• This is an interesting point of departure. I find myself immediately doubtful. All around me I see human beings who not only leave all the probing questions about their feelings and behavior unresolved, they leave them entirely unasked.

In order to explain behaviors and feelings that are often very challenging to explain, people create "explanatory devices. " These devices vary; some may have more or less basis in reality than others, and may differ in their predictive power. Similarly, in the study and practice of law, scholars and practitioners invoke legal explanatory devices to explain how the legal system works. Felix Cohen’s Transcendental Nonsense and Jerome Frank’s “Modern Legal Magic” in Courts on Trial are two such attempts. The use of legal reasoning is a convincing (or not) narrative that provides justification for legal decisions, while the court’s procedures for evidence and testimony provide a narrative that explains what happened in well-defined boundaries. These explanatory devices are similar to the individual self-narratives we use to render our own emotional landscapes intelligible.

• This is the crucial claim. It's a claim of "similarity," which is weak. Whether two concepts are similar is in the eye of the beholder. More importantly, similarity has no value in logical argument: if A and B are similar to an extent, that tells you nothing about A's relevance in explaining anything about B, because the similarity may have nothing to do with the property of B being explained. Like Elyse's essay on repression, this draft now depends on the "similarity" between an intrapsychic phenomenon and an interpsychic social pattern. Jerome Frank's Law and the Modern Mind, a brilliant pièce de provocation presented in 1927 the classic forensic use of the analogy between intrapsychic rationalization and judicial reason-giving, arguing quite explicitly that judging is usually performed neurotically, as is believing in judging.

• With those words, a trick is performed. Similarity is no basis for argument. But these two words use a claim of similarity as though it were a claim of equality. When two things are equal, evidence about the properties of one is evidence about the properties of the other. Oranges are similar to apples for some purposes. If they were equal, you could prove orange peels edible by eating an apple. Here you used a conjunction to achieve a major league act of smuggling. There's no just-as-ness about it.

individuals can benefit from constructing narratives about themselves, people as a collective can benefit from creating meaningful narratives about the way that legal institutions work. Its nether comforting, nor productive, for humans to exist in a state of uncertainty as to the operation of the law. For example, with criminal punishment, people value the ability to predict when and to what extent they will be subject to penalty. In a capricious system where prosecution and incarceration are subject entirely to whim, feelings of powerlessness will inevitably follow.

• Maybe, maybe not. I do not think you could safely characterize the broad sweep of available historical evidence this way. Inevitability is a particularly strong claim, destroyed by a single contrary instance. Are you really ready to defend every single submission of a counter-example, or can we agree that you've got a second smuggle caught in the floodlights here?

Cohen's transcendental nonsense of legal logic provides a relatively stable framework for analyzing legal disputes. While debate certainly centers on invented concepts, like the personhood of corporations, the concepts can go a long way towards providing a concrete, relatively smooth ground for navigating the rough complexities of real-world cases. Although it appears to take the focus off of the real world, in fact transcendental nonsense helps provide a consistent framework for judges to make ethical decisions. Justice comes from the judge's mind and sense of ethics, but consistency and thus dependability must be rooted in something other than individual people. Transcendental nonsense, then, does for judicial reasoning what composing self-narratives does for emotional sanity: it provides a structure, through which the substance can be utilized effectively.

• This defense of formalism doesn't cohere logically. How a debate centered on invented concepts can provide a consistent framework to make ethical decisions depends, of course, on what you mean by making ethical decisions. But I consider you to have a fairly difficult job demonstrating for many plausible meanings of "making ethical decisions" that "debating invented concepts" could possibly be any help. In the end, you haven't strengthened the argument at all. It's still just an assertion: formalism is good because stability is important.

• But this is inconsistent with the prior graf. If merely invented quantities are enough with which to make suitable ethical decisions, why should we be "improving" the narratives of imaginary formal quantities we use? In what way do purely imaginary narratives unrelated to reality differ for better or worse in their helpfulness? About legal formalisms, given your argument above, one could say what Gibbon says of all the religions of the ancient Mediterranean: that they were considered by the people to be equally true, by the philosophers to be equally false, and by the magistrates to be equally useful.

