1. Field, , Edmond Cahn, 40 N.Y.U. L. Rev. 210 (1965)Google Scholar. This volume of the New York University Law Review contained seventy pages of memorium to Edmond Cahn, as well as a bibliography of his writings, [hereinafter cited as Memorium] Judge Field was repeating a biblical story about King Solomon and ascribing to Cahn, Solomon's greatest wish.

2. In Furman v. Georgia, 408 U.S. 238 (1972), a five justice majority invalidated existing death penalty statutes. See generally Ledewitz, , The Requirement of Death: Mandatory Language in the Pennsylvania Death Penalty Statue, 21 Duq. L. Rev. 103, 115 (1984)Google Scholar. In response to Furman, most states had the death penalty sought in some way to reenact capital punishment. See Lockett v. Ohio, 438 U.S. 586, 599-600 (1978) (opinion of Burger, C.J.) (the ambiguity of Furman led to a variety of state legislative models in reenacting the death penalty); see Ledewitz, supra at 113-114. Ultimately Gregg v. Georgia, 428 U.S. 153 (1976), and its companion cases, approved certain kinds of death penalty statutes. Justice Stewart's plurality opinion in Gregg noted the legislative movement toward reenactment as a reason for refusing to find the death penalty unconstitutional per se. Id. at 179-81.

3. Two of the most obvious restrictions of procedural protections are the “cause and prejudice” rule of Wainwright v. Sykes, 433 U.S. 72 (1977) for evaluating procedural defaults in the context of federal habeas corpus claims, and the “actual prejudice” standard for a finding of ineffective assistance of counsel in Strickland v. Washington, 104 S. Ct. 2052 (1984). Neither of these developments apply exclusively to capital cases. But capital defendants so often receive poor representation in their original trials that waiver and ineffectiveness claims are present in many capital cases, particularly those that reach the stage of petitions for writs of habeus corpus in federal court.

Every death penalty litigator has his own favorite stories of procedural outrage. My favorites are cases in which a trial attorney in a capital case makes little or no effort to discover mitigating evidence, or fails to present mitigating evidence he is aware of, and later a court decides, under Strickland, that competent efforts along these lines probably would not have convinced a jury to give a life sentence. Thus, a reversal of the death sentence for ineffective assistance of counsel is not warranted. See, e.g., Milton v. Procunier, 744 F.2d 1091 (5th Cir. 1984); Burger v. Kemp, 753 F.2d 930 (11th Cir. 1985); Virginia Dept. of Corrections v. Clark, 318 S.E.2d 399 (Va. 1984). The problem with such cases is that the death penalty ultimately is given, in effect, by an appellate court rather than by a fact finder, which usually would have been a jury, on the basis of what a later lawyer, often a volunteer, has uncovered years after the original trial, in some restricted time period. What a jury might have decided and/or what might have been found are matters of intolerable speculation for upholding a sentence of death. At least one would expect a new sentencing hearing when a condemned defendant is shown to have had little or no effort expended on his behalf.

As for the United States Supreme Court's hurry to permit executions, one has as evidence, besides Chief Justice Burger's memorable phrase that the time has come to “bite the bullet,” Eddings v. Oklahoma, 455 U.S. 104, 127 (1984) (Burger C.J., dissenting), the Court's own procedural outrages. The most recent was the decision of the Court to permit the December 12, 1984 execution of Alpha Otis Stephens in Georgia. Stephens v. Kemp, 105 S.Ct. 530 (1984) (denial of writ of certiorari). The Supreme Court had earlier stayed Stephens' pending execution to see whether the outcomes of cases pending in the Eleventh Circuit raising the allegation that the death penalty is being imposed in a discriminatory manner, would affect his case. Stephens v. Kemp, 104 S.Ct. 562 (1983). The Court denied certiorari and vacated the stay of execution a year later, despite the continued pendency of this issue in the Eleventh Circuit. Obviously a majority of the Supreme Court now has its mind made up about the merits of the underlying issue. But what was the hurry? Could not the Justices at least have pretended that this substantial issue will not be decided until the Eleventh Circuit cases are actually before the Court? For another instance, see Dobbert v. Wainwright, 105 S.Ct. 34 (1984) (Brennan, J., dissenting from denial of petition for writ of certiorari and from denial of stay of execution).

4. In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court overruled Wolf v. Colorado, 338 U.S. 25 (1949) and applied the exclusionary rule against the states as a matter of federal constitutional law. Justice Clark's majority opinion emphasized the necessary deterrent effect of the exclusionary rule on police invasions of search and seizure restrictions, 367 U.S. at 651-53, and 55-57, the precedential grounds for extension of the rule, id., at 653, and the necessity of a uniform rule. Id. at 657-58. Justice Clark was also careful to mention, however, the “imperative of judicial integrity,” id. at 659 (quoting Elkins v. United States, 364 U.S. 206 (I960)), as another ground for the result.

5. In the “good-faith exception” cases, United States v. Leon, 104 S. Ct. 3405 (1984), and United States v. Sheppard, 104 S. Ct. 3424 (1984), in which the Supreme Court upheld introduction of evidence seized pursuant to a warrant unconstitutionally issued, Justice White's majority opinions discussed only the effect on deterrence of reliance on a regularly issued search warrant in deciding not to apply the exclusionary rule. Justice Stevens, dissenting in both cases, decried the majority's refusal to consider the “original rationale for the exclusionary rule,” that the courts “cannot and will not be made party” to invasions of constitutional rights. Id. at 3455 (quoting Terry v. Ohio, 392 U.S. 1 (1968)).

I acknowledge that it is possible that no Supreme Court majority ever was too concerned about judicial integrity in the context of the exclusionary rule. Clearly, Justices Brandeis and Holmes emphasized the necessity of law-abiding conduct by the Government in their noted dissents in Olmstead v. United States, 277 U.S. 438, 470 and 485 (1928). But in the Burger Court, as early as 1974, in United States v. Calandra, 414 U.S. 338 (1974), Justice Powell's majority opinion called deterrence the “prime purpose” of the exclusionary rule, and in fact referred to no other purpose. 414 U.S. at 347-48. The Calandra dissent by Justice Brennan, joined by Justices Douglas and Marshall, parallels Justice Stevens' call in Leon and Sheppard to look at the exclusionary rule from the standpoint of judicial honor.

6. This language is based on the fruitful observation of Professor Robert Gordon contained in an exchange of letters with Dean Paul Carrington of Duke Law School: “[P]ost-Realist burnt out liberals … know too much to believe in ‘formalism,’ but they do not believe in anything else, either.” Of Law and the River,‘ and of Nihilism and Academic Freedom, 35 J. Legal Educ. 1, 15 (1985)Google Scholar [hereinafter cited as Letters]. Dean Carrington had published an attack on “legal nihilism,” Of Law and the River, 34 J. Legal Educ. 222 (1984)Google Scholar, [hereinafter cited as Carrington], which many took to be a reference to the controversial Conference on Critical legal Studies, (CLS), although Dean Carrington denied it. 35 J. Legal Educ. at 10Google Scholar. A series of lively letter responses followed, including fascinating exchanges between Gordon and Carrington.

It was in the course of one of his responses that Professor Gordon asked a key question: who really are the nihilists—meaning by that term not a theory of knowledge, but an attitude toward the possibility of a better world in general, and legal world in particular? Professor Gordon's position is that legal realism spoiled law for liberals. Armed with its insights, liberals know that formalism simply masks value choices made by someone—usually a judge. But liberals have no substantive normative commitments to substitute for the lost world of formal arrangments of legal elements. Legal realism prevents liberals from believing in law, but liberals do not believe in anything else.

