-- AndrewGradman - 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

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