for the panel hosted by BC Law students (including myself) being held April 11 in Boston.

Citizens United Forum Presented by Students of Boston College Law School

A collaborative of Boston College graduate students will be hosting a panel on the subject of Citizens United and campaign finance reform in Jamaica Plain on April 11 at 7pm.  Panelists will include State Senator Jamie Eldridge (D-Acton), President of the New England Legal Foundation Martin Newhouse, constitutional law scholar Professor Lawrence Friedman and WGBH journalist and former Washington Post reporter Ibby Caputo. Admission to the forum is free and residents of Boston and the surrounding communities are encouraged to attend and learn the reasoning behind this important Supreme Court decision and the rationale of the opposition.

“People should care about the Citizens United decision because it is having an effect on the way democracy is practiced in this country, about the way elections work and who gets elected and why,” said Professor Lawrence Friedman, a professor of Constitutional Law at New England Law | Boston and a panelist for the forum.

In January of 2010 the U.S. Supreme Court delivered a decision on Citizens United v. FEC, which displaced crucial portions of the McCain-Feingold bill related to political campaign spending limits. Regularly thought to stand for the prospect that corporations are people, in reality it is a far more complicated decision based on Constitutional interpretation of the First Amendment’s right to free speech. The Citizens United decision has ultimately lead to the establishment of super PACs (Political Action Committees) which facilitate unrestricted spending on political advertising by corporations, labor unions and wealthy individuals, and which have allegedly resulted in a shift in the political landscape.

Though heavily criticized by some as a means by which certain parties will be permitted to unfairly influence elections, others, including panelist Martin Newhouse, believe the Citizens United decision replaces a poorly conceived statute and will create a better informed public.

The Citizens United decision has created a unique variety of responses.  It is one of the few highly controversial issues on which the traditionally conservative National Rifle Association and the traditionally liberal American Civil Liberties Union find themselves in agreement; both parties supporting the decision.  Despite that star-crossed alliance, there is a large and loud movement in opposition to the decision, some parties, including panelist Eldridge, proposing an amendment to the U.S. Constitution that would in essence reverse the Citizens United decision.

“For over a century, Congress and the states have limited the role of money in the political process due to its inevitably corrupting influence,” said State Senator Eldridge. “We need to take action to ensure that the right of free speech is preserved for citizens, not corporations and that we require new levels of disclosure and transparency for corporate political spending and prohibiting foreign corporations from influencing elections.”

The informed citizenry of the United States is rightfully abuzz with commentary on the subject of campaign finance reform and the Citizens United decision.  Attending the Citizens United public forum on April 11th or monitoring the supporting blog site at http://citizensunitedlegalforum.tumblr.com are easy ways to become better informed no matter what your political persuasion.

The panel will take place at the United Universalist Church located at 6 Eliot Street in the Jamaica Plain neighborhood of Boston and will begin at 7:00 PM.

Since we likely won’t be hearing from Justice Clarence Thomas in oral arguments (he hasn’t spoken at them since 2006) when the Supreme Court takes up the Affordable Care Act tomorrow, instead we’ll look at his words in his opinion in McConnell v. FEC.  McConnell was the 2003 case that Citizens United partially overturned by a five-to-four vote featuring Justice Thomas in the majority.  In McConnell, Justice Thomas concurred with the main result but criticized the Court’s decision which he believed unconstitutionally restricted the exchange of ideas.  In the passage below he notes other forms of speech which the Court had held to be protected under the First Amendment.

Yet today the fundamental principle that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), is cast aside in the purported service of preventing “corruption,” or the mere “appearance of corruption.” Buckley v. Valeo, 424 U.S. 1, 26 (1976)(per curiam). Apparently, the marketplace of ideas is to be fully open only to defamers, New York Times Co. v. Sullivan, 376 U.S. 254 (1964); nude dancers,Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (plurality opinion); pornographers, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); flag burners, United States v. Eichman, 496 U.S. 310 (1990); and cross burners,Virginia v. Black, 538 U.S. ___ (2003).

The ten of us who volunteered for immigration spring break in Miami spent the rest of the week performing legal work at either Catholic Charities Legal Services or Voices for Immigrant Defense and Advocacy (VIDA). We conducted legal research, wrote memos, filed motions, interviewed clients, attended adjustment of status hearings, and spoke with legal professionals about U.S. immigration policy.

“It’s a nice change from, ‘read this case, brief it, (and) explain the situation to the professor,’” said John Wendell, one of the volunteers at VIDA. “This is putting all of that stuff to work and actually finding out why it’s worth it.”

While at VIDA, Wendell was assigned to help a teenage immigrant who was the victim of a sexual assault and subsequently acted as a cooperating witness for the police. Ordinarily, victims who have suffered substantial physical or mental abuse and are willing to serve as cooperating witnesses are entitled to apply for U visas, which grant them temporary legal residency and allow them to work in the country for up to four years. However, the police in this case were not willing to sign the corroborating form, instead they claimed that the sexual act, a male raping another male under majority age, was consensual.

Wendell realized that the police force’s claim was not valid, since the age of consent in Florida is 16 and the immigrant was 15.  Wendell pointed this out to his supervisor who now intends to use this point of law to convince the police to sign the requisite form. “The chances of him, (the client), getting the necessary paperwork for the U visa are a whole lot higher because of a quick simple thing I remembered from criminal law,” said Wendell.

