a2010 legal method digest

8/9/2019 A2010 Legal Method Digest

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FIRST YEAR LAW TEACHING AS POLITICAL ACTIONBy Dunkan Kennedy

- It is an exploration of the possibility of teaching law as a form ofpolitical action.- Teachers should develop first year courses into systematicembodiments of their views about the present and future organization

of social life.- There are two different lines of objection to the proposal green andthe blue critique- Green critique arguments:

o First year law students are committed to career patternsand lifestyles that are incompatible to any form of genuine leftism;therefore it is hard to look for converts.o Even if the students were not committed to the status quo,activism implies an engagement with the mass strata of thepopulation capable of action that would transform the system. Thetarget should then be a mass stratum and deprived.o To focus on law students is double betrayal as they couldnot change the political system and no benefits that accrue to

them from political action could be deserved.o The moral qualities of the activist are simply incompatiblewith the nature of university teaching.

- Blue critique arguments:o There is no subscription to any single system. Nosubscription to absolutes.o It is hard to teach from scratch.o The students may not believe anyway.o Developing ways to convert students the teachers politicalideology may not be consistent with the idea of a university.o There is no prestige (open acceptance to speakers ideas)

- Green critique claims to be too easy and an abdication ofresponsibility, while the blue critique, impossibly difficult and even

dangerous.- Actions taken by teachers do not necessarily mean desired andforeseeable results- Law profession paves way to radically change the system andoverturn corruption and unjust hierarchy- Steps in actualizing commitment:

o List alternatives in trying to create an intense form ofpolitical education. It is not true that the only meaningfulopposition is undergroundo Abandoning grandiosity / Admitting to oneself that thereour politics is theoretically impoverished. There is no grandiosity increating an opposition. Not expecting big reforms right away

- Response to the Blue Critique:

o There is something to teach: the critique of liberal,bourgeois legalism of considerable systematic qualityo Creating materials is difficult since the mass of private lawrules defines the capitalist system, and all of such may be usedagainst it.o Since the critique of liberalism holds the key in ripping offthe system, it can be turned into the something of crucial interest.o The critique of liberal legalism is true, and to suppress it is

immoral, violation of the teachers responsibility to his studentso No one is going to purge someone with tenure whoespouses this line with an intelligent sense of it limitations. There isimpotence as it is afflicted with partiality and obscurity, it isdifficult to distinguish from all other forms of liberalism, and it lacksthe systematic character of the critique of liberalism.o There is a lacking of the intellectual and political force tocontrol the minds of the young.

- Response to Green critiqueo Students may be informed of the leftist way of thinkingabout law dont undermine teachers impact on students.

Teaching them to analyze and be critical of legal doctrines thatthey accept; if its explicit and realistico Complacent centrism of the students may be challenged,by reducing their political self confidence by training them toanalyze legal doctrine in a way that is simultaneously correct with,useful to them, and delegitimating of the established order.

- First year teaching is a way to confront the students with thepartial and confusing quality of the radical critique of bourgeoislegalism.- Isolation is a fundamental condition of intellectual existence.Denial is not the answer

HOW THE LAW SCHOOL FAILS: A POLEMICBy Dunkan Kennedy

The teachers- Students have a general perception of hostility from theirprofessors. They feel that the Socratic method is an assault. This isoften concluded to be a yearning on the part of the professors to hurtthe students. However, Duncan says that a professor who lectures getsacross as effectively as the professor who uses the Socratic method.- Most professors are unaware of the effect of their behaviortowards their students. The professors act differently inside andoutside the classroom; however, very few students, generally thoseacademically successful, get to encounter the consolation in knowingthe professor outside class.

LEGAL METHOD - HILBAY A2010 - 1 -


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- It is asserted that the professors treat each other with the samestraightforwardness as they treat their student. Then again, theprofessor makes distinctions in the way they deal with their students,some with more hostility than others. It is also crucial for the professor,knowing that he has the power to affect the lives of students, to beaware of the meaning of his conduct in the eyes of another.- The facultys hostility due to a change in the way the students areover time. They believe that there is an epidemic of radical student

criticism of the law school and dark rumors of student rebellion.- Some professors feel that they need to be tough in order to controltheir classes in order to restrain the students from disintegrating thediscussion into irrelevance.- His grim conclusion: The element of terrorism in teaching lawseems to be psychologically good for the teacher.

The students- Law students are more aggressive than students in otherprofessional disciplines due to their past academic successes or theirprestige at other institutions.Two student types:The one who wants to become a lawyer:- He is likely to have been successful at academic competition but

he has not developed an overwhelmingly aggressive manner. He isinitially eager to learn and more ready to contribute. However, heis uncertain of himself compared to the brilliant student body. Thistype fairly goes to class and does solid minimum of studying. Heeventually loses seriousness and adopts indifference to the lawschool and the law. In the future, he would claim that law schoolteaches nothing of what is of any use in the real world.

- The first cost to the individual is that he is brainwashed in lawschool, as his head is filled with notions he barely understands. Thesecond is that he is driven into passivity and cynicism.

The one who is the in the top of the class:- He is a success, which justifies whatever unpleasantness there is in

law school. This kind of student operates through distinctively

publicly and privately. His public life is more controlled andaggressive, often more dishonest, and less emotionally satisfying,while his private life is invested with vast quantities of intensefeeling and sentimentality, idealism and protectiveness.

- This kind compartmentalizes because he believes that the law iscold and inhuman. His cost is that such division of life lead to thedeformations in both areas.

The changing intellectual response at Law School- The problem is not that students do not know if they want to belawyers, rather theyre not sure of what kind of people they want tobecome.

Radicalism and Apathy- Radicals in law school are generally activists. They identifythemselves in terms of their commitment to political and institutionalchange. They generally denounce competition and they obsess withthe problems of selling out.- Unlike the radicals, Kennedy believes that neither the distributionof power nor the content and organization of study at the law school isrelevant in giving the law school its peculiar atmosphere.

- However, he says that the fact that radicals have had the courageto question the law school has been of great benefit as they havedemonstrated that deficiencies of the institution need not be accepted.- The danger for the radicals lies on their fixation on the system.On the other hand, it can be said that they are aware of a fundamentalproblem and committed to using all of their faculties to solve it thebest they can.

Academic and Professional Values- 2 objections in desiring change in law school: the capacity to turnout highly successful professionals must not be endangered and thatthe current organization of the school maximizes the intellectualquality of the work done there.- Improving lawyerly virtues of the student is met by the claim that

academic standards are all important.The Professional Model- Professional success, in the view of the protector of the status quo,

is giving ones life to maintaining the efficiency and stability of acorrupt social order.

- For Kennedy, it is that the power to be exercised is used toimprove the human quality of society.

- There are two kinds of success: the contribution of Yale to toppolicy formulation and the practitioners who contribute to thecommunity through legal and business skills.

- Kennedy: the law school is justified in emphasizing professionalsuccess only to the extent that the success is beneficial to thecommunity.

The Academic Model- What is absent from the law school is the feeling of intellectualtension from the confrontation of ideas in the process of growth.

There is a need for the feeling of existence of problems unexplorednot because no one has bothered to think about them but becausethe light of a new theory has only recently been turned on them.

- Contrary to the academic model argument, teachers virtuallynever treat their students as their exact intellectual equals in class.However, it a far more important objective to see to it that withintheir respective roles, students and teachers treat each otherdifferently.

Conclusion



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If there is revolution in the air, it is not primarily institutional, but psychicterritory which is at stake, or the whole thing is a waste of time

LANGDELLS ORTHODOXYBy Thomas Gray

Classical orthodoxy - set of ideas to be put to work from the inside by

those operating institutions, not a set of ideas about those institutionsreflecting an outside perspective- ideal inside theory -> would contain an accurate account of legalinstitutions, a method for operating them, a creed for legal professionals,and a justification of the institutions for the outsiders

1. Five criteria for analyzing legal systemsA. Comprehensiveness = degree to which judges must decideall cases within their jurisdictions, comprehensive if the systemprovides an institutional mechanism for the unique resolutionof every caseB. Completeness = degree to which rules preordain a "rightanswer" to all possible legal questions, when its substantive

norms provide a uniquely correct solution, incomplete whencontaining substantive gaps or inconsistencies betweenoverlapping normsC. Formality= degree to which outcomes are determined bytransparent reasoning process, formal when its outcomes aredictated by demonstrative, rationally compelling, reasons, (nota necessary reason for completeness, there is a right answerfor every case, but no demonstrative reasoning to hard cases)D. Conceptual order= degree to which bottom-level rules canbe traced back to relatively small number of abstractprinciples, which form a coherent system, one can distinguishcategories that demarcate bodies of law (e.g. tort, contract,crime) from operative concepts used in principles, from whichdecisive rules are derived (e.g. consideration, proximate cause,malice)

* completeness, formality, and conceptual order


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corpus, he clearly regarded the appeal to justice or convenience(acceptability) as legitimate in at least some circumstances.* Example: the flagpole hypothesis: (unilateral contract cases,where offeror promises something in exchange for performance bythe offeree rather than for a return promise). Langdell argued thatthere was no consideration and hence could be no contract untilthe performance was actually completed. Like when A offers B onehundred dollars if he will touch the top of a flagpole; B then

laboriously climbs the pole and just as he was about to touch thetop, A shouts, "I revoke." On Langdellian doctrine, A owes Bnothing. (**Considerations of justice and convenience were onlyrelevant insofar as they were embodied in principles that wereconsistent with the other fundamental rules of the system.

