The age of consent.

• Author: Bobbitt, Philip C.
• Position: American legal history since Grant Gilmore's presentation of the 1974 Storrs Lectures - VI. through XI., with footnotes, p. 2365-2384

VI.

This inquiry led directly, even inescapably, to one of the most insidious habits loosed on the jurisprudential scene, partly by journalists and politicians, but also partly by law faculty and practitioners. This is the practice, sometimes accompanied by a sneer, that always and only characterizes the truth or falsity of a legal conclusion as the equivalent of an analysis of the person asserting it. (122) Any notion that law was a matter of obligations and duties was dismissed on the grounds that its purpose was simply to validate the corporate system-both the CLS and the Law and Economic movements seem to agree on this. (123) Legal analysis was properly then a land of diagnosis of the prejudices and biases of the analysand, typically a judge. This approach assumed, blithely, that the analyst was free of bias and, more damagingly, replaced the rationale offered by judges with the alleged discovery of their emotional, political and cultural attitudes. That completed the journey begun by Legal Realism: it ended in a wilderness of mirrors where the judicial analyst was the analysand. Where once the Supreme Court reporter for the New York Times had refused his editors demands to say which President had appointed an opinion's author and dissenters, it was now considered obligatory. (124)

This approach did, however, hold this promise: armed with the telemetry of a judge's psyche (or political background, which to the commentator was about the same) the analysts, whether historians or journalists or law professors, ought to be able to predict not only the outcome (125) but the rationale that served its purpose. But could they?

In 2008, the Israeli legal historian Assaf Likhovski undertook an extensive analysis of the methods used by the CLS historian Morton Horwitz to answer this question, "What factors influence judicial decisions?" After describing Horwitz's efforts, and those he inspired, Likhovski concluded:

Whether we use the broad-brush Horwitizian approach to the history of judicial doctrines, such as the one applied in [Horwitz's early work or] the more nuanced, complex, thicker, and culturally sensitive methodology used by Horwitz in his later work; a biographical approach focusing on specific judges rather than on the development of specific doctrines; a micro-history of specific landmark cases; or even the "hard" quantitative methodology so favored by political scientists engaged in the study of judicial behavior, we will never really solve the mystery and reach the promised land of certain answers to what is, ultimately ... [an] interpretative pursuit. (126) Which is to say that at bottom, these debates were about meaning, not about politics, for Legal Realism had demonstrated that simply following rules of precedent did not yield consistent and comprehensive meaning. This disenchantment not only tore at Formalism, it set the terms of whatever was to succeed Formalism. There must be some external, objective, determinate way to choose which rule to follow. So thought Posner, but also Unger and also Leff.

Were they right? Judges seem to report a feeling of compulsion for most cases and, most of the time, agree across party lines. (127) In this past Supreme Court Term, nearly half of the cases were decided unanimously (128)--and these were cases of sufficient difficulty to have made their way through the appellate process. And yet it was child's play--or perhaps adult's play-to show that there were often alternatives. What was going on? How could we reconcile the self-conscious, subjective reports with the analysis of judicial behavior that did not fall into predictable political, or sociological, or psychological patterns?

Just suppose that Legal Realism and Formalism are two different reactions to American law that depend upon a shared expectation. That expectation is that a legal rule is either true or false depending on its relationship to a fact in the world. The Formalist asserts a legal rule is true when, for example, it corresponds to a fact such as those asserted by modern microeconomics, or reclaimed by a study of the original intentions of the Constitution's ratifiers, or commanded by the text of the Constitution, for example. The Realist looks at law and, finding a mass of contradictory or potentially conflicting statements, concludes that a legal rule can have only an arbitrary correctness. For the Legal Realist, the legal facts of the world to which the Formalist would adhere--sovereignty, or negligence, or consideration--are no more than conclusions that obtain whenever a court says they do. Insofar as legal rules purport to be about the world of facts, they are illusions.

