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

I wonder if "supposing the dominance" of realist thought in academia runs the risks of overvaluing the quality of realist discussion law students gain exposure to presently and, by doing so, undervaluing the the potential of realist schooling to effect functionalist judging. I write from one semester's experience and am hesitant to raise the following point because of this lack of exposure.

It is possible that not all approaches classified under the realist header are equally valuable in terms of cultivating functionalist justices and that the realism that dominates academia is sub-optimally suited toward this end. The dangers of supposing realism's dominance, then, are to treat existing forms as though they cannot be further improved or to look only to causes outside of existing realist academia for causes of functionalist judging's failure to take hold.

The limited realist exposure I received last and am gaining this semester differ significantly. Only in passing did our Civil Procedure class acknowledge the degree of subjectivity that factored into justice's constructions of the "government's interest" under the balancing tests of Matthews and Goldberg. The discussion did not progress beyond this observation. Some likely took away from this conversation the idea that balancing tests and the discussion of consequences are exercises in futility subject only to the whims of the bench.

We can chalk the above experience up to time-constraints, to the idea that first-year students can only engage in realist critique after immersion in transcendental nonsense, and with the hope that students will find the Moglens in their later years but with the understanding that most students will self-select into such courses. If the latter is true and functionalist course offerings are both limited and secluded, the end result would likely be a bifurcated educational experience where students can self-select away from or into the study of transcendental nonsense. Does this arrangement perpetuate the preexisting divisions we observe daily between functionalist and non-functionalist judges? If so, is the failure of functionalist judging to take greater hold still surprising?

-- JasonLissy - 29 Jan 2009