“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 are seeking to lead the legal profession out of empty formalism and inappropriate reverence for the past. While Holmes and Cohen write from different time periods, institutions, and worldviews, they both advocate the rationalization of the legal field through the increased use of statistics. Since both men are confronting a legal field permeated with legal fictions and customs supported by little more than habit, it is only natural that they would advocate an entirely different approach, a quantitative and positivistic approach. Cohen and Holmes are sophisticated thinkers, however, 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” (Holmes 7) Similarly, Cohen states that creative legal thought “will make increasing use of statistical methods in the scientific description and prediction of judicial behavior” (Cohen 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, rather than to study the statistics themselves.

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

Subsection Broadly

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 there does not seem to be anything inherently wrong with this function, concrete examples, however, reveal the many practical problems associated with statistics and the law. For one, courts seem to be incapable of using statistics properly. Stubbs v City of Rochester, a torts case, serves as a case in point. Yet, the overuse of statistics would be problematic even if they could be used accurately.

Subsection B Statistics and the conceptualizing of the criminal Other.

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. They help in the conceptualization of the Other. They allow the good citizen to determine which crimes affect which people in which neighborhoods. Statistics thus serve an important social role. Durkheim would assert that criminals serve a crucial social function. Criminals help foster social cohesion by allowing the community to define themselves in opposition to the criminal Other. The criminal allows proper society to celebrate its collective goodness by condemning the criminal’s badness. Statistical analysis’ rise in the field of criminology illustrates this point. Crime reporting and systematic statistical analysis are a product of urbanization. Crime statistics and the conceptualization of the criminal type are part of a single project. Crime statistics became popular in Jacob Riis’ time, a time in which the US cities were changing because of immigration. Contemporaneously, various urban police departments began to compile and superimpose mug shots in an attempt to determine the facial characteristics of the criminal type. Rationalization and better technologies (namely the advent of photography) allowed urban dwellers to better conceptualize the criminal Other. This improved ability to visualize served the anxious “Native” Americans by affirming his negative views of new immigrants and cloaking their prejudices with scientific authority. Statistics can also be used to distract the populace from other, perhaps larger, problems. Crime statistics and inflammatory crime reporting often convince the citizenry of the existence of increased crime. Yet, these same statistics say little about increases in unemployment rates or cuts in social programs, which are arguably more accurate crime indicators. In addition to --- or because of --- this role in social cohesion, statistics help keep people obedient and docile. As previously discussed statistics serve a legitimizing function. Crime statistics are thus presumed legitimate by most. The scientific and state backing of criminal statistics render crime statistics doubly valid.

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, because it could easily be argued that the increased use of quantitative thinking will render the legal profession The functionalist study of statistics thus allows for the exploration of many societal problems.

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