These two temperamentally opposite reactions share the assumption that a legal rule is a proposition of law and, perhaps for the law graduate about to take the bar exam, this is true. But is it true of a judge who is commanded to follow a legal rule? I would say that insofar as a legal rule is used to resolve and offer a rationale for the resolution of a case, it is not a proposition of law at all. Don't mix a decent Scotch with Coca-Cola, don't strike a woman, don't use racial or ethnic epithets, don't curse in front of a child, don't wear brown shoes to an evening dinner party, don't disengage the clutch while making a corner--these are all rules for behavior but they are not propositions. They are things that we--we who aim to be respected by our friends, taken seriously despite all evidence by our families--things that we who know better, would not be caught dead doing. (129) Some are trivial, some are essential, but all are contingent. "To demand more than this is perhaps a deep and incurable metaphysical need; but to allow it to determine one's practice is a symptom of an equally deep, and more dangerous, moral and political immaturity." (130) Perhaps the greatest contingency is the human conscience--reflecting in part and often unpredictably countless habits and cultural practices--but recognizing this should not make us any less faithful to our consciences. (131) Indeed recognizing the limitations of justification should not diminish by one iota the legitimating function of our practices, when these are structured by the rules of the game. After all, a roll of the dice will never abolish chance, (132) and card play can never repeal uncertainty. (133)

If this is right, then the way a judge reaches a decision is almost beside the point; rather it is the way she explains it that counts. After all, it is the rationale that will serve as the basis for future decisions, not simply the outcome vis-a-vis the parties. A holding that was reached by secretly flipping a coin but is explained by a persuasive rationale is sufficient; a holding that is reached by conscientious and even agonized soul-searching but explained unpersuasively is not. What makes the rationale persuasive requires a bit of training and cultivated thought. To the layman, all legal opinions will appear to be an arbitrary series of choices. But to a judge working within well-defined conventions of legitimate argument, the application of a legal rule will often appear to be determined for her. This partly explains why constitutional law professors are badgered at cocktail parties by trusts and estates lawyers who deplore the lack of rules by which the Constitution is construed but take umbrage at any similar slight regarding the interpretation of the codicil to a will.

VII.

At about the time the CLS and the Law and Economics movements were gaining preeminence in the legal academy with their sustained assaults on what Unger described as a methodological consensus in law schools, (134) another approach-more radical in its way than either movement--made its initial appearance in constitutional law. While those movements sought to discover new truths about the law, this approach attempted to gain a clearer view of what we already implicitly knew about it. While they depended upon attaining new perspectives free of the confines of law itself, this approach depended upon achieving a more perspicuous account of the structure of our arguments, the medium in which we actually do law.

This approach studied the "methodological consensus" not to de-legitimate it, but to determine how legitimacy was maintained, as it was generally felt that legitimacy was precisely what methodology lacked. As Henry Hart had confessed, the legal process does not provide any justificatory underpinnings; (135) it may be a "thrilling tradition," to some at any rate, but like other traditions it can be employed on behalf of unjustifiable ends.

With respect to constitutional law, this approach focused on the claim that "all legitimate constitutional argument takes the form of one of six modalities: appeals to the text, to structure, to history, to precedent, to prudence (or consequences), and to national ethos." (136)

Sometimes called a "modal" approach, part of its usefulness was that it laid bare the self-replicating set of practices that were the basis for American constitutional argument. It showed that the American methods of constitutional argument were self-legitimating in the sense that their legitimation arose from the repeated acts of practicing those methods to resolve and explain cases, practices that had deep roots in the much older English common law tradition. As Gilmore noted in his "Age of Discovery," the Americans took on more or less wholesale the means of analysis used by the English common law. (137) What he did not say, and what is at least as important, is that these means were then applied in the United States to the law of the state; that is, when the state was put under law by means of a written constitution, the methods for construing that constitution were those hitherto used to construe wills and deeds, writs, and judicial opinions. Thus this approach proved to be a clarifying way of analyzing almost any constitutional issue from a legal point of...