Question 1: Application of the Unitary & Non-Unitary Self Distinctions: Within class we probed the fiction of the unitary-self. We recognized the potential danger in treating as pathologies variations in humans’ behavior/inner-states. I am willing to accept that a skilled attorney understands and is attentive to the multiplicity of persons within an individual. I acknowledge the danger of the unitary-self outlook is that the subscriber to this outlook is less likely to take notice of human “aberrations.” What is less clear to me is how being sensitive to the non-unitary self concept further skills the attorney who presumes a unitary-self but recognizes the range of human emotion and tailors his actions accordingly. Is there a practical difference between these two outlooks? Is it that the non-unitary-self concept compels one not to merely recognize the multiplicity of human states but to search for their causes in prior experiences? If yes, then what bearing and what benefit does this have on persuasive advocacy before non-realist justices?

Question 2: Cohen, the Realist Lawyer, & Functionalism: Both Cohen and Holmes lament the manipulation of fictive legal constructs (e.g. the language of transcendental nonsense & morals-talk) to divorce legal reasoning from questions of social fact and ethical value. While this end is made clear in each writing, a question as to means remains in my mind. Cohen and Holmes outline similar paths that include: purging meaningless dogmas/language from judicial opinions, uncovering social forces that influence judicial behavior, and assessing the consequences/social values at stake with regard to an issue. Cohen (p. 841) seems to propose an interim measure for the “realistic advocate.” When possible, the realistic advocate aims to circumvent evidentiary barriers to functionalist argument via sleight-of-hand tactics (e.g. discussion of the background and consequences of past cases cited as precedent) and, when necessary, by cloaking such argument in the ritual language of traditional jurisprudence in order to induce favorable judicial attitudes. The latter seems to risk the perpetuation of traditional “supernatural” forms. Given the resistance of justices to candidly entertain discussion of consequences (whether to skirt messy political discussion or otherwise as discussed in clas), does Cohen believe the shift away from transcendental nonsense will come from internal pressures within the judicial system (e.g. realist advocacy), external pressures (e.g. construction of Judicial Indices p. 846), or some combination of both?

-- JasonLissy - 23 Jan 2009

Concerning your second question, I don’t know what Cohen would say, but perhaps we can connect his strategy with the idea that judges use these fictive legal concepts in order to avoid having to actually face difficult decisions. If a judge doesn't want to face an ethical question for whatever reason and he is skilled in manipulating legal fictions, then I see no reason for him to suddenly change. It must at least be necessary for a lawyer to bring the ethical question out in the open. Otherwise there would be nothing to stop the inertia. However, if we are right about transcendental nonesense and logic being a defense that protects us from facing difficult questions, then as a lawyer trying to present the real issue of a particular case I wouldn’t expect immediate results. In fact, I would expect a violent backlash unless the judge was already willing to consider and decide the ethical issue. So it might in fact be counterproductive in the immediate case. But perhaps it might make the comfort that legal fictions provide a little less satisfying.

-- PatrickCronin - 24 Jan 2009