Ironically, Edmond Cahn himself was a member of the pre-war legal realist generation. Cahn was, for example, a close friend of Jerome Frank, and was plainly fascinated by the promise of fact skepticism. See Cahn, , Fact-Skepticism: An Unexpected Chapter, 38 N.Y.U. L. Rev. 1025 (1964)Google Scholar; Fact-Skepticism and Fundamental Law, 33 N.Y.U. L. Rev. 1 (1958)Google Scholar; and Jerome Frank's Fact-Skepticism and Our Future, 66 Yale L. J. 824 (1957)CrossRefGoogle Scholar, Book Review, 59 Yale L.J. 809 (1950)CrossRefGoogle Scholar (reviewing Frank, J., Courts on Trial—Myths and Reality in American Justice (1949)Google Scholar). Professor Gordon's comment emphasizes Cahn's importance for today's legal world. Cahn was a realist and a liberal, yet was not at all “burntout.” It was Cahn's faith in, and understanding of, justice in law that enabled him to partake of law's enterprise with simultaneous skepticism and hope. This article is an attempt to reflect upon Cahn's ability to do that.

Professor Gordon does not mention the conservative tradition, and neither do I, perhaps because the search for, and faith in, justice in law was an enterprise of 20th Century progressive thought, and disillusionment with that task is the particular burden of today's liberals.

7. By “special” I mean that law for Cahn was more than another arena in which the will of the powerful ultimately rules over the needs of the weak. Cahn agreed, with much allowance for criticism of the particular laws of any age, with “Hebraic and Helenic thinkers that law shall become a lamp to the feet and a light to the path.” Cahn, E., The Sense of Injustice: an Anthropocentric View of Law, 109 (1949)Google Scholar [hereinafter cited as Sense of Injustice]. Those persons who seem closest to Cahn in this attitude today are, again to refer to Professor Gordon's insights, the left-wing CLS lawyers and academics, many of whom are dedicated to “developing the Utopian norms expressed in law.” Letters, supra note 6, at 4. The difference between Cahn and CLS people, to put a complex matter in a crude way, is that for Cahn, law itself rebels against its use for oppression. “[L]aw without justice is quite unthinkable.” Sense of Injustice, supra, at 28.

8. Sense of Injustice, supra note 7, at 3. Cahn did not say directly that this was his own view. See infra note 24 and accompanying text.

9. Sense of Injustice, supra note 7. The Sense of Injustice was reissued in a second edition in 1964. No changes were made in the text for this edition, but A Personal Epilogue was added at pages 187-92.

10. His status was originally part-time and became full-time in 1948.

11. I say this with hesitance since one can hardly speak for another person in a matter such as this. Nevertheless, there are not sharp turns in any of Cahn's writings. There is no sense in his work of disatisfaction with earlier formulations. In particular, in Cahn's Epilogue in the second edition of The Sense of Injustice, see supra notes 7 & 9, he, as it were, asks himself if there is anything he would wish to modify in his description of the sense of injustice. The answer apparently is no. One “facet” of the sense of injustice is expanded, but no crucial element in the book's theme is disturbed. Sense of Injustice, supra notes 7 & 9, at 190. But see infra notes 22 & 82.

12. Sense of Injustice, supra note 7, at 2.

13. The entire first edition totalled only 186 pages.

14. Sense of Injustice, supra note 7, at 2.

15. Id. Cahn did not so describe justice in the book. But justice is the continuing theme of the book, and of course its grounding for Cahn—the sense of injustice—gives the book its title.

16. See supra note 9.

17. Sense of Injustice, supra notes 7 & 9, at 187.

18. Id. at 188.

19. Id.

20. For a feeling expression of the decline of the presence of the “Spirit at work in American public life,” see Fowler, , God and Mammon and Democratic Capitalism, Book Review 62 Tex. L. Rev. 949, 951 (1984)Google Scholar [hereinafter cited as Fowler].

21. Sense of Injustice, supra notes 7 & 9, at 188.

22. I must here emphasize the narrow scope of my reintroduction to Edmond Cahn's sense of injustice. I am focussing primarily on the formulation of justice in law presented in The Sense of Injustice, supra notes 7 & 9. Accordingly, this article should not be taken as a preliminary analysis of Cahn's jurisprudence. The work nearest to analyzing fully Cahn's overall philosophy is Dean Norman Redlich's excellent, but short, piece written for the N.Y.U. Law Review on the occasion of Cahn's death. Redlich, , Edmond Cahn: A Philosophy For Democratic Man, 40 N.Y.U. L. Rev. 259 (1965)Google Scholar. See also Redlich's, Dean foreward to the reprint of The Moral Decision (1981)Google Scholar, originally published in 1955. Cahn, E., The Moral Decision: Right and Wrong in the Light of American Law (1981)Google Scholar. [hereinafter cited as Moral Decision]. A full-scale intellectual biography of Edmond Cahn remains to be written.

My emphasis here is narrow in another sense as well. I am not sure of the relationship between “The Moral Constitution” in The Moral Decision, id., and the sense of injustice delineated in Cahn's earlier work. Cahn did not see a conflict, and neither do I, but neither did Cahn intimate what the relationship is. I felt it better to treat The Sense of Injustice more or less as a bounded universe. See infra note 82.

23. Sense of Injustice, supra note 7, at 3.

24. Justice Black, who was Cahn's close friend for many years, did not hesitate to ascribe this view to Cahn. Black, , About Edmond Cahn, 40 N.Y.U. L. Rev. 207 (1965)Google Scholar. Nor would anyone even remotely familiar with Cahn's writing.

25. Sense of Injustice, supra notes 7 & 9, at 190.

26. Id. at 4.

27. Id. at 6.

28. Id. at 7.

29. Id. Cahn could never quite make up his mind about the goodness or badness of human nature. Cahn's description of the sense of injustice suggests that Cahn thought most people capable of good will much of the time. Cf. Sense of Injustice, supra note 7, at 97-98 (Democracy presupposes “reasoned good will in a mass preponderance of the citizenry”). But Cahn also wrote that law was created “in order to muzzle wolves,” id. His final word was a characteristic wait and see. “[I]f men are never quite so good as our hopes for them, they are never so bad as our phantasms of despair.” Id.

30. Id. at 8.

31. Id. at 11 (emphasis in original).

32. Thus, Cahn calls the sense of injustice “a familiar and observable phenomenon.” Id. at 13.

33. Id. at 25.

34. Id. at 24 (emphasis in original).

35. See Leff, , Unspeakable Ethics, Unnatural Law, 1979 Duke L. J. 1229 [hereinafter cited as Leff]CrossRefGoogle Scholar; Singer, , The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1 (1984) [hereinafter cited as Singer]CrossRefGoogle Scholar. I consider these two articles to be compelling alternatives, yet shared visions of the nature of law and legal institutions. In a way, it was emotional dissatisfaction with Leff and Singer that caused me to make a commitment to try Cahn's path.

Both articles set forth the crisis of value that is generally said to be confronting Western normative systems, including law. Leff says plainly, “[T]here cannot be any normative system ultimately based on anything except human will.” Leff, supra, at 1229-30. While Singer is never quite as direct, I believe he affirms the same proposition: “The point is that morality is not a matter of truth or logical demonstration. It is a matter of conviction based on experience, emotion and conversation.” Singer, supra, at 35. The other view, associated with the metaphor of discovery of truth, “converts questions that require active judgment and choice-normative questions—into questions that seem to require only passive mimicry .” Singer says it is “wrong” to do that. Id. at 29.

