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JudicialDecisionsandSocialConsequences 5 - 07 Jan 2010 - Main.IanSullivan
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| | | While on the whole I enjoyed Cohen's piece on Transcendental Nonsense and the Functional Approach, I can't help but take issue with his conception of judicial decisions. As I understood him, Cohen is advocating for a conception that sees judicial decisions as "social events," rather than as discrete, unrelated occurrences that are borne of "judicial bellyaches." Part of seeing judicial decisions as "social events," Cohen writes, is to recognize that they are "a product of social determinants and an index of social consequences." While I agree that judicial decisions are a product of a social context, I'm more skeptical that judicial decisions actually produce social consequences. In fact, for several reasons, I often think that judicial decisions don't really do much at all in the way of imposing "forces upon the future." For one, I think that judges and the judicial branch often lack the power to enforce their decisions. The judicial branch, to a large extent, relies on the other branches of government and the lower courts to implement and adhere to their decisions. Because judges lack budgetary power and a prosecutory power, many of their decisions wind up being just symbolic proclamations that are only effective if the other branches respect them. Secondly, often judicial decisions are not afforded much attention in the media. Thus, most of the public is completely unaware of the most recent judicial pronouncements, regardless of how relevant or important the issue in dispute may be.
I will concede that judicial decisions might indirectly produce social change, either by promoting the other branches to act (Congress in the wake of Brown enacted the Civil Rights Act of 1964) or by mobilizing segments of society to mobilize in the wake of an unfavorable or controversial judicial decision (the pro-life movement in the wake of Roe). But, overall, I think that the courts are ineffective at producing change on a large-scale. I think it's more pragmatic to view the courts (and lawyers) as better equipped to produce micro-level change for those individuals who actually appear before the court, but that it is detrimental to harbor a false hope that the law and judges can change the world. While I'm not sure if Felix Cohen's conception of judicial decisions really does impart that much power to the branch to produce social consequences, I think it would have added much to his piece if he clarified what he meant by "an index of social consequences." |
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