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EricSpeckhardFirstEssay 2 - 07 Apr 2018 - Main.EbenMoglen
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | The Right Question | | | Right or Right
Besides the usual requests for the “facts” or the holding below, one question seems to have made every law professor’s short list: “Was this case rightly decided?” The question is natural, and, after a little thought, one can typically recite an answer sufficient to steer the professor on to the next student. However, as with many important questions, a little more thought, rather than leading to increased understanding, often leads only to confusion. The question after all admits (at least) two distinct, but related, interpretations: (1) Was this case cogently decided—that is, does the conclusion follow validly from the premises, or (2) was this case justly decided—that is, independent of the internal reasoning, is the outcome correct? This essay focuses on the interaction of these two interpretations and on my own ongoing struggle to provide, or more accurately to justify, answers to the second. | |
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Felix Cohen said that the two questions at the root of all legal inquiry are "how do courts decide cases of a given kind?" and "How should courts decide cases of a given kind?" You have pointed out both that this is how cases are taught in class, and why it is useful to think that way. It would also be productive to get Cohen's view as he put it before you into the draft.
| | | Right as Reason
Under the first interpretation, we are asked to assess the internal reasoning of the opinion. While interesting, this task is usually straightforward. Most opinions adopt a single, maybe two, methods of argumentation to ‘justify’ the holding. Occasionally, the argument relies upon logic alone, reasoning from some set of abstract legal principles to reach its conclusion. Analyzing these arguments is then just an exercise in the kind of transcendental nonsense described by Cohen—the perfect legal logician need never look out her window to derive legal truth because the truth is the reasoning itself. Other times, the argument does appeal to empirical assertions and assessing the cogency of the argument is reduced to judging the accuracy of those assertions. While the style of argument may come in many different forms, answering this version of the question is a largely academic exercise with which most nascent law students have a fair amount of experience, though perhaps in different contexts. Moreover, first year courses are largely designed to provide this kind of, admittedly very useful, analytical training. Nonetheless, despite their rational appeal, these kinds of reasoning and answers often feel empty. Law should be more than ivory tower parsing of formal argument. Searching for that additional meaning leads naturally to the second version of the question.
| | | Conclusion
I do not now, and likely never will, know how to resolve conflicts between intuitive notions of justice and, I must admit, this leaves me with a profound uneasiness. With no or only limited appeal to empirical observation, there seems no rational way to argue against another’s (or uphold my own) sincerely held, but fundamentally different, premises. Nonetheless, I believe it is critical that individuals who disagree engage in civil dialogue about those disagreements, not necessarily to persuade, but to engender some measure of mutual understanding. Whatever the reasons for our similarities and differences, I hope that in my own practice I can begin to resolve my own uneasiness and, perhaps, provide a measure of that relief to others. | |
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The first major route to improvement is tightening. The
second and third sections can be condensed very sharply by
taking advantage of Felix Cohen's Transcendental Nonsense
article, which presents the moving parts of your argument
intensively , so that you can accomplish by brief reference
what now takes much space. The fourth section, too, can be
made much briefer. Here you don't need a reference for the
idea that quantitative change becomes qualitative at some
point: there is no Marxian argument about any social subject
that doesn't express this point, I suppose. And one can use
the phrase "emergent property" in this context without
needing to provide a definition. By compression, leaving
more room for your actual argument, we could see more clearly
what you are saying that isn't "woefully incomplete," which
is a fair summary of the section as it stands.
It's not clear what the conclusion is about. Courts do more
than disagree civilly about outcomes: they disagree
continuously and productively about outcomes. Every dispute
on a legal point is lost as well as won, and often using
arguments that will prevail another day. So something more
can be said—indeed needs to be said—than merely
that intuitions don't converge.
| | | Word Count: 996
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EricSpeckhardFirstEssay 1 - 01 Mar 2018 - Main.EricSpeckhard
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
The Right Question
-- By EricSpeckhard - 01 Mar 2018
Right or Right
Besides the usual requests for the “facts” or the holding below, one question seems to have made every law professor’s short list: “Was this case rightly decided?” The question is natural, and, after a little thought, one can typically recite an answer sufficient to steer the professor on to the next student. However, as with many important questions, a little more thought, rather than leading to increased understanding, often leads only to confusion. The question after all admits (at least) two distinct, but related, interpretations: (1) Was this case cogently decided—that is, does the conclusion follow validly from the premises, or (2) was this case justly decided—that is, independent of the internal reasoning, is the outcome correct? This essay focuses on the interaction of these two interpretations and on my own ongoing struggle to provide, or more accurately to justify, answers to the second.