3. Law as science. Langdell's theory is neither Benthamite nordeductive natural law but claims to be empirical yet its practice ishighly conceptual. It delivers normative judgments yet proclaims thepositivist autonomy of law from morals.

*Analogy between law as science and Geometry - geometric idealpervades literature of the whole rationalist movement to createexact sciences of ethics, politics, and law; Euclidean geometry is

simply an uninterpreted formal system of terms and inferencerules. Euclidid's axioms not mere human constructs but indubitablephysical truths which can be proved by sequences of deductivesteps. The arrangement of inductively derived generalizations intoa deductive system vastly extends our use of resources ofexperience, by spreading long and difficult chains of deductiveinference. When this structure is applied to law, it helps clarify theotherwise baffling talk of observation, experiment and the like thatappeared in Langdellian literature.*The universe of data was not the totality of sense experience ofthe physical world, but rather the restricted set of reportedcommon law decisions. "All materials of legal science were to befound in printed books."**Circularity - failure of analogy between legal science andgeometry. Geometry eventually derives authority from generaltrust of direct experience from the senses while legal science'sauthority is from precedent which follows rules and principles, butin the classical conception of legal science, these rules andprinciples are themselves inductively derived. TWO RESPONSES: 1.) "Confession and avoidance" ->Admit that legal science is circular,while natural science is itself circular. 2.) Break out of the circle byfinding a source of validity for judicial decisions independent of therules and principles.**Precedent - Stare decisis as an independent source of validity.Whether a judicially decision was substantively correct, andwhether it was jurisdictionally and procedurally correct. Science

sets its own jurisdiction while a judge must decide a case overwhich he has jurisdiction, whether or not he is satisfied that hisdecision is scientifically correct. The common law doctrine of staredecisis gives a decided case authoritative force with respect tofuture decisions in other cases. It thus provides the outside sourceof validity for decided cases that was necessary to save classicalscience of law from the vicious circularity. In law, unlike science,error, if persisted in, at some point became truth; and where that

point lay could only be determined according to considerations ofacceptability that were never satisfactorily formalized. (A lie told athousand times becomes the truth, unless our sense of justicerefuses to accept it.)*Tension among principles of precedent and acceptability: Langdell"if they cannot be pronounced erroneous, they must at least bedeemed anomalous." The geometric structure of law's universallyformal conceptual order caught in the ever-tangled skein of humanaffairs.**Under formalism, progress occurred when a scholar discovereda previously unrecognized principle in the appellate opinions.Under geometric analogy, legal principles should be universal andeternal; history would be simply a record of their gradual

discovery. Legal doctrine as a growth extending through centuriessuggests an analogy between classical legal science andevolutionary biology - and a connection between classical legalscience and the historical school of jurisprudence (whose centralthesis was that a nation's law is necessarily rooted in thecontingent and evolving traditions and customary practices of itspeople.) History provides the necessary raw material - the cases -on which reason operated in extracting legal principles.*** Vehicle for legal change in classical theory was legislation, butthis was viewed by classical writers as haphazard and anomalousincursions into the body of common law, not fit for scientific study.**The classical system could not in the end make too much of avirtue of its flexibility without undermining its promise ofdeterminate geometric order.

4. The special appeal of classical orthodoxy was its promise ofuniversal formality - "every cases an easy case." A predictable systemthat appealed to businessmen and ascendant groups which had specialneeds for legal predictability and drawn to the "rule of law" concept offreedom. The dry geometry of classical legal orthodoxy had a certainparadoxical quasi-religious appeal to the educated elite as it promiseda complete and universally formal system of norms and so offereddeterminate answers in an increasingly incomprehensible world.Conceptual jurisprudence was revered when secular science and majoruniversities replaced the prestige and spiritual value of the church.Classical science bridged the practice of law as a profession and the



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need of the new universities for an alliance with the r ich influential bar.

5. Classical orthodoxy did fall from its position of explicit dominancebecause of : perceived political bias as Langdellian legal sciencereinforced the view of common law contract and property system as a"brooding omnipresence in the sky" rather than as a contingentallocation of power and resources; and it was not readily adapted to aperiod of rapid social change.

*Critiques- The whyconsiderations of acceptability should not be consideredin formulating bottom-level rules and in deciding individual cases -to do so would allow ad hoc practical judgement, which meantabandoning legal science (which meant abandoning certainty,predictability, and accountability generally).- Impossibility of the central classical project of formal conceptualordering (to have relatively few and consistent principles)-Once disputes are settled in a procedurally final way, they aregenerally left alone by the law, even if later shown to have beendecided incorrectly. (Same as the force of the principle of resjudicate, which has no counterpart in science).-Unresolved jurisdictional conflicts - threats to comprehensiveness

- within the legal system are perceived as serious crises.-The courts are primarily dispute-setlers rather than scientificauthorities. Given this practical function, is it not natural to judgetheir work by the practical standard which is the standard ofacceptability? The values of legality must be subject to theultimate test of acceptability but it does not mean that this is todirect the courts to decide every dispute in the most acceptableway.

The boldest claims of classical orthodoxy that the number offundamental legal doctrines is much less than is commonlysupposed were empirically undermined when toward the end ofthe '20s, the failure of the great classical Restatement project(wherein Langdell and his followers set out to realize the claim withimpressive ability and energy in writing articles and organizingcases) became obvious.*Holmes, who himself valued both conceptual order and formality,insisted on the disjunction between them when he observed that"general principles do not decide concrete cases." The actualdecisions of hard cases required drawing a line, arbitrarily, on acontinuum between competing concepts. Judges could establishrules in such situations by observing the clustering of decidedcases and then imposing artificially sharp boundaries around thefuzzy clusters formed. These rules, though arbitrarily, couldprovide useful predictability if imposed uniformly by judges in latercases.*Realists: - formality itself does not always produce predictability.

In many situations decisions would be both more predictable andmore acceptable if the ruling norm were a vague standard thatallowed judges or juries to apply their intuitive sense of fairnesscase-by-case, rather than a clear rule that was sporadically andcovertly evaded.- The pursuit of generality principle leads legal scientists to missaltogether lines of doctrine that were acceptable and that couldproduce predictable results once recognized. Special case to the

mailbox rule (when does a contract accepted by mail becomeeffective? Langdell: when received and read): Courts werefrequently holding certain contracts to have been formed beforethe acceptance was mailed. In cases involving life insurancepolicies, where applicants (offerors) submitted applications subjectto approval by the central office of the company, and then diedafter the central office approved the application but before thesigned policy (the acceptance) was mailed, courts often held thatthe policy had gone into effect and the benefits must be paid.-->Special rule for life insurance cases, not announce by the courtsbecause it conflicted with the orthodox "established law." butbased on a sensible biases toward compensating survivors and afeeling that no injustice was done once the insurer had decided to

issue the policy.

6. Even in its fall classical orthodoxy achieved a secret triumph. In theirpursuit of logical order Langdell and his colleagues had actuallycreated a new conceptual structure that effectively replaced the olderBlackstonian outline of the law in the discourse of the profession. Theclassical scientists drew a basic line between substantive law on theone hand and the procedure and remedies on the other, with theformer treated as the primary and the latter merely instrumental.Within law they public law from private, treating private as the coreand public law as the peripheral anomalous hybrid of law and politics.

The roles of such schemes in elementary pedagogy and indexing legalmaterials seem relatively trivial but categorical schemes have a powerthat is greatest when it is least noticed. They channel the attention ofthose who use them, structuring experience into the focal and theperipheral. In so doing, they influence judgement as much as theagenda.

