Upcoming Assignments

Students who have conflicts with class next week may opt to structure the Wiki in lieu of the first essay assignment. We will need 3-4 teams to revise the Wiki and structure class comments into pages for the Holmes, Cohen, and Frank readings. E-mail Eben in the next 24 hours to sign up.

Tying Up Loose Ends

• The exception to copyright act applies only to lawfully acquired music that has not been altered [Cite?]
• The president is not required to “swear” to uphold the Constitution. The Oath or Affirmation of office in Article II, Section I reads “swear (or affirm)” because the Quakers (Society of Friends) do not swear. Requirement of an oath would have been a religious test for office and the PA legislature would not have ratified the Constitution. Nixon became the first Quaker president of the United States in 1969.

Judicial Opinion as a Social Force

• See JudicialDecisionsandSocialConsequences
• What is a force to a historian? Social force definition: energy overcoming inertia. Two more things to define. Here there are no neat equivalents to physical science.
• Requirement of direct effect goes too far. Does it matter if the affects are direct or indirect? Judicial opinions may not be able to be directly enforced, but that’s not to say there is no social effect. E.g.. Bush v. Gore

Frank on “Magic”

• Frank used magic as a pure rhetorical device; class Wiki discussion subjected it to a formalistic analysis chasing a digression and not the main event.
• Logic, Magic and Engineering are structural creations of human thinking. They are ways of connecting perceptions of cause and effect. Holmes says if we can’t find the relation between cause and effect, we call it a miracle. When miracles won’t do, we need Magic. Magic serves a function: Magic controls uncontrollable circumstances. When the fishing easy, there is no need for magic. When fishing is dangerous and hard, then you need magic. Holmes says the worst of these constructs is logic; logic is bad magic.
  • Example: Capital punishment as a form of human sacrifice. No one thinks capital punishment logically deters crime, but we rather it becomes an exercise in how many sacrifices before the sun rises again/crime ends.
  • Example: The magic of jury consultants. Consider two views: 1) Jury consultants are magic. The defense or prosecution, in an attempt to get an edge, sacrifices money to the jury consultant to get a better jury. 2) Jury consultants are not magic. Consultants have a certain skill. The better the skill, the better the outcome.
• Frank discusses magic in relation to the fact finding function of the trial courts. Magic relates to the interpretation of social activity, which depends heavily on the testimony of witnesses. The systemic unreliability of eyewitness testimony, however, makes it pervasively unreliable. Magic comes in the deliberate act of deceiving ourselves about the way this works. Frank says we have to call it magic and get on with it; face it and live with it better. We must realize trial courts aren’t getting the facts right no matter what they do and that it can’t be done. When we understand that the system is magic, we would use it much more carefully understanding that we will never know the facts.
• Perhaps we already know that the system is magic and have found it efficient to maintain it as a system. Then understanding is bifurcated. The elite know and want to keep the status quo, the other side doesn’t.
  • Example: Torture. Torture does not produce reliable information. The elite have an understanding that we need to perpetuate the idea that we need torture as a bigger magic than the criminal system now in the face of terrorism. We can see this in the effort to divert the discussion of torture to waterboarding and Giuliani’s comment on sleep deprivation as a form of torture.
  • Example: Miranda Rights. The Supreme Court required Miranda Rights (Magic) where they could have implemented the alternative non-magical rule of requiring police stationhouse defense lawyers who attend all interrogations.

-- WendyHuang - 07 Feb 2008