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

Frank: Gods and Juries

I must confess; thus far I have understood very little of the reading. Nevertheless, I will share with you my understanding of this passage with the hope that you all will challenge my thinking, and broaden my understanding. Thanks in advance.

Frank argues that “primitive man could say that legal rights were on the knees of the gods. We must say that they are on the knees of men – of the trial judges or the juries.” (p.50)

Basically, he is analogizing the subjectivity inherent in the ability of our modern finders of facts (judges and juries) to those embodies by the purely haphazard (or sometimes rigged) trials by ordeal of the past.

As Frank points out in the example drawn from United States v. Schipp, even the Supreme Court, based off a written record, can vehemently disagree about the facts of the case. With the problems of competing witnesses, the degrading memories of a historical event, and the incentives on both sides to present the “facts” in a way that supports their argument, true objectivity – a clear, unadulterated picture of what occurred – cannot be produced. When faced with the possibility of deceit or uncertainty, our ancestors chose a different route. Instead of the false comfort in the objectivity of a judge, they were reassured by the omniscience of “magic” and later by the swearing of oaths, the truthfulness of which God, apparently, took some great interest.

A critique that I have regarding this analysis is whether “magic” was really used to divine the right outcome of a trial or whether, by people’s sincere belief in Godly retribution, oaths were instituted to force truthfulness. Frank alludes to this when he states that the swearing of oaths, under the threat of magical justice, as the ultimate adjudication of a trial came to an end when “skepticism [arose].” p. 45. Now that organizations like the innocence project are creating skepticism about our current magic-like system which often convicts the guilty will we be forced to replace it with something that appears less penetrable by the forces of subjectivity?

-- AdamCarlis - 31 Jan 2008

Frank: Bringing Realism to the Legal Realist

I think our discussion in class and the above summaries articulate Cohen's position well. Cohen argues that legal speak is full of circular linguistics and that the only way to improve the law for the better is to take a scientific (or functional approach) to legal rulemaking. This approach entails observing judicial behavior to see what drives judges to make rules, finding what the best (most socially beneficial) rules are, and using our knowledge of judicial behavior to manipulate this behavior so that we can implement the best rules. I provide such a rough summary because I principally want to discuss how Cohen's position relates to Frank's.

"I do not mean that we should give up our efforts to make educated guesses about the social future and cautiously to plan that future in light of those guesses." (Frank 216).

In comparing Frank and Cohen, this is the key passage. Facially, the two theorists appear to be in deep conflict. Yet, as is clear from this quote, Frank on a general level sympathizes with the legal realist credo. That is, he agrees that legal rules should not be justified by legal rules. Instead he believes that law should be focused towards socially beneficial results.

"A 'legal science' whose 'conceptual foundation' does not take such [subjective] fact-finding into account cannot be anything but a ghost science, or a dream science." (Frank 196-7).

As this passage elucidates, Frank's critique of the legal realists is ironically identical to the legal realists' critique of the formalists. As stated above Frank shares with the realists the ideal that law should be justified by its results. Yet, just as Cohen and Holmes claimed that doctrinalism and circular legal logic prevent the law from achieving this ideal, Frank asserts that an equally empty legal fiction prevents the legal realist from achieving a results-oriented law.

This fiction is, of course, that judicial behavior can be accurately and precisely predicted. This fiction rests on an assumption that matters of fact are objective determinations, or null factors, in legal decision-making. Yet, as Frank notes, this is a false proposition, for fact-finding is necessarily one of the most subjective (and "inconstant") activities in which a judge engages (Frank 197). Thus the idea that social science (statistical) predictions can be used to predict judicial behavior is incorrect; there is an uncontrollable element in the equation.

In turn, the better way to create ideal societal results through law is to make the "educated guesses" mentioned above and monitor the results of these guesses accordingly. As Frank says, this is an art, not a science. -- AndrewHerink - 31 Jan 2008