I. The Heaven of Legal Concepts

1. The Nature of Legal Nonsense

[We thought that this was a good area to list more examples of fictitious legal concepts. –J&J]

“Therefore the pricing order is constitutional, because it is merely the combination of two independently lawful regulations . . . if the state may impose a valid tax on dealers, it is free to use the proceeds of the tax as it chooses; and if it may independently subsidize farmers, it is free to finance the subsidy by means of any legitimate tax.”--West Lynn Creamery, Inc. v. Healy (Stone, Constitutional Law, p. 247).

Interestingly enough, the Court adopted what Cohn would call a functional view of the law and viewed the law in terms of what it did and not what it was called. As a result, the state lost despite some great nonsense reasoning.

--StephenClarke

II. The Functional Method

1. The Eradication of Meaningless Concepts

2. The Abatement of Meaningless Questions

3. The Redefinition of Concepts

4. The Redirection of Research

Cohen considers how functionalism has influenced the study of religion, writing, and the law. This approach focuses not on the reasons behind, and the differences between various religious beliefs, but instead focuses on the social consequences and significance of those beliefs.

“Applied to the study of religion, for instance, the functional approach has meant a shift of emphasis away from the attempt to systematize and compare religious beliefs, away from concern with the genesis and evolution of religions, and towards a study of consequences of various religious beliefs in terms of human motivation and social structure…The functional approach asks of every religious dogma or ritual: How does it work? How does it serve to mould men’s lives, to deter from certain avenues of conduct and expression, to sanction accepted patterns of behavior, to produce or alleviate certain emotional stresses, to induce social solidarity, to lay a basis for culture accumulation by giving life after death to the visions, thought and achievements of mortal men.” (CB 58-62).

Cohen uses language to draw a parallel between religion and the Restatement of the Law a few pages later. He describes the Restatement as a “dogma of legal theory.” Like the functionalist studying religion, searching past the dogmas and rituals to understand how the beliefs mould true human conduct, the functional jurist must search past the “dogmas of legal theory”; Cohen’s correct legal thought “will more and more look behind the traditionally accepted principles of ‘justice’ and ‘reason’ to appraise in ethical terms the social values at stake in any choice between precedents.” By comparing law to religion Cohen makes it clear that a legal code detached from real life is little better than a religious code. Functionalists will not merely restate and blindly follow past laws, but will consider the real world consequences of those laws and decisions, and their social significance. A more useful approach in both fields is studying the social consequences of the beliefs and how those beliefs can be or are shaped by social policy. _[Hasn’t the law been more flexible than religion in adjusting in a changing world? For example, the creation of tort law during the industrial revolution or the continual adjustment of common law and statutes in response to changes in society. Second, is it fair to compare the Restatements to religious texts? The Restatements are full with comments justifying the drafters’ rationales for the Restatements. In addition, the Restatements are periodically reexamined to make sure that they are still valid, useful statements of the law. –J&J] _

III. The Uses of the Functional Method in Law

1. The Definition of Law

Cohen's conception of the 'state,' calls into question many ethical issues noteworthy for our discussion: "The process by which government is created and its commands formulated is a process of human bargaining, based upon mutual consent but weighted by the relative power of conflicting individuals or groups" (837). I would break this statement into three parts: (1) creation of government and formulation of laws arise out of continuous negotiations between private individuals and collective interests; (2) the terms of the offer generated by this bargaining are accepted and consented to; (3) and yet everybody's influence in this process is not on an equal playing field, but, rather, is separated along lines of relative and unequal densities constantly in "conflicting" tension.

This conception implies a danger largely prevalent in our society: corruption. [Jesse, could you elaborate on your definition of corruption. At what point does the influence of power and money, which we allow and acknowledge in our society, equate to corruption? –J&J] To return to a familiar question: Why has the chief clerk of the Supreme Court found so much resistance in Congress to change the judicial register by dividing opinions into numbered paragraphs as to render it more legible? Because mutual consent in our contemporary society brings with it a crucial caveat - mutual does not mean equal, and the law is not indifferent to the refracted forces at play. [Does unequal influence equal corruption? –J&J] I wonder whether there is hidden in this idea an echo of Holmes's distinction, quoting Hegel, between the appetite and the opinion, money and the command of ideas. It would be great to hear your thoughts on (1) the 'practicality' of Cohen's conceived world (2) the potential for corruption in this model and (3) how much our process disguises and consequently legitimizes this corruption with political and legal rhetoric and systems, "appeals to reason or goodness" (837)? -- JesseCreed?

It seems to me that Cohen here isn't putting forth a comprehensive theory of actual government so much as he's pointing out that a useful definition of government shouldn’t be drawn from ideals about the world, but from social actualities (838). If I read his definition as concealing corruption, then Cohen would be trying to conform the social actualities to his definition, not vice versa. I don’t think this is what he’s going for.

