Law in Contemporary Society

II. What We Would Like to Understand Better

a. 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 2008

b. 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?

* In class yesterday, we discussed the natural human tendency to ignore information that troubles us, especially regarding certainty, or the lack of it, in our criminal justice system. We have to believe that the system works, that witness testimony and evidence reveals the objective facts of the case. Otherwise we might have to admit that we don't know with any degree of certainty whether the people sitting in our prisons are there for good cause. And so we develop the fictions of the science of law, the impartial and disinterested jury, the infallible medical experts to soothe any anxieties we might otherwise have. Point well taken.

The next question is what to do about this flaw? Strangely enough, this discussion got me thinking about Rod Blagojevich again, and more importantly, Blagojevich's predessesor, former Illinois Governor George Ryan. George Ryan is ironically one of the 2.3 million Americans currently sitting in our jails and prisons aross the country. Just before leaving office, Ryan commuted the sentences of every one of the state's death row inmates to life in prison - about 160 individuals. The governor had become convinced that the system under which they had been convicted was too corrupt, too arbitrarily applied, too prone to racial bias to hold up under scrutiny. A few years earlier, the governor had issued a moratorium on the state's use of the death penalty for just these reasons.

But my memory of the situation isn't that Governor Ryan rode to office with a popular mandate to get rid of the death penalty in the state. I don't remember lofty speeches about justice and injustice, rich and poor, black and white during the campaign. My memory is that much to the chagrin of many of the state's conservatives, the Governor was influenced deeply by the work of a few professors and students at the Northwestern University Law School's Center on Wrongful Convictions. This small group studied the individual cases the state's death row inmates, and had the irksome habit of pointing out that many of them were innocent. In fact the Governor announced his decision to commute the inmates sentences from the Northwestern Law School in 2003.

I think the first step to using Frank's idea of legal magic is to accept it ourselves. My Property professor pointed out today that one of the side effects of law school is that students leave with a mindset that is too geared toward legal solutions, when cultural or social solutions might be more effective. Maybe if more people knew how unreliable eye witness testimony is, or how crummy the science of experts who compare the metal in crime-scene bullets to the box in the defendant's home is, they might respond the way Governor Ryan did. In other words, I think the example of Governor Ryan demonstrates that people will accept the existence of legal magic in they are forced to - but only if the raw injustice is thrown into the faces of the right people. -- HelenMayer? - 04 Feb 2009

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?

Helen, your example is interesting. I wonder exactly what you mean by “the right people.” Are the right people us law students? If that’s what you mean, I agree and I’d like to consider how one could go about throwing “raw injustice” our faces in an eye opening and effective way.

I think that a good way to do this is to increase social consciousness through service learning. There are plenty of people who recognize the existence of legal magic because they have experienced; the problem is that all too often we don’t meet them. Our education centers on heavily edited cases and basic economic analysis, with very little attention paid to the power of a real experience.

Of course there is the pro bono requirement and the opportunity to participate in clinics. But how different could our law school experience be if the tone were set, not by our legal methods class, but by a series of experiences (maybe a few weeks of a service learning project or series of alternative field trips) designed to acquaint us with the world that we hope to change?

Perhaps we won’t revolutionize our litigation system (it seems like we might be in too deep), but at least we can elevate our awareness and work around the system we’ve been dealt.

“Our troubled planet can no longer afford the luxury of pursuits confined to an ivory tower. Scholarship has to prove its worth, not on its own terms, but by service to the nation and world.” – Oscar Handlin --JamilaMcCoy -04 Feb 2009

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

Hey Jamila - in my piece I was thinking of the "right people" as decision makers (Governors, state assemblies, members of Congress). I think we just saw another example of this kind of concerted action in the public interest today, when the Washington Post announced that Virginia Governor Tim Kaine and the Speaker of the House came to a deal to get a smoking ban passed through the state House of Representatives. In Virginia of all places!

I think you're idea about a service requirement would be a great way to get law students interested in these types of issues (for example, working on a death penalty appeal, or even dealing with smoker's medical claims). I think then, they will be more likely to use the law in socially conscious ways.

-- HelenMayer - 05 Feb 2009



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r7 - 07 Jan 2010 - 22:33:43 - IanSullivan
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