Question 2: Cohen, the Realist Lawyer, & Functionalism: Both Cohen and Holmes lament the manipulation of fictive legal constructs (e.g. the language of transcendental nonsense & morals-talk) to divorce legal reasoning from questions of social fact and ethical value. While this end is made clear in each writing, a question as to means remains in my mind. Cohen and Holmes outline similar paths that include: purging meaningless dogmas/language from judicial opinions, uncovering social forces that influence judicial behavior, and assessing the consequences/social values at stake with regard to an issue. Cohen (p. 841) seems to propose an interim measure for the “realistic advocate.” When possible, the realistic advocate aims to circumvent evidentiary barriers to functionalist argument via sleight-of-hand tactics (e.g. discussion of the background and consequences of past cases cited as precedent) and, when necessary, by cloaking such argument in the ritual language of traditional jurisprudence in order to induce favorable judicial attitudes. The latter seems to risk the perpetuation of traditional “supernatural” forms. Given the resistance of justices to candidly entertain discussion of consequences (whether to skirt messy political discussion or otherwise as discussed in clas), does Cohen believe the shift away from transcendental nonsense will come from internal pressures within the judicial system (e.g. realist advocacy), external pressures (e.g. construction of Judicial Indices p. 846), or some combination of both?

-- JasonLissy - 23 Jan 2009

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