• Your intention with this edit was plainly to give a clear line to the argument, and to straighten out some particular snarls to which I had called attention. But once you did so you had the real bones of the problem to deal with. This was useful, it showed clearly where the fundamental problems were, which is one of the jobs of the editor. But then you had little to fall back on in solving those problems, and you were more conspicuous in your smuggling once you had cleared the ground around the border.

I. Devices for Legal and Self Narratives Serve a Similar Purpose

In general, human beings find it difficult to leave probing questions about their own feelings and behavior unresolved. In order to explain behaviors and feelings that are often very challenging to explain, people create "explanatory devices. " These devices vary; some may have more or less basis in reality than others, and may differ in their predictive power. Similarly, in the study and practice of law, scholars and practitioners invoke legal explanatory devices to explain how the legal system works. Felix Cohen’s Transcendental Nonsense and Jerome Frank’s “Modern Legal Magic” in Courts on Trial are two such attempts. The use of legal reasoning is a convincing (or not) narrative that provides justification for legal decisions, while the court’s procedures for evidence and testimony provide a narrative that explains what happened in well-defined boundaries. These explanatory devices are similar to the individual self-narratives we use to render our own emotional landscapes intelligible.

II. Self-narrative is important for emotional wellness, legal narrative is important for societal wellness.

In the short term, many people find it upsetting to write seriously about an important emotional issue that has affected their lives. As time goes by, however, people can derive remarkable benefits from the writing exercise. Timothy D. Wilson, Strangers to Ourselves 177 (2002). According to Wilson, writing seems to work by helping people to make sense of a negative event by constructing a meaningful narrative that explains it. Id.

IV. Narrative devices are not all created equally: we should strive to improve legal narrative devices.

Self-Narrative and Legal Narrative

I. The need for explanation is kin to the need for a convincing self-narrative.

The use of legal logic and the court’s method of doing history are two sides of the same problem: how to achieve practical justice. Legal logic is a convincing (or not) narrative that provides justification for legal decisions, while the court’s procedures for evidence and testimony provide a narrative that explains what happened in well-defined boundaries. This use of an explanatory narrative is similar to the individual use of self-narrative to render intelligible our own emotional landscape.

• Here's something to be on the alert about. You didn't use the first paragraph of the essay to explain what your thesis is, the idea you are trying to express and then employ. You stated a theme at the start of the second paragraph, but it's a "false theme," wrapping paper rather than the real idea. If you remove the word "practical" from the first sentence, you have a platitude. So what did "practical" mean? At the end of the paragraph, then, we come at last to the essay's claim: that one use of explanatory narrative is similar to another use of explanatory narrative.

• No wonder you buried the lead. From the editor's point of view, you didn't have a lead. You assert A is similar to another instance of A, called B. You then explain B, in its particular context, and by golly, it is indeed similar to A. Resolve, fade to black.

• Of course, the situation isn't that dire: you actually do have a theme for the essay. But it's sort of gotten twisted in with this artifact that came from not figuring out at the outline stage what it was you were saying and how to present it in the clearest fashion.

II. Self-narrative is an important component of mental and emotional wellness.

When people are asked to write seriously about an extremely important emotional issue that has affected their lives, they often find it upsetting in the short term to write about deeply personal experiences. As time goes by, however, people show remarkable benefits from the writing exercise. Timothy D. Wilson, Strangers to Ourselves 177 (2002). Writing seems to work by helping people make sense of a negative event by constructing a meaningful narrative that explains it. Id.

Ruminating on past events tends to prolong and lengthen depression. Repetitive thoughts about negative events can give rise to a feeling of powerlessness without ever leading to actions that improve one’s situation. Numerous studies show that rumination leads to self-defeating patterns of thought, especially when the ruminator is already depressed: “Ruminators are worse at solving problems related to their distress, focus more on negative aspects of their past, explain their behavior in more self-defeating ways, and predict a more negative future for themselves.” Id. at 175. Suppression of the repetitive thoughts rarely works. It can even backfire, leading to more rumination.

Construction of a meaningful self-narrative provides some objective distance from the subject, while providing some explanatory power that helps to short circuit rumination. Providing a coherent picture of the events allows for resolution of the topic and explains it in a more adaptive manner, improving mood and mental well-being.