I think his definition does make room for the role of corruption in at least two places. Corruption could be seen as an example of the "relative power of conflicting individuals or groups" that's involved in creating government. Or, drawing on Cohen's quote that "governments do not arise once and for all," corruption could be seen as one of the forces outside of lawful government, working against it.

I think the question might be less if our “process” disguises corruption and more if our common definitions do. At least for me, I don’t think I learned about the role political corruption in government in any high school history course. Instead, we talked about our government as it’s set up in the Constitution. But if corruption does play a big role in our government, then it seems a useful definition should take it into account.

- ChristopherWlach?

2. The Nature of Legal Rules and Concepts

3. The Theory of Legal Decisions

Cohen is advocating for a conception that sees judicial decisions as "social events," rather than as discrete, unrelated occurrences that are borne of "judicial bellyaches." Part of seeing judicial decisions as "social events," Cohen writes, is to recognize that they are "a product of social determinants and an index of social consequences."

I'm more skeptical that judicial decisions actually produce social consequences. Judicial decisions don't really do much at all in the way of imposing "forces upon the future," because the judicial branch often lacks adaquate power to enforce their decisions. The judicial branch, to a large extent, relies on the other branches of government and the lower courts to implement and adhere to their decisions. Because judges lack budgetary power and a prosecutory power, many of their decisions wind up being just symbolic proclamations that are only effective if the other branches respect them. [What are some modern examples of judicial decisions that were not respected by the other branches of government? –J&J]

-- CaseyBoyle?

4. Legal Criticism

Judicial decisions are not afforded much attention in the media. Thus, most of the public is completely unaware of the most recent judicial pronouncements, regardless of how relevant or important the issue in dispute may be. _[Wouldn’t you concede that the decisions that affect the public the most are most widely known? There are many Supreme Court decisions that only affect a narrow portion of the nation. Why would these be publicized –J&J] _ Judicial decisions might indirectly produce social change, either by promoting the other branches to act (Congress in the wake of Brown enacted the Civil Rights Act of 1964) or by mobilizing segments of society to mobilize in the wake of an unfavorable or controversial judicial decision (the pro-life movement in the wake of Roe). But, overall, I think that the courts are ineffective at producing change on a large-scale. I think it's more pragmatic to view the courts (and lawyers) as better equipped to produce micro-level change for those individuals who actually appear before the court, but that it is detrimental to harbor a false hope that the law and judges can change the world. While I'm not sure if Felix Cohen's conception of judicial decisions really does impart that much power to the branch to produce social consequences, I think it would have added much to his piece if he clarified what he meant by "an index of social consequences." [Does the Supreme Court (or any appellate court) ever issue a ruling that only affects a party of the lawsuit? When the Supreme Court compels other branches to act, isn’t the power of those actions also attributable to the power that the Supreme Court wields? Cohen seems to concede that there is no way to measure the social impact of court decisions, how is it that you can postulate that court decisions have little impact? –J&J]

-- CaseyBoyle?

I agree – there seems to be a lot more “maintaining” than “changing” coming from courts, regardless of the level of the court and what its functions are. And, whatever a court decides, it is often other people in other capacities (legislators, interest groups, organizations, the police) who respond in the ways that seem to impact society at large in more direct ways. Because of the way our legal and governmental structures are set up and interrelate, anything a court decides is “filtered” through other people, organizations, and groups who have an interest in the decision before you start seeing any significant or notable impact. And the impact isn’t always what the court expected, either, because those interpreting a decision apply their own judgment and motivations to the mix (I’ve seen this in local government a lot). My opinion: there are always at least three degrees of separation (and evolution) between you and any judicial decision (unless, as you say, your name is on the docket).

-- BarbPitman?

Very few events are "direct" causes of social change. High court decisions clearly have some social consequence (though indirect), and I am not sure why it would be "more pragmatic" to view their capacity for change as centered on the microlevel... Don't we want to be aware that judicial decisions are influencing society, albeit indirectly?

My understanding of Cohen's point was that judicial decisions are nexuses of social force. They are not independent events that shape society, nor are they effect-less endpoints of social forces. _[Indeed. They exist between these two poles. –J&J]

_To invoke the overused metaphor of the human body, the human endocrine (hormone) system is a good example of a feedback device that is, in itself, neither an end nor a beginning. The release of a hormone has no "direct" effect, and is the result of a vast web of physiological interactions. Although it is extraordinarily complex, it seems strange to argue that we should only look at hormone regulation in a local and limited context, when clearly each "hormonal event" is the result and cause of changes throughout the body.

-- TheodoreSmith?

[Compilation by Joseph Williams and Joseph Macias]

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