Andrew, I understood Frank to suggest that the fear referred to man's inability to control his environment - and to do so through the empirical techniques he knows: namely reason, experience, etc. I think that this fear exists with regard to human nature which is itself not subject to what Frank suggests is "primitive science." To that extent, I don't know that what human subjectivity (if I am correctly understanding your use of it) is so separate from the threat of perjury - rather that the very fact that litigation is centered largely around human actors brings this sense of "magic" TextDiscussionCohenandFrank into the courtroom.

-- CarinaWallance - 30 Jan 2008

Andrew, I’m having a little trouble understanding your critique because I’m having trouble understanding your analysis of Frank. Could you give me a five-sentence summary of what you think Frank is saying?

I also interpret Frank’s criticism of Cohen differently than you do. Cohen suggests that rule by discretion would be bad, true. I don’t think Frank is disputing that rule by discretion would be bad. I think his point is instead that just because rule by discretion would be bad doesn’t mean we don’t currently live in a society of rule by discretion, and that recognizing that is valuable.

I don’t necessarily disagree that rules are important. But Frank’s point, which seems on, is that rules don’t actually eliminate the discretion, because we have to apply necessarily subjective facts to those rules.

It’s very, very possible that I am (a) misunderstanding you or (b) misunderstanding Frank. Thoughts?

-- AmandaHungerford - 30 Jan 2008

Frank criticizes people who think they can predict the outcome of cases from clear, deterministic legal rules. I only disagree with his labeling their error as "rule magic" (p57). If "magic" is willful ignorance (part 3 pp 40-46), he does a weak job proving that "rule magic" is willful. Of course, Frank's essay becomes relevant to our class when we inquire into MODERN self-deceptions, and the questions will be: 1) ARE WE SELF-DECEPTIVE? and 1) WHAT SELF-INTEREST IS RESPONSIBLE?. I don't doubt the causal connection between self-interest and self-deception, but I'll question the existence or degree of jurisprudential self-interest.

Frank defines "magic" as an explanation reached by James's "faith ladder": "What I want might conceivably be true. It may be true. It must be true. It is true." (p43) In order to prove that modern jurisprudence is magic, he knows he needs to show that "fear accounts for much of the unwillingness of many lawyers today to acknowledge the immense hazards of litigation and the guessiness of legal rights," and to do so he starts with "an historical detour." (40) Historically, he says, belief in magic arose under two conditions: 1) "Where ignorance is thickest about the way of things" and 2) "where dangers are the greatest". (42-3) These included the following: "forces at large that the so-called savage cannot [control by science], evils that stalk him, perils which strike at his food supply, that capsize his boats, destroy his houses, take his life." (42)

The argument breaks down when he tries to analogize this fear, which prompted "primitive" societies to believe in magic, to the modern fear of flawed justice (42-46): "Since a trial's just outcome depends on truth-telling," (that's condition 1) "and since the outcome may deprive a man of his life, or his dearest possessions," (condition 2) "successful perjury is as grave a danger as drought disease, lightning or the fierce claws of wild beast." (44) Well, no. The "ancient" faith ladder was grounded in existential terror. Their condition 2 threatened the whole tribe, magicians included. Yes, their magic imperiled people, but that ancient judges employed that magic in ordeals (41-2) is only incidental: perjury, not peril, is the "want" that justified ordeals. Successful perjury just threatens the existence of defendants, not society. It's hard to have existential self-interest in someone else's problems. Frank skirts around this weakness when he calls magic "primitive man's ways of dealing with specific practical problems when he is in peril or in need, and his strong desires are thwarted because his rational techniques, based upon observation, prove ineffective." (43) Magic starts from "peril," then "need," and then just plain old "strong desires." Looks like people will self-deceive at the drop of a hat!

But maybe lawyers are softies, and a flawed justice system is an existential threat to us. Frank pokes fun at Morris Cohen, who says that "Uncontrolled discretion of judges would make modern complex life unbearable." (59) I'd have to read the quote in context, but I doubt that Cohen asserted this as an argument--his only argument--"as if to clinch the matter"--and that "Cohen would have it that what one considers desirable, what one thinks ought to be, one must take as true." I only see a normative statement: rule by discretion would be very very bad. I don't see a descriptive one. Perhaps Cohen doesn't appreciate that judges always use discretion. But "uncontrolled discretion" seems to be Cohen's critique of extreme legal realism, fiat by breakfast. Am I wrong to say that he's right, that rules do matter?

Finally, Frank wrongly claims that mechanical=dogma=magic (55). The only possible explanation I find is that science (says Benedict) is "essentially mechanistic, involving a manipulation of the external world by techniques and formulae that are assumed to operate automatically." (43) In that case, Frank has forgotten for the moment that ALL explanations are mechanical, by definition. Maybe that's why Frank says that Pound harks back to the "mechanical" magic of the ordeals. But the distinctive problem with "magical" explanations is that they aren't empirical; they're derived by a ladder of faith, not logic. Frank applies the distinction between R and F inconsistently. When Pound says that "nothing is unique about promissory notes," that "All such cases are alike" (54), I don't see Pound saying that R controls F, but that there is no F. When Frank replies that "it is always possible to introduce some question of fact relating to fraud, negligence, mistake, alteration, or estoppel," he's not attacking R at all, but asserting the existence of F.

None of the "mechanistic" judges he criticizes think R overrides F. Dickinson is a special case, since he's the F he claims R quashes is the subjective F of the judge. Judges are biased, lazy, stupid, of course; but denying this is not MAGIC: it's just stupidity.

-- AndrewGradman - 30 Jan 2008

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