Frank believes that merely by acknowledging the inherently subjective nature of judicial decision-making, and by understanding that subjectivity is not always evident to the naked eye (as Morris Cohen does not – p.59-60), we are taking a very tangible step towards reform. We might, then, begin to base the legitimacy of a court’s murder conviction, for example, not on the unrealistic and dangerous notion that it represents the truth, but on the more grounded idea that it is the best the court could do given its limitations. Perhaps, I think Frank is implying, we’d be more likely to take new facts into account once they arise, such as DNA evidence in today’s death penalty cases.

However, I think Frank may not be fully acknowledging the benefits of a legal system that has gone from placing its rights on the ‘knees of gods’ to placing them on those of men (p. 50). It may be true that lawyers are sometimes reluctant to admit the ‘chanciness’ inherent in decisions that depend on subjective interpretation of facts, but this may be more true of his pre-legal realist time than ours. I think many people have already disabused themselves of the idea that fact-finders are objective. Couldn’t some of our instinctive trust in fact finders have to do with our need for repose, and an aversion to endless litigation of factual issues that can be examined in multiple ways (especially given their vulnerability to subjectivity)?

-- VishalA? - 06 Feb 2008