Sunday, January 31, 2010

where has all the narrative gone?

Ken Chestek, at U. Indiana -- Indianapolis, posted this thoughtful analysis on the listserve for legal writing professors and graciously agreed to let us share it here:

"Citizens United, in my opinion, is a great example of the kind of absurd decision that pure logic, uninformed by narrative reasoning, can lead to. Judges pride themselves on ruling based on 'the law,' which they take to mean legal rules and logic, and to filter out emotional reasoning of all sorts. And this process often produces absurdities like this decision. 

"If one begins with the major premise that corporations are people, and the minor premise that people have First Amendment rights, syllogistic reasoning leads inevitably to the conclusion that corporations have First Amendment rights. But narrative thinking would reject the major premise: corporations are NOT people. They are fictional constructs, invented by human beings to serve the needs of human beings, and therefore should be subordinate to the needs of humans. But corporations don't have the same needs as humans. They don't need clean air to breathe, fresh water to drink, healthy food to eat, etc. Instead, those things that humans value (i.e. a clean and healthy environment) actually work AGAINST the corporation's sole mission: generating monetary profits for its shareholders. 

"Thus, narrative thinking would reveal corporations to be the antagonist of the story, with human persons as the protagonists. But, since a majority of justices apparently reject narrative thinking as unworthy, we are left with a manifestly absurd decision. 

"BTW there is also a logos-based argument against the corporations-are-people premise, but the court ignored it. The notion that corporations are people with Constitutional rights is usually traced back to the Supreme Court decision in Santa Clara County vs. Southern Pacific, 118 U.S. 394 (1886). But that case really doesn’t stand for that proposition at all. In fact, the court’s opinion never even mentions it; the only reference to corporate constitutional rights appears in the court reporter’s syllabus, which of course is not part of the opinion and therefore has no weight of authority whatsoever. The Citizens United opinion avoids this trap by the simple expedient of not citing Santa Clara at all."


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