7. Post-classical critics sought to replace classical science of legalprinciples with a Benthamite policy science (remember legalempiricism) but it is striking how little progress has been made towardbasing law on accurate measurement of desires. The mainaccomplishment on behalf of this policy seems to have been that in therecent years lawyers and judges have come to invoke the comfortingmetaphor of "balancing" when they discuss choices that involve theconflict of immeasurable values - the choices that less comforting



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modernist discourses call "political" or "existential." Apart frombalancing, legal discourse largely retains its orthodox form. Amovement in legal theory that has closer links to the dream ofBenthamite policy science is the school of law and economics (Leader:Posner, critique: upon closer inspection it turns out to be neo-orthodoxtoo). The neo-orthodoxies drawn from economics and moralphilosophies resemble classical legal science in their capacity topromote structured puzzle-solving of a sometimes interesting kind. But

in contrast to the classical theory, they dilute the autonomy of the lawby shifting research outside the law library. Apart from their conceptualordering of the law, the classical scientists' main achievement was toarticulate better than have any other Anglo-American lawyers thecurious second-best utopia that animates the legalist mind.

LEGAL FORMALISMBy Duncan Kennedy

Legal formalism- Contested concept, rather than a well-established term with a clearmeaning

1. Primitive formalism the practice of deciding disputes throughdevices such as oracles and trial by battle, regarded as ìrrational.'2. Ancient Roman and medieval English system of `formulary justice'

or strict law'a. A claimant could get redress through the legal system only

by fitting his case into a closed class of àctions.'b. No overarching principles were available to deal with cases

that fell outside the class, but within generally held ideasof moral responsibility.

3. Modern law movement beyond both primitive formalism andformulary justice, but had to find a way to preserve some of thevirtues of the earlier systems

Formalism as a Descriptiv e Category

1. Formality as a dimension along which we compare legalregimes as more or less formal

a. Procedurally formalist makes the success of a substantivelegal claim depend on following procedural rules

b. Transactionally formalist requires specific formalities fortransactions such as contracts or marriages

c. Administratively formalist surrounds the exercise of statepower with procedural and transactional formalities.

d. Rule formalism general preference for rules overstandards.

Dimensions

a. Degree of insistence on compliance with formalities (whatexceptions are permitted?)

b. Degree of absoluteness of the sanction of nullity for failureto comply (what remedies, if any, for a person who fails tocomply?)

Note: What is common is a willingness of the formalist tosacrifice substantive justice (or èquity') in the particular case.

2. Formalism as a range of techniques of legal interpretation- based on the meaning of norms, and- refusing reference to the norms' purposes, the general policiesunderlying the legal order, or the extrajuristic preferences of theinterpreter.

a. Textual interpretive formalism decides byidentifying a valid norm applicable to the case and thenapplying it by parsing the meanings of the words thatcompose it.b. Textual formalism literalist to the extent that itrefuses to vary meaning according to context, and

originalist to the extent that it finds meaning only throughthe context at the time of enactmentc. Conceptual interpretive formalism `constructs'general principles thought necessary if the legal system isto be understood as coherent. It uses the principles toresolve uncertainty about the meaning of extant validnorms, and applies the principles according to theirmeaning to fill apparent gapsd. Precedential interpretive formalism interpretsaccording to the meaning of norms derived as the holdingsof prior cases

Note: Gaplessness requires the interpreter to apply in every

case, according to their meanings, the legal norms he or shecan derive textually, conceptually, or through precedent.Reference to purposes and policies are categorically forbidden

3. Formalism as theories that purport to derive particular rules oflaw, from a small group of internally consistent abstract principlesand concepts (e.g., corrective justice, fault) understood as morallybinding on legal actors

Formalism as a Critical Category



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1. Mainstream law as having a strong internal structural coherencebased on the two traits of `individualism' and commitment to legalinterpretive formalism. These traits combined in the will theory.

2. Sociological jurists- advocated interpretation on the basis of `scientifically'established social desiderata, as well as or instead of according tomeaning- version of Will Theory that the private law rules were well

understood as a set of rational derivations from the notion thatgovernment should help individuals realize their wills, restrainedonly as necessary to permit others to do the same.- presupposed consensus in favor of the goal of individual self-realization justified by a specific, will-based, and deductiveinterpretation of the interrelationship of the dozens or hundreds ofrelatively concrete norms of the extant national legal orders, andof the legislative and adjudicative institutions that generated andapplied the norms- critiqued Mainstream Will Theory

> individualist premises of the will theory in the name of`social law'

> methodology

widespread abuse of deduction, meaning that juristshabitually offered deductive justifications forinterpretations that were in fact logically underdetermined falsely assumed the possibility of constructing the legalorder in such a way that it would be gapless in fact, andtherefore susceptible to exclusively meaning-basedinterpretation.

3. New Legal Theoretic Avant-Garde- including both the American legal realists and Kelsenian

neopositivistson the Continent

a. `policy analysis'- process of reconciling or balancingdiverse legal desiderata on the basis of information about

the social context;- critiqued as `social conceptualism' or `policy formalism,'because it selected policies arbitrarily, underestimated theconflicts among them, and offered no defense of balancing asa rationally determinate procedure.b. civil libertarianism- critique: abuse of deduction from personal rights

- critiqued sociologists on the groundc. that its proponents confused facts from values, scientific

versus normative judgments.

d. that the social purposes or functions the sociological juristsused to base their rational derivations of legal rules wereeither vague or conflicted, so that the claim to a scientific

method was no more than a screen for a new form ofpolitically progressive natural law

4. Modern Legal Theory- Modern legal theory (with the exception of natural law theorists)is antiformalist, in the sense of denying the possibility of strictlymeaning based gaplessness.- Positivism affirms that discretion in adjudication is inevitable,

while limiting it to the `penumbra' or to the area inside the `frame'provided by the norm in question

5. American Legal Theory- American legal theory is antipositivist, and affirms gaplessness,but on the basis of policy, purpose, rights, or principles, rather thanon the basis of textual, conceptual, or precedential formalismformalism

6. The Common law world- critique of precedential interpretive formalism

a. that policy argument is always necessary in order todetermine the relevance of a precedent for a new case

b. that common law theory, if it is to be coherent, mustauthorize the creation of an exception to a precedentiallyestablished rule in any case where an exception wouldserve the policies animating the system as a whole

7. On the Continent (I have no idea what Continent)- rhetorical and hermeneutic theories of legal interpretation assertthat outcomes are always relative to horizons, no matter howsuperficially deductive (and then reground interpretation in thesupposedly shared horizon of liberal faith)

8. Postmodern Theorists- Skeptical theories gain support from comparative law scholarshipshowing diametrically opposed interpretations of identical codeprovisions, and identical case law derived from contradictory codeprovisions.

Formalism as a Category in the Sociology of Law1. Law as essential building block

- The role of formalism, in this context, means that the generaltheory represents law as having a gapless, meaning-based internalstructure, responsive to outside imperatives of some kind.- In fact, according to the critics, the contradictory internalstructure of Western legal systems leaves adjudicators and otherlegal administrators great discretion in the interpretation of norms.



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- It follows that neither the legitimacy of the legal order, nor itscontent, nor the effects of legal institutions, can be inferred fromthe external imperatives the theorist imagines animate them.

2. Law as the weak link in the general sociological construction.

1. Sociologies that include law as one of the elements in anintegrated representation of society

2. Sociologies that take law as their (very) object, bringing to bearon it the variety of instruments of sociological investigation- A logically formal rational systemis a collection of norms that areinternally consistent and that officials apply to particular factsituations according to textual and conceptual formalism premisedon gaplessness,- Interpretation is the `logical analysis of meaning.' Despite thesuperficialresemblance, this ideal type is not just Will Theory under anothername, becausea. not intrinsically associated with either the concept or the social

reality of individual freedomb. contingent product of Continental legal history, rather than

implicit in a larger normative conception.

Matters for investigationa. how an order claiming these types of legal rationality operates

through officials at the level of practice, how state law interactswith other normative orders, and what effects are plausibly linkedto a type

b. whether it is ever plausible, given the critique of gaplessness andthe ever-present possibility of the abuse of deduction, that a legalorder operates in practice in a way usefully described as logicallyformal rationality.

c. the legal/bureaucratic mode of legitimation no longer relies on theclaim of logically formal rationality, but rather on a complex

mixture of claims of local meaning-based closure, claims of policyrationality (substantively rational, in Weber's terminology), andclaims of democratic procedural legitimacy. These have notprecluded a `legitimation crisis.'

Conclusion- Descriptively formal law both formal rule systems and formaltechniques of interpretation involves the morally delicate refusal torespond to the call for justice in the particular case, for reasons that maybe good or bad according to the circumstances.- Formal law is part of the drama of governance, the trivial or murderousdrama of breaking eggs to make omelettes.

