judges like Portia in the Merchant of Venice.

1. judges should always distance themselves from confirmation bias.

1) Portia’s cruelty was excusable. She had to give lip service to mercy. She was in a zero-sum game want of middle ground. None could persuade Shylock from killing.

As any lover or lawyer, she was naturally blind and biased. love dominated, and other utilitarian considerations informed her procedural malpractices and substantive strategies.

Four ends compelled her to abandon a formally logical argument. These ends are:

  • Bassanio’s inner-peace, self-identity and dignity,
  • Antonio’s life,
  • Christians’ privileges, and
  • Venice’s business-friendly reputation.

Among various inevitably flawed defenses, she chose the one best for her lover. Amazingly, other ends were also maximized.

Even her statutory interpretation method echoed to the first end. Textualism favored marital commitment, benefiting their love in the long run.

Invalidating the contract is humiliating. It indicated carelessness, stupidity, indifference to friends, rather than bravo.

This is not to say that we should praise her. She went extra miles for Bassanio, whereas they could not counterbalance Shylock’s pain.

2) but judges may never excuse themselves from any social or cultural, omissive or affirmative, acquiesced or even approved bias. Naked or sugarcoated, poison is poison. They should be on constant alert for encroachment from social convention.

3. Collectivism(?) disregards individuals, and mercantilism disregards life. Working together, they drive a quasi-business group to kill both ousters and members. As long as the whole group is safe, nobody’s suffering counts.

4. Two factors affect how people understand a rule:

  • Public apprehension of its reasonableness. This is further affected by
  • Logical consistency between its parts.
  • Logical consistency between it and established notions.
  • Public apprehension of its utility. This may turn more on testifying costs or cause-effect proximity instead of the truth.

Hence, as more and more people value equality nowadays, it is harder and harder to enact unfair laws.

5. facts represented may distort questions presented, which jointly change the rationales and conclusions. As sunlight interferes with our telescope, perception instills emotion into our reason. Then they lead us to elsewhere.

It is more a triumph of love over hatred, than privilege over justice. But it takes too long to arrive the final justice. to Portia, what, if anything, does justice count for? Traditional inequality notions erode everybody, even Shakespeare who was so introspective and cosmopolitan. Though serving chiefly to create a good story, the argument echoed with the inequality in treating a man’s religious belief.

😶Portia raised three holdings.

Y

The first holding confirmed that the contract was enforceable. Let us name it “Y” (“yes, go ahead, you are entitled to the flesh”).

R

Then she imposed two unreasonable limits on enforcing the contract. Name it “R” (“you can get the flesh, but first meet two requirements! Try if you can satisfy them!”)

First, as to amount (so its name is “R_a”), “one” means exactly one, no more and no less even by one hair.

Second, as to quality (so its name is “R_q”), “flesh” means flesh only, 100% flesh without any blood.

M

Another accused Shylock of murdering a Christian. She basically said, “you can cut the flesh but it will be a murder and you will be bankrupt and/or hanged”). The statute banned murdering a citizen with harsh penalties: property forfeiture and life deprivation.

😎she was talking nonsense.

Every holding carries fatal flaws.

Y

The first holding failed to check other elements of contracts’ validity.

R_a

1 its biggest flaw was an unspoken premise that flesh can be cut like pork while a man can be treated like a rock. A human was his own master, and his body is not an object. Hence, it contradicted with M’s necessary inference that the contract was unenforceable.

2 the obligation substantial performance was on Antonio.

3 even if we pretend that flesh is not part of human body, “one” means approximately one.

§ 2–311. Options and Cooperation Respecting Performance.

(1) An agreement for sale which is otherwise sufficiently definite (Section 2–204(3)) to be a contract is not made invalid by the fact that it leaves particulars of performance to be specified by one of the parties. Any such specification must be made in good faith and within limits set by commercial reasonableness.

3.1 usage of trade doctrine.

3.2 reasonableness doctrine. Words are in their contexts, and scales are within their limits. Only reasonable efforts are required for contract performance.