• What did the modifier "self-" add to the word "narrative" in that paragraph? If it did not add anything in that paragraph, I do not think it gained any meaning from any other sentence. This, if true, would allow the reduction of "self-narrative" to "narrative" throughout the essay. That in turn would allow the reduction of "explanatory narrative" to "narrative," which I think might make the thesis of the paper clear and a line of development possible.

III. Transcendental Nonsense and Modern Legal Magic are convincing narratives about the uncertainty in the outside world and our role in it.

Given the uncertainty of the external world, it benefits people collectively to create meaningful narratives about the way they and their institutions act. It would not be comforting or productive to see chaos in the surrounding world and respond in kind. One of the most highly esteemed values in any legal system is predictability. Being able to predict when and to what extent one will be subject to penalty is one of, if not the, most important attributes of an ideal system. In a capricious system where prosecution and incarceration are subject entirely to whim, feelings of powerlessness will inevitably follow. Such powerlessness can easily morph into resentment, depression, or another similarly negative emotional outlook. The inventions of legal logic and legal magic are explanatory narratives designed to make sense of the external world.

• The choppiness of this graf is a signal of trouble. The second sentence tells us something has gone awry; the least of its troubles is the careless conflation of uncertainty with chaos. From there to the third sentence, as from the penultimate to the last, is a pretty jolting transition. The prevailing impression one gets is that the paragraph can be reduced to its first sentence without making the following paragraph in any way harder to understand.

The transcendental nonsense of legal logic provides a relatively stable framework for analyzing legal disputes. While debate certainly centers on invented concepts, like the personhood of corporations, the concepts go a long way towards providing a concrete, relatively smooth ground for navigating the complexities of real-world cases. It is important to have such concepts in order to reduce the role the judge has on deciding the law in the eyes of the public. The caprice of the judge is minimized, while abstract, just legal principles do the work of resolving the dispute.

• That they are abstract is part of the definition. That they are just is not proved, since the debate about them centers entirely on invented concepts, and is therefore incapable, from a realist point of view, from ever even making a statement about justice.

• And since when, the realist wants to know, did we ever have this crazy theory that judges weren't supposed to make wise decisions in difficult cases, but instead to be guided only by abstract principles of automatic application? The Western traditions all acquired from Aristotle the recognition of "equity," that achieves justice in the particular cases where every general rule inevitably works unforeseen and unintended injustice. And the public of our society, like the public of pretty much every human society, defers to "wisdom," usually associated (for reasons reaching all the way down to the biological stratum of social action theories) with the experience, gravity and deportment of advancing age. To say that the public doesn't want judges to make judgments conflicts with everything we see around us.

Setting up rules for evidence that gloss over the complexities and uncertainties of ascertaining the truth of particular facts provides a similarly stable structure for deciding cases. Given the immense difficulty of finding facts reasonably reliably, when they can be found at all, it is no surprise that a narrative structure has been invented that allows for courts to decide cases by applying law to some set of facts that were decided in a seemingly predictable and fair way. The rules create an aura of objectiveness that glosses over the difficulties and uncertainties that would lead to emotional misgivings if openly acknowledged.

• That isn't a word. You meant "objectivity." Proofreading is not an optional activity. What you say you have to get into the habit of checking.

• This graf might be an explanation of why there is such a concept as evidence at all: it says that, given how hard it is to find facts reliably, there are going to be rules. But it doesn't explain the content of any particular rule, or define in any way what sort of rules those are going to be. So I think the graf amounts to the proposition just stated and no more. Taken with the predecessor graf, this section establishes that formalisms make it easier to "navigate" complex cases and that there will be rules of evidence.

IV. Just as some self-narratives are better than others, we should strive to find legal narratives that comport with the available evidence while still being helpful.

There can be many and varied narratives explaining different aspects of a person’s self. Just as some can be more or less adaptive, in the sense that they correspond more or less to external actions and others’ narratives about someone, some general narratives about an institution can be more or less adaptive. Cohen’s and Frank’s critical analyses of legal narratives illustrate their respective shortcomings. When legal logic becomes a crutch upon which to base decisions rather an aid, it creates meaningless debate that obscures the real reasons that cases come out one way rather than another. When a premium is put on evidence entered by witness testimony, the very real problem of human bias and subjective observation can create injustice. Given the limitations of being human, it does not seem that narratives can be totally done away with. An appropriate response to Cohen’s and Frank’s criticisms would be to try and construct new narratives, that are more adaptive; narratives that produce better outcomes. Being conscious of such narratives and the role they play in human and human institutions’ behavior is critical for appraising the effectiveness of different explanations.