The summary I made for Lessig's article was much too long. There aremore important things for you to do with your time, so I'm just postingthese reviews and summaries I found on the net. They're far shorter andanyway you only need the general idea with Hilbay. The details aren'timportant.

THERE IS NO TEXTUALIST POSITION

By Stanley Fish

The intentionalist position is not a method, it is simply the rightanswer to the question (what is the meaning of a text?) It doesnot tell you what to do; it just tells you what you are doing.

**Distinction between sentence meaning and speakers meaning, -between the meaning an utterance has by virtue of the lexical items andsyntactic structures that make it up, and the meaning a speaker may haveintended but not achieved - is possible because they are distinguishableentities, and they can come apart. When they do, one can say that thewords, literally construed, say one thing, but the speakers purpose is tosay something else. One can choose between the two it is an act of

choice made available because it is possible to distinguish between thetwo.

Ex: Spoken: Go through the light.Assumptions: (at an intersection with a stoplight turned

red)1. Beat the red light. Break the law to make it to an appointment

on time?2. Beat the red light because of a medical emergency?3. Simply giving directions?4. Just wanted to flout authority and take minor risks?Finally interpreted as: After the light turns green, go straight and

dont make any turns.

Arguments:Here, the words Go through the light are attached to an

assumption of an intention because they cannot be heard apart from anintention within which they were uttered. The text is not independent; it isan entirely derivative entity. Once one construes words, the instant onehears sounds as words and treats them as language, they acquiremeaning. Purpose will have already been put in place to give directions,to give orders, to urge haste, to urge outlaw behavior in the light of whichthe sounds become words and acquire sense. The specification orassumption of intention therefore comes first; the fact of a text withmeaning comes second.



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Text alone, no matter how long and dense, can never yieldmeaning, whereas intention, whether assumed, discovered, or revealed,can always alter a meaning that had previously been in place; not becausewhat had been said has been trumped by what was intended, but becauseone understanding of what was intended has been dislodged by another. Itis therefore not a matter of choosing between what was said and what wasmeant but rather between specifications of what was meant.

**In the arena of legal interpretation, Justice Antonin Scalia declared: Oursis a government of laws - of texts written down - not men, and therefore itwould simply be undemocratic to have the meaning of a law determinedby what the lawgiver meant, rather than by what the lawgiverpromulgated. It is what is said not what is intended that is the objectof our inquiry. Men may intend what they will; but it is only the lawsthat they enact which bind us. Words are material and available forinspection, intentions are not, and because they are not, they provide aninsufficient constraint on judges who might be tempted to rewrite the lawin the guise of interpreting it.

**It is simply a matter of choice between something materially available(text) and something absent and speculative (the intention of i ts author)

Intention cannot be separated from meaning or thought of inconflict with it. If there were no intention, not only would there not be ameaning; there would be no reason to seek one. Again, it is not choosingbetween what was said and what was meant but really which of thepossible meanings.

In the matter of choosing between an utterance (text) and what isintended, first, for there to even be a choice, any choice, there must bedistinguishable entities to choose between. There must be a textualmeaning a meaning a sentence has as its property which one couldeither adhere to or depart from; for only then could this textual meaningbe chosen or chosen against. But words alone, without an animatingintention, do not have power, do not have semantic shape, and are not yetlanguage; they do not have any textual meaning that one could readilyadhere to or depart from, in order for it to be chosen or chosen against.

**Textualists do not inquire what the legislature meant; only what thestatute means

One who does not want to know about intention does not want toknow about meaning. They do not simply go together; they are inseparablefrom one another.

**The pluralist or synthetic textualist approach: Meaning can bedecoded by looking to the combination of lexical items and grammaticalstructures, with a little help, in the case of ambiguity or obscurity, fromlegislative history or judicial precedent

Lexical items and grammatical structures will yield no meaning will not even be seen as lexical items and grammatical structures - untilthey are seen as having been produced by some intentional agent. A textthat seems obvious is a text for which an intentional context has alreadybeen assumed. In short, the text has no independence; it is an entirelyderivative entity something else must be in place before it can emerge astext and being merely derivative, it therefore cannot be the source oflocation or meaning. There can be no middle position in which text is a

partial source of meaning because one cannot anchor a method in anonentity, in a notion the text - that can neither produce nor constrainanything.

**Concession to Intentionalisms appeal:A. Maximizing intentionalism - searching for a texts meaning because itneglects the direct costs and opportunity costs of searching further afieldfor evidence of legislative intentions.B. Optimizing intentionalism - employing a stopping rule: declining tosearch further afield if expected benefits of further search are less thanthe costs, therefore providing justification for considering less than allprobative information bearing on legislative intentions.

Both views represent a choice between interpreting and doing

something else (a cost/benefit analysis). Choosing in the direction of eitherwill force one to now be asking the question what can we do with thetext? as opposed to what does this text mean? which leaves open aspace where an interpreter (no longer one) is free to determine how bestto reach a conclusion that reflects his/her policy preferences or a way oflegitimizing his/her desires. There are instances when the search ofmeaning is either too difficult or subversive that insisting on it would beperverse making stopping rules necessary. Stopping rules are not rules ofinterpretation however, they are rules that tell you when the effort tointerpret should cease (because of reasons stated) and something elseshould take over, nevertheless, acknowledging such obstacles to thespecification of meaning does not change the fact that the answer to thequestion what does a text mean? is that a text means what its authorintends it to mean.C. The interpreters or readers decide principle: the meaning taken to be ashow it is understood by the community

The assumption in the readers decide principle is that people havedecided to go beyond whatever the author may have intended whetherin search of the actual authorial intention or just in exercise of their right togo beyond it. However, this is an interpretative game wherein there are norules, it is that of coming up with a reading that best serves ones presentpurposes and needs and hence, it provides no possibility of coming up withan answer to the question what does a text mean?

**Objections to intentionalism:



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A. Epistemological objection: because evidence of intention is oftenequivocal, incomplete or obscure, it is difficult to offer convincingjustification for the claim that the a certain interpretation corresponds toan authors actual intention

This is not an objection to the thesis that a text means what itsauthor intends, it is a complaint that determining exactly what thatintention is may prove difficult. What intentionalism is involved with is inanswering the question What must be the case what must we

presuppose if notions like agreement, disagreement, error, correctionand revision are to make any sense? not in answering What is going onin the interpreters mind? a question that would require research intobrain waves, cognitive processes, institutional practices and much more.

B. Non-existence objection:In the case of groups like legislatures, individuals within the majority havedifferent aims and intentions in mind. How should individual intentions becombined to form a group intention that is plausibly the intention behindthe legislation?

This question confuses intention with motive; while differentlegislators have different motives for signing on to a piece of legislation,they could collectively form the intention to put the legislation on the

books.C. Indeterminacy objection:When one person has different intentions

Authors often have several intentions at the same time. But thismay be when an author may have in mind specific examples of theapplication of a clause and a general aim. Such an author would not havetwo intentions, but one: the application of the general aim.

ConclusionThere is only one coherent answer to the question what does a

text mean? It cannot mean what its readers take it to mean, for then theinterpretive game would have no rules (and no possibility of victory). Norcan it mean what the words alone man because the absent the assumptionof intention, the words alone do not mean anything. Nor does it mean whatthe dictionary tells us because it only gives us a record of the intentionsprevious speakers have had when using a word, a record of possibly andmultiple meanings absent any way of specifying which the right one is. Nordoes a text mean what is specified by the conventions of the day becauseconventions do not have intentions and they do not author texts. Nor doesit mean what the ordinary or ideal or reasonable interpreter would meanby the words because none of those authored the text either, anddeclaring any of them the author by fiat would amount to rewriting, notinterpreting. There is only one candidate left and one answer to thequestion: a text means what its author intends.

IS THAT ENGLISH YOURE SPEAKING?

By Larry Alexander and Saikrishna Prakash

IntroductionOn the one hand, Full Blooded Intentionalists consider all available

evidence of the actual authors intended meaning. He might excludecertain evidence of intent on grounds of general unreliability, but henonetheless would allow consideration of all reliable evidence of authorialintent. This is the wholeheartedly faithful agent position. On the otherhand, Intention Free Textualists (I.F. Textualists) who espouse that textscan be interpreted without any reference, express or implied, to themeaning intended by the author of the text.

The dispute between Textualists and Intentionalists boil down towhether interpreters should look to the intentions of actual authors orhypothetical ones, and when, if we are to look to actual intent, policyconsiderations such as rule of law concerns should lead us to ignorecertain evidence of that intent.

