Frank argues that "fear accounts for much of the unwillingness of many lawyers today to acknowledge the immense hazards of litigation and the guessiness of legal rights." He analogizes this fear to the fear that prompted "primitive" societies to believe in magic. I want to know, fear of what? Under Frank's analogy, HUMAN subjectivity in general (NOT the specific threat of perjury) is the analogue of whatever existential threat-mystery the ancients dealt with by magic; judicial use of magical subjectivity is an incidental application of this power, just as the ordeal was a convenient application of divine power by channeling it into bread or the oath. Maybe some conditions of post-WWII America made Frank think of human subjectivity as an existential threat to a process of achieving justice. (5)

-- AndrewGradman - 30 Jan 2008

Andrew, I’m having a little trouble understanding your critique because I’m having trouble understanding your analysis of Frank. Could you give me a five-sentence summary of what you think Frank is saying?

I also interpret Frank’s criticism of Cohen differently than you do. Cohen suggests that rule by discretion would be bad, true. I don’t think Frank is disputing that rule by discretion would be bad. I think his point is instead that just because rule by discretion would be bad doesn’t mean we don’t currently live in a society of rule by discretion, and that recognizing that is valuable.

I don’t necessarily disagree that rules are important. But Frank’s point, which seems on, is that rules don’t actually eliminate the discretion, because we have to apply necessarily subjective facts to those rules.

It’s very, very possible that I am (a) misunderstanding you or (b) misunderstanding Frank. Thoughts?

-- AmandaHungerford - 30 Jan 2008