Text Discussion Cohen and Frank

I thought to start text explications/discussions of phrases and sections of this weeks readings as Eben suggested. I will link the discussions already started on the readings here. ModernLegalMagicCritique1

-- CarinaWallance - 30 Jan 2008

I placed an overarching heading in this topic and separated my commentary on Cohen with a level three header. I also named Carina's discussion to separate it from these head notes. I hope this system of discussion is agreeable.

-- JustinColannino - 30 Jan 2008

Magic and Primitive Science

“Magic, then, appears to be primitive man’s ways of dealing with specific practical problems when he is in peril or in need, and his strong desires are thwarted because his rational techniques, based upon observation, prove ineffective.” – Frank, “Modern Legal Magic” p 43

Frank suggests that “magic” enters in when what he calls “primitive science” – means for direct control over one’s environment based on observation are lacking, or at least hard to uncover due to the uncontrollable nature of many of the problems we encounter. This lack of control exists with regard to humanity, and it appears to be the human presence in the courtroom that connect this discussion of magic to the rest of the article (I will leave further discussion of that point for another quotation/explication). Essentially, Frank suggests here, when a situation is hard to address by drawing on experience or reason, there is a tendency to turn – often in desperation – to hope or desire.

This conception of magic is also discussed together with religion. It reminds me especially of Greek mythology in which the Greeks tended to chuck up to the gods that which they could not understand or could not control here on earth. Certainly, as Frank discusses, this notion of magic is closely tied up with human conceptions of God and the role the God and faith and belief offer human beings who confront the shortcomings of their mortal ability to reason and control.

-- CarinaWallance - 30 Jan 2008

Using Realistic Jurisprudence

Here I try to restate how Cohen advises that we use the functional method to practice realistic jurisprudence. (CB pages 69-70).

He begins, “intellectual clarity requires that we carefully distinguish between the two problems of 1. objective description and 2. critical judgement”, CB page 69.

Thus, to use realistic jurisprudence Cohen takes two general steps. First, we should objectively describe the state of the law, which is a function of prior judicial decisions, without injecting value judgments. Second, we should treat the current discourse of law as discussions about whether a given legal rule or concept ought to exist by relying on evidence from the social sciences.

Cohen then states how these general rules should be applied to attorneys, scholars and judges.

The attorney should first discover what the law is, taking into account her biases as well as the biases of the treatise writers. Then, in court she should use transcendental nonsense to disguise or hide from the unrealistic judge the precedents that are undesirable and use social science to supplement and enhance her side of the argument.

The scholar should be descriptive of what the law is, and then say how it ought to be using reason and empirical methods.

The judge should base his judgment only on sound social reasoning, not circular reasoning from existing opinions. To figure out what the law is he will “frankly assess the conflicting human values that are opposed in every controversy, appraise the social importance of the precedents to which each claim appeals, [and] open the courtroom to all evidence that will bring light to this delicate practical task of social adjustment”, CB page 70. Only after this has been done should he decide what the law ought to be.

-- JustinColannino - 30 Jan 2008