• Here we have the same choppy sequencing that we saw at the conclusion of the last section. The transition from sentence two to three is obscure. Six is altogether a mystery. Seven seems to mean that Cohen and Frank would be satisfied if there were more justice. But how does that lead to eight, and why is that proposition the conclusion of the essay?

• I think, as I said at the top, there was a simple and effective theme here, and that the need was for careful outlining to hold the surrounding tendency to complexity at bay. The editorial inquiry that was helpful at each turn was, could this be put more simply? I think that's the principal that should guide revision.

• Did you mean principle? I cannot figure out what the word, objectiveness, means. But no wonder it wasn't caught by the spellchecker.

I changed my paper substantially this time around, hopefully taking into full account your comments on the first draft. I decided to eliminate the second topic entirely and try to more fully flesh out my ideas about law and morality, particularly focusing on judicial decisions. It needs more work, but I hope this is an improvement. I changed a lot of it, so I decided just to include the revised version on top of the older version, rather than actually changing the original.

Kristine

Law, Morality, and Magic

By KristineVanHamersveld - 16 Apr 2009

As first year students, one of the first important dichotomies we learn in legal scholarship is that of the battle between Langdell and the Formalists and Llewellyn and the Realists. Presumably we do so because we are trying to answer one of the most important questions we, as law students should ask: how do judges make decisions? This question is relevant not only intellectually to law students assigned to read holding after holding, but also for us future lawyers that will need to convince judges and future judges who will need to be convinced. In order to answer this question, its necessary first to decide what “law” is, and only then can we begin to approach a discussion of how it may be invoked by judges in their opinions. Formalism tells us that law is what’s on the books. It’s the black letter of a statute or the Constitution staring up at its reader, explaining for better or worse how each and every conflict must be resolved according to the carefully debated “law.” Legal realism tells us that law is the person reading the book. It’s the judge, and all of her education, moral values, and life experiences reading the letters in the book and making a decision based on how she reads them and how she views the case set out in front of her. Neither theory is completely true or false. The grey area where the two approaches unavoidably overlap is where the answer to my question can be found.

Judges are moral beings, like everyone else, but in their role as judge or justice, they must assume a level of moral neutrality or else risk being labeled as “activist.” Their challenge is to make the “right” decision based on myriad considerations, including but certainly not limited to: doctrine, statutes, history, the Constitution, and some sense of “American” values. When more closely examined however, these elements of the law can all be reduced to the same common denominator: morality. Statutes are rules that derive from the moral deliberation of legislatures. The Constitution is a written summation of the moral values of the politicians that designed our country. Doctrine which is based on a mix of all of the above, contains the moral element of each of its parts as well as the morality of the hand that writes it. History, like doctrine, is broad, but as applied to the law, history is little more than a moral framework, grounded in the legitimacy of nostalgia or our moral past. American values, are literally morals; shared political and ethical ideas that one has to buy into in order to buy into the system as a whole.

At the end of the day, or rather, at the end of the opinion, the judge is left with very little besides moral values to base an opinion on. Law is not the same as morality, but it is so intrinsically connected to the latter that it makes any illusions of objectivity in the law comical. But, society’s version of morality (encompassed in the sources mentioned above) is not enough to produce a judicial decision. Law is as much the written words, as the judge who is reading them, and each judge brings his or her own history to the bench when they interpret the law.

