|
JessicaCohenFirstPaper 8 - 02 Mar 2010 - Main.JessicaCohen
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| | |
| |
<
< | Cohen, a legal realist, rails against concepts without meaning because they are devoid of experience. Contracts, “due process,” “police power,” title: each of these have no real-life value. Thus, he says, we must resort to looking at how like cases are decided and act accordingly. Cohen writes, "...I think that creative 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 two precedents." | >
> | Cohen, a legal realist, rails against concepts without meaning because they are devoid of experience. Contracts, “due process,” “police power,” title: each of these have no real-life value. Therefore, he says, we must resort to looking at how like cases are decided and act accordingly. Cohen writes, "...I think that creative 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 two precedents." | | | | |
<
< | This view seems more than a little circular: we need to know the social values underlying the decision in order to make the decision of how to proceed. Perhaps these values should not be characterized as having a “Sunday school” quality – but they are values all the same. Just because you abandon formal concepts does not mean you abandon meaning. I want to argue that concepts like “due process” and “fairness,” although they have no intrinsic meaning in themselves, must be employed by successful advocates. A touch of “transcendentalism,” I think, is necessary. | >
> | This view seems more than a little circular: we need to know the social values underlying the decision in order to make the decision of how to proceed. And often, the "social values at stake" amount to traditionally accepted principles of justice. Perhaps these values should not be characterized as having a “Sunday school” quality – but they are values all the same. I wish to argue that concepts like “due process” and “fairness,” although they have no intrinsic meaning in themselves, often are (and should be) employed by successful advocates. A touch of “transcendentalism,” I think, is necessary. | | | | |
<
< | I do not purport to argue that Cohen was without morals or goals. Surely many moral and ethics-minded realists have used employed his strategy of weighing social forces and studying the consequences of events. However, it seems that his account is missing a bit of the spirit – dare I say irrationality – one should employ when lawyering. Lawyers constantly enter courtrooms and clients’ lives with the terms “due process,” “fairness,” and “contract” in tow – they provide color and feeling to real world events. | >
> | I do not purport to argue that Cohen was without morals or goals. Surely many moral and ethics-minded realists have used employed his strategy of weighing social forces and studying the consequences of events. However, it seems that his account is missing a bit of the spirit – perhaps should I say irrationality – that one should employ when lawyering. Lawyers constantly enter courtrooms and clients’ lives with the terms “due process,” “fairness,” and “contract” in tow – they provide color and feeling to real world events. | | | Our in-class discussion of real life consequences and legal realism reminded me of Randolph Bourne's “Twilight of Idols." | | | Written in response to John Dewey’s call to arms in the New Republic in 1917, Bourne’s essay was concerned first with the pragmatists who supported World War I. He speaks primarily of John Dewey (who was a member of the “Metaphysical Club” with Holmes) and the journalist Walter Lippmann, who came out in public support of the war because it promoted democracy. In other words, the ends (i.e. freedom, liberty over tyranny) would be good. In their support, however, they lost sight of the fact that war is wrong. | |
<
< | Bourne’s critique, however, is about much more than the war. Bourne explains that pragmatists (which I will use as a proxy for legal realists) have a propensity to become bogged down in the "process" and lose sight of their overarching aims. He argues that pragmatism gives its adherents a sense of optimism and control. In other words, it is easy to tell someone that all they have to do in order to effect a change is to abandon pretense, formal constructions, and do it. Individuals who heed Cohen’s call to use social science techniques to understand the world can solve our greatest problems with a few punches into a calculator.
However, this view must be supplemented Bourne’s, who says that pragmatism works "against poetic vision, against concern for the quality of life as above the machinery of life." | >
> | Bourne’s critique, however, is about much more than the war. Bourne explains that pragmatists (which I will use as a proxy for legal realists) have a propensity to become bogged down in the "process" and lose sight of their overarching aims. He argues that pragmatism gives its adherents a sense of optimism and control. In other words, it is easy to tell someone that all they have to do in order to effect a change is to abandon pretense, formal constructions, and do it. Individuals who heed Cohen’s call to use social science techniques to understand the legal world cannot solve our greatest problems with a few punches into a calculator.
Cohen's view must be supplemented Bourne’s, who says that pragmatism works "against poetic vision, against concern for the quality of life as above the machinery of life." | | | | |
<
< | If we are to simply become a predictor of social forces, we may also end up like Dewey and his followers, who in Bourne’s words were, in the end, “vague” about their goals for American society. Understanding how things function is only part of the solution.
We need to start with ultimate vision and work backwards, says Bourne. If you want to be in "radiant cooperation with reality" then your success is "likely to be just that and no more...you never transcend anything." An individual who relies on statistics and other science-influenced tools is prone to missing the bigger picture. | >
> | If we, as advocates, are to simply become a predictor of social forces, we may also end up like Dewey and his followers, who in Bourne’s words were, in the end, “vague” about their long-term goals for American society. Understanding how things function is only part of the solution.
We need to start with ultimate vision and work backwards, says Bourne. If you want to be in "radiant cooperation with reality," he says, then your success is "likely to be just that and no more...you never transcend anything." An individual who relies on statistics and other science-influenced tools is prone to missing the bigger picture. | | | The individuals we have learned about in class, including MLK, John Brown, and the fictional Robinson might be said to have been pragmatists. After all, they each saw a social problem and discerned how to solve it on the ground. Each of them was absolutely concerned with “social policy,” which Cohen says should be the “gravitational field that gives weight to any rule or precedent.” Yet each of these figures no doubt believed in “justice.” Perhaps the cynical Robinson would never muttered the word in a courtroom, but the concept, however fuzzy or “meaningless” it might be, certainly informed his work. Each of these figures used formalistic concepts to transcend what was happening on the ground. | |
<
< | Many of our most successful (some beloved, others not) advocates, judges, and politicians continue to appeal to "transcendental nonsense." There is a reason. It moves us. | >
> | Many of our most successful (some beloved, others not) advocates, judges, and politicians continue to appeal to "transcendental nonsense." The spirit and fundamental right often alluded to in judicial opinions, whether full of formal concepts or not, are often what move us. | | | |
|
|
JessicaCohenFirstPaper 7 - 26 Feb 2010 - Main.JessicaCohen
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | Paper Title | >
> | Transcendental Nonsense Is Useful | | | -- By JessicaCohen - 22 Feb 2010 | |
<
< | Section I
Subsection A | >
> | Legal Realism's Deficit | | |
| |
>
> | Cohen, a legal realist, rails against concepts without meaning because they are devoid of experience. Contracts, “due process,” “police power,” title: each of these have no real-life value. Thus, he says, we must resort to looking at how like cases are decided and act accordingly. Cohen writes, "...I think that creative 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 two precedents." | | | | |
<
< | Legal realism People like . Cohen writes, "...I think that creative 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 two precedents." This view seems just a tad circular: we need to know the social values underlying the decision in order to make the decision. Perhaps these aren't Sunday school values" for everyone - I certainly hope they are not - but . Of course the same thing can be said when comparing utilitarianism and deontology. The title "Transcendental Nonsense" .
All of this discussion of real life consequences reminded me of Randolph Bourne's Twilight of Idols. It is possible for pragmatists to become too bogged down in the "process" and lose sight of their overarching aims. Thought constantly in class, while reading Holmes/Cohen etc about the "consequences" of legal decisions, and grew exceedingly frustrating with Formalism. Constitutional Law was painful. But...how do we know the consequences are good? What do we ideally want to come out of a decision? The goodness/badness of each of these consequences needs to have some underlying set of values. Of course the same
In "Twilight of Idols,"
here's where Bourne comes in.