Part 1: The Conceptual Impossibility of Intention Free Textualism(I.F. Textualism)I.F. textualism is a conceptual impossibility. One cannot interpret textswithout reference to the intentions of some author.

Argument 1: Texts Cannot Declare the Language in Which They are Written> Words in text mean different things across languages, e.g. canard inEnglish means a lie; in French, a duck. It can also mean different thingswithin the language, e.g. chips can mean potato chips, poker chips,microchips.> If we are unaware of or indifferent to the authors usual tongue (andlikely intentions), we may imagine what we would have meant had wespoken the term, imagining ourselves as the authors.Argument 2: Texts Cannot Declare That They Are Texts> One cannot look at the marks on a page and understand those marks tobe a text (that is, a meaningful writing) without assuming that an author,real or hypothetical, made those marks intending to convey a meaning bythem.

Argument 3: Meaning Cannot be Autonomous From Intent One MustAlways Identify an Author> If text has no intent, there is no meaning; they would be mere marks.> Texts without authors and intended meanings are not texts; and textswith intended meanings are texts only with respect to the intendedmeanings.> a marking on the floor as follows: c a t can mean a domestic tabbycat, any feline, jazz musician, or simply markings for the contours ofpatches of a vegetable garden, depending on what the author intended itto mean.Argument 4: Texts Can Have Deviant Meanings Because Those MeaningsAre Intended



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> How did cat come to mean jazz musician? Because it was used bysome people with the intent that it be understood as referring to a jazzmusician. And the word cat meant jazz musician the very first time itwas used with such an intention, even before it was listed as a definition inthe dictionary.Argument 5: Unexplained Exceptions to I.F. Textualism: The Use ofContext, the Avoidance of Literal Absurdities, and Casualness RegardingPunctuation

> On The Use of ContextTextualists admit that texts must be read in context. The additional

contextual information is, unsurprisingly, information that providesevidence of the intent of the actual author. The commonplace truth thatall understandings of texts are contextual just demonstrates that all texts,as text, acquire their meaning from the presumed intentions of theirauthors.> On the Avoidance of Literal Absurdities (Absurdity Doctrine)

This is a way that textualists bring authorial intentions thorough thebackdoor. For to say that some reading is absurd and therefore ought tobe rejected is to say nothing more than that the author of the text couldnot have intended such a reading.> On Casualness Regarding Punctuation (Scriveners Error Doctrine)

To speak of errors, mistakes, or of a legislature that obviouslymisspoke is to have a baseline of legislative intent, for it is only againstthat baseline that it is possible to speak of legislative misspeaking. Butthen again, so far as the IF textualist is concerned, there can be noerrors in statutory text. The text results from clashes of interests, and itis whatever it is, warts and all. So if the text says emission testing ofcarps, it means emission testing of fish.

Part 2: The Real Issues in InterpretationIf I.F. Textualism is an impossibility because one must always haverecourse to some author, real or otherwise, what other positions couldtextualists be advocating?Position 1: Textualism as Rule of Law Restricted Intentionalism> The interpreter should seek out authorial intent, but in doing so shouldrefuse to consider certain kinds of evidence thereof, even if reliable, usinga set of norms, for example, rule of law as justification for the same.> Critique: Because evidence is excluded, especially so when it is reliablethe interpreter will end up in a situation in which the authoritative meaningof the law is different from what the interpreter knows was the meaningintended by the lawmakers. There is a gap between what the interpreterknows the lawmakers actually intended and what, per the norms (e.g. ruleof law), the interpreter will deem them to have intended.Position 2: Textualism as Man on the Street Interpretation> Interpreting legal texts as would a sample of average members of thepublic provided a certain context.

> Advantage: Rule of law benefit in that the average citizen is given clearnotice of what the law means> Critique 1: Let us take the extremes. Providing almost no context exceptthat the authors were English speakers this wouldnt be different fromsimply getting the dictionary meaning of the text. On the other hand,providing them with additional contexts, their readings might:

a. converge with the authoritative interpreters (e.g the judges), inwhich case, why poll from the sample?

b. vary from one person to the next, in which case, there will be noauthoritative meaning.

> Critique 2: If polling a sample will yield Critique 1, then why not ask onemedian member of the public instead of several? The problem then arisesas to who is the median member of the public, which is an indeterminateconcept considering that there is an indefinite number of dimensions onwhich one can identify a median member of the public.Position 3: The Idealized Reader> Textualists have recourse to the construct of an idealizedcontemporaneous (with the statutes enactment) reader interpretinglanguage by asking how a skilled, objectively reasonable user of wordswould have understood the text, or as any ordinary Member of Congresswould have read them, and also considering the context of the statute

and taking into account background legal convention. In sum, the idealizedreader is a lawyer.> Critique: Supplying the idealized reader the context of the statute isbut a backdoor means of reintroducing the authors intent. When asked tointerpret something, the idealized reader will seek the actual authorsintent as a source of meaning. In creating this construct of idealizedreader to generate an objective meaning, textualists have instead justcreated an abstraction that merely filters authorial intention.

Moreover, even if the textualist forbids the idealized reader fromseeking the intent of the actual author, the idealized reader will still haveto search for some intent. If we are correct that one must envision anauthor whenever attempting to make sense of text (indeed, to evenidentify it as such), the idealized reader will have to imagine a hypotheticalauthor/s.> Note: The benefit of this approach is that with the selection of onehypothetical author even though it was a multi-member body that createdthe text, it becomes much more likely that every statute has a meaning.After all, the more authors a text has, the more likely it is that there is noshared intent as to the meaning of the text.> Critique of Note: Precluded as the idealized reader is from looking toall the evidence of actual authorial intent, the idealized reader mayconclude that a text has two or more meanings that are equally supportedby the evidence to which he is restricted. There is no deeper metaphysicalfact, like intent, of which these multiple meanings are merely evidence.Position 4: The Idealized Author



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> Legal text should be interpreted to mean what they would have meanthad they been authored by this single idealized lawmaker rather than bythe one or several actual lawmakers.> Critique: In order to yield interpretations, we need to specify theattributes of the idealized author. This will lead in effect to the reauthoringof the law by the interpreter.

Conclusion

Everybody, textualist or otherwise, looks beyond the four corners ofstatue to discern its meaning. These extratextual factors are legitimatefor the reason that a statue is not simply (or even primarily) its text but isprincipally its meaning. The text is just a means of conveying meaning.

The extratextual factors illuminate a statutes meaning; and therefore,though they are extratextual, they are not extrastatutory.

An intentionalist may choose to exclude some evidence about authorialintentions on the theory that the evidence may be more prejudicial thanprobative or may be prone to manipulation. Hence, textualists of Position 1may be correct in concluding that one ought not examine, for example,legislative history in finding statutory meaning. They would be correct forthe wrong reasons. They would be correct not because intent (includinglegislative history) is irrelevant to statutory meaning, but because

legislative history might be an unreliable indicator of authorial meaning.Appendix 1: Textualism and the Faithful Agent PremiseTextualists have claimed that textualism starts from the faithful agent

premise that a federal court is responsible for accurately deciphering andimplementing the legislatures commands. However, textualists believethat when a statutory text is clear, that is the end of the matter.

Textualists acknowledge that Congress has the right to place a set ofmarks on a page. But they forbid Congress form selecting the meaning ofthose marks. Instead, the meanings of those marks are supposed to befixed according to a set of rules that are (relatively) independent ofCongress, interpreted on the basis solely of the text independent ofintention. Should Congress intend secondary or nonstandard meanings, itmay well have its will thwarted; for the reasonable reader, if soconstructed, may generate an objectified meaning that ignores Congressintended secondary or tertiary meanings. Whatever the merits oftextualism, it does not strike us as a theory where the interpreter acts as afaithful agent of Congress.Appendix 2: The Lawmakers Intended Meaning Versus the LawmakersIntended Goals

Legal texts not only have intended meanings; legal texts are meant toachieve certain goals. But the goals they are meant to achieve are not thesame thing as the meanings they are intended to convey.

There are two types of mistakes a lawmaker makes: lapses inexpression (as to meaning) pertaining to mistakes in conveyance whenwords are ill chosen, vis--vis lapses in foresight (as to goal) pertaining tomistakes of fact that leads one to think that with a specific law s/he might

achieve a specific goal. Intentionalists do not advocate departing from theintended meaning whenever the interpreter concludes the lawmaker madea mistake regarding what that meaning would accomplish or how well thatmeaning serves the lawmakers values. In my understanding, the Judiciaryas intentionalists advocate honoring the intent of the law as it is but do notquestion the wisdom (of the Legislature) as to why such law has beenpassed.

