Inaugural Post: Juris et de Jure

In trying to come up with a title for this blog, I considered naming this blog after one of the many Latin phrases that are common legal language.  There were several reasons I went in this direction.  This blog is not topic-specific, so I did not want to constrain the scope to a certain area of law, and there are many Latin terms and phrases used in numerous contexts.  A broad phrase would signal the breadth of subject matter I hoped to cover.  Additionally, I hoped that a Latin legal phrase might signal that this is a blog about law rather than a blog about something unrelated to law that is incidentally written by a law student.  Ultimately I scrapped the plan: the best terms were already taken, many phrases were too abstract, and the use of Latin conveyed an air of pretentiousness and seriousness to which I did not want to commit.  One phrase that I learned during this process stuck with me, however, the phrase juris et de jure.  Even though I ended up choosing the generic (yet descriptive) title: "Michael Smith's Law Blog," I felt like the phrase juris et de jure was a good topic for my first post.

Juris et de jure (translation, "of law and from law") denotes a presumption of law that cannot be rebutted by evidence.  As far as Latin legal terms go, it is not widely used.  Phrases such as res judicata, prima facie, and quantum meruit are employed in the day-to-day lives of practitioners.  Even lesser-used phrases such as arguendo, inter alia, and perhaps even ipse dixit are called on by those lawyers wishing to distance themselves from common folks.  Juris et de jure, in the meantime, has fallen by the wayside.  While occasionally used by courts to denote irrefutable presumptions or the admiration of legal authorities, the term is also employed by parties that seem to believe that this term will somehow bolster an otherwise untenable case.

Despite its obscurity and abuse, juris et de jure is an illuminating concept that foreshadows some of the themes I hope to explore in this blog.  

Laws reflect assumptions and traditions held by the legislators that draft them and the courts that apply them, and in some cases it only takes a few moments of critical thinking to realize that these assumptions are no longer valid, or may never have been valid in the first place.  While this thinking may generate compelling policy arguments, practical concerns dictate that one remain within the confines of the law as it is written.  

Take Rule 804(b)(2) of the Federal Rules of Evidence.  Under this rule, a statement made under the belief of impending death about the cause or circumstances of this belief is an exception to the rule against hearsay if the witness is not available to testify.  The advisory committee notes that this exception was part of the common law and was originally grounded in religious conviction, but that the rule is further justified by psychological pressures on the witness.  One might want to argue that this rule is misguided and that individuals who are about to die are often losing control of their facilities and may say false and nonsensical things as a result.  This argument may have merit, but it will bring little success in the real world where the court's concern will be with whether the rule's requirements are met, and not whether the rule is correct.  The law is the law, after all, and arguing otherwise will probably do nothing more than amuse (or worse, antagonize) the judge.

Juris et de jure also reflects a tendency of some legal scholarship to use and interpret theories and concepts from other disciplines without regard to the rigors and continued testing of these theories within their original disciplines.  Legal academia may rely on its original adaptation of a theory and look to legal discussion of the concept rather than the discipline from which the theory was drawn.  In failing to explore the original source of a theory, legal scholars may miss developments in other disciplines that render law's use of these disciplines' theories outdated and irrelevant.

An interesting, forthcoming article by Gregory Klass (Georgetown University Law Center) and Kathryn Zeiler (Georgetown University Law Center) illustrates how legal scholars may get caught up in legal academia's version of another discipline's theory.  Klass and Zeiler detail how legal scholarship adopted "endowment theory" from the field of cognitive psychology and experimental economics.  Under endowment theory, people assign more value to items they own than similar items they do not own.  Recent empirical developments indicate that there are serious problems with endowment theory and that reliance on this theory is not warranted.  Despite these developments, legal academics continue to treat endowment theory as a rule, often citing solely to literature published in law reviews rather than in journals of cognitive psychology or behavioral economics.  Despite contrary developments in the disciplines that created it, endowment theory remains the law in legal scholarship.

Finally, juris et de jure reflects the potential quirkiness and amusement that may be found in explorations of the legal field.  A.P. Herbert explores the notion of legal Latin in the fictional case, Rex v. Venables and Others: (The Dead Pronunciation) in his book, Uncommon Law.  In this case, the Lord Chief Justice remarks on the prevalence of Latin in the legal profession and proclaims that the language is far from dead.  The Lord Chief Justice chastises a young attorney who utters terms like "kairtiorahree," "preemah fakiay," and "soob poynah."  The Lord Chief Justice admonishes the attorney and proclaims that his version of Latin is improper in the courts, where the terms "certiorari," "prima facie," and "subpoena" are the traditional and accepted pronunciations.  These pronunciations, like presumptions juris et de jure, are immune from criticism or evidence that these pronunciations are consistent with the original Latin of Ancient Rome.

In this blog I hope to explore and evaluate assumptions of laws and legal scholarship.  I will apply this critical analysis to current events in the world of legal practice.  Throughout, I will do my best to illustrate how the prestigious study and practice of law constantly lends itself to humor and outlandish stories.  As a third year student at the UCLA School of Law, I acknowledge that my posts may sometimes be incomplete or incorrect.  I assure you that my posts are not juris et de jure and I will remain open to opposing views and contrary evidence.