Self-Narrative and Legal Narrative

• This way of summarizing the two arguments so they turn out to be about "explanatory devices" is necessary to your use of them in this context, but it does violence to both authors' accounts. In Cohen's case, you make him out to be criticising fictions in particular—a misleading interpretation at best, and one which would be more appropriate to Jeremy Bentham than Felix Cohen, thus making Cohen appear to be one hundred years behind his time instead of marginally ahead. Cohen asks what makes a proposition about law meaningful, and concludes that meaning depends upon relation to real-world consequences. But he's located himself very carefully against a philosophic backdrop that runs from Wittgenstein to Gödel, and to say he's writing about "explanatory devices" doesn't reflect his own understanding of his subject. In Frank's case we have a slightly different problem. Frank does speak, unscientifically and without much precision, about explanatory devices, and magic as precursor of and equivalent to rationalistic explanation. He also points out, briefly, more accurately, but not in an analytically sophisticated fashion, that juries are rationalistic successors to magical modes of fact-finding, and that their human fallibility then becomes an imperfection to disguise or conceal. To say that this is a point about explanatory devices is true, but it's not the most true thing you could say, in the sense that it presents the reader with an accurate but interpretively misleading proposition.

• Having said which, it's the "just as" move at the end of the graf which is the smuggle. There's no evident basis for going from "kinship" in the first graf to equivalence in the second. But similarity of two things in some respect doesn't prove anything about similarity or common causation in other respects, unlike equivalence, which is a basis for logical entailment. Apples and oranges are similar in being fruits, but if they were equivalent, you could prove the skin of an orange edible by eating an apple. Your argument now depends on a strengthened assertion that's been smuggled in rather than earned. That's almost always an insurmountable problem.

• But you could also have cited work to show that people derive value in coping with trauma by painting, making music, dance, sculpture and other art as well as by writing narrative. And of course, you could have appealed to the literature about the value of non-narrative writing, such as poetry, in therapeutic situations. By discussing part of the relevant body of information, you can make an interpretation seem unavoidable which against a larger background would look at best plausible and would more likely seem underinclusive.

• To say that things depend is not to say that they depend on whim. The manifold contingencies involved in social process, including but not limited to legal process, tend to confuse and therefore frighten and therefore render intolerant those people who have not been trained to cope with them. Lawyers, whose answer to every question is that it depends, are often therefore regarded as obscurantist, and people tend to value their own personal lawyers for helping them navigate through complex issues in a clear sequence with lucidly-presented options, risks and possible results. The final sentence seems to me indistinct in its meaning until "people" is clearer. Is that laymen, lawyers, politicians, clients, bystanders?

The transcendental nonsense of legal logic provides a relatively stable framework for analyzing legal disputes.

• This is a conclusion. Cohen doubted it for one reason, Frank for another. You're now simply asserting its truth as an intermediate step in the argument.

Predictability is an important component of any legal system, and the transcendental nonsense buttresses and supports case precedent by rationalizing judicial holdings. Thinking that judges are supposed to rely on logic and precedent in determining case outcomes can be comforting when compared to a system where legal logic and reasoning are abandoned in favor of whim and personal biases. Fuzzy real-world realities can be slotted into existing legal fictions and the outcome becomes a matter of deduction. If a corporation is a person, it has to reside somewhere.

• But if you can't tell where it doesn't do you any good and doesn't create certainty. If it were certain, it could be expressed in terms of the underlying social realities that made it certain. You aren't actually out-arguing Cohen on this point, you're simply refusing to understand him.

• Here too, you are missing the point. Those rules about what evidence to receive may or may not be helping the trial court to reach just outcomes, but what they are not doing, from Frank's point of view, is making it possible for appellate courts to do what they claim to do, namely tell correct outcomes from clearly erroneous outcomes by applying the right rules to the facts the court found. To say that they are providing a reliable basis for approximating reality closely enough for the purposes of doing justice may be true, but that's not relevant to Frank's point that once you have decided to receive a witness' testimony you then have to decide, and are supposed to decide on the basis of evanescent and unnamed evidences that cannot be grasped unless you were there, whether that witness is "credible" or not. What mostly concerns Frank is something that isn't part of your account of the situation at all.

• But this conclusion is based on calling anything that Cohen and Frank support "suggestions for creating new legal narratives," which is mostly done by making "narratives" a synonym for everything. I think we could agree that neither Cohen nor Frank would recognize this as a description of his own project, and that should be a sign of trouble.