TYRANNOSAURUS TEXT AND THE DOCTRINAL SLIP:PP1017 AND THE PROBLEMATICS OF EXECUTIVELEGISLATIONBy Florin Hilbay

FLORINS OBJECTIVE IN THIS ARTICLE: By showing the doctrinal andinterpretive mistakes of the Supreme Court in the decision of David vs.Arroyo, he hopes to promote a dialogue on the tools of judicial decision-making that inform the decision itself.

I. THE DOCTRINAL SLIPArgument No 1.

The distinction between facial and applied challenges that the Courtused in scrutinizing PP 1017 is founded on the separation of powersprinciple that relies on a conceptual distinction between rule-making andrule-execution. It derives strength from the institutional play between theCourt as interpreter of the Constitution, and the Congress, as the body withauthority to legislate on matters affecting the guarantees in the Bill ofRights. Because presidential authority is only marginally implicated in theanalysis of the need for careful drawing of statutes and their compliancewith constitutional principlesthe salient feature of facial analysisthenthe application of this kind of scrutiny to presidential proclamation (an

altogether different species of policy) is inappropriate.1

Facial invalidation is a slap on the legislature, while as appliedinvalidation is a slap on some arresting officer. In both instances, high-levelexecutive officials are invisible to the reach of the doctrines.Argument No. 2.

The Court should not have uncritically applied doctrines in the case.Doctrines do not come out of a judicial toolbox ready for use in everyapparently similar occasion. Doctrines are always situated temporally andspatially.

1COMMENT: Hilbay is too verbose. His argument is really simple: Facial and applied

challenges applies only to congressional enactments and not to presidentialproclamations. Hence, the doctrinal slip.



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Overbreadth doctrine for instance, is a product of politics of judges inthe United States as particularly shown in the Warren Courts attitudetowards facial invalidation. The doctrinal debate was and still is part of thelarger political debate over the role of the US Supreme Court in enforcingits views on the Constitution and its relationship with both federal andstate legislatures.

II. THE TYRANNY OF TEXT

Hilbay attributes the doctrinal slip partly on the Courts penchantfor privileging the textual interpretation over intentionalist interpretation.Argument No. 1

The intent behind PP 1017 can easily be identified considering that thePresident was the single author of the proclamation. The interpretive issuetherefore that should be determinative of the constitutional argument inDavid is not difficulty of linking text with intention but of the manipulationof text to suppress an otherwise illicit intention already bare to the publicsight.2

Argument No. 2Textualism as an ideology of reading applied to PP1017 made the Court

conclude that there is nothing in its text that allowed the constitutionalviolations that actually occurred despite the vulgarity of the contradictory

context that surrounded it. To look for something in the text that sayspolice may arrest anyone who exercises her freedom of speech, and thatthey may invade premises of publications critical to the government, is tosearch for the right of abortion in the Ten Commandments. 3

The tyranny of text is the formalist search for understanding inmaterial markstextsthat have no presence in the absence of context,of the conditions that make them comprehensible and allow for theemergence of meaning.

III. HOW THE COURT SHOULD HAVE DECIDED THE CASEWho is responsible for the Constitutional Violence? Florins answer: thePresident.Reason

The reason why laws, in general, may not be declared unconstitutionalon the basis of the implementers misdeed is that the legislature cannot befaulted for the blunders of law enforcement agencies. The Anti-Rapestatute should not be invalidated just because the accused was arrestedwithout warrant. The structure of our constitutional government limits thepower of the legislature to compel the executive department to follow itsintended meaning. But this is the extent to which logic may carry us.

2Here, Florins bias is shown. He contends that the intent of PP 1017 is illicit from the beginning

and that this intent is known by the public.3

Florin admittedly, has excellent insights on judicial interpretation. However, if you notice, hedoesnt substantiate his alternative views very well (all rhetoric), which leaves the credibility ofhis assessment questionable. Significantly, petitioners in David v. Arroyo did not discount thefactual basis of the issuances, which to mind casts serious doubt on Florins argument that therewas such vulgarity of the context which surrounded the issuance of PP 1017.

The matter is different when the question of meaning is confined inthe President. The President, as commander-in-chief and as chief executivehad full control of her own text, that is, she had the constitutional authorityto authorenforcewhat she had intended to carry our, as she did, herpurpose.4

DAVID V ARROYOSANDOVAL-GUTIERREZ; May 3, 2006

NATURE OF THE PETITION These seven (7) consolidated petitions for certiorari and prohibition

allege that in issuing Presidential Proclamation No. 1017 (PP 1017) andGeneral Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyocommitted grave abuse of discretion. Petitioners contend that respondentofficials of the Government, in their professed efforts to defend andpreserve democratic institutions, are actually trampling upon the veryfreedom guaranteed and protected by the Constitution. Hence, suchissuances are void for being unconstitutional.THE FACTS

On February 24, 2006, as the nation celebrated the 20 th Anniversary ofthe Edsa People Power I, President Arroyo issued PP 1017 declaring a stateof national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republicof the Philippines and Commander-in-Chief of the Armed Forces of thePhilippines, by virtue of the powers vested upon me by Section 18,Article 7 of the Philippine Constitution which states that: The President. .. whenever it becomes necessary, . . . may call out (the) armed forces toprevent or suppress. . .rebellion. . ., and in my capacity as theirCommander-in-Chief, do hereby command the Armed Forces of thePhilippines, to maintain law and order throughout the Philippines,prevent or suppress all forms of lawless violence as well as any act ofinsurrection or rebellion and to enforce obedience to all the laws and to

all decrees, orders and regulations promulgated by me personally orupon my direction; and as provided in Section 17, Article 12 of theConstitution do hereby declare a State of National Emergency.

The declaration is premised military and police intelligence containingconcerted efforts of Left and Right wing factions to bring down the ArroyoGovernment.

On the same day, the President issued G. O. No. 5 implementing PP 1017(hence, the same premise as PP1017), thus:

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of thepowers vested in me under the Constitution as President of the Republicof the Philippines, and Commander-in-Chief of the Republic of the

4In short, the President must be accountable.



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Philippines, and pursuant to Proclamation No. 1017 dated February 24,2006, do hereby call upon the Armed Forces of the Philippines (AFP) andthe Philippine National Police (PNP), to prevent and suppress acts ofterrorism and lawless violence in the country;I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, aswell as the officers and men of the AFP and PNP, to immediately carryout the necessary and appropriate actions and measures to suppressand prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state ofnational emergency and after all these petitions had been filed, thePresident lifted PP 1017.

ARGUMENTS OF THE GOVERNMENTIn their presentation of the factual bases of PP 1017 and G.O. No. 5,

respondents stated that the proximate cause behind the executiveissuances was the conspiracy among some military officers, leftistinsurgents of the New Peoples Army (NPA), and some members of thepolitical opposition in a plot to unseat or assassinate President Arroyo. 5[4]

They considered the aim to oust or assassinate the President and take-over the reigns of government as a clear and present danger.During the oral arguments held on March 7, 2006, the Solicitor General

specified the facts leading to the issuance of PP 1017 and G.O. No. 5.SIGNIFICANTLY, THERE WAS NO REFUTATION FROM PETITIONERSCOUNSELS.

The Solicitor General argued that the intent of the Constitution is togive full discretionary powers to the President in determining the necessityof calling out the armed forces. He emphasized that none of thepetitioners has shown that PP 1017 was without factual bases. While heexplained that it is not respondents task to state the facts behind thequestioned Proclamation, however, they are presenting the same, narratedhereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First LieutenantsSonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members ofthe Magdalo Group indicted in the Oakwood mutiny, escaped theirdetention cell in Fort Bonifacio, Taguig City. In a public statement, theyvowed to remain defiant and to elude arrest at all costs. They called uponthe people to show and proclaim our displeasure at the sham regime. Letus demonstrate our disgust, not only by going to the streets in protest, butalso by wearing red bands on our left arms. 6[5]

On February 17, 2006, the authorities got hold of a document entitledOplan Hackle I which detailed plans for bombings and attacks during thePhilippine Military Academy Alumni Homecoming in Baguio City. The plotwas to assassinate selected targets including some cabinet members andPresident Arroyo herself.7[6] Upon the advice of her security, President

5 [4] Respondents Comment dated March 6, 2006.6 [5] Ibid.7 [6] Ibid.

Arroyo decided not to attend the Alumni Homecoming. The next day, atthe height of the celebration, a bomb was found and detonated at the PMAparade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communistsafehouse in Batangas province. Found in his possession were two (2)flash disks containing minutes of the meetings between members of theMagdalo Group and the National Peoples Army (NPA), a tape recorder,audio cassette cartridges, diskettes, and copies of subversive documents.8[7]

Prior to his arrest, Lt. San Juan announced through DZRH that theMagdalos D-Day would be on February 24, 2006, the 20th Anniversary ofEdsa I.

