If judges refuse (as we can assume they will) to view their own opinions as rationalizations, how can legal change be predicated on the insight?

-- JasonLissy - 27 Jan 2009

Jason - this is an excellent question. On pg. 841, Cohen gives one answer: the realistic advocate "...will use his 'patter' to induce favorable judicial attitudes and at the same time to distract judicial attention from precedents and facts that look the wrong way...." Maybe a nicer substitute for patter could be "persuasive technique?" I think a lot of us are taking our first crack at this kind of persuasion with our moot court assignments - trying to write statements of the facts of our cases in the light most favorable to our clients.

One other thought I had - does anyone else think judges might now be more open to the type of social science data (so data that attempts to predict what consequences a judicial decision will have) that Cohen and Holmes seem to be hinting toward? I think you could add to Cohen's list of "patter" that an effective advocate also points out the consequences (social, psychological, economic to name a few) of the case at bar.

-- HelenMayer - 27 Jan 2009