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JiaLeeFirstEssay 10 - 31 May 2024 - Main.JiaLee
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| META TOPICPARENT | name="FirstEssay" |
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The Issue with Jerome Frank's Legal Possibilism | | | The upshot is that although the judicial decisionmaking process may not be entirely rational, we have some agency over it because we can study and change our second-order structure, and therefore our pre-reflective reactions. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). Confucius sums this up: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and the world and still lack agency. Lawyerland says that the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" | |
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< | Noë defines aesthetics as the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, at which point one can reflect and have some agency over one's ethos. Frank's intuition in saying that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | >
> | Noë defines aesthetics as the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, at which point one can reflect to have some agency over one's ethos. Frank's intuition in saying that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | | | This class, unlike doctrinal classes, uses music in this sense as well. | | | [2] Doctrinal classes also do not employ music in the Frankian sense because facts on exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. That said, I think there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | |
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> | [3] What does Frank's "music" consist of? It could be any experience that disorganizes us—inviting us to reflectively resist our habitual organization, and this is idiosyncratic. It could be travel, friendship (Brienne and Jamie), love (Elizabeth and Mr. Darcy), technology, suffering, philosophy, expectations, the alterity of something, music, a class, and so on. A disorganizing experience bids us to see something hidden in plain sight—to catch ourselves in the act of being who we are. I think that's how a judge reviews and modifies her ethos; her work isn't confined to the courtroom. | | |
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| Revision 10 | r10 - 31 May 2024 - 22:27:20 - JiaLee? |
| Revision 9 | r9 - 31 May 2024 - 18:55:54 - JiaLee? |
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