... reply to this point (below): "the mental processes by which people actually reach legal decisions are quite mysterious"
I'm not sure I follow. The mental process by which even determinate things are found might not be well explained. I'm thinking here of the movie Proof, where Paltro's character first realizes that she has solved a mathematical problem. She's reaching in the fridge -- for either mayonnaise or peanut butter (can't remember which). I wonder what Einstein was doing when relativity came to mind? Wittgenstein was looking at a story about an auto accident in a Paris magazine when the picture theory of language came to mind. One of the things that jarred him into the opposite direction was being given a non-verbal Neapolitan gesture having a negative connotation.
I don't think the issue of wow-moments in jurisprudence is dealt with very well in the below authorities. I can't even fathom if anything of substance is said here. I hope that what isn't being asserted, as an enthymeme, is anything like thes: in legal judging, "wow-moments" show us that law is political (whatever that means). Or it shows us that it isn't constrained or principled. Or that judges aren't supposed to have "wow moments." Or that wow-moments in law are different cognitively from physics, mathematics, geology or poetry -- which isn't true. Or that when justices fail to have "wow moments," they are judging better, legally. All of these props seem horrendously poor.
Just about the only sense I could make of the matter is saying that this particular judge's wow-moment amounted to something that wouldn't wow the rest of the thinkers on the subject, implying that his lights were dim. I don't think that's what is being said, however, so I'm left only to see the matter as poor sarcasm.--------------- message replied to --------------
By sheer accident I was seated in the early 1990s at a dinner table with [a justice] who was clearly proud of his opinion for the court. The conversation sticks in the memory because he described how the entire legal basis for the outcome came to him in a flash late one night while rummaging in the frig for the makings of a sandwich. Worrying about the case had made him sleepless. As REASON IN LAW has for decades pointed out, the mental processes by which people actually reach legal decisions are quite mysterious :-)
... well, I'm not sure I would agree (as if that even matters). I'd say that what legal reasoning is, as a species of behavior, is an artisan judgment -- though the connoisseurship could very well be poor. What you say seems very similar to what a lawyer does in closing argument before a jury (or what some politicians may do in a speech), at least with regard to both the veracity of the assertions and their intrinsic value. By my lights, if a judge were to consciously disregard these two things, he or she would be engaging in the wrong form of art, for reasons either of confusion or ulterior motive. For one cannot behave this way and be appreciated in the same way as those who do not so behave are appreciated in their acts of judgment. For this is what the aesthetic of judgment is all about.
Of course, I don't think we could ever find agreement in this matter. The proposition might ultimately degenerate into something like this: who is more relevant, Wittgenstein or Rorty, and of what value is Dworkin? So, recognizing this -- and having now understood your point -- I leave to contemplate whether Paltro was indeed taking peanut butter out of the refrigerator, the recent post by Susan Lawrence having frightened my memory over the matter.
At least we know this: it was an excellent movie.--------------- message replied to --------------
REASON IN LAW's point has long been that the actual mentation process is irrelevant, and so therefore is its degree of mysteriousness. Legal reasoning is a performance practice, the goal of which is to persuade and audience, primarily of litigants, and especially of losers, that the outcome is more acceptable than the use of brute force. I often told my students that a well-reasoned decision could flow from a judicial coin flip in private. (Sean may be saying as much, below.)