Pragmatists ended up supporting the war - Dewey? Lippman definitely did (a shame) - why is that? thought war promoted democracy. THE END WAS GOOD - but forgot about the horrors of war? Bourne says that pragmatism gives them a sense of optimism - this definitely happened in our class - and a sense of "control." maybe pragmatism works "against poetic vision, against concern for the quality of life as above the machinery of life."
they are "vague as to what kind of a society they want, or what kind of society America needs, but they are equipped with all the administrative attidutes and talents necessary to attain it"
you need to start with ultimate vision and work backwards, says Bourne. this matches eben's. if you want to be in "radiant cooperation with reality" then your success is "likely to be just that and no more...you never transcend anything"
NEED TO AFFECT INDIVUDALS --> quality of life. malcontents*
- take instritutions lightly
- "scarcely vaeiled" contempt
- skeptical/malicious/ironical - because can't face American life faceon- it's too bad.
Subsub 1 | >
> | This view seems more than a little circular: we need to know the social values underlying the decision in order to make the decision of how to proceed. Perhaps these values should not be characterized as having a “Sunday school” quality – but they are values all the same. Just because you abandon formal concepts does not mean you abandon meaning. I want to argue that concepts like “due process” and “fairness,” although they have no intrinsic meaning in themselves, must be employed by successful advocates. A touch of “transcendentalism,” I think, is necessary. | | | | |
<
< | Subsection B | >
> | I do not purport to argue that Cohen was without morals or goals. Surely many moral and ethics-minded realists have used employed his strategy of weighing social forces and studying the consequences of events. However, it seems that his account is missing a bit of the spirit – dare I say irrationality – one should employ when lawyering. Lawyers constantly enter courtrooms and clients’ lives with the terms “due process,” “fairness,” and “contract” in tow – they provide color and feeling to real world events.
Our in-class discussion of real life consequences and legal realism reminded me of Randolph Bourne's “Twilight of Idols." | | | | |
<
< | Subsub 1 | >
> | Bourne and Reality | | | | |
>
> | Written in response to John Dewey’s call to arms in the New Republic in 1917, Bourne’s essay was concerned first with the pragmatists who supported World War I. He speaks primarily of John Dewey (who was a member of the “Metaphysical Club” with Holmes) and the journalist Walter Lippmann, who came out in public support of the war because it promoted democracy. In other words, the ends (i.e. freedom, liberty over tyranny) would be good. In their support, however, they lost sight of the fact that war is wrong. | | | | |
<
< | Subsub 2 | >
> | Bourne’s critique, however, is about much more than the war. Bourne explains that pragmatists (which I will use as a proxy for legal realists) have a propensity to become bogged down in the "process" and lose sight of their overarching aims. He argues that pragmatism gives its adherents a sense of optimism and control. In other words, it is easy to tell someone that all they have to do in order to effect a change is to abandon pretense, formal constructions, and do it. Individuals who heed Cohen’s call to use social science techniques to understand the world can solve our greatest problems with a few punches into a calculator.
However, this view must be supplemented Bourne’s, who says that pragmatism works "against poetic vision, against concern for the quality of life as above the machinery of life." | | | | |
>
> | If we are to simply become a predictor of social forces, we may also end up like Dewey and his followers, who in Bourne’s words were, in the end, “vague” about their goals for American society. Understanding how things function is only part of the solution.
We need to start with ultimate vision and work backwards, says Bourne. If you want to be in "radiant cooperation with reality" then your success is "likely to be just that and no more...you never transcend anything." An individual who relies on statistics and other science-influenced tools is prone to missing the bigger picture. | | | | |
>
> | The individuals we have learned about in class, including MLK, John Brown, and the fictional Robinson might be said to have been pragmatists. After all, they each saw a social problem and discerned how to solve it on the ground. Each of them was absolutely concerned with “social policy,” which Cohen says should be the “gravitational field that gives weight to any rule or precedent.” Yet each of these figures no doubt believed in “justice.” Perhaps the cynical Robinson would never muttered the word in a courtroom, but the concept, however fuzzy or “meaningless” it might be, certainly informed his work. Each of these figures used formalistic concepts to transcend what was happening on the ground. | | | | |
<
< | Section II | >
> | Many of our most successful (some beloved, others not) advocates, judges, and politicians continue to appeal to "transcendental nonsense." There is a reason. It moves us. | | | | |
<
< | Subsection A | | | | |
<
< | Subsection B | | |
|
|
|
JessicaCohenFirstPaper 6 - 26 Feb 2010 - Main.JessicaCohen
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| | | Subsection A | |
<
< | update: 2/25 A.M.