Despite their fundamental agreement, the tone of these two articles differ radically. LefTs tone is anxious and unhappy. In a world in which people are free, “the ruling model is Cain and Abel.” Leff, supra, at 1249. Singer's tone, on the other hand, is zestful and liberated. For Singer, it does not follow that just because we cannot prove one value superior to another, what we believe does not matter. Legitimate commitments to moral values are possible even without a rational foundation. See Singer, supra, at 4-5 note 8.

Yet in the end, both authors feel obligated to give their readers a sort of roadmap of their beliefs. As the reader can imagine, these two left-leaning academics did not differ that much in the beliefs that they were willing to set forth. Even here, however, the tone, the hidden meaning, differs. Singer is earnest and confident about certain things in the world that should be changed. Leff, on the other hand, writes an agonized poem in which he starts out saying that “everything is up for grabs,” but that “nevertheless” certain things are “bad.” Still he hears the echo “Sez who?” and must turn to a God he could not affirm. Leff, supra, at 1249.

While Singer's liberation is admirable, particularly in contrast to Leff's paralysis, it seems to be purchased at the price of not taking his own insights seriously. If indeed morality is a matter of choice, then clearly, we are free to choose and must take responsibility for our choices. So far so good. But in the name of what, then, are we willing to restrain others from making their own choices, and acting upon them? If a vicious person decides to kill someone, do the rest of us restrain him simply because we have the power to do so? If morality is merely commitment, law, it seems to follow, is merely power.

Cahn agrees with Singer that morality is not “sitting out there.” Singer, supra, at 29. For Cahn, there also were not “answers in the back of the book.” Sense of Injustice, supra notes 7 & 9 at 190. But Cahn believed that we could come to knowledge about ethical choices by discovering ourselves, our own true nature, a position Singer specifically rejects. Singer, supra, at 63.

36. Leff, supra note 35, at 1249.

37. Id.

38. Singer, supra note 35, at 67-70.

39. Sense of Injustice, supra note 7, at 13-14 (emphasis in original).

40. Professor Bruce Ackerman has argued both that intuitionistic judicial decision-making lacks the ability to predict its own consequences, see Ackerman, B., Reconstructing American Law, 72–78 (1984)Google Scholar [hereinafter cited as American Law], and that it fails to examine itself. Id. at 95-96. Professor Ackerman has been consistently critical of intuitionism. See Ackerman, B., Social Justice in the Liberal State, Chap. 11 (1980)Google Scholar. See generally Hare, R.M., Moral Thinking: Its Levels, Method and Point (1981)CrossRefGoogle Scholar and Hare, , Abortiort and the Golden Rule, 4 Phil. & Pub. Aff. 201 (1975)Google ScholarPubMed. See also discussion at note 106, infra.

41. Sense of Injustice, supra note 7, at 26.

42. See, e.g., Posner, , Utilitarianism: Economics and Legal Theory, 8 J. Legal Stud. 103, 110 (1979)CrossRefGoogle Scholar (one test for an adequate ethical theory is that it not yield precepts divergent from shared ethical intuitions).

This observation about emotional evaluation was recently brought home to me anew in an article about abortion by Jonathon Glover, a Fellow and Professor of Philosophy at New College, Oxford: Glover, , Matters of Life and Death, 32 N.Y. Rev. of Books, no. 9, at 19 (05 30, 1985)Google Scholar. The article in true and admirable analytic fashion looks for a “cogent moral view,” which is to say one based on logical deductions from clearly stated premises. Personhood appeals to Professor Glover as a reasonable point at which to halt abortion, or, if you will, killing. One problem Professor Glover turns out to have in his analysis is that it is not incoherent to draw the line of personhood at self-consciousness, a quality babies develop rather late. This line of reasoning would seem to justify infanticide as readily as abortion, as Professor Glover observes. At this point some moral sense takes over. Professor Glover draws back from this conclusion, describing it as “repulsive” and “unthinkable.” Id. I mention this article as an example of how a sane rationalist must, it seems to me, use reason. The conclusions reached from premises that seem sound in themselves must be tested against a moral intuition similar to that described by Cahn as the sense of injustice. Otherwise, bright people would be capable of infinite evil.

43. See Cahn, , Law in the Consumer Perspective, 112 U. Penn. L. Rev. 1 (1963) [hereinafter cited as Consumer Perspective]CrossRefGoogle Scholar; Fact-Skepticism: An Unexpected Chapter, 38 N.Y.U. L. Rev. 1025 (1963)Google Scholar; and Consumers of Injustice, 34 N.Y.U. L. Rev. 1166 (1959)Google Scholar.

44. Sense of Injustice, supra note 7, at 13.

45. Id.

46. Id. at 26.

47. See Memorium, supra note 1. Many of these writers emphasized Cahn's involvement in, inter alia, the civil rights movement and support for the State of Israel.

48. See supra note 34 and accompanying text.

49. Recognition for drawing the connection between emotional activity and the functioning of the sympathetic division of the autonomic nervous system is commonly attributed to Walter B. Cannon. Cannon observed the adrenal gland activity, and other reactions Cahn is describing. See generally, The New Encyclopedia Britannica, Macropaedia, Vol. 6, 758 (1982)Google Scholar.

50. Cohen, , Book Review, 63 Harv. L. Rev. 1481 (1950)CrossRefGoogle Scholar.

51. “If a man did not have the capacity to recognize oppression of another as a species of attack upon himself, he would be unready—in the glandular sense—to face the requirements of juridic survival.” Sense of Injustice, supra note 7, at 24-25.

52. “Amazes” is not too strong a word to describe Cahn's attitude about the presence of the sense of injustice in human affairs. See infra notes 85 & 86 and accompanying text.

53. Id. at 22.

54. Id. at 14-22.

55. See, e.g., Tushnet, , Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory, 89 Yale L.J. 1037, 1043 (1980)CrossRefGoogle Scholar [hereinafter cited as Darkness]: “The common morality theory relies upon an empirical claim about the existence of shared values; that empirical claim is, so far as we can tell, simply false;” Hutchinson, and Monahan, , Law, Politics and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199, 207–213 (1984) (describing CLS attack on concensus theory)CrossRefGoogle Scholar. See generally Brest, , The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 Yale L.J. 1063, 1068-73, 1083 (1981)CrossRefGoogle Scholar (summarizing consensus theory and criticism of consensus theory) [hereinafter cited as Brest].

56. Sense of Injustice, supra note 7, at 22.

57. Cahn wrote in the epilogue in the second edition that he should have referred to “conscientious official behavior.” Sense of Injustice, supra notes 7 & 9, at 190 (emphasis in original).

58. Id. at 12.

59. Id. at 23.

60. I acknowledge the question-begging quality of these formulations. Whether, for example, a legal system considers evidence in two cases to be “similar” is dependent upon what the system determines to be relevant. For example, a legal system might, or might not, consider the wealth of an accused to be a relevant factor in deciding whether someone did something, or what penalty she would pay. I can imagine a legal system that attempted to remedy class prejudice and disadvantage by requiring more convincing evidence to convict a poor defendant than a rich one. In such a system, evidence of income could render the other evidence in the case not “similar” at all. A legal system can count different matters as relevant evidence, and what is relevant ends up determining whether evidence is similar. One must grant with Cahn, however, that if the legal system itself proclaims evidence in two cases to be “similar,” the system should reach similar outcomes. Of course even then different fact finders might reach different results, but this is not what Cahn has in mind.

