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KahlilWilliamsThirdPaper 7 - 18 Aug 2009 - Main.EbenMoglen
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A Pathetic Reading of Empathy | | | Conclusion
Rather than thinking about Cohen’s piece as a foil describing an undisciplined approach to the law, Fish (and other critics) would do far better to recognize the difference between discussing how judges should decide cases and how judges do decide cases. In the end, Cohen’s approach gives us more to consider, more to build on, and a more sensible alternative to mere balls and strikes. | |
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- A lovely essay, in my view, not least because it achieves seriousness without being serious. I used to think that Stanley would be an ideal teacher for this course, but he elected not to teach it when he visited in the spring of 1995, while I was away somewhere. As you have showed, he'd have learned something by teaching it, as I always do.
- I also used to think that Stanley kept a mental midget around to do occasional duty writing columns in the Times. (I think of him as being one of the Zapf dingbats, a relative of my friend the Econodwarf, but that's another story.) The essay you so thoroughly take to the cleaners here was puzzling for me, however, because I found it improbable that the midget too had been exposed to Transcendental Nonsense and the Functional Approach. This in turn implied that Stanley had something actual to do with the composition of the essay, which was disheartening, because—as you say—whoever wrote it didn't seem to have the vaguest idea what Felix Cohen actually said. I concluded that the midget had received a light briefing, including some vague references to Cohen's article, and had winged it. The only plausible alternative was that Stanley had phoned it in, with utter disregard for his readership and reputation, without checking anything or bothering to refresh his recollection, almost as though he were Tom Friedman, or Abe Rosenthal.
- Anyway, you are ascertainably correct on all points, although it seems to me that your conclusion is faint: any conceivable theory of judging, including most wrong ones with almost nothing to recommend them, "give[] us more to consider, more to build on, and [are] a more sensible alternative to mere balls and strikes." The whole point of the umpire comparison, as you of course realize but don't say, is that it bears no relation whatever to judging. It doesn't even bear much relationship to actual umpiring, as you point out. But it does bear a significant relationship to mythology: it consolidates through a homely vernacular image the bullshit idea that law is a realm separate from politics. No one seriously believes this, but it is a very important part of how things necessarily work anyway. (Have you met my friend Thurman Arnold, by any chance? Thurman, Stanley. Stanley, Thurman.) As a statement of creed, it plays a useful and important role as a subsidiary moving part in the machinery by which we prevent one of the cardinal elements of our creed, Equality, from actually meaning anything.
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