Both Cohen and Holmes believe lawyer should work not with fictive legal constructs, but questions of social fact and ethical value. But how? Cohen (p. 841) argues in favor of sleight-of-hand tactics such as the discussion of the background and consequences of precedent and using the ritual language of traditional jurisprudence. But since judges are unlikely to candidly entertain discussion of consequences, how do shift away from transcendental nonsense: internal pressures such as realist advocacy, external pressures such as a construction of Judicial Indices, or some combination of both?

(Jason)

Judges use these fictive legal concepts in order to avoid having to actually face difficult decisions, and have no reason to stop. It is up to the lawyer to bring the ethical question into the open; but any lawyer who does so can expect a backlash from any judge not already willing to consider and decide the ethical issue. Still, while discussing ethics and morals might be counterproductive in the immediate case, in the long run it may shake judges out of their comfortable legal fictions.

(Patrick)

-- AndrewCase - 28 Jan 2009

Damned if you do, damned if you don't. If you use the sleight-of-hand techniques and the ritual language of traditional jurisprudence, you continue using the fictions and thereby perpetuate their existence. That would be a realist travesty.

On the other hand, if you discuss and argue consequences, especially in front of a jury, you run in danger of losing the case. And if a judge really wanted to decide a case 'on ethics' or on 'preferable outcomes' alone, I think he too might be out of a job soon.

Which gets me back to my point about realism/functionalism: so what?

-- TheodorBruening - 28 Jan 2009

Can we assume that, given the supposed dominance of realist theory in legal academia for about 3/4 of a century, new generations of judges are now employing functionalist methods to decide cases more and more often? If a law student has been schooled in an atmosphere stressing the absurdity of the circular reasoning of the past, won't she be more inclined to make functionally driven decisions on the bench? I assume that's what is happening, but the transcendental nonsense doesn't seem to have gone away as an explanatory mechanism.

-- WalkerNewell - 28 Jan 2009