61. Even here I may be granting Cahn more reliability than I should. There have been functional legal systems in which the judge's obligation was simply not to accept a gift except from a party that the judge otherwise felt should prevail. See The Pentateuch and Haftorahs, 820 (Hertz, J. H. ed. 1963)Google Scholar: “in the East, that judge was regarded as still a just judge who took gifts only from the party in the right.”

62. Sense of Injustice, supra note 7, at 24.

63. “These instances prick the contours of our topic. The sense of injustice may now be described as a general phenomenon operative in the law. Among its facets are the demands for equality, desert, human dignity, conscientious adjudication, confinement of government to its proper functions, and fulfillment of common expectations. These are facets, not categories. They tend to overlap one another and do not together exhaust the sense of injustice. They should be thought of as facets, each partially shaping the outlines of the others in an almost fluid community.” Id. at 22.

64. Id. at 37-38.

65. Id. at 13 (emphasis supplied.)

66. Id. at 103.

67. Id. at 24.

68. Id.

69. Id. at 25.

70. Although this is my own gloss, it is a fair expansion of Cahn's categories. Cahn knew that empathy becomes indifference at a certain “distance” from the center. He also thought that circumstances might prevent interchange, another word Cahn used for projection. Such circumstances could be racism, sexism or other forms of illegitimate hierarchy that increase the distance between my fellow human beings and me. See generally id. at 24-26.

71. Id. at 103.

72. Id.

73. Id. at 13. See supra note 65 and accompanying text.

74. “To the Jew the word Torah means a teaching or an instruction of any kind … whether it be found in the Pentateuch or in other parts of the Scriptures, or even outside the canon.” Schechter, S., Aspects of Rabbinic Theology, 116–17 (1961)Google Scholar; see also Baron, S. & Blau, J., Judaism 245 (1954)Google Scholar. (“Torah” includes “all later interpretations of the religious code.”)

75. Cahn often referred to Jewish authority in his writings. See, e.g., Sense of Injustice, supra note 7, at 17; 29 note 18; 100 note 38, 16 note 15, 165, 186. The Moral Decision, supra note 22, at 63-64, 217, 284, 285 note 7; 290 & note 3; 311-12. In the memoriam dedicated to Edmond Cahn, see Memoriam supra note 1, there are several referenes to Cahn's religious faith. See, e.g., Landau, , Edmond Cahn, 40 N.Y.U. L. Rev. 210 (1965)Google Scholar.

76. 19 Lent. 17Google Scholar. My friend and colleague, Robert Taylor, suggests that 3 Ex. 1Google Scholar should be considered the origin of man's understanding of empathy's demand for justice. In this section, God confronts Moses and promises that deliverance is at hand:

And the Lord said: ‘I have surely seen the affliction of my people that are in Egypt, and have heard their cry by reason of their taskmasters; for I know their pain; and I have come down to deliver them ….’

It is only when we “know” the pain of the other, that we may “deliver.” So man understood of his God, and of himself: “And a stranger you shall not oppress; for you know the heart of a stranger, seeing you were strangers in the land of Egypt.” 23 Ex. 9Google Scholar.

77. Leff, supra note 35, at 1229. The “grand sez who” was Leff's method of radical skepticism. Leff believed that through this one question he could persuade us that all normative assertions reflect only human will. I do not know why he did not include all other kinds of assertions. Without faith at some point, empiricism, even communication itself, becomes impossible.

78. Sense of Injustice, supra note 7, at 26.

79. Id.

80. Buber, M., I and Thou, 3 (1958)Google Scholar.

81. Sense of Injustice, supra note 7, at 26.

82. The above description of Cahn's sense of injustice, and the role that empathy plays seems a fair reading, seems indeed to be a compelling one. Since my focus is on Cahn's formulation in The Sense of Injustice, I do not wish to present alternative views in the text. The reader should be aware, however, that in an article published in 1951, Cahn approached empathy and projection in a different way.

In Cahn, , Ego and Equality, 60 Yale L.J. 57 (1951)CrossRefGoogle Scholar, Cahn presents the “resentful ego,” id. at 63, eager to experience all the emotions of life, learning to project itself in order to do so. There is no moral quality to such projection. It is simply a matter of “habitual restlessness,” itself perhaps natural to an ego limited by time and space but not in imagination. “Caring” about the stranger is simply a result of a temporary projection into those shoes, to be replaced soon by projection into other shoes.

Projection in this formulation has lost the normative role it occupies in The Sense of Injustice. In Ego and Equality, Cahn says the ego may today identify with the victim, tomorrow with the oppressor. Both experiences could be considered grist for the restless ego's mill. I would go further and say that identification with victims would be less and less likely. Why would a ruthless and amoral ego, driving to expand consciousness, select the role of victim, with its degradation and shame, over that of conqueror, with its power and prestige? It is clear in The Sense of Injustice that the experience of identification with the victim, which Cahn calls the sense of injustice, is of a different moral quality than identification with the aggressor.

Cahn retains a sense, even in Ego and Equality, that empathy is of normative significance only when one experiences the unjust treatment of the other—that is, when one experiences the sense of injustice. When Cahn describes the power-mad individual, naming Napoleon and Hitler as examples he notes not that they project into the shoes of conquerors, but rather that they “seem to be sealed off from empathy.” Id. at 61. For empathy to occupy the role of grounding natural justice that Cahn assigns it in The Sense of Injustice, it must denote relationship, that is, caring about the other, in a way that differs from mere thrill seeking. Furthermore, the experience of projection into injustice must be different from the idle projections of a restless ego. And, the experience of the sense of injustice must be felt to be different, in the heart of our being, from other experiences of projection.

I have this sense from reading The Sense of Injustice. I am not sure it survives intact in Cahn's later writings. While certainly Cahn did not, and would not repudiate anything he wrote in The Sense of Injustice, see supra note 11 and accompanying text, the psychological mechanisms of Ego and Equality, and to some extent The Moral Decision, see supra note 22, as well, obscure Cahn's earlier search for natural justice.

83. Cahn summed up two of his claims in the epilogue to the second edition. Sense of Injustice, supra notes 7 & 9, at 192.

84. “[E]ven tyrants, and their judges cannot make themselves insensible, for they too are men.” Id. at 49. See also id. at 39: “The Sense of Injustice, however, is never quite dormant in positive lawmaking.”

85. Cahn calls the sense of injustice “familiar,” id. at 13, by which he means familiar to all of us. We feel it unless, see supra note 84, we take extraordinary action to bar its call. The sense of injustice is a “natural capacity],” id. at 25, like other natural capacities.

86. There is a certain ambiguity in Cahn concerning the development of the sense of injustice. Clearly he felt we tend to experience it regardless of our training. In this way, it is natural. On the other hand, we can cultivate the sense of injustice id. at 103, and expand our sphere of projection.

87. Sense of Injustice, supra note 7, at 25.

88. Id. at 103.

89. Id. at 22.

90. No doubt of all the “deconstruction” of liberal legalism engaged in by the members of CLS, the attack pressed most often is on the claimed objective nature of legal decision-making. Choice in law is the major theme of CLS. See, e.g., Kairys, , Legal Reasoning, in The Politics of Law, 11, (Kairys, ed. 1982)Google Scholar; Letters, supra note 6, at 2; Singer, supra note 35 at 14-19 and 30-38.

91. See supra notes 77-80 and accompanying text.

92. Cahn does not say this in so many words, but natural justice is his goal and inner conviction his proof. See supra notes 78-79 and accompanying text.