On February 23, 2006, PNP Chief Arturo Lomibao interceptedinformation that members of the PNP- Special Action Force were planningto defect. Thus, he immediately ordered SAF Commanding GeneralMarcelino Franco, Jr. to disavow any defection. The latter promptlyobeyed and issued a public statement: All SAF units are under theeffective control of responsible and trustworthy officers with provenintegrity and unquestionable loyalty.

On the same day, at the house of former Congressman PepingCojuangco, President Cory Aquinos brother, businessmen and mid-levelgovernment officials plotted moves to bring down the Arroyo

administration. Nelly Sindayen of TIME Magazine reported that PastorSaycon, longtime Arroyo critic, called a U.S. government official about hisgroups plans if President Arroyo is ousted. Saycon also phoned a mancode-named Delta. Saycon identified him as B/Gen. Danilo Lim,Commander of the Armys elite Scout Ranger. Lim said it was all systemsgo for the planned movement against Arroyo.9[8]

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided toGen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines(AFP), that a huge number of soldiers would join the rallies to provide acritical mass and armed component to the Anti-Arroyo protests to be heldon February 24, 2005. According to these two (2) officers, there was noway they could possibly stop the soldiers because they too, were breakingthe chain of command to join the forces foist to unseat the President.However, Gen. Senga has remained faithful to his Commander-in-Chief andto the chain of command. He immediately took custody of B/Gen. Lim anddirected Col. Querubin to return to the Philippine Marines Headquarters inFort Bonifacio.

Earlier, the CPP-NPA called for intensification of political andrevolutionary work within the military and the police establishments inorder to forge alliances with its members and key officials. NPAspokesman Gregorio Ka Roger Rosal declared: The Communist Partyand revolutionary movement and the entire people look forward to the possibility in the coming year of accomplishing its immediate task of

8 [7] Minutes of the Intelligence Report and Security Group, Philippine Army, Annex I ofRespondents Consolidated Comment.

9 [8] Respondents Consolidated Comment.



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bringing down the Arroyo regime; of rendering it to weaken and unable torule that it will not take much longer to end it.10[9]

On the other hand, Cesar Renerio, spokesman for the NationalDemocratic Front (NDF) at North Central Mindanao, publicly announced:Anti-Arroyo groups within the military and police are growing rapidly,hastened by the economic difficulties suffered by the families of AFPofficers and enlisted personnel who undertake counter-insurgencyoperations in the field. He claimed that with the forces of the national

democratic movement, the anti-Arroyo conservative political parties,coalitions, plus the groups that have been reinforcing since June 2005, it isprobable that the Presidents ouster is nearing its concluding stage in thefirst half of 2006.

Respondents further claimed that the bombing of telecommunicationtowers and cell sites in Bulacan and Bataan was also considered asadditional factual basis for the issuance of PP 1017 and G.O. No. 5. So isthe raid of an army outpost in Benguet resulting in the death of three (3)soldiers. And also the directive of the Communist Party of thePhilippines ordering its front organizations to join 5,000 Metro Manilaradicals and 25,000 more from the provinces in mass protests.11[10]

By midnight of February 23, 2006, the President convened her securityadvisers and several cabinet members to assess the gravity of the

fermenting peace and order situation. She directed both the AFP and thePNP to account for all their men and ensure that the chain of commandremains solid and undivided. To protect the young students from anypossible trouble that might break loose on the streets, the Presidentsuspended classes in all levels in the entire National Capital Region.

PETITIONERS ARGUMENTSIn G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP

1017 on the grounds that (1) it encroaches on the emergency powers ofCongress; (2) it is a subterfuge to avoid the constitutional requirements forthe imposition of martial law; and (3) it violates the constitutionalguarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and TribunePublishing Co., Inc.challenged the CIDGs act of raiding the Daily Tribuneoffices as a clear case of censorship or prior restraint. They alsoclaimed that the term emergency refers only to tsunami, typhoon,hurricane and similar occurrences, hence, there is absolutely noemergency that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative FrancisJoseph G. Escudero, and twenty one (21) other members of the House ofRepresentatives, including Representatives Satur Ocampo, Rafael Mariano,

Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017and G.O. No. 5 constitute usurpation of legislative powers; violation of

10 [9] Ibid.11 [10] Ibid.

freedom of expression and a declaration of martial law. They allegedthat President Arroyo gravely abused her discretion in calling out thearmed forces without clear and verifiable factual basis of the possibility oflawless violence and a showing that there is necessity to do so.

In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their membersaverred that PP 1017 and G.O. No. 5 are unconstitutional because (1) theyarrogate unto President Arroyo the power to enact laws and decrees; (2)their issuance was without factual basis; and (3) they violate freedom of

expression and the right of the people to peaceably assemble to redresstheir grievances.In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)

alleged that PP 1017 and G.O. No. 5 are unconstitutional because theyviolate (a) Section 412[15] of Article II, (b) Sections 1,13[16] 2,14[17] and 415[18]

of Article III, (c) Section 2316[19] of Article VI, and (d) Section 1717[20] ofArticle XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged thatPP 1017 is an arbitrary and unlawful exercise by the President of herMartial Law powers. And assuming that PP 1017 is not really adeclaration of Martial Law, petitioners argued that it amounts to anexercise by the President of emergency powers without congressionalapproval. In addition, petitioners asserted that PP 1017 goes beyond the

nature and function of a proclamation as defined under the RevisedAdministrative Code.

12 [15] The prime duty of the Government is to serve and protect the people. TheGovernment may call upon the people to defend the State and, in the fulfillment thereof, allcitizens may be required, under conditions provided by law, to render personal military orcivil service.

13 [16] No person shall be deprived of life, liberty, or property without due process of law, norshall any person be denied the equal protection of the laws.

14 [17] The right of the people to be secure in their persons, houses, papers, and effectsagainst unreasonable searches and seizures of whatever nature and for any purpose shallbe inviolable, and no search warrant or warrant of arrest shall issue except upon probablecause to be determined personally by the judge after examination under oath oraffirmation of the complainant and the witnesses he may produce, and particularlydescribing the place to be searched and the persons or things to be seized.

15 [18] No law shall be passed abridging the freedom of speech, of expression, or of thepress, or the right of the people peaceably to assemble and petition the Government forredress of grievances.

16 [19] (1) The Congress, by a vote of two-thirds of both Houses in joint sessionassembled, voting separately, shall have the sole power to declare the existence of a stateof war.(2) In times of war or other national emergency, the Congress may, by law, authorize thePresident, for a limited period and subject to such restrictions as it may prescribe, toexercise powers necessary and proper to carry out a declared national policy. Unlesssooner withdrawn by resolution of the Congress, such powers shall cease upon the nextadjournment thereof.

17 [20] In times of national emergency, when the public interest so requires, the State may,during the emergency and under reasonable terms prescribed by it, temporarily take overor direct the operation of any privately owned public utility or business affected with publicinterest.



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And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintainedthat PP 1017 and G.O. No. 5 are unconstitutional for being violative of thefreedom of expression, including its cognate rights such as freedom of thepress and the right to access to information on matters of public concern,all guaranteed under Article III, Section 4 of the 1987 Constitution. In thisregard, she stated that these issuances prevented her from fullyprosecuting her election protest pending before the Presidential Electoral

Tribunal.

In respondents Consolidated Comment, the Solicitor Generalcountered that: first, the petitions should be dismissed for being moot;second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483(KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have nolegal standing; third, it is not necessary for petitioners to impleadPresident Arroyo as respondent; fourth, PP 1017 has constitutional andlegal basis; and fifth, PP 1017 does not violate the peoples right to freeexpression and redress of grievances.

ISSUESPROCEDURAL1) WON the moot and academic principle precludes the Court fromtaking cognizance of the cases 18

2) WON the petitioners in 171485 (Escudero et al.), G.R. Nos.171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and171424 (Legarda) have legal standing.SUBSTANTIVE1) WON the Supreme Court can review the factual bases of PP1017.2) WON PP 1017 and G.O. No. 5 are unconstitutional.\

a. Facial Challengeb. Constitutional Basisc. As Applied Challenge

RATIO DECIDENDIPROCEDURAL

1.NO. Courts will decide cases, otherwise moot and academic, if:first, there is a grave violation of the Constitution;19[31] second, the

exceptional character of the situation and the paramount publicinterest is involved;20[32] third, when constitutional issue raised requiresformulation of controlling principles to guide the bench, the bar, and

18BRYAN_SJ: I REFORMULATED THE ISSUE SO THAT THE RATIO DECIDENDI WILL BE RESPONSIVE

TO IT. THE ORIGINAL QUESTION WAS TO THIS EFFECT: WERE THE PETITIONS MOOT ANDACADEMIC?, WHICH WAS ANSWERED BY THE COURT IN THE AFFIRMATIVE, ONLY TO REPUDIATE

THE PRINCIPLE LATER.