Right as Reason
Under the first interpretation, we are asked to assess the internal reasoning of the opinion. While interesting, this task is usually straightforward. Most opinions adopt a single, maybe two, methods of argumentation to ‘justify’ the holding. Occasionally, the argument relies upon logic alone, reasoning from some set of abstract legal principles to reach its conclusion. Analyzing these arguments is then just an exercise in the kind of transcendental nonsense described by Cohen—the perfect legal logician need never look out her window to derive legal truth because the truth is the reasoning itself. Other times, the argument does appeal to empirical assertions and assessing the cogency of the argument is reduced to judging the accuracy of those assertions. While the style of argument may come in many different forms, answering this version of the question is a largely academic exercise with which most nascent law students have a fair amount of experience, though perhaps in different contexts. Moreover, first year courses are largely designed to provide this kind of, admittedly very useful, analytical training. Nonetheless, despite their rational appeal, these kinds of reasoning and answers often feel empty. Law should be more than ivory tower parsing of formal argument. Searching for that additional meaning leads naturally to the second version of the question.
Right as Righteous
The second interpretation poses a much more difficult question—was the outcome of the case just? Though this version is considerably more abstract, the answer, somewhat paradoxically, usually presents itself with far less effort. My own beliefs about the justice of a given outcome are often based on almost instinctual appraisal of the circumstances—I do not need to read Brown, parsing the logic for consistency or flaw, to know that the outcome is right. Even the finest legal theoreticians no longer have any difficulty recognizing that greatest bit of transcendental nonsense dubbed “separate but equal.”
The tension, however, arrives when asked to justify these intuitive beliefs, or, more strikingly, when confronted with someone who disagrees. Can this tension be resolved? Empirical resolution seems far-fetched—surely no experiment can tell us what is just. Similarly, appeals to logic provide no foothold for relief where the premises differ. Given these difficulties, what are we to do? Rather circularly, the typical (and at least partially unconscious) maneuver is to revert to the first interpretation, crafting the reasoning and style of argument to achieve the desired outcome, with each justifying the other. This is manifested, for example, by the strong tendency for conservative jurists to favor originalist interpretations and liberals to favor ‘living’ interpretations. This, perhaps cynical, view almost inevitably leads to doubt not just about one’s specific beliefs about justice, but about the existence of justice itself. Is this doubt justified?
Emergent Justice
In 1972, Phillip W. Anderson, wrote a now “famous” article entitled _More Is Different_. Writing in response to reductionist critics, Anderson sought to dispel the notion that an understanding of ‘fundamental’ physical laws implied (modulo a few expendable graduate students) an understanding of more complex phenomena. Rather, Anderson argued that as the complexity of a system grows, entirely new properties emerge requiring fundamentally new explanations. Anderson’s point that complex systems give rise to features not present in the underlying laws has some relevance to the question of justice. Though justice itself may not be ‘fundamental,’ a coherent concept may arise from the complex biological and social interactions of humanity. While this observation does not by itself say much about what justice is, it does at least help to address the ontological question of whether justice is.
Acknowledging that justice may be an emergent property can also lead to more substantive answers about the content of justice. For example, many features of justice (e.g. abhorrence toward arbitrary killings) can be found in every culture and social creed, suggesting a kind of inevitable emergence. The reasons for that ubiquity may stem from biological structure, shared human experience, or some other sociological phenomenon. On the other hand, there is also evidence that differing moral and political beliefs are affected by immutable heredity. These answers as to the nature of justice, if indeed they are answers, are of course woefully incomplete, but they do provide me with some hope that personal and societal progress in understanding justice is possible. Undoubtedly, that progress will have major impacts upon my own practice and the societal environment in which it takes place.
Conclusion
I do not now, and likely never will, know how to resolve conflicts between intuitive notions of justice and, I must admit, this leaves me with a profound uneasiness. With no or only limited appeal to empirical observation, there seems no rational way to argue against another’s (or uphold my own) sincerely held, but fundamentally different, premises. Nonetheless, I believe it is critical that individuals who disagree engage in civil dialogue about those disagreements, not necessarily to persuade, but to engender some measure of mutual understanding. Whatever the reasons for our similarities and differences, I hope that in my own practice I can begin to resolve my own uneasiness and, perhaps, provide a measure of that relief to others.
Word Count: 996
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