93. Cf. Maslow, A.H., The Further Reaches of Human Nature, 13 (1971)Google Scholar: “Any experienced psychotherpist learns sooner or later that underlying the neurotic ‘pleasures’ or perversions is actually a great deal of anguish, fear and pain.”

94. I have elsewhere pointed out the role virtue plays in The Moral Decision, supra note 22. See Ledewitz, Book Review, Cahn, The Moral Decision, 20 Duq. L. Rev. 555, 560–61 (1982)Google Scholar.

95. Sense of Injustice, supra note 7, at 24.

96. Id.

97. Id. at 25.

98. Id. at 13.

99. It is fair to Cahn to point out that this is Cahn's main purpose in The Sense of Injustice, supra note 7. See id. at 42: “The little that has been said may serve to reduce cynicism and to indicate the sense of injustice as an active maker and shaper of law.” See also supra notes 15-19 and accompanying text.

100. Id. at 120. Cahn specifically contrasts “disinterestedness,” which he says is necessary both for the sense of injustice in general, and righteous judging in particular, with “self-seeking (interestedness) and callous indifference (uninterestedness).” Cahn also says the judge “cannot respect person.” Id. I have no idea what, given empathy, that could mean. The sentence is a paraphrase of 1 Deut. 17, but significantly, the next clause in Deuteronomy is, “you shall hear the small and the great alike …” Who was to benefit from this extraordinary attention? The rich man? I would say the poor one.

101. Cahn considers it a sign of a mature legal order that society assumes that judges and juries try to carry out their obligations in good faith. Id. at 96.

102. 22 Ex. 20Google Scholar. This formulation is repeated in several places. See, e.g., 19 Levit. 33Google Scholar; 24 Deut. 17 and 22Google Scholar. See also supra note 76.

103. Cahn said more about the experience of projection in Ego and Equality, 60 Yale L.J. 57 (1951)CrossRefGoogle Scholar. As I argued above, See supra note 82, it is my view that empathy played a different role there than in The Sense of Injustice. Projection for Cahn there is the result of the ego's restlessness.

104. Sense of Injustice, supra note 7, at 103-04.

105. Most of the instances that are said to rouse the sense of injustice concentrate on the actions of a judge. Id. at 14-22.

106. I wish to contrast Cahn's proposal for empathy as a foundation for ethical judgment with the critique of empathy advanced by William Simon. Simon, , Homo Psychological: Notes on a New Legal Formalism, 32 Stan. L. Rev. 487, 510 (1980)CrossRefGoogle Scholar. As I think the example of the judge makes clear, projection for Cahn does not mean acceptance. Nor does projection exclude the social reality within which people operate. Perhaps, as Bruce Ackerman suggests, projection, which he calls “intuition,” or situation sense, American Law, See supra note 40, at 93-94 does tend to accept existing social arrangments. Id. at 31-32: “Rather than appraising individual actions against the background of concrete social practice, [lawyers] must learn to assess the extent to which concrete practice conforms to … social ideals ….” Simon makes this point as well. Cahn argues instead, however, that empathy permits critique of the existing order, that critique of the actual must have a basis in natural justice. In any event, rejection of Cahn, that is, a willingness to condemn or reward without regard for the concrete facts about the particular person, is a far more dangerous approach to ethics than is empathy. People kill in the name of principle all the time.

107. Cahn once refers to “sympathetic interchange,” Sense of Injustice, supra note 7, at 39, thus substituting sympathy for empathy. I am not sure what the term “sympathetic” means. A central theme for Cahn is that the Sense of Injustice does not represent “compassion,” id., at 24, or any other feeling-sorry-for reaction. It is I who is attacked and responds, not just my fellow.

108. I do not feel comfortable even suggesting that it is the task of legal theory to be determinate. Certainly it is not wise to think we can translate directly from relationship to case outcome. It is enough, I think, if any writer deepens the humanity of some of her readers.

Nevertheless, I speak here of indeterminacy for two reasons. First, Cahn himself emphasizes response to injustice, and he means to help us understand how injustice is, and should be responded to. Hence, he does not wish to be understood as entirely indeterminate. Cf. supra notes 26 & 27 and accompanying text. Second, indeterminacy is a part, it seems, of all contemporary critiques of liberalism, particularly liberal legal theory. See, e.g., Tushnet, , An Essay on Rights, 62 Tex. L. Rev. 1363, 1371 (1984)Google Scholar; [hereinafter cited as Rights]; Darkness, supra note 55; Dalton, , An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997 (1985)CrossRefGoogle Scholar; Singer, supra note 38, at 14-19. Since Cahn was a liberal, it seems fair to examine him from this perspective.

109. In fact, this lack of certainty was one of Cahn's criticism of Natural Law, that it “sought … to offer absolute answers where only the tentative or relative would serve.” Sense of Injustice, supra note 7, at 12. Though Cahn differs from a philosopher like Richard Rorty, in that Cahn seeks “natural justice,” Cahn would join the critique of the “unclouded mirror of nature” that takes away a human being's freedom to choose in matters of morality. Rorty, R., Philosophy and the Mirror of Nature, 376 (1979)Google Scholar [hereinafter cited as Rorty]. Empathy for Cahn is a grounded starting point, not an answer. This is part of Cahn's critique of the natural law tradition. Sense of Injustice, supra notes 7 & 9, at 189-90.

110. Cahn says at one point that the sense of injustice can give only “ad hoc” answers to specific instances of mistreatment. Id. at 148.

111. Cahn discusses the notion of truth and his idea of finite truth, a proposition that is “absolute within its frame of reference because wholly adequate in all aspects of interest operative in that particular frame.” Id. at 98. At this point, Cahn is discussing propositions such as the aspects of injustice he introduced earlier. The sense of injustice itself is a natural capacity that transcends time, place and tradition. When confronting, and judging, particular situations, however, no judgment can be eternal. Nevertheless, and this would be particularly true of the most obvious instances of injustice, “[relative as they may be sub specie aeternitatis, they are nevertheless absolute in the complex of human decision and action,” Id. at 99.

112. See, e.g., Leff, supra note 35; Singer, supra note 35; see also Rights, supra note 108, at 1383 (criticism of Gulag) and 1398 (unnecessary suffering).

113. Leff is explicit about this, see Leff, supra note 35, but it is implicit in the generally held view that normative commitments are a matter of human will, by which is meant arbitrary desire. See also Rights, supra note 108, at 1397-98. (social world constructed by choices people make and “nothing beyond.”)

114. This restraining of others, and furthermore the claim that it is right to do so, is the crucial dilemma Singer never faces. See supra note 35 and accompanying text. Leff was very much aware that the application of coercive force is one hallmark of law. See Leff, supra note 35; and, Dauer, and Leff, , Correspondence, 86 Yale L.J. 573, 581 (1977)Google Scholar.

115. See Sense of Injustice, supra note 7, at 27. Cahn did not himself emphasize conversation about moral issues. On the other hand, his view is implicit in his description of the sense of injustice's offering “a common language of communication” and the “instrument” of the “victory of persuasion over force.”

116. See id. at 98-99.

117. See Ackeran, , Social Justice in the Liberal State (1980)Google Scholar; American Law; supra note 40; Singer, supra note 35, at 51-56. The theme of dialogue as a way of reconciling autonomy and community has recently produced a densely rich article, Cornell, , Toward A Modern/Postmodern Reconstruction of Ethics, 133 U. Pa. L. Rev. 219 (1985)CrossRefGoogle Scholar.

