| |
| META TOPICPARENT | name="FirstEssay" |
|---|
The Issue with Jerome Frank's Legal Possibilism | | | 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). However, the caveat is that Lawyerland's percipient characters quietly acquiesce (me), 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. | |
<
< | What does Frank's "music" consist of, and how does the process of reorienting ourselves using "music" facilitate our understanding of ourselves and others? | >
> | Lawyerland gets realistic about how much we can or are willing to reorient ourselves. I think 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?" I find this much more challenging, personally and professionally. Since ancient times, people have thought about how music and the other arts could be used for moral suasion. Xunzi advocated music/ yue as a solution for becoming aware of our habitual valuations through which we navigate the contingencies and ambiguities of our existence. Rather than impart moral rules, Xunzi also employs music, though literally, to make the proper perceptual adjustments in the self by activating the heart-mind’s mimetic propensity. Echoing Plato seventy years on, Xunzi thought the emotions would adapt themselves, by imitation, to edifying musical features. | | | | |
<
< | [The bidirectional model also implies that trying to understand another person's inner states necessitates close examination of ourselves along with making necessary adjustments in ourselves to see, or see differently, things hidden in plain sight. Understanding others is a self-reflective process. In class, we talked about people being 3D objects that we must reorient ourselves around to observe from different angles.] | | | | |
<
< | Frank insightfully brought law into the aesthetic domain by making it a study of human beings, | | | There are rules in legal proceedings that do not frustrate judges' imagination and insight; rather these rules cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. We trade many of our everyday rules of language that are less systematized and more individualized for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). While imperfect, these rules help control pre-reflective states that could be detrimental to the fact-finding process. Moreover, imagination and insight in the courtroom get their start from rules, like how the Dogme 95 movement enables or intensifies the director's creativity by placing restrictions on filmmaking. If a boardgame were a ruleless free-for-all, there would be no opportunity to play; the rules of the game create the domain necessary for creativity. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the numerous everyday language rules left outside the courtroom.
[Not incorporated:] | |
>
> | What does Frank's "music" consist of, and how does the process of reorienting ourselves using "music" facilitate our understanding of ourselves and others?
[The bidirectional model also implies that trying to understand another person's inner states necessitates close examination of ourselves along with making necessary adjustments in ourselves to see, or see differently, things hidden in plain sight. Understanding others is a self-reflective process. In class, we talked about people being 3D objects that we must reorient ourselves around to observe from different angles.]
Frank insightfully brought law into the aesthetic domain by making it a study of human beings, | | | This unlocks creative resources (Frank's "music") that could be used to understand judicial decisionmaking. For instance, rhetoric dissects the manipulation of people's cognitive and affective states using words. Giambattista Vico believed that .
On Alva Noë’s enactive approach of perception, which theorizes that perception or “achieving presence” is action—something we do or “enact,” not merely cognize—we can reorient ourselves around the judge to observe her by piecemeal. | |
<
< | Xunzi advocated music/ yue as a solution for becoming aware of our habitual valuations through which we navigate the contingencies and ambiguities of our existence. Rather than impart moral rules, Xunzi also employs music, though literally, to make the proper perceptual adjustments in the self by activating the heart-mind’s mimetic propensity. Echoing Plato seventy years on, Xunzi thought the emotions would adapt themselves, by imitation, to edifying musical features. | | | Doctrinal classes do not employ music in the Frankian sense because facts in 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. One could argue, however, that 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.’
We also start and end class listening to music, coming together in listening. For a while, I wondered how the mindreading we do in this class (or heart-mindreading for Xunzi) would be feasible if we couldn’t know with certainty whether our reading was correct. I make sense of it now on the premise that we harmonize. Xunzi writes: |
|