3.3 effectiveness doctrine. we should avoid an interpretation that may make its enforcement impossible. Similarly, constitutional avoidance doctrine applies in interpreting statutes in judicial review.1 But was it warranted here? The premise that parties are seeking their common commercial objectives seemed to be missing.

R_q

1 It shares R_a’s first flaw. They both ignored the right to life.

2 even if we downgrade flesh and blood as things, they were inseparable in the 16th century Venice. Inevitably accompanying flesh, blood was part of the forfeiture. One buys a horse, and shouldn’t the horseshoe follow? One buys a flower, and shouldn’t the flower pot follow?

M

1 similarly with Y and R, it disregarded the common sense that killing is culpable whoever is killed. Instead, it protected only citizens. So prejudicial and immoral, it colorized Portia’s mind. Legal logic is more than formal logic, for one must use value judgment to locate ‘operative facts’ before applying rules to them. Christians, claiming everyone is equal in their theology, trumped non-Christians’ rights in the area of statutes.

2 the ordinance lack publication and therefore should not apply. “Is that the law?” was a protest against unknown and unforeseeable penalties. Everybody, including Duke and the notary seemed to know nothing about it. Due process was understandably wishful thinking four hundred years ago, but we are not expecting too much: a basic, short process of notice-and-comment will do. but the procedural defect seemed outrageous: how could it be that the Duke was totally unaware?

First, its plain, normal meaning explicitly demands banning besides punishing. “Another” suggests this holding was irrelevant to the contract’s validity.

Even before tagging terms like “molum in se”, our instincts will tell that something was missing here: why did nobody point out that murder is wrong? Second, this accorded with legislative intent. No evidence that legislative intent should not count.

But She should have uncovered the outrageousness, but failed. This did not invalidate the argument automatically, but sends a dangerous signal. Deference for commerce was such that the life-threatening contract easily surpassed the invalidity hurdle. Though she mentioned and Shylock agreed on hiring a doctor to avoid Antonio’s death, this precaution was facile.

Given Shakespeare’s knowledge about laws, this error was shocking. According to [quote Quentin Skinner], Shakespeare most likely learned Cerio…..

This blindness can be viewed in two ways.

1) deny remedy despite acknowledging right

2) totally deny right

Portia misread the ordinance, narrowed its meaning, and downplayed its force. To remedy the difficulty, she cobbled up Y and R, each erring from premises all the way down to conclusions.

Upholding this contract as sacred won’t cause people think that they may die of contracts in Venice. People usually do not write contracts to give away flesh…

She deliberately disarmed M, the seemingly strongest weapon. Playing with words was the necessary evil for her dual goals.

In all, M was an oaf, whom Portia further amputated, either negligently or intentionally.

😍could Portia save Antonio without misreading “1 pound of flesh” or invalidating the contract?

At first sight, she seemingly could have said that cutting should be done in a reasonable, non-fatal manner. Namely, courts must impose reasonableness or “good faith” requirement if basic rights are threatened. In contrast, on other occassions, they apply only if there are no explicit terms but gaps to fill. A similar rationale is the “double standard” in judicial review. For ordinary commercial regulations, courts presume constitutionality. But if an act harm enumerated rights, rights to political processes to repeal undesirable legislation, or minorities, this presumption is gone, courts shall scrutinize the acts exactingly. That certainly encompasses the right to life.i

but these modern theories were unavailable then.

1, human rights had not been recognized then. The Enlightenment recognized the right to life as natural and inviolable. Even in 1896 USA, protestors against racial segregation was resorting to the argument that reputation of belonging to the dominant white race, is property like a right of action or of inheritance.2 That might be nothing more than an argument to add more advantage for the compensation claim, but equating identity with property was still strikingly saddening. the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty. Plessy v. Ferguson, 163 U.S. 537, 555 (1896).

2, this concern is a luxury, since they acquiesce in killing via contract.

In Act IV, Scene 1, Antonio’s friend Bassanio offers to pay off the debt in full, but Shylock refuses. However, 9–623 the Antonio can redeem the collateral at any time prior to its final disposition under 9–610 provided that he “shall tender fulfillment of all obligations secured by the collateral; and the reasonable expenses and attorney’s fees of [Shylock].” 9–623(b)(1)-(2). Of course, 9–623 applies only to “[a] debtor, any secondary obligor, or any other secured party or lienholder,” a class that does not include Bassanio. On the other hand, there is nothing to stop Bassanio from giving the money to Antonio, who can then pay Shylock. Shylock, unfortunately for him, has no right to refuse Antonio’s offer of redemption.ii

As Footnote 4 of Carolene Products identified, three categories of legislation are subject to stricter-than-rational-basis judicial review.

🙃real cases! She was not alone!!

The rationale seemed to convince audiences generations after generations【need data】. this may be simply because they saw it as a comedy and Shylock as a clown. They don’t think, they just laugh. Moreover, preceding plots connoted a pre-destined subjective judgment that there would but ONE correct answer, Portia’siii.

From the perspective of literature creation psychology, Shakespeare might very well hide his true intention to avoid censorship and appeal audiences.

Thus, to avoid biological fallacy, we shall not analogize this to Shakespeare’s or the public’s perception of legal reasoning.

Still, we found similar reasoning abound in reality.

Civil Rights Cases

In Civil Rights Cases, the judges omitted the reality that most slavery were happening at civil level. They construed the Amendment as requiring only state action. They ostensibly employed structural interpretation and textual interpretation.

Nixon v. United States

In Nixon v. United States, 506 U.S. 224, the majority did not resort to a plausible “structural interpretation” that Art. III, § 2, cl. 3 exempted impeachment trials from jury3. We cannot guess their anxiety, but it is likely that they see inferring general intent from one clause and then using the intent to expound other clauses problematic. Considering the sound and fury of legislative process, extracting a universal will from a boiling and sizzling hotpot is indeed risky. Constitution is distinguishable in this respect, for the framers deliberated and debated on every detail. Still, it was a garden of forking paths. This is especially dangerous when a law incorporates multiple values or balances multiple interests.

McCulloch v. Maryland

In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), John Marshall distorted concepts of “means” and “ends”. “Means” is a concept to describe relations, whose inherent quality is undefined. He said all means were insignificant by nature.

Sometimes double standards are appropriate. Individual rights, .

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon

However, in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), Justice STEVENS grounded the general intent on other clauses that state lands were applicable, indirect means were prohibited, and the act led the world. But could this hypo sweep all clauses without exception? Isn’t it stretchy to expand its territory from unmistakable meaning of proper nouns to meanings of ambiguous verbs? Give and take often alternate in one act. The dissenting opinion implicitly used “absurd results canon”. The act should not leave “the simplest farmer” at the mercy of zoning. Guess is a must, as all has past. But the degree of

Plessy v. Ferguson

In Plessy v. Ferguson, the majority dismissed it as a “badge of servitude”.

Equal protection clause forbids abortion because its disparate impacts unequally harm women. The rebutal that men may also suffer if they can bear babies (with technological aid, possibly) is unacceptable.

😱How bad can a bad rule be? Won’t this polluted river flow into sea?

Principles derive from moral notions, and fill loopholes of legal rules. But unfair rules can paralyze them.

Its compatibility with abstract principles is lower, making its suicide rate bigger. The social bedrock hides relevant contexts, wipes them out of sight and memory. This also happens in reality.

If a rule goes against established values, it accommodates no abstract principles that can redress indirect violations that comply with the provision literally.

Only when civilians are too ignorant or insensitive to appreciate, can legislators hide theoretic defects successfully. Once subjects realize the fallacy, they will refute and refuse hoodwinking.

Human mind can hardly escape from satisfying bias and confirmation bias. Thus legal relativism & purpose interpretation.

🙄Why was she so greedy and biased?

1 She was in love, thus blind.

She confessed her love several times, while he seemed indifferent.

III ii

“…There’s something tells me, but it is not love…”

“…Then Confess What treason there is mingled with your love.”

Bassanio“…Which makes me fear the enjoying of my love…”

“…Ay,but I fear you speak upon the track”

She wanted to win his love too much, and Antonio was an impediment she must remove. If he dies, he will be loved as an undying perfect idol, like Jesus.

2 She was in love, thus willing to grin and bear.

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田晨彤

田晨彤

immigration lawyer

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