Tuesday, June 30, 2009
More Hemlock, Please!
"In this heaven one met, face to face, the many concepts of jurisprudence in their absolute purity, freed from all entangling alliances with human life. Here were the disembodied spirits of good faith and bad faith, property, possession, latches, and rights in rem. ... Here one found a dialetic-hydraulic-interpretation press, which could press and indefinite number of meanings out of any text or statute, an apparatus for constructing fictions, and a hair-splitting machine that could divide a single hair into 999,999 equal parts and, when operated by the most expert jurists, could split each of these parts again into 999,999 equal parts", 35 Columbia Law Review 809, 809, "Transcendental Nonsense and the Functional Approach", (June, 1935) Cohen, Felix. "The corporation raised the objection that it could not be sued in New York. ... If a competent legislature had considered the problem of when a corporation incorporated in another State should be subject to suit, it would probably have made some factual inquiry into the practice of modern corporations in choosing their sovereigns and into the actual significance of the relationship between a corporation and the state of its incorporation. ... On the basis of facts revealed by such an inquiry, and on the basis of certain political or ethical value judgments as to the propriety of putting financial burdens upon corporations, a competent legislature would have attempted to formulate some rules as to when a foreign corporation should be subject to suit. ... It does not appear that scientific evidence on any of these issues was offered to the court. Instead of addressing itself to such economic, sociological, political or ethical questions as a competent legislature might have faced, the court addressed itself to the question, 'Where is a corporation?' .... Clearly the question of where a corporation is, when if incorporates in one state and has agents transacting business in another state, is not a question that can be answered by empirical observation. ... It is, in fact, a question identical in metaphysical status with the question which scholastic theologians are supposed to have argued at great length, 'How many angels can stand on the head of a needle'?", 810. "What right do we have to believe in corporations if we don't believe in angels? . ... The same manner or reasoning can be used by the same court to show that the Dodge Bros. Motor Corporation 'cannot' be sued in New York because the corporation (as distinguishd from its corps of New York employees and dealers) is not 'in' New York. Strange as this manner of argument will seem to laymen, lawyers trained by long practice in believing what is impossible, will accept this reasoning as relevant, material and competent", 811. They do. "Valuable as is the language of transcendental nonsense for many practical legal purposes, it is entirely useless when we come to study, describe, predict, and criticize legal phenomena", 812. Indeed. "Even in the most modern realms of legal development one finds the thought of courts and of legal scholars trapezing around in cycles and epicycles without coming to rest on the floor of verifiable fact", 814. "It would be tedious to prolong our survey: in every field of law we should find the same habit of ignoring practical questions of value or or positive fact and taking refuge in 'legal problems' which can always be answered by manipulating legal concepts in certain approved ways", 820. "It follows that a legal argument can never be refuted by a moral principle nor by any empirical fact", 821. "For it is well to note that the problem of eliminating supernatural terms and meaningless questions and redefining concepts and problems in terms of verifiable realities is not a problem peculiar to law", 822. "Any word which cannot pay up in the currency of fact, upon demand, is to be declared bankrupt, and we are to have no further dealings with it", 823. "In the study of primitive law, the functional approach raises to the fore the problem of incentives to obedience and the efficacy of those incentives, the techniques of law enforcement, and the relations of rivalry or supplementation between legal sanctions and other social forces", my emphasis, 831-2. "The vested interests of our law schools in an 'independent' science of law are undermined by every advance in our knowledge of the social antecedents and the consequences of judicial decision", 834.
The court was New York's Court of Appeals. If you read enough cases, you will see courts frequently avoid the issue at hand by renaming it. Epicycles? Like how the FASB is trying to hold SFASs 133 and 140 together? How would Cohen deal with today's Somali pirates? The CPA profession has emulated lawyers with a procession of "accounting courts", the CAP, APB, FASB, etc., It will not develop a theory to judge its work by, hence gets 1,060-page monstrosities like SFAS 133. There's a reason you can't talk to lawyers. It's not you, it's the lawyer. The lawyer is not trained to answer questions amenable to factual determination, i.e., he's a religious figure, a priest. See also my 22 December 2007 post: http://skepticaltexascpa.blogspot.com/2007/12/us-injustice-system-at-wrk.html.