118. Cahn also apparently saw persuasion as the goal that each party to a conversation might legitimately have. Sense of Injustice, supra note 7 at 27. But persuasion in a world with a sense of injustice would mean calling the other person back to his own true self. Persuasion would fail in such a world in only two instances. First, one party may be refusing to be candid. The party may know perfectly well that he is being inhumane, may lyingly deny his real intentions and ignore his own sense of injustice. Second, both parties may, for various reasons, lack full understanding of the issues, situations, and people they are discussing. Cahn would not concede, however, that cultural convention could permanently obscure injustice. Eventually the “is” of slavery yields to the “ought” of emancipation. See infra note 168 and accompanying text.

Having said this, I confess amazement that Cahn would use the word “persuasion” (actually quoting Plato) in the context of our deciding what to do. The sense of injustice operates through mutual understanding. Conversation, dialogue, in such a world should be an expression of relationship, and thus an end in itself, not a means.

119. See Rorty, supra note 109, at 9-10, (Knowledge is what we are justified in believing; truth is that which helps us do what we want to do.)

120. Id. at 27, (law as a “vehicle of persuasion.”) (quoting Plato)

121. Id. at 7-8.

122. Id. at 105 (quoting Plato).

123. Id. at 37.

124. See generally Part I, supra.

125. See supra note 39 and accompanying text.

126. See supra note 6.

127. See Letters, supra note 1, at 14.

128. Black, , Law As An Art, 26 Yale Law Report, No. 2, 12, 16 (Winter, 1979–1980)Google Scholar.

129. Sense of Injustice, supra note 7, at 37.

130. Id.

131. Consumer Perspective, supra note 43, at 17.

132. Id.

133. Id.

134. Sense of Injustice, supra note 7, at 5.

135. Id. at 6.

136. Id. at 26.

137. Id.

138. Id. at 28 (“Now, of course, many wrongs have been committed in the name of justice.”)

139. Professor Tushnet puts this central tenet of liberalism this way: “Judicial review is needed to avoid the tyranny of the majority, and constraints on judges are needed to avoid the tyranny of the judiciary …. The obvious candidate is ‘the rule of law.’” Darkness, supra note 55, at 1061. Professor Tushnet is representative of CLS as well in arguing that though liberal theory requires that the rule of law restrain both legislators and judges, liberalism is unable to accomplish such a result. Id. I am not sure the dilemma is fundamental since many countries seem to manage liberal democracy without judicial review. Judicial review is an enduring principle of American Government.

140. Perhaps the clearest, expression of the conventional wisdom, although not as sophisticated as today's theorists would put it, is the opinion of Justice Roberts in United States v. Butler, 297 U.S. 1, 62 (1936):

It is sometimes said that the court assumes a power to overrule or control the action of the people's representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the pinciples it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty,—to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.

For a brief summary of the most recent charges and counter-charges of the legitimizers of judicial review and the critics, see Carter, , Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle, 94 Yale L.J. 821 (1985)CrossRefGoogle Scholar.

141. These voices represent many different positions. See Fiss, , Forward: The Forms of Justice, 92 Harv. L. Rev. 1 (1979)CrossRefGoogle Scholar; Perry, M., The Constitution, the Courts and Human Rights (1982) [hereinafter cited as Perry]Google Scholar; Choper, J., Judicial Review and the National Political Process: A Functional Reconsideration of the Supreme Court, (1980)Google Scholar; Tribe, L., American Constitutional Law, 886–990, (1978)Google Scholar; Karst, , The Freedom of Intimate Association, 89 Yale L.J. 624 (1980)CrossRefGoogle Scholar; Wilkinson, & White, , Constitutional Protection for Personal Lifestyles, 62 Cornell L. Rev. 563 (1977)Google Scholar; Richards, D., The Moral Criticism of Law (1977)Google Scholar. Paul Brest lumps most, but not all of the above together, as rights theorists. Brest, supra note 55, at 1073-1080.

142. Nowak, , Professor Rodell, The Burger Court and Public Opinion, 1 Constl. Comm. 107, 109 note 7 (1984)Google Scholar.

143. See, e.g., Berger, R., Government by Judiciary (1977)Google Scholar [hereinafter cited as Government by Judiciary]; Death Penalties (1982). Perhaps it is fairer to say that Professor Berger assumes it is wrong for the Justices to go beyond the original intention of the framers, rather than that he argues against it. For a slightly less rigid promotion of original intent, see Bork, , Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971)Google Scholar.

144. Rehnquist, , The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976)Google Scholar.

145. Id. at 695.

146. Id. at 704.

147. See, e.g., Bishin, , Judicial Review in Democratic Theory, 50 So. Cal. L. Rev. 1099, 1110 (1977)Google Scholar; Bickel, A., The Least Dangerous Branch, 16–20 (1962)Google Scholar; see generally, Powell, , The Compleat Jeffersonian: Justice Rehnquist and Federalism, 91 Yale L.J. 1317 (1982)CrossRefGoogle Scholar [Hereinafter cited as Powell.]

148. See, e.g., Brest, supra note 55, at 1096-1104, (“The Contradictions of Madisonian Democracy”); Tushnet, , Truth, Justice and the American Way: An Interpretation of Public Law Scholarship in the Seventies, 57 Tex. L. Rev. 1307 (1979)Google Scholar.

149. An embarrassing fact about the adoption of the Constitution for these democracy proponents is that certainly no majority ever voted for the Constitution and Bill of Rights, and probably no majority ever supported either.

150. Singer, supra note 35, at 53-54.

151. See Cahn, , The Parchment Barriers, 32 The American Scholar 21 (1962–1963)Google Scholar.

152. Sense of Injustice, supra note 7, at 5.

153. Consumer Perspective, supra note 43, at 17.

154. As an example of Cahn's tendencies in this regard, see his easygoing assumption that the “vicious practice called entrapment” denies due process of law and inflicts cruel and unusual punishment. Id. at 19. Cahn was not one to inquire what the framers thought of entrapment.

155. Perry, supra note 141.

156. Id. at 97-99.

157. Sense of Injustice, supra note 7, at 27. “So, despite all blunders and insensibilities, the sense of injustice is on the right side, the side of fallible men.”

158. Sense of Injustice, supra note 7, at 105.

159. As with all of these “responses” by Cahn, I am of course, making claims about Cahn that others might not consider implicit in his writings. Thus I write “is” when I ought really to write “might.” I am confident, however, that Cahn considered judicial conscience to be one important way that law changes. Consider, for example Cahn's observation that the sense of injustice can “erode” a legal proposition. Sense of Injustice, supra note 7, at 37.

160. Justice Rehnquist might assert here that his dedication to democratic values is just. That is, the Good Society is that society in which the will of the majority is translated into law. The ought of law is that within the limits that the majority itself has set, the judge ought to defer to the majority will.

But what is a judge supposed to do when she confronts an injustice that the majority does want to perpetrate and that the framers would not have objected to? Nothing? Resign? Perhaps this has never happened to Justice Rehnquist. I cannot believe that Justice Rehnquist could bring himself to cooperate with injustice. Lest the reader imagine that I exaggerate the position, I would point out that Rauol Berger has stated flatly that the courts should not have interferred with state segregation laws. Government By Judiciary, supra note 143, at 407-09.

Berger's view is that it is wrong for the Supreme Court to act against evil unless the framers meant to iradicate the evil. Otherwise, because the rule of men is substituted for the rule of law, “[T]he way is paved from Weimar to Hitler.” Id. at 410. But surely that historical example suggests just the reverse. Hitler represented the triumph of a majority gone temporarily mad. And there was nothing particularly illegal about much of Nazi tyranny. Surely the Germans would have been better off if their judges had been willing to act on their consciences rather than caving in to majority will and government power.

