(sent to law courts)
 
Hi Mark.

1. What confuses here is the sense of  "neutrality." If all that this means is forcing people to have center views or for forcing diversity in the offering of views in any community, neutrality is not "neutral" and is quite offensive. It reminds me of those who want the fairness doctrine on radio or those who want to outlaw hate speech or flag burning or what have you.  

2. I think your model is outdated. If it comes to exemplar issues politics, the matter isn't about "debate," it is always about allegiance. All that one could ever obtain from another's show of allegiance is whether it is refined or insightful. 

3. Neutrality in a glorified sense probably means "transcendent." Imagine four basic "brain states" in politics -- left, right, center or "transcendent."  Transcendent would be someone who grew only to watch politics (or history), but never to root for it. One having this view would only analyze politics as they would any form of art appreciation.  Becoming transcendent would be like watching football without a favorite team. Surely no one is required or expected to do this. But for those who reach that level of existence, their views should be both encouraged and protected.   

4. What did you mean by this statement: "But what counts as a reasonable position, whether that by political science without statistics or opposition to affirmative action, is contestable." Surely you don't mean to say that if political science (or anyone) DOES have statistics, it has a "reasonable opinion." Or that lacking statistics somehow makes for a poor understanding. I hope your thought is not going into that camp. I had always thought you opposite to that view. I also hope you don't mean to say that opinions for affirmative action are always more reasonable as a rule than those against it. I can think of very silly arguments on both sides.

 
Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html

(sent to conlaw prof)
 
... Bobby,  I can't agree with any of this.

The basic difference in the dynamic of judging versus legislating is that one deploys casuistry; the other group-placating. Tip O'Neal was an exemplar at being a politician, not a judge. Holmes and John Marshall (and Solomon and Hercules) are exemplars at judging, not politicians. George Washington, Lincoln and Roosevelt were exemplars at being executives. None of these individuals either within their own group or compared across groups deployed the same "decision methodology." In legislative circles, they debate about whether to be a "delegate, politico or trustee." They debate in executive circles how best to manage. You could invert your question and say: since all legislators do not deploy the same method or style, shouldn't they all be judges? Even capitalism has different philosophies of how to play. You don't even have uniform methods for running companies. Let me ask you as a professor -- is pedagogy uniform? Seems to me the first
question out the door is "what is your teaching philosophy?" Don't parents have philosophies for raising kids? Why on earth would judging not also develop competing paradigmatic views as to how to make the best of it?

Judges are only required to make the best sense of the law they can to the best of their ability. Legislators are required to group-placate to a point of maximal efficiency. Each requires a different set of skills and "methods," but there is none within each domain that is uniform.

We worry about the methods of judging the same that we worry of the quality of art in a painting. I would argue, precisely, that is what the worry consists of. Also, I don't see "ideology" as a "method of decision" for a legislator. Both judges and legislators are "capitalist," but do something different with their brains when they group-placate versus deploy casuistry. Better to say that one who judges or legislates according to beliefs about capitalism is an "idealist" or "dogmatist" in method -- which, if it appeared in legislative or judicial institutions, would manifest itself differently, given the differences in the cultural practices of judging/legislating.        

Regards.  
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg

(sent to conlawprof)
 
Hi Bobby.

I'm not exactly sure I'm following. Usually these discussions about about a particular judge and the quality of his or her casuistry. If we are now talking different judges, I see two cans of worms here. One is in the realm of something post modern, the other is the bane of classicism. Let's take old school first. Back in the day, it was common to want to believe that a universal method existed for judging law. If efforts in brain science, cognition, philosophy, law, logic, metaphysics or what have you produce such a thing, then I suppose it would be proper to expect all judges to use the correct method. But because we live in a jurisprudential and epistemological world where formalism and universality has given way to concepts like structure and integrity, we live in a world where judges are only expected to have a good method or defensible reasons for what they do. So there are plenty of reasons why judges would have different approaches, much the
same way that in dietetics there are different approaches (zone, Atkins, food pyramid). We know from the failings of the past that "law" cannot be a hard science.

Now, let's go in the other direction. Would we ever reach the position where we might say that Judge A should use method X and Judge B should use method Y (as in, proscribing this)? The only argument here would be something like this. Let's say judge A's brain is good at math and abstract reasoning, while Judge B's brain is good a social intelligence. Let's say, as a result, A is a good philosopher but has poor common sense. And B is very good at seeing how people feel and is especially well read in literature. If there ever arises a case that the law could afford a resolution either way -- let's say, a strip search of a girl in high school -- then how A and B come to understand things in their brain might be important. A might say, how is this different from locker room dressing (using the faculty of comparison and contrast).  B might process through the lens of social construction and see empathy. Both might reach the same conclusion -- the
search goes too far.  But in each case, we might argue that A's brain can only get at the world through A's way, and so it is for B. And one might argue that A needs B around to talk about the case and visa versa. A needs reminded about things he cannot see as much as B does. And so, we might say of these two judges that A should use more formalistic techniques because they are what he or she is good at, and B should use other important cognitive tasks because they need to be there too. So if in the end we want really good cognition of problems, maybe we need each judge to have methods that are becoming of their traits.

Just an idea. I wonder if this query is not similar to asking whether business partners or competitors should use the same logics. My sense is that if there is one that is superior, we would have to use it, but if not, it is whatever makes for a more enriched perspective/context.  

Regards.  
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg

(sent to conlawprof)
 
... I think we would need to know what "same methodology" referred to. It seems that the only ethical requirement for good casuistry is to avoid internal contradictions and being fickle (changing your mind all the time). I could think of one having a very complicated decision constituence that deployed modalities of thought with purpose. For example, one might be a pragmatist if consequences became super extreme (civil war and the like) but be more orthodox if they are not. The same exact judge might be a "natural law" theorist for certain things (like non-amendment clauses in constitutions) but be a positivist for the other things constitutions say. These are not contradictions; they are choices made with purpose that construct the judicial belief system. So I think the only requirement here is that the judge has to justify within the body of belief why the modality is switching and what, therefore, the belief constituence consists of. 

At the end of the day, I bet all that one can get here is something in the nature of a character assessment. You say, in effect, "baloney" if you find the belief constituence is a  poor offering. I say this myself when I see Scalia being originalist for historical text but textualist for contemporary text. (In fact, one could argue it is more rational to switch these).  

At the end of the day, judging casuistry is no different than judging art. Really, that is all there is to philosophy of law at the (very) end of the day. The issue is whether the craft has "integrity" within the community who make up the cultural practice.

Regards.
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg

(sent to conlawprof)
 
David:

1. Holmes does not have to sign on to the program of sociological jurisprudence for him to believe that the ultimate foundation and legitimacy in law comes from the new "policy science." The issue here is twofold: (a) what judges are supposed to do; and (b) what are the grounds of law. Holmes' rejection of sociological jurisprudence as a program concerns (a), not (b). That should come as no surprise. Neither judges nor the judiciary as an institution could perform it (even if the science could -- which we all know it can't). Indeed, the actual program of sociological jurisprudence performed by judges would have offend Holmes' strong sense of pragmatism.

2.  But that does not mean that Holmes rejected "policy science" for (b). In fact, he did subscribe to the philosophic view that law's ultimate foundation could be had in "correct policy," (which, after all, is the intellectual event which created sociological jurisprudence in the first place).  As to Holmes general endorsement of the idea that (1) law is policy; and (2) policy can be an empirically correct science, see G. Edward White, Justice Oliver Wendell Holmes, Law and the Inner Self, (New York: Oxford University Press, 1993), 148-155, 168-171, 181, 192.   

Regards.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg