“For the rational study of the law the black letter man may be the man of the present, but the man of future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” (Holmes 7) *“Creative legal thought will more and more look behind the pretty array of ‘correct’ cases to the actual facts of judicial behavior, will make increasing use of statistical methods in the scientific description and prediction of judicial behavior, will more and more seek to map the hidden springs of judicial decision and to weigh the social forces which are represented on the bench.” (Cohen 833)

Statistics, Rationalization, and the Law

-- By ThaliaJulme - 14 Feb 2008

Section I. Statistics and quantification as the methodology of the future.

“The Path of the Law” and “Transcendental Nonsense and the Functional Approach” share a mission. Both Holmes and Cohen seek to lead the legal profession out of empty formalism and inappropriate reverence for the past. While they write from different time periods, institutions, and worldviews, both advocate the rationalization of the legal field through the increased use of statistics. Since both men are confronting a legal profession permeated with legal fictions and customs supported by little more than habit, it is only natural that they would advocate an entirely different approach, one that is quantitative and positivistic. Cohen and Holmes are sophisticated thinkers, so neither supports entirely quantitative reasoning. They do, however, illustrate the learned man’s affinity for quantitative study.

Holmes states that “the man of the future is the man of statistics and the master of economics” (7). Similarly, Cohen states that creative legal thought “will make increasing use of statistical methods in the scientific description and prediction of judicial behavior” (833). While seeking to break free from the irrationalities of traditional legal thought is a worthwhile goal, it will be the project of this essay to examine the impulse to quantify using Cohen’s pragmatic method. This essay thus functions under the assumption that it is far more interesting to study what statistics do than to study the statistics themselves.

Section II Why does modern man have such an admiration for statistics?

The first step is to determine why modern man has such an admiration for statistics. What is gained by quantifying? Quantification imbues an argument with a sense of certainty. Statistics cloak a position or a theory with the power and authority of science. One armed with statistics can claim a certain level of control over his subject matter. Statistics thus serve a legitimizing function. While this function is not inherently wrong, concrete examples reveal the many practical problems associated with statistics and the law. For one, courts appear to be incapable of using statistics properly. Stubbs v. City of Rochester (the typhoid water case) serves as a case in point. Arguably, however, the overuse of statistics would be problematic even if they were used accurately.

Crime statistics, as reported on government sites and in the popular media, allow the public to assume they can form a clear picture of the criminal Other. These statistics, and their accompanying images, help conceptualize the Other. They allow the good citizen to determine which crimes affect which people in which neighborhoods.

Durkheim would assert that criminals serve a crucial social function. Criminals help foster social cohesion by allowing the community to define itself in opposition to the criminal Other. The criminal allows proper society to celebrate its collective goodness by condemning the criminal’s badness.

The rise of statistical analysis in the field of criminology illustrates this point. Crime reporting and systematic statistical analysis are products of urbanization. Crime statistics and the conceptualization of the criminal type are part of a single project. Statistics became popular in Jacob Riis’ time, a time in which U.S. cities were changing because of immigration. Contemporaneously, various urban police departments began to compile and superimpose mug shots in an attempt to deduce the typical criminal facial characteristics. Rationalization and better technologies (namely the advent of photography) allowed urban dwellers to better visualize the criminal Other. These changes served the interests of anxious “Native” Americans by affirming negative views of new immigrants and cloaking prejudices in scientific authority.

Further, statistics can also be used to distract people from other, perhaps larger, problems. Crime statistics and crime reporting are often inflammatory. Yet, these same statistics say little about increases in unemployment rates or cuts in social programs, which are arguably more accurate crime indicators. They give politicians an opportunity to spew “tough on crime” rhetoric, without forcing them to deal with deep rooted social problems.

In addition to ¾ or because of ¾ this role in social cohesion, statistics help keep people obedient and docile. Crime s tatistics are thus presumed legitimate by most, because they are backed by science and the state. In essence, statistics are a form of misdirection.

Surely, this effect serves some parties interest. Durkheimians might argue that most benefit from the social cohesion and general balance, fostered by statistics. I, however, believe that if statistics serve to maintain the status quo, the misdirection they foster, serves those currently in power, those currently in the best social position.

Section III. Other societal harm?

The overvaluing of statistics is part of a larger problem, one that has been the topic of our class discussions: the modern inability to create meaning. Many theorists, including Jean-Francois Lyotard, Max Weber, and Jurgen Habermas, have discussed the connection between rationalization, technology, and modern man’s inability to produce meaning. In essence, they all argue that the march of modernity has been toward increased rationalization, and that modern man is worse off for it. This increased rationalization, they argue, has hampered our ability to produce meaning, or to produce anything meaningful. It is ironic then that Cohen posits that statistics are part of the project of creative legal thinking.

This paper is not meant to be a blanket indictment of statistics or science, it is an endorsement of the multi-disciplinary approach discussed in class.

[Authors Note: I mostly tried to rework the linguistic problems. I do not know how to answer your qualitative question in a 1,000 paper. I really think that even if I listed all the effects of statistics or rationalization I would not be able to answer the whole problem. It is almost like defining “goodness.”]

• I think this is a very promising start. At the linguistic level, the primary route to improvement is the shortening of sentences. You have impressively tight control over sentence flow, which is crucial to good writing, but you let too many words ride for free. "Crime statistics and inflammatory crime reporting often convince the citizenry of the existence of increased crime," for example, means "Journalists and politicians misuse statistics to inflate people's fears." On the substantive level, I think the most effective route to improvement lies in compressing your discussion of one example (the publication of crime statistics) to offer an amplified treatment of the question you identify as important: What do statistics do? At the moment, you show what crime statistics do, which --in your accounting--has much to do with establishing the line between Us and Other, normal and deviant, in the familiar Durkheimian manner. But that's a species in some genus, and by limiting yourself to a single example you make it impossible for us to see the contour of the genus as a whole. What else, one wants to ask, does statistics do? And how do the different things it does combine into a whole?