161. See supra note 123 and accompanying text.

162. It is possible that a judge who has been influenced by the deference of Justice Rehnquist's brand of political theory might go to an opposite extreme in order to show that her own views are not influencing her decisions. Cahn assumed that upon seeing injustice, the judge would try to use available legal tools to lessen or eliminate it. A judge determined to show that the fortuity of appointment should have no effect on legal outcome see Government By Judiciary, supra note 143, at 14, might bend over backwards by refusing to use traditionally available legal tools just because, ironically, the judge would like to use them. In other words, in such a neurotic world, a party might be better off before a judge who feels the party has been treated fairly than before one who feels the party has been treated unfairly. Of course none of this is “neutral.” One way or the other, the views of the judge still turn out to matter.

163. This matter is a complex one, and in order to be fair to Justice Rehnquist, deserves a fuller analysis than I can give it here. Nevertheless, I will indicate, superficially, two ways in which Justice Rehnquist seems to me to fail to remove personal preference from judicial decision-making.

Justice Rehnquist's position is that judicial decisions must reflect, where possible, the values of the actors, whether framers of constitutional provisions or ordinary legislators, who created the legal norm at issue. Otherwise, society is being ruled by judges rather than by the representatives of the people.

Aside from the usual criticisms about what democracy really means, Justice Rehnquist's first failing, as pointed out by Joseph Singer, See supra note 134, is that this approach to the role of the judge is itself a political theory based upon Justice Rehnquist's vision of the Good Society. It is not in any sense a given, beyond dispute. Accordingly, the view that the majority should rule as opposed to the view that the judges should rule, or should sometimes rule, represents Justice Rehnquist's “personal moral judgment[].” See supra, note 150 and accompanying text. Furthermore, as Jeff Powell has argued in the context of the framers' understanding of federalism, see Powell, supra note 147 at 1363-70, Justice Rehnquist cannot establish that the relevant framers would accept his view of the role of the judge. Certainly some framers would be distressed by Justice Rehnquist's agnostic view of justice. Thus the appeal to history is not a self-validating technique.

But, even accepting for the moment the legitimacy of the historical method, and even assuming that it is itself somehow value neutral, Justice Rehnquist does not live by this method. Justice Rehnquist tends to rely on history when it suits him.

I should clarify this point before giving some examples. Even complete consistency in application would not protect Justice Rehnquist from the charge of judicial value preference. The historical approach, by which I mean testing a result by whether the framers of a legal norm would have assented to it, does suit Justice Rehnquist most of the time. But Justice Rehnquist's usual consistency does not really answer the charge that law turns on the value commitments of the judge. The historical method of constitutional analysis consistently yields results that in ordinary language we would label conservative. The framers would have protected dissenters, criminal defendants, prisoners, and minorities much less than we do today. Much less, in fact, than we have for thirty years. The framers would also grant less authority to the federal government and more to the states than we have granted since the depression. The question is, has Justice Rehnquist adopted the historical method, which gives primacy to the views of the framers, out of a disinterested devotion to democratic legitimacy, or because he likes these results and his theory allows him to dress up his policy preferences as more than personal preference? I do not know Justice Rehnquist, so I cannot fairly answer the question I have posed. Nevertheless, I believe that if the results the historical approach yielded tended to be just the opposite, Justice Rehnquist would be less likely to devote himself to it.

Having said all that, however, I would like to show that Justice Rehnquist is not single-mindedly devoted to the historical approach. Perhaps the purest example of Justice Rehnquist's historical approach is his dissent in Wallace v. Jaffree, 105 S. Ct. 2479 (1985). The reader should remember that, according to Justice Rehnquist, when interpreting a constititonal provision, and, by extension other kinds of provisions I would suppose, courts should keep to the intent of the framers. Of course, where the issue under consideration is not one the framers would or did think about, the courts cannot do this literally. Nevertheless, a judge should ask, as it were, what would they have thought of this? In Jaffree, a case that struck down an Alabama statute authorizing a period of silence “for meditation or voluntary prayer,” id. at 2481, Justice Rehnquist launched a broadscale attack on the metaphor of the “wall” of separation between church and state. In the course of this discussion Justice Rehnquist states indirectly the thesis of the historical method: “[T]he greatest injury of the ‘wall’ notion is its mischievous diversion of judges from the actual intentions of the Bill of Rights.” Id. at 2517. Although Justice Rehnquist also criticizes the vagueness and unprincipled character of judicial decisions proceeding from the “wall” starting point, it is clearly history, specifically the will of the framers, that is crucial to Justice Rehnquist.

The true meaning of the Establishment Clause can only be seen in its history. As drafters of our Bill of Rights, the framers inscribed the principles that control today. And deviation from their intentions frustrates the permanence of that Charter and will only lead to the type of unprincipled decisionmaking that has plagued our Establishment Clause cases since Everson.

Id. at 2520 (citations omitted).

Without minimizing the difficulties of identifying the intention of the framers of constitutional or other provisions, and certainly without endorsing the historical approach, the goal of the method seems basically clear. The judge tries to discover how well a particular outcome comports with what the framers thought they were accomplishing. Now, as I have said, Justice Rehnquist generally strives to identify such intentions. I am not accusing Justice Rehnquist of the intellectual sin of inconsistency. Rather, I am accusing Justice Rehnquist of, apparently, allowing his personal value preferences to interfere with a detached commitment to the historical method. That is, in areas where the intentions of the framers might not yield results congenial to a conservative conscience, Justice Rehnquist has not been as emphatic about history as he was in Jaffree.

Consider, for example, Justice Rehnquist's famous opinion for the Court in National League of Cities v. Usery, 426 U.S. 833 (1976), reversed, Garcia v. San Antonio Metropolitan Transit Authority, 105 S. Ct. 1005 (1985). In National League, Justice Rehnquist held unconstitutional federal statutes applying provisions of the Fair Labor Standards Act to state and city employees. In that opinion, Justice Rehnquist developed a theory that the tenth amendment stands as an affirmative barrier against Congressional enactments affecting the states, which, if enacted with regard to private parties, would be within Congress' Commerce Clause power. I think it is fair to say that Justice Rehnquist offers no historical evidence that such an approach was intended by the framers of the tenth amendment. In fact, as the historical arguments that pass back and forth between Justices Blackmun and Powell in Garcia suggest, the historical record might well supply little or no support for such a view.

I do not mean, of course, that National League's result or approach is unsupportable. Even from the perspective of history, the mammoth expansion of Congress' Commerce Clause power could not have been foreseen by the framers of the tenth amendment. They would not have viewed delegated powers as the threat to state sovereignty that they may have become in the modern era. Thus, times change, and the framers of the 10th amendment might have altered their view of delegated power in light of such changes. Nevertheless, the idea that times change is one of the basic criticisms against the historical approach. I can, with as much fidelity to original intent as was National League, point out that had the framers of the first amendment forseen the diverse nature of modern secular society they would have wanted the government to stay out of the prayer business.

Space does not permit full discussion of other approaches Justice Rehnquist has used that would not be supported by a historical analysis. I merely present some suggestions that the reader may consider persuasive. Recently, Justice Rehnquist dissented from the Court's decision to strike down a rule of the New Hampshire Supreme Court limiting bar admission to state residents, as a violation of the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 2. Supreme Court of New Hampshire v. Piper, 105 S. C. 1272 (1985). Justice Rehnquist suggested that while Art. IV, § 2 “has long been held to apply to States' attempts to discriminate against nonresidents who seek to ply their trade interstate,” the practice of law should be treated differently both because it differs from state to state and because the practice of law is bound up with notions of state self-government. No references to the intentions of the drafter of Article IV to make such a distinction were made. Perhaps none could have been.

