Law schools + religious right

[philibusters]

science is not logic true, but it relies on logic.  Applying rules to fact is like sciences in that you are dealing with a new phenonoma (a case with distinct facts) and you are applying known principles to explain the new phenonoma (you are explaining the facts by their legal significance.  Your third pt. is probably true sometimes, but only sometimes, some economic concerns do play a role, if you find a storeowner who gives credit to people on welfare liable and put him out of business by making the costs of litigation too high, economics consideration tell you everybody loses, the storeowner cause hes out of business, the people on welfare cause they can't get credit and are stuck poor.  Sure sometimes economic theories are used to justified decisions already made in the judges head, but not always.  Economic theories are based on logic, are you saying they are irrational, my guess is we mean something different when we use the term "economic theory" or "logic" or both. 

The system I refer to is both the Constitutional system and the more informal social order, they are trying to train lawyers who will become politicans and win elections and who in office will change law and they are trying to train people to become community leaders who will lead by example and persuade.  The alternative would be to go Timonthy McVeigh and go to gun shows toting around theories of ZOG and trying to undermine people's faith in the established government.

[redemption]

science is not logic true, but it relies on logic.  Applying rules to fact is like sciences in that you are dealing with a new phenonoma (a case with distinct facts) and you are applying known principles to explain the new phenonoma (you are explaining the facts by their legal significance.  Your third pt. is probably true sometimes, but only sometimes, some economic concerns do play a role, if you find a storeowner who gives credit to people on welfare liable and put him out of business by making the costs of litigation too high, economics consideration tell you everybody loses, the storeowner cause hes out of business, the people on welfare cause they can't get credit and are stuck poor.  Sure sometimes economic theories are used to justified decisions already made in the judges head, but not always.  Economic theories are based on logic, are you saying they are irrational, my guess is we mean something different when we use the term "economic theory" or "logic" or both. 

Yeah, I really need to clear this up properly. I promise I will soon. Everything above is also very problematic.

[ibroadrunr]

Humans (and other animals evolved emotions for a reason) so they have have some place.  Logic is the foundation of science so we know its place. 

In law, what predominates varies on a case by case basis.  When you study criminal law, you most likely will start out with the question "why do we punish"- is it out of moral retribution (a theory that seems to mix emotion and logic) or deterrance (a theory based more on logic).When you study heinous cases in criminal law, not only the punishment, but whether the judge finds the person innocent will sometimes rest on whether they see the law as the enforcer of moral retribution (though they would never ever say that outright in their opinion) or whether its their duty to protect the letter of the law or other factors they consider.  In contracts you also see legal realism (which is sometimes emotion) all the time.  Mostly its not emotion based, but based on economic theory which tends to be more logic based, but when you deal with something like unconsciousability and the like (and you will probably deal with those for a few weeks) you'll see emotions come in to play, and though the court won't say it, you can see they are basing on notions of right and wrong.

I really enjoyed reading the article.  It shows how the political processes absorb political dissent and even though the religious right has big difference with mainstream America they are not alienated, but trying to use the political system.

I couldn't find a single statement that I agreed with in this post. It reminds me that I need to post something as I had promised, and I will - soon.

I think I'm slightly in love with you, red.

(And, with bad timing as usual, a tangent: the new 'tar is quite lovely.)

[LitDoc]

science is not logic true, but it relies on logic.  Applying rules to fact is like sciences in that you are dealing with a new phenonoma (a case with distinct facts) and you are applying known principles to explain the new phenonoma (you are explaining the facts by their legal significance.  Your third pt. is probably true sometimes, but only sometimes, some economic concerns do play a role, if you find a storeowner who gives credit to people on welfare liable and put him out of business by making the costs of litigation too high, economics consideration tell you everybody loses, the storeowner cause hes out of business, the people on welfare cause they can't get credit and are stuck poor.  Sure sometimes economic theories are used to justified decisions already made in the judges head, but not always.  Economic theories are based on logic, are you saying they are irrational, my guess is we mean something different when we use the term "economic theory" or "logic" or both. 

The system I refer to is both the Constitutional system and the more informal social order, they are trying to train lawyers who will become politicans and win elections and who in office will change law and they are trying to train people to become community leaders who will lead by example and persuade.  The alternative would be to go Timonthy McVeigh and go to gun shows toting around theories of ZOG and trying to undermine people's faith in the established government.

1. Define "logic" as you're using it.
2. Define "science" as you're using it.
3. Define "economics" as you're using it.

That would help, I think.

[philibusters]

I think you guys are missing the forest for the trees.  My points were rules set a framework for analysis, but within that framework judges respond to specific facts.  My other point was that the religious right in this instance was trying to achieve its goals through the established poltical and social process.

To me logic is synonamous with systematic reasoning. I am not sure all modes of reasoning would qualify, but I cannot think of a way to refine the definiton anymore right now, perhaps I'll think of something later.

 I'll just use dictionary.com definition for science cause it fits in with how I see it, "The observation, identification, description, experimental investigation, and theoretical explanation of phenomena."  Like I said earlier, law can be like a science (at least at a superficial perspective) cause you identify the key facts of a never before seen case (a phenomena) and then classify the key facts by their legal significance. 

Dictionary.com's definiton of economic works for me and the example I gave, "
1. Of or relating to the production, development, and management of material wealth, as of a country, household, or business enterprise.
   2. Of or relating to an economy: a period of sustained economic growth."

[Freak]

Very interesting discussion. One note, juries often decide criminal and there ethos plays a huge role and pure logic a much smaller one.

