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< | The Issue with Jerome Frank's Legal Possibilism | >
> | [Disorientation | | | -- By JiaLee? | |
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< | [Work in Progress] | >
> | The Issue with Jerome Frank's Legal Possibilism | | | | |
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< | Jerome Frank believed that the partially conscious and unconscious motives, emotions, impulses, and purposes constituting the self—including the neuroses underlying our desire for legal certainty—resist being made explicit even to the person experiencing them. He assumed we needed expressive tools that functioned in a gestalt-like fashion that could apprehend these idiosyncratic gestalt-like experiences in the legal decisionmaker all at once. He was skeptical that such tools could be discursive rather than belong to the domain of reference, so he thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, discountenancing judges’ imagination and insight. Instead, Frank advocated for “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | >
> | Jerome Frank believed that the partially conscious and unconscious elements shaping the self—including the neuroses driving our desire for legal certainty—resist being made explicit even to the person experiencing them. He believed we require expressive tools that function in a gestalt-like manner to capture these idiosyncratic gestalt-like experiences of the legal decisionmaker all at once. Doubtful that such tools could be discursive rather than belong to the domain of reference, Frank thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, thereby discountenancing judges’ imagination and insight. Instead, Frank championed “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | | | | |
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< | I argue that Frank's search for creative modes of understanding is curtailed by limiting them to those that could somehow capture the legal interpreter's gestalt, so we should rethink this idea. | >
> | I argue that Frank's search for creative modes of understanding legal decision-making is constrained by his focus on tools capable of capturing the decision-maker's gestalt. Drawing from Alva Noë's ideas, I consider a different model of judicial deliberation whereby the legal decision-maker's ethos, cognitive processes, and external factors are "entangled." This approach, I believe, clarifies and affirms Frank's intuitions of law being an aesthetic practice in a certain sense. | | |
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> | The Entanglement Model of Judicial Deliberation | | | | |
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< | I consider a somewhat different model of judicial deliberation than Frank's. Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts presented. The judge is subject to the fallibilities of the human mind while reconstructing the facts of an event. Alva Noë might say that the judge's first-order habitual reactions and second-order thoughts/cognitive processes influence each other; they are "entangled". What we know, what we don't know, and what we know we don't know (referencing Lawyerland) determine our habitual organization, or how we react to facts on a first-order level. Not only do things in the world affect our habits, which affect our mental judgments. We also need to study how the ways we configure our mental capacities or have it structured by external forces modulate how things in the world affect us habitually. Facts are apprehended, and gain certain subjective qualities (e.g., a degree of salience, familiarity) in the ways our mental constitution allows, i.e., how we tune into the world. I could pick up a fact and encounter the same point again later but the point now feels different and/or I conceptualize it differently because something about my mental capacities, how I conceptualize and judge things, changed to alter the way the fact showed up for me. So, rather than try to capture the gestalt, we should study how this bidirectional interaction continuously unfolds, which is what I understand the mindreading we do in class to be: discerning how aspects of someone's life shape how they conceptualize, which affects how something in the world—circumstances, facts, another person—shows up for them (the first-order effects). As Nietzsche said, “We have learned to love all the things we now love.” | >
> | Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts at hand. In reconstructing the facts of an event, the judge is subject to the fallibilities of the human mind. Alva Noë would likely argue that the judge's first-order habitual reactions and second-order cognitive processes influence each other; they are, to use his term, "entangled." What we know, what we don't know, and what we know we don't know (referencing Lawyerland) affects our habitual organization, or how we react to facts on a habitual level. It is true that things in the world affect our habits, which in turn affect our judgments. However, we should also consider how we configure our own mental capacities, and how external forces structure them—and finally, how this configuration modulates how things in the world influence our ethos. As Nietzsche said, “We have learned to love all the things we now love.” Facts are perceived and imbued with subjective qualities, such as degrees of salience and familiarity, in the way our mental organization allows; that is, we perceive facts differently depending on how we tune into the world. I could encounter the same fact twice but conceptualize it differently upon the second encounter. Its meaning could be different or it could engender different emotive states in me because something about my mental capacities—how I conceptualize and judge things—changed to bring the fact into focus in a new way. While it is important to examine how our ethos affects our judgments (though it is probably impossible to capture the gestalt of one's ethos), we should also consider how our mental configuration determines how external factors affect our ethos. This is what I think we are doing with mindreading exercises in class; we discern how aspects of someone's life shape how they conceptualize things, and how this determines the idiosyncratic ways in which things in the world—be it circumstances, facts, or other people—are brought into focus for them. | | | | |
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< | The upshot is that although the judicial decisionmaking process may not be entirely rational, we have some agency over it because we can study and change our second-order structure, and therefore our pre-reflective reactions. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). Confucius sums this up: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and the world and still lack agency. Lawyerland says that the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" | >
> | The Upshot of the Entanglement Model and a Caveat | | | | |
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< | Noë defines aesthetics as the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, at which point one can reflect to have some agency over one's ethos. Frank's intuition in saying that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | >
> | The upshot is that although the judicial decision-making process may not be entirely rational, we have some agency over it because we can study and alter our second-order mental organization, and therefore our pre-reflective reactions to some extent. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat to this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland proposes that the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" | | | | |
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< | This class, unlike doctrinal classes, uses music in this sense as well. | >
> | Law as an Aesthetic Practice
I believe Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences could come from encountering art, traveling, relationships, technology, suffering, philosophizing, the alterity of something, music, a class, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being who we are. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This is essentially Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense.
This class, unlike doctrinal classes, employs music in this sense. It aims to disorganize us, inviting us to examine whether we actually have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | | |
| | | [2] Doctrinal classes also do not employ music in the Frankian sense because facts on exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. That said, I think there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | |
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< | [3] What does Frank's "music" consist of? It could be any experience that disorganizes us—inviting us to reflectively resist our habitual organization, and this is idiosyncratic. It could be travel, friendship (Brienne and Jamie), love (Elizabeth and Mr. Darcy), technology, suffering, philosophy, expectations, the alterity of something, music, a class, and so on. A disorganizing experience bids us to see something hidden in plain sight—to catch ourselves in the act of being who we are. I think that's how a judge reviews and modifies her ethos; her work isn't confined to the courtroom. | | |
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