"How would the legal system look absent ‘legal magic’?"

Once we accept Frank's view that most (if not all) fact finding is based on the interpretations of the fact finders, our current system loses its legitimacy. With "magic" or "logic" or whatever term one wants to use, the methods used and the results of our judicial system may be explained in such a way to always conform to our ideals of blind justice, fairness, etc...

So I think that Adam is correct in saying that our current system requires "magic" or "logic" in order to work.

Absent "legal magic", we would need to scrap the entire system and start again. In designing our new system we would first need to clearly define the goals we were trying to achieve. What do we mean by "fair"? Fair to individuals? Fair to society as a whole? Is the focus of the system rehabilitation? Redistribution? Once we clearly understand what we want, it may turn out that our propensity for relying on "magic" might actually be somewhat helpful. The trick may be in recognizing the weakness and then incorporating it into the system from the ground up.

-- SandorMarton - 06 Feb 2008