[philibusters]

I do believe that law should be as independent of them [ethos and pathos] as is humanly possible.

This is both wishful thinking and, I'm afraid, a little ignorant. (No offense intended.) Law is packed with appeals to ethos -- that is the core nature of stare decisis and of statute law. Legal arguments depend heavily on showing "what the law is" and how it should be applied to the given set of facts. That's an ethos-laden argument if there ever was one. (And, of course, it involves logic/reason too -- as I said, these are not mutually exclusive categories.)

As for emotion (pathos), there's no getting rid of that either. Legal Realism, for instance, argues that judges decide cases based on their sense of what is right -- making the law conform to that sense, reasonably, after the fact. (This is a very reductive representation of Legal Realism. But hey. It's all I've got time for.) And courtroom law is laced with emotional pleas and statements; and legislation is often driven by political (read: often emotional) motivations; and every little statement of facts that appears in a memo or a brief is written with words, and words themselves have emotional impact.

In short, unless you can divorce law from language, you're not going to make it independent of emotion.

I think that my point had a lot in common with this post.  My point was rules set a framework for analysis, but within that framework judges respond to specific facts.  Thats pretty much how legal realism works at the appellate level-appellate level being the only type cases you read in law school.  At the appellate level the judges are removed from the actors and the emotion of the trial, all the facts have already been determined, they are simply there to settle a matter of law.  Legal categories have to set the framework for the arguments because unlike the trial courts which don't have to write an opinion to jusitfy themselves, appellate courts write 20 page opinions explaining their opinions and it wouldn't help their reputation to say "ummm, we felt party x was more deserving to win"  The opinion I stated forth, though I didn't realize it when I first wrote it is pretty much the standard legal realist interpretation of an appellate case.

In other thoughts, after reading LitDoc's post I was confused on what ethos was, so I googled it, I still as confused, I am not sure whether I agree or not with LitDoc.  Certainly citing Cordozo (a very influential judge of the 20th century) would be a use of ethos, but I am not sure if I agree that applying black letter law is ethos.
Also while I agree "what a judge thinks is right" is a large part of legal realism, I think it better captures legal realism to say that judges are driven by policy.  For example a judge sentencing a petty thief to 20 years (a harsh sentence) may not justify it terms of being right, but in terms of that crime is increasing so we need a strong deterrant against theft.

[redemption]

I think that my point had a lot in common with this post.  My point was rules set a framework for analysis, but within that framework judges respond to specific facts.  Thats pretty much how legal realism works at the appellate level-appellate level being the only type cases you read in law school.  At the appellate level the judges are removed from the actors and the emotion of the trial, all the facts have already been determined, they are simply there to settle a matter of law.  Legal categories have to set the framework for the arguments because unlike the trial courts which don't have to write an opinion to jusitfy themselves, appellate courts write 20 page opinions explaining their opinions and it wouldn't help their reputation to say "ummm, we felt party x was more deserving to win"  The opinion I stated forth, though I didn't realize it when I first wrote it is pretty much the standard legal realist interpretation of an appellate case.

In other thoughts, after reading LitDoc's post I was confused on what ethos was, so I googled it, I still as confused, I am not sure whether I agree or not with LitDoc.  Certainly citing Cordozo (a very influential judge of the 20th century) would be a use of ethos, but I am not sure if I agree that applying black letter law is ethos.
Also while I agree "what a judge thinks is right" is a large part of legal realism, I think it better captures legal realism to say that judges are driven by policy.  For example a judge sentencing a petty thief to 20 years (a harsh sentence) may not justify it terms of being right, but in terms of that crime is increasing so we need a strong deterrant against theft.

Judges don't respond to facts; they respond to stories. Stories are troped - they have, among other things, an important emotional content. This is especially true at the appellate level where the story is handed -whole - to the judges without them having participated in its crafting. Therefore the emotional content is purer and more concentrated at the appellate level than in the lower court.

Judges are driven by policy?? And so what?

(BTW, if this is a flame, you're doing a great job!  )

[philibusters]

umm, I realize the facts are necessarily the facts that took place in reality, but a story put together by the trial court, but in the legal profession you refer to the story as "facts of the case."  I wasn't claiming the facts were objectively true facts if thats what you were implying.  If your Professor asks you to brief the facts of the case and you start by saying "the story the judge was responding to" you will instantly be branded a gunner.

If you were dwelling on my use of the word specific, thats a different matter.  I simply meant the unique facts of the case, not the judge picked out only one or two facts to the detriment of the rest of the "story"

I think seeing people testify, seeing the victim, and looking at the accused gives the trial court a type of emotional charge the appellate court doesn't get to see.  For example, in Con Law I read a case where a 17 year old was charged with stautory rape for having sex with a 16.  The trial court easily convicted him, but the appellate court (In this case Supreme Court of the United States was torn).  Some of the judges were focusing more on con law arguments, others on the facts of the case (it appears the 17 year raped the 16 year old, but they couldn't prove it, so thats the only reason they brought the pathetic statutory rape charge and the only reason a jury originally found him guilty).  In the end I think the Supreme Court affirmed the conviction by one vote, but the key is, some of the judges were so far back removed from the emotion of the trial that they were only focusing on con law arguments, other judges actually looked at the facts, but at the trial level my guess is the fact that he raped her I think dominated the entire proceeding because of the emotion of it.

Judges are driven by policy-so what you say-I was discussing legal realism and what legal realism is.  I made no generally comment whether that was a good thing or a bad thing.