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Law in Contemporary Society
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II. What We Would Like to Understand Bettera. Why is Magic defined in terms of “necessary” and “sufficient”?* Adam’s point that “a thorough reading of Frank lends the inference that a bit of magic may be necessary for a functioning legal system” led me to the question of what Frank thinks should be done, or perhaps the question is what could be done – if anything. I didn’t come away with the idea that magic may be “necessary” for a functioning legal system. Perhaps you can say that given human nature it is an unavoidable reality (is this what you are saying Adam?). I think though that Frank suggests that it is the “subjective” and “un-ruly” process of fact-finding that is unavoidable in our legal system. However, modern legal magic according to Frank is the “refusal to recognize such unruliness (61).” As I understood, he is not suggesting this is necessary for a functioning legal system. This goes to Julia’s observation that magic is fundamentally scientific. Taken together, I think there is a suggestion that we as people rely on what we consider rational and scientific mechanisms as we work in and understand our legal system precisely to avoid facing the reality that it is permeated by such “unruly” subjectivity. It is this blind reliance on the certainty we draw from science that manifests in a “desire to be deceived.” This seems quite dangerous. To go back to the question Adam raises: can this be avoided, or given human nature is it inevitable? What are the consequences? How would the legal system look absent ‘legal magic’? -- CarinaWallance? - 06 Feb 2008b. Considering Frank’s exposure of our limitations in fact-finding, do we continue with the present ruse or reveal the truth of what we’re doing?c. Couldn’t some of our instinctive trust in fact-finders have to do with our need for repose, and an aversion to endless litigation of factual issues that can be examined in multiple ways?d. Comparing Frank and Cohen* “Nonsense and Magic” Cohn and Frank have given us some interesting ways to assess the value of legal arguments. Since we are all stuck reading the same cases in other classes, I thought it would be interesting if we could put what we have learned from these authors to work. On that note, here is the most beautiful piece of nonsense legal reasoning I have seen so far: “Therefore the pricing order is constitutional, because it is merely the combination of two independently lawful regulations . . . if the state may impose a valid tax on dealers, it is free to use the proceeds of the tax as it chooses; and if it may independently subsidize farmers, it is free to finance the subsidy by means of any legitimate tax.”--West Lynn Creamery, Inc. v. Healy (Stone, Constitutional Law, p. 247). Interestingly enough, the Court adopted what Cohn would call a functional view of the law and viewed the law in terms of what it did and not what it was called. As a result, the state lost despite some great nonsense reasoning. --StephenClarke - 31 Jan 2008 * 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 -- MiaWhite - 20 Feb 2008 |
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