19[31] Province of Batangas v. Romulo, supra.20 [32] Lacson v. Perez, supra.

the public;21[33] and fourth, the case is capable of repetition yet evadingreview.22[34]

2. YES. The requirement of Locus standi which is the right ofappearance in a court of justice on a given question shall be set asideby the Court whenever it is shown that the case is of transcendentalimportance.

SUBSTANTIVE

1. YES. Notwithstanding the discretionary nature of the constitutional

exercise of the President of his/her calling out of power, the Courtsshall have authority to inquire into the factual basis of such exercise todetermine whether it was within the constitutionally permissible limitsor whether grave abuse of discretion attended its exercise. (Thisinterpretation was based on Article VIII, section 1)23

2. A. Facial Challenge . Facial invalidation of laws (overbreadthdoctrine) shall not be resorted to in the absence of clear showing that(1) the law involves the exercise of free speech; (2) that there can beno instance that the assailed law may be valid; and that (3) the Courthas no other alternative remedies available.Under the void-for-vagueness doctrine, a law shall be facially invalidonly if men of common intelligence must necessarily guess at itsmeaning and differ as to its application

B. Constitutional Basis. The authority of the President to exercise hiscalling out power to suppress lawless violence shall not be deemed toinclude the power to authorize: (a) arrests and seizures without judicialwarrants; (b) ban on public assemblies; (c) take-over of news mediaand agencies and press censorship; and (d) issuance of PresidentialDecrees, as these powers can be exercised by the President asCommander-in-Chief only where there is a valid declaration of MartialLaw or suspension of the writ ofhabeas corpus.

The take care power of the President, which includes the power toenforce obedience of laws shall not be deemed to include calling themilitary to enforce or implement certain laws, such as customs laws,laws governing family and property relations, laws on obligations andcontracts and the like.

The ordinance power of the President shall not include the powerto make decrees with the same force and effect as those issued byPresident Marcos.

21 [33] Province of Batangas v. Romulo, supra.22 [34] Albaa v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98,

Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. ExecutiveSecretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.

23BRYAN_SJ: PAY ATTENTION TO THE COURTS REASONING LATER ON, WHERE THE COURT

CLARIFIED THAT THE BURDEN OF PROVING THE FACTUAL BASIS, LIES IN THE PETITIONERS. THECOURTS POWER TO INQUIRE INTO THE FACTUAL BASIS OF AN EXECUTIVE DECLARATION DOESNOT INCLUDE THE CREATION OF AN INDEPENDENT BODY TO INDEPENDENTLY INVESTIGATE THEFACTUAL BASIS.



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In the absence of delegated authority from Congress, the authority ofthe President to declare a state of emergency shall not be deemed toinclude the power to temporarily take over or direct the operation ofany privately owned public utility or business affected with publicinterest.Acts of terrorism no matter how repulsive shall not be deemed to bepunishable in the absence of legislation clearly defining said acts andproviding specific punishments therefor.

C. Applied Challenge. The Court shall not declare laws as invalid solelyon the basis of their misapplication or abuse or susceptibility to abuseby the people tasked to implement them.

The arrest of Randy David and other acts done by the authoritiespursuant to the parts of the laws herein considered unconstitutionalare also deemed unconstitutional without prejudice to the filing ofnecessary administrative, criminal or civil actions against specificabuses committed by authorities.

REASONING OF THE COURTPROCEDURAL1. The moot and academic principle is not a magical formula that canautomatically dissuade the courts in resolving a case. Courts will decide

cases, otherwise moot and academic, if:first,

there is a grave violation ofthe Constitution;24[31] second, the exceptional character of the situation andthe paramount public interest is involved;25[32] third, when constitutionalissue raised requires formulation of controlling principles to guide thebench, the bar, and the public;26[33] and fourth, the case is capable ofrepetition yet evading review.27[34]

All the foregoing exceptions are present here and justify this Courtsassumption of jurisdiction over the instant petitions. Petitioners allegedthat the issuance of PP 1017 and G.O. No. 5 violates the Constitution.

There is no question that the issues being raised affect the publicsinterest, involving as they do the peoples basic rights to freedom ofexpression, of assembly and of the press. Moreover, the Court has theduty to formulate guiding and controlling constitutional precepts, doctrinesor rules. It has the symbolic function of educating the bench and the bar,and in the present petitions, the military and the police, on the extent ofthe protection given by constitutional guarantees.28[35] And lastly,respondents contested actions are capable of repetition. Certainly, thepetitions are subject to judicial review. In their attempt to prove the

24[31] Province of Batangas v. Romulo, supra.25 [32] Lacson v. Perez, supra.26 [33] Province of Batangas v. Romulo, supra.27 [34] Albaa v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98,

Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. ExecutiveSecretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.

28 [35] Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.

alleged mootness of this case, respondents cited Chief Justice Artemio V.Panganibans Separate Opinion in Sanlakas v. Executive Secretary.29[36]

However, they failed to take into account the Chief Justices verystatement that an otherwise moot case may still be decided providedthe party raising it in a proper case has been and/or continues to beprejudiced or damaged as a direct result of its issuance. The presentcase falls right within this exception to the mootness rule pointed out bythe Chief Justice.

2. Locus standi is defined as a right of appearance in a court of justice ona given question.30[37] In private suits, standing is governed by the real-parties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rulesof Civil Procedure, as amended. It provides that every action must beprosecuted or defended in the name of the real party in interest.Accordingly, the real-party-in interest is the party who stands to bebenefited or injured by the judgment in the suit or the party entitled to theavails of the suit.31[38] Succinctly put, the plaintiffs standing is based onhis own right to the relief sought.

By way of summary, the following rules may be culled from the casesdecided by this Court. Taxpayers, voters, concerned citizens, andlegislators may be accorded standing to sue, provided that the following

requirements are met:(1 the cases involve constitutional issues;(2) for taxpayers, there must be a claim of illegal disbursement of

public funds or that the tax measure is unconstitutional;(3) for voters, there must be a showing of obvious interest in the

validity of the election law in question;(4) for concerned citizens, there must be a showing that the issues

raised are of transcendental importance which must be settled early;and

(5) for legislators, there must be a claim that the official actioncomplained of infringes upon their prerogatives as legislators.

Now, the application of the above principles to the present petitions.The locus standi of petitioners in G.R. No. 171396, particularly David

and Llamas, is beyond doubt. The same holds true with petitioners in G.R.No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They allegeddirect injury resulting from illegal arrest and unlawful searchcommitted by police operatives pursuant to PP 1017. Rightly so, theSolicitor General does not question their legal standing.- In G.R. No. 171485, the opposition Congressmen alleged there wasusurpation of legislative powers. They also raised the issue of whether ornot the concurrence of Congress is necessary whenever the alarmingpowers incident to Martial Law are used. Moreover, it is in the interest of

29[36] G.R. No. 159085, February 3, 2004, 421 SCRA 656.30 [37] Blacks Law Dictionary, 6th Ed. 1991, p. 941.31 [38] Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).



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justice that those affected by PP 1017 can be represented by theirCongressmen in bringing to the attention of the Court the allegedviolations of their basic rights.- In G.R. No. 171400, (ALGI), this Court applied the liberality rule inPhilconsa v. Enriquez,32[60]Kapatiran Ng Mga Naglilingkod sa Pamahalaanng Pilipinas, Inc. v. Tan,33[61] Association of Small Landowners in thePhilippines, Inc. v. Secretary of Agrarian Reform,34[62] Basco v. PhilippineAmusement and Gaming Corporation,35[63]and Taada v. Tuvera,36[64] that

when the issue concerns a public right, it is sufficient that the petitioner isa citizen and has an interest in the execution of the laws.- In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violatedits right to peaceful assembly may be deemed sufficient to give it legalstanding. Organizations may be granted standing to assert the rights oftheir members.37[65] We take judicial notice of the announcement by theOffice of the President banning all rallies and canceling all permits forpublic assemblies following the issuance of PP 1017 and G.O. No. 5.- In G.R. No. 171489, petitioners, Cadiz et al., who are national officers ofthe Integrated Bar of the Philippines (IBP) have no legal standing, havingfailed to allege any direct or potential injury which the IBP as an institut

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