Hillary Fenton also had a positive experience working at VIDA, where she helped a set of brothers apply for U.S. residency. One of the brothers cooperated with the organization, however the other was a bit more hostile. “I actually am trying to defend him not knowing exactly what he did,” said Fenton, who nonetheless intends on attending his hearing in Connecticut later this month. “It’s kind of an exercise in frustration, but enjoyable in a way,” she added.

Fenton is passionate about gender issues and her volunteer work at VIDA, which dealt largely with victims of domestic violence, only confirmed her interest in criminal defense while affording her the opportunity to polish her legal writing skills. Perhaps most importantly, Fenton emphasized that her experience brought her back to why she went to law school in the first place, “it’s a purely human kind of thing,” she noted.

Sean Wall, a volunteer at CCLS was most affected by accompanying his supervising attorney to client intakes. “You really get a feeling that these people are in need of help, (and that) they can’t afford the help.” He added that “a lot of them aren’t afforded due process rights or basic rights that we enjoy as citizens and it was eye opening to see that.”

Amidst the sunshine, or lack thereof, each student was affected in his or her own way. For some, the trip was confirmation that they were proceeding down the right path. For others, it was exposure to a new field of law. But for all, it was time well spent in the service of others. Or in the words of John Wendell, “It’s funny to say that I came on an immigration trip and decided that yes, I really do have an interest in prosecuting criminals, but yes, it’s true.”

Who cares, one might say. A broken printer here or a jammed towel dispenser there don’t make life impossible. But I live here, in these narrow halls and corridors that were originally built to house a women’s LAC, and I pay such expensive rent to live here that I could have used the money to buy an apartment. Wouldn’t you give your landlord hell if there was broken faucet or if the carpet smelled of cat piss when you moved in? I did, and my landlady threw money at me until I shut up about it. Not that I’m expecting BC to refund my tuition if I’ll only stop pointing out all the infrastructure problems, but a delusional 1L can dream or, at the very least, talk about it.

On the whole, I’m actually pretty content with the way BC Law runs its buildings. But since I actually spend more time on campus than I do at my apartment, I’ve begun to think of BC Law as my natural habitat and my apartment as that place I go to for a few hours a day. Therefore, I get nitpicky.

When I was an undergraduate, I noticed a certain hierarchy among the campus buildings, namely that funding always went to departments and schools that earned revenue for the university or were its “public face” to guests, parents and alumni. The student union and the business school, for example were nicely maintained and frequently repaired and renovated. The sofas and chairs were soft leather. The vending machines didn’t just work, they purred too. And the bathrooms, especially at the business school, were glorious: you didn’t have to wait for the hot water faucet to actually give you hot water, the towel dispensers never jammed or ran out of paper towels, and everything was spotlessly clean, which is quite an achievement for a public bathroom. Needless to say, I liked studying in these places.

None of this seemed very important for me last semester, although I did notice – and dismissed – the tiny inconveniences that kept popping up. The indoor temperature of the East Wing fluctuated so much that if it was the middle of winter, you had better be prepared to shed layers in the classroom. And if was early fall and warm outside, you would need to bring a coat and a scarf for your 2:30 PM class, and for your subsequent date with the library. At any given time, at least one water fountain wouldn’t be functioning correctly, or it would have some ancient gum stuck to it and you would rather puke than put your water bottle near that thing. I learned to switch off any actual seeing powers whenever I had no choice but to use a ladies’ room in Stuart or the East Wing, because I was happier not noticing how unclean it was.

Now, I’ve experienced conditions far worse than what BC gives. None of the little daily annoyances on the Newton campus compare, for example, to certain horrific experiences I’ve had with public bathrooms, which don’t bear thinking about. So I’m not the type that would usually grumble about such small problems around campus. When you’re trapped here for the majority of your day (as a 1L this happens, especially if you don’t have a car and your law school is in the middle of suburbia), you become used to all the little inconveniences as they add up, until you get away for a bit and remember what it feels like to work in cleanliness and comfort. Over spring break, I visited an old workplace and remembered what that luxury felt like.

Studying at a law school where the buildings are maintained and operated smoothly like well-oiled machines would be a small thing, but it would be a little courtesy that a 1L especially would appreciate, if only for the fact that we live here, stress out here, eat here and occasionally nap here. And we pay extremely hefty tuition for the privilege of doing so. If nothing else, I want gum-free water fountains for that money.

In a 2011 article regarding law school rankings, Malcolm Gladwell creates several different lists of “top 10″ law schools, varying what factors are included and how much weight is given to each factor. The results produced are impressively diverse- demonstrating the potential for wildly different results. While important, the U.S News Report rankings are not the definitive assessment of a school.  BC is extremely well regarded nationally and is continually striving to improve.

As Dean Rougeau noted in his memo to students regarding this report, “We are so much more than the sum of our parts, and together we will continue to move our school forward.”  Dean Rougeau emphasized our strengths as a school, as well as areas we can work to enhance. He explained, “We must strengthen our experiential learning and international offerings, and open more pathways to alternative careers. We must find ways to make school more affordable for those who come here, and inspire our students to find their passion in the law.” Further, he specifically addressed the need to improve employment prospects for BCLS graduates, lowering class sizes, and increasing available scholarship money.

What are your thoughts?  What areas could BC Law improve upon?