I spoke with a few other students . But if you work for yourself, you'll never amount to anything. We'll have to work within institutions to get anything done (at least at first). When I think of "not pawning my license," I think of true economic and job freedom, i.e. I would choose my clients -- but you can't get much done without others. obvious?
Moglen's "how to change the world" video - know what you want and know how to get it. | | | | |
<
< | I once had a
Reminded me of Randolph Bourne's Twilight of Idols. It is possible for pragmatists to become too bogged down in the "process" and lose sight of their overarching aims. Thought constantly in class, while reading Holmes/Cohen etc about the "consequences" of legal decisions, and grew exceedingly frustrating with Formalism. Constitutional Law was painful. But...how do we know the consequences are good? What do we ideally want to come out of a decision? The goodness/badness of each of these consequences needs to have some underlying set of values. Of course the same | >
> |
Legal realism People like . Cohen writes, "...I think that creative 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 two precedents." This view seems just a tad circular: we need to know the social values underlying the decision in order to make the decision. Perhaps these aren't Sunday school values" for everyone - I certainly hope they are not - but . Of course the same thing can be said when comparing utilitarianism and deontology. The title "Transcendental Nonsense" .
All of this discussion of real life consequences reminded me of Randolph Bourne's Twilight of Idols. It is possible for pragmatists to become too bogged down in the "process" and lose sight of their overarching aims. Thought constantly in class, while reading Holmes/Cohen etc about the "consequences" of legal decisions, and grew exceedingly frustrating with Formalism. Constitutional Law was painful. But...how do we know the consequences are good? What do we ideally want to come out of a decision? The goodness/badness of each of these consequences needs to have some underlying set of values. Of course the same | | | In "Twilight of Idols,"
here's where Bourne comes in. | | | - skeptical/malicious/ironical - because can't face American life faceon- it's too bad. | |
<
< | OTHER IDEA
Thurman Arnold - selection from "Symbols of Government" and the modern law firm
Notes:
What does it mean that Arnold, when headed anti-trust division, favored regulation of big business rather than the breaking up of monopolies?
"new social philosophy" - man "only works for his fellow man: - this tendency must be "curbed by law, ethics, and common sense - under "new creed" (default is ppl work for their fellow men) nervous about "well-meaning but impractical profit takers." sees this as dangerous in places like germany/russia/italy - people are fanatical about working for others.
new "abstract man" (one who works for other people besides himself) is arising out of "confusion instead of revolution" - gov't is now obligated to be charitable - when charity and govt used to be totally separate. grew out of the depression - by necessity gov't had to do good.
formerly - adam smith - said people wouldnt work as hard for a corporation as they would for themselves -- (b/c of self-interest) - now, great class of "technicians and experts" are concerned w/ disributing wealth/social "bookkeping. this whole idea of men working for others is a myth - "society is composed of all sorts of people and each individual ia whole cast of characters in himself" - "the value...of anmn [economic] philosophy can only be judged by the value of tghe governing class whose power it suports" - the hope of the "humanitarian economic creed" - is that the social values will be accepted and taken up by people.
social injustice/justice need each other to exist.
"THERE IS NO REASON WHY THE MEMBERS OF AN ENTIRE GOVERNING CLASS, BOTH GOOD AND BAD, SHOULD BE THROWN OUT OF PWOER SIMPLY B/C POPULAR IDEAS HAVE UNDERGONE A CHANGE" - but at the same time - prestige of entire groups are "tied up with a set of usages whose continuiance is regarded as a matter of fundamental principle" - this is how inept people are in power.
choice between "naive faith and principles" and "cynical denial of the validity of principle" is a force one-constitution can be uniting
ADULT PERSONALITY comes in - what is this?