The debate over separation of powers in Constitutional law provides an illustration. For example, in the Steel Seizure case, the majority held that the executive power of the president did not include a power to seize the steel industry to prevent it from striking during a war. The opinions on both sides were written so that they appeared to depend on analysis of legislative history, the text of the constitution, and previous doctrine. Certainly, these elements guided the decisions, but it wasn’t the history, or the constitution, or the doctrine that wrote the holding, it was the judge. The most important question in this case then wasn’t “what does the constitution say about executive power” it was: “how do you (the judge) feel about restricting executive power, and where can you find support for that in your reading of the sparse words of the constitution?” Whether you think “executive” means “plenary power” or you think “executive” means “executive limited to the enumerated powers” cannot possibly be answered by “law,” the law doesn’t have an answer. The solution depends on the judge’s political philosophy and moral values regarding the role of the President and the legislature. Once, this fundamental question is addressed, the justices can dress it up in transcendental nonsense, give it the “look” of objective validity, and move on to the next case to repeat the process.

Cohen’s “legal magic,” which at first glance appears to exist in the opposite of a moral system of law, enters the equation precisely because law is so morally derived. Cohen criticizes using extreme formalism to make legal decisions, rather than ethical considerations, because he’s right that it amounts to nothing more than argumentative nonsense. However, the nonsense is really, the second (or third, or fourth) step in judicial reasoning. The “legal magic” is the icing on a moral cake. The cake itself is made up of one part society’s moral values (which encompass all of our traditional sources of law) and one part personal moral values of the judge (or as Llewellyn says, perhaps of what he had for breakfast). But, no one will eat a cake without icing. The legal magic, the esoteric argument for the sake of argument has to exist as a cloak of legitimacy on the entire system, lest the public discover, their objective iron clad system of law is nothing more than a manifestation of subjective moral values.

Indeed, the only reason that “legal magic” is harmful at all is that it’s distracting. It draws our attention away from the real source of judicial decision making and has us running like hamsters on a wheel, in a circular pattern, trying to discover a truth that is inaccessible to us because we always end up exactly back where we started.

Law School and Contemporary Society

By KristineVanHamersveld - 26 Feb 2009

If its true that law school doesn’t teach its pupils how to be lawyers, what does it teach us about the law? As a law student of almost seven months, I can say without hesitation that I have learned something by attending law school, even if it requires a thousand words to speculate on what that something might consist of. I’m not sure however, that I have learned how to be a lawyer, or even, what a lawyer really is. Although I have been immersed in more “law” than I can absorb, and evaluated in a way that is not conducive to absorbing it, I believe I am learning how to think about the law in a way that law professors (and presumably practicing attorneys) find valuable. If judges, law firms, and law schools did not find this kind of thinking valuable, they would recruit clerks, associates, and scholars from other fields. Instead, they chose law students, who have specialized knowledge and skills that can, presumably, only be found in law school. This short essay will focus on two facets of the specialized body of knowledge that law students glean from attending law school. First, law students must understand the complicated relationship between law on one hand, and morality on the other. This relationship becomes apparent almost immediately to law students by reading judicial opinions under the case method. Secondly, law students learn on somewhat of a meta-level about the value of their own knowledge, as “secret” and if not how to exploit that secret, merely that they must exploit the secret just as Neff’s salesman exploits his monopoly over certain goods.

Law and Morality

When justices of the Supreme Court hand down opinions that shape our law, they know they must base their decisions on past decisions, or “doctrine” so that the body of law as a whole is internally consistent. They do not, so they claim, base decisions on a personal compass of “right and wrong.” To do so would be to render law subjective and thus, intellectually impotent. But, what is doctrine but past decisions, based at some infinite beginning point on the personal opinion of the justices.

• This doesn't follow. It results from a false dichotomy: the two possible routes to a decision are reliance on past cases and personal judgments about right and wrong. A moment's reflection will disclose, to take one example, the existence of statutes.

The constitution is just a collection of words if judges don’t give it meaning, and they derive this meaning from their own sensibilities of morality.

• Another uncertain step. Perhaps they derive meaning from history, for example.

Law itself is merely morality and social values in codified form. Felix Cohen, as many do, finds disturbing a system of supposedly “logical” decision making that is based largely on “transcendental nonsense;” arguments rooted in other arguments rather than arguments rooted in fact and policy. However, Cohen also recognizes that this sort of “legal magic” is necessary,

• Are you sure? Could you have pointed at any evidence for this?

and hints at the tension between law and morality that keeps our system functioning.

• For this "hint" it would be good to have a little evidence and some discussion. I've read the piece often, and my impression is that Cohen believes a theory of ethical value and a refusal to engage in transcendental nonsense can integrate to establish a foundation for realistic law.

