While on the whole I enjoyed Cohen's piece on Transcendental Nonsense and the Functional Approach, I can't help but take issue with his conception of judicial decisions. As I understood him, Cohen is advocating for a conception that sees judicial decisions as "social events," rather than as discrete, unrelated occurrences that are borne of "judicial bellyaches." Part of seeing judicial decisions as "social events," Cohen writes, is to recognize that they are "a product of social determinants and an index of social consequences." While I agree that judicial decisions are a product of a social context, I'm more skeptical that judicial decisions actually produce social consequences. In fact, for several reasons, I often think that judicial decisions don't really do much at all in the way of imposing "forces upon the future." For one, I think that judges and the judicial branch often lack the power to enforce their decisions. The judicial branch, to a large extent, relies on the other branches of government and the lower courts to implement and adhere to their decisions. Because judges lack budgetary power and a prosecutory power, many of their decisions wind up being just symbolic proclamations that are only effective if the other branches respect them. Secondly, often judicial decisions are not afforded much attention in the media. Thus, most of the public is completely unaware of the most recent judicial pronouncements, regardless of how relevant or important the issue in dispute may be.

I will concede that judicial decisions might indirectly produce social change, either by promoting the other branches to act (Congress in the wake of Brown enacted the Civil Rights Act of 1964) or by mobilizing segments of society to mobilize in the wake of an unfavorable or controversial judicial decision (the pro-life movement in the wake of Roe). But, overall, I think that the courts are ineffective at producing change on a large-scale. I think it's more pragmatic to view the courts (and lawyers) as better equipped to produce micro-level change for those individuals who actually appear before the court, but that it is detrimental to harbor a false hope that the law and judges can change the world. While I'm not sure if Felix Cohen's conception of judicial decisions really does impart that much power to the branch to produce social consequences, I think it would have added much to his piece if he clarified what he meant by "an index of social consequences."

Does anyone else agree or disagree?

-- CaseyBoyle - 02 Feb 2008

I agree – there seems to be a lot more “maintaining” than “changing” coming from courts, regardless of the level of the court and what its functions are. And, whatever a court decides, it is often other people in other capacities (legislators, interest groups, organizations, the police) who respond in the ways that seem to impact society at large in more direct ways. Because of the way our legal and governmental structures are set up and interrelate, anything a court decides is “filtered” through other people, organizations, and groups who have an interest in the decision before you start seeing any significant or notable impact. And the impact isn’t always what the court expected, either, because those interpreting a decision apply their own judgment and motivations to the mix (I’ve seen this in local government a lot). My opinion: there are always at least three degrees of separation (and evolution) between you and any judicial decision (unless, as you say, your name is on the docket).

-- BarbPitman - 02 Feb 2008

I think I see what you are saying, but are you maybe stating the point too strongly? Very few events are "direct" causes of social change. One could argue that a dictators decree in an authoritarian system is only effective to the degree that it is interpreted by the people and groups that form the system, yet it probably does have social consequence. High court decisions clearly have some social consequence (though indirect), and I am not sure why it would be "more pragmatic" to view their capacity for change as centered on the microlevel... Don't we want to be aware that judicial decisions are influencing society, albeit indirectly?

My understanding of Cohen's point was that judicial decisions are nexuses of social force. They are not independent events that shape society, nor are they effectless endpoints of social forces.

To invoke the overused metaphor of the human body, the human endocrine (hormone) system is a good example of a feedback device that is, in itself, neither a end nor a beginning. The release of a hormone has no "direct" effect, and is the result of a vast web of physiological interactions. Although it is extraordinarily complex, it seems strange to argue that we should only look at hormone regulation in a local and limited context, when clearly each "hormonal event" is the result and cause of changes throughout the body.

-- TheodoreSmith - 03 Feb 2008