- tolerance
- common sense
- not always coldly rational
- dont have to "swing" between clarity and total disillusionment
"so long as preconceived principles are considered more important than practical results, the practical alleviation of human distress and the distribution of available comforts will be paralyzed"
- legal journalism in the NYT/new yorker/etc
- robinson is not a hero
- law school as trade school/columbia?
- formalism/legal realism parallels in life/other fields --> thurman arnold --> myths keep society afloat (formalism uses micro-myths) | | | Subsub 1 |
|
|
JessicaCohenFirstPaper 5 - 26 Feb 2010 - Main.JessicaCohen
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | 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. | >
> | | | | Paper Title | | | I spoke with a few other students . But if you work for yourself, you'll never amount to anything. We'll have to work within institutions to get anything done (at least at first). When I think of "not pawning my license," I think of true economic and job freedom, i.e. I would choose my clients -- but you can't get much done without others. obvious?
Moglen's "how to change the world" video - know what you want and know how to get it. | |
<
< | | >
> | I once had a | | | Reminded me of Randolph Bourne's Twilight of Idols. It is possible for pragmatists to become too bogged down in the "process" and lose sight of their overarching aims. Thought constantly in class, while reading Holmes/Cohen etc about the "consequences" of legal decisions, and grew exceedingly frustrating with Formalism. Constitutional Law was painful. But...how do we know the consequences are good? What do we ideally want to come out of a decision? The goodness/badness of each of these consequences needs to have some underlying set of values. Of course the same
In "Twilight of Idols," |
|
|
JessicaCohenFirstPaper 4 - 25 Feb 2010 - Main.JessicaCohen
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
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. | | | I spoke with a few other students . But if you work for yourself, you'll never amount to anything. We'll have to work within institutions to get anything done (at least at first). When I think of "not pawning my license," I think of true economic and job freedom, i.e. I would choose my clients -- but you can't get much done without others. obvious?
Moglen's "how to change the world" video - know what you want and know how to get it. | |
<
< | Reminded me of Randolph Bourne's Twilight of Idols. Pragmatists sometimes get too bogged down in process and lose sight of overarching aims. Thought constantly in class, while reading Holmes/Cohen etc about the "consequences" of legal decisions, and grew exceedingly frustrating with Formalism. Constitutional Law was painful. But...how do we know the consequences are good? What do we ideally want to come out of a decision? The goodness/badness of each of these consequences needs to have some underlying set of values. | | | | |
>
> | Reminded me of Randolph Bourne's Twilight of Idols. It is possible for pragmatists to become too bogged down in the "process" and lose sight of their overarching aims. Thought constantly in class, while reading Holmes/Cohen etc about the "consequences" of legal decisions, and grew exceedingly frustrating with Formalism. Constitutional Law was painful. But...how do we know the consequences are good? What do we ideally want to come out of a decision? The goodness/badness of each of these consequences needs to have some underlying set of values. Of course the same
In "Twilight of Idols," | | | here's where Bourne comes in.
Pragmatists ended up supporting the war - Dewey? Lippman definitely did (a shame) - why is that? thought war promoted democracy. THE END WAS GOOD - but forgot about the horrors of war? Bourne says that pragmatism gives them a sense of optimism - this definitely happened in our class - and a sense of "control." maybe pragmatism works "against poetic vision, against concern for the quality of life as above the machinery of life." | | | - not always coldly rational
- dont have to "swing" between clarity and total disillusionment | |
<
< | "so long as preconceived principles are considered mroe important than practical results, the practical alleviation of human distress and the distribution of available comforts will be paralyzed" | >
> | "so long as preconceived principles are considered more important than practical results, the practical alleviation of human distress and the distribution of available comforts will be paralyzed" | | | - legal journalism in the NYT/new yorker/etc
- robinson is not a hero
- law school as trade school/columbia? |
|
|