Text Discussion Cohen and Frank

Frank: Bringing Realism to the Legal Realist

I think our discussion in class and the above summaries articulate Cohen's position well. Cohen argues that legal speak is full of circular linguistics and that the only way to improve the law for the better is to take a scientific (or functional approach) to legal rulemaking. This approach entails observing judicial behavior to see what drives judges to make rules, finding what the best (most socially beneficial) rules are, and using our knowledge of judicial behavior to manipulate this behavior so that we can implement the best rules. I provide such a rough summary because I principally want to discuss how Cohen's position relates to Frank's.

"I do not mean that we should give up our efforts to make educated guesses about the social future and cautiously to plan that future in light of those guesses." (Frank 216).

In comparing Frank and Cohen, this is the key passage. Facially, the two theorists appear to be in deep conflict. Yet, as is clear from this quote, Frank on a general level sympathizes with the legal realist credo. That is, he agrees that legal rules should not be justified by legal rules. Instead he believes that law should be focused towards socially beneficial results.

"A 'legal science' whose 'conceptual foundation' does not take such [subjective] fact-finding into account cannot be anything but a ghost science, or a dream science." (Frank 196-7).

As this passage elucidates, Frank's critique of the legal realists is ironically identical to the legal realists' critique of the formalists. As stated above Frank shares with the realists the ideal that law should be justified by its results. Yet, just as Cohen and Holmes claimed that doctrinalism and circular legal logic prevent the law from achieving this ideal, Frank asserts that an equally empty legal fiction prevents the legal realist from achieving a results-oriented law.

This fiction is, of course, that judicial behavior can be accurately and precisely predicted. This fiction rests on an assumption that matters of fact are objective determinations, or null factors, in legal decision-making. Yet, as Frank notes, this is a false proposition, for fact-finding is necessarily one of the most subjective (and "inconstant") activities in which a judge engages (Frank 197). Thus the idea that social science (statistical) predictions can be used to predict judicial behavior is incorrect; there is an uncontrollable element in the equation.

In turn, the better way to create ideal societal results through law is to make the "educated guesses" mentioned above and monitor the results of these guesses accordingly. As Frank says, this is an art, not a science. -- AndrewHerink - 31 Jan 2008