We have learned to keep law and personal morality separate, but we need them both, and we need their intersection in order to maintain our system of legal magic. Our legal system aspires to be one in which, if you know the rules, you know the consequences of breaking them. A system like this is not functional if the “rules” are based on the judge’s own personal, moral policies. Legal arguments are necessary to keep the system of law we know today functional: but, is it really functional? Judges, constrained by legal circular argument and categories such as “corporation” or “person” as Cohen points out, get cases morally wrong all the time. However, if judicial opinions consisted only of a judge writing to say he or she believes the corporation was wrong and should be punished, we have nothing to guide us in the future but the personal leanings of judges and legislators.

• But this is obviously a false dichotomy: opinions either consist of circular argument or else they consist of personal beliefs only. We need a form of analysis here that is less dependent on inflexible alternatives and the law of the excluded middle.

Knowledge of the Law as a Lucrative Monopoly

• It was probably more than enough to try to present two ideas in this essay. Compression is part of the reason the analysis of the first idea is weak.

Second, we learn that law is a profession, and that as lawyers, we are valuable because we have “secret” knowledge.

• The knowledge you are talking about is not secret, consisting as it does almost entirely of public sources. It's intricate, requiring both assisted training to learn and acculturated judgment to apply. And it's licensed, requiring public demonstration of minimum skill in order to practice. Both intricacy and regulation affect the political economy of the work, but a moment's thought will disclose numerous reasons why "monopoly" is not the best model for the resulting analysis.

Just like the professional salesmen/swindlers in Leff’s Swindling and Selling, lawyers have a self-perpetuating monopoly on “understanding the law.”

• "Just like"? Leff's sellers are often dramatizing competition rather than monopoly, and the lawyer is a seller of services, but the similarities aren't close enough on that basis alone to be denominated "just likeness," and it's not clear what Leffian analysis will get you unless you are concentrating your attention on how the moment of retention occurs.

The law is so convoluted, we are shown by law school, that it is entirely impossible to navigate for someone who hasn’t learned to “think like a lawyer.” This gives lawyers a monopoly on the law that enables them to sell their interpretative services to marks (clients), in an accepted framework that no one questions as a scam.

• Very few people consider themselves skilled in cutting their own hair. Does that mean that hairdressers have a monopoly that makes their provision of services a scam? And why is monopoly (which doesn't exist here, anyway, unless one can think of 1.14 million individual licensed practitioners organized in tens of thousands of competing entities as a single unit) a demonstration of "scam"? Have you concluded, by the way, as an implication of this argument that copyright and patent are scams? Tightening the analysis here is very important, indeed crucial, to having any argument on this point at all.

Law school, in teaching us to think like lawyers, perpetuates the idea that “thinking like a lawyer” has a value above whatever tools law students were using to think with before entering law school. What we think of as the law is in essence, nothing more than the codified thoughts of lawyers, who have been trained in law school to think like lawyers. Thus, the pedagogy of law school creates a closed circle of thought, to which largely only former law students can contribute to or understand, but that is necessary to the life of every person on the planet. Thinking like lawyers allows us access to this critical monopoly that we invoke when we swindle or sell our services to people who need them throughout our careers.

Are these two ideas, law and morality on one hand, and a monopoly over knowledge on the other hand related in a meaningful way? Perhaps, but perhaps not. It could be said that law school teaches us (or, at least has taught me) first what law is (a complicated mix of transcendental nonsense, and moral intuition) and then how to make a living from it (exploit the monopoly). This analysis would connect the ideas presented in my paper in a step one, step two, kind of road map to a legal career. I’ll never know if that was Columbia’s intention, or the intention of my professors, or if it is just an arbitrary observation made by a life-long student programmed to make connections between things that are more or less unrelated. In any event, I hope the thought itself, and the analysis here have some intellectual value.

• I think the draft needs trimming: I'm dubious about presenting both of these points, or some version of something like them, in the same piece at this length. But trimming alone is not enough: the arguments supporting both insights have serious weaknesses that need to be addressed. Reformulating the arguments may change their course or conclusion, to be sure, but the analysis has to be tighter to show your thinking to advantage.