Both Cohen and Holmes believe lawyer should work not with fictive legal constructs, but questions of social fact and ethical value. But how? Cohen (p. 841) argues in favor of sleight-of-hand tactics such as the discussion of the background and consequences of precedent and using the ritual language of traditional jurisprudence. But since judges are unlikely to candidly entertain discussion of consequences, how do shift away from transcendental nonsense: internal pressures such as realist advocacy, external pressures such as a construction of Judicial Indices, or some combination of both?

(Jason)

Judges use these fictive legal concepts in order to avoid having to actually face difficult decisions, and have no reason to stop. It is up to the lawyer to bring the ethical question into the open; but any lawyer who does so can expect a backlash from any judge not already willing to consider and decide the ethical issue. Still, while discussing ethics and morals might be counterproductive in the immediate case, in the long run it may shake judges out of their comfortable legal fictions.

(Patrick)

-- AndrewCase - 28 Jan 2009

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