Justice Rehnquist argued in Paul v. Davis, 424 U.S. 693 (1976), that under the Due Process Clause of the Fourteenth Amendment “liberty” and “property” are protected, indeed defined by reference to recognition and protection under state law. Certainly the framers of the fourteenth amendment did not intend for states to define “property,” and particularly “liberty,” but had at least a minimal federal definition in mind to which the states could add.

I think perhaps the most historically questionable position that Justice Rehnquist has espoused is the discretion of federal judges to refuse to hear cases in the face of pending state proceedings. See Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978) (plurality opinion). Again in this case, historical grounds are not relied upon. Particularly where issues of federal law are concerned, the framers of the Constitution might well have been appalled at the idea that a federal judge had authority to refuse to exercise jurisdiction over an otherwise validly brought case.

164. Furman v. Georgia, 408 U.S. 238, 414 (1972) (Backmun J., dissenting):

Although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and achieved an end.

(For the effect of Furman on then-existing death penalty statutes, see supra note 2). I do not know whether Justice Blackmun really was “rejoicing” at the prospect of the end of the death penalty. Perhaps, instead, he was just trying to make his dissent, his approval of continued executions, seem more palatable by suggesting that he was personally as humane as anyone. But if Justice Blackmun did find the death penalty morally repugnant, he does not seem to feel that that repugnance “counts” in the same way as “history” “law” or “Constitution.”

165. Cahn would never accept the weak excuse that it is a judge's “job” to carry out the will of the people even when the judge believes that will to be oppressive:

Some judges who would refuse bribes of money or political favor make themselves implements of persecution and oppression. To them the law is what the party or the church would have it be; the “facts” are changed to fit the shape of some preconceived result. Such were the judges of Hitler's Germany and of Mussolini's Italy. We have heard of no instance in which a Soviet judge has, by resisting arbitrary executive action, given meaning to Article 112 of his country's constitution (‘Judges are independent and subject only to the law.’). In the Union of South Africa and in the United States of America there are some judges who read the law through bifocal spectacles, the upper lens being reserved for men of the white race.

Id., at 134 (Footnote omitted.)

166. Cahn was aware, in fact perhaps, because of his faith in law, bitterly aware, of the failures of judges in the past and in his own day:

But of what avail is the right to a trial if judges and juries are so tragically fallible? How can due process be the ultimate repository of the liberties of democratic man if, after the intricate machinery has turned and rolled, the end product may prove to be the electrocution of Sacco and Vanzetti?

Sense of Injustice, supra note 7, at 87.

167. Id. at 3.

168. Id. at 15.

169. Cahn does not say that law as a whole is destined to become more just:

Now this is not to say that law is predetermined to move ever closer toward relations which would satisfy the demands of the sense of injustice. There may be such a tropism, but in the available conspectus (legal history being relatively quite brief) it certainly appears irregular and spasmodic. The sense of injustice calls for progressive exhibition of human wisdom. Hence until some demonstration can be made of accumulation, not to say evolution, in that respect, the movement of law toward justice will remain a matter of faith and resolution, rather than of scientific fact. What matters most for the practical concerns of men is that injustice be prevented or rectified in the particular case or group of cases.

Id. at 32.

On the other hand, as the last sentence quoted above suggests, Cahn had faith that injustice in the concrete, in the individual instance, is destined to pass away. “[T]here is no lasting security without exercise of the sense of injustice …. [E]very tyranny, every social abuse, and every usurpation of power [is] congenitally insecure ….” Id. at 185.

I imagine the reason Cahn did not extend his faith in law from the specific to the general, though one would certainly seem follow from the other, was a disinclination to engage in quasi-empirical debate over whether law is really “better” today than ever before.

170. I know that to some readers the idea that eventually the people will rule is little or no comfort. See generally Ely, J., Democracy and Distrust 45 (1980)Google Scholar. First of all, if the people through their representatives should have the authority to pass a certain law, which is nevertheless wrongly deemed unconstitutional by a court, an injustice has been done. Furthermore, the passage of time before this decision can be eroded or evaded can cause permanent, irremediable harm. Delay is not unimportant. See McCleskey, , Judicial Review in a Democracy: A Dissenting Opinion, 3 Harv. L. Rev. 354, 357–65 (1966)Google Scholar. Roe v. Wade, 410 U.S. 113 (1973), whatever one's view of it, is a good example of a decision the effects of which can never be undone. And even delays which can be undone in some sense, like the Supreme Court's war against the New Deal, see, e.g., Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) and Carter v. Carter Coal Co., 298 U.S. 238 (1936), which was abruptly ended in 1937, see National Labor Relations Board v. Jones Laughlin Steel Corp., 301 U.S. 1 (1937), still have important effects on people while they go on. So the fact that injustice will “pass away” should not cause anyone to ignore the harm that injustice perpetrated by judges does in the meantime.

The point though is this. If our fear of falsehood is so great that we identify our judges as potential tyrants, then we must either change the way we select judges, or, as Justice Rehnquist suggests, remove our judges from the business of trying to serve justice. The problem with the latter course is that it is wrong to give power without joining that power to a desire for justice. It also would no longer be law as our judicial tradition has always understood itself. I cannot imagine that the law that lacks even the potential for a Brown v. Board of Education, 347 U.S. 483 (1954), or a Skinner v. Oklahoma, 316 U.S. 535 (1942) would be an enterprise that society would much value. Nor would the enterprise be compelling to its participants, myself included. Is this elitist? Of course it is. It assumes that some persons may judge better than others, and that giving them some power to do so is a good idea. But it also represents regard for the judge as a human being who should not be asked to ignore her conscience.

171. In a beautiful passage in the Sense of Injustice, supra note 7, at 144, Cahn illustrates his proposal for a healthy and growing relationship between the judge and the society she serves. This passage concerns the decision by the Supreme Court in Louisiana v. Resweber, 329 U.S. 459 (1947). In Resweber an attempt was made to execute Willie Francis, but due to a malfunction, Francis was not killed. The majority decision permitted a subsequent reapplication of the current against the claim that a second attempt would violate the Constitution. Cahn speculates here on how a justice might approach this case.

Suppose, however, that a justice should feel horrified and enraged by the prospect of second attempt at extermination under the authority of law. What then is his course to be? He may, by imaginative interchange, attribute his own revulsion to civilized men in general and insist that the Fourteenth Amendment forbids a reapplication of the current. Such was the conviction of the four dissenting justices. If, on the other hand, he is able to doubt that his personal feeling is shared by the mass of society, he may exercise one of three choices: (1) he may, on reflection, see fit to credit his fellow citizens with a sense of injustice as responsive as his own and add his deciding vote to the four dissents; (2) to the same purpose, he may see fit to invest the administration of justice with a duty of slightly surpassing and pro tanto educating the social conscience, at least where the capital penalty is involved; or (3) declining to compliment either the citizenry or the educational ideal of law, he may cast his reluctant vote for noninterference with the determination of the state. The third course was in fact chosen. The second, ‘successful’ execution ensued. This time it was the law's estimate of its role in a free society that failed.

172. See, e.g., Cramton, , The Current State of the Law Curriculum, 32 J. Leg. Ed. 321, 330–32 (1982)Google Scholar (calling such doctrinal emphasis the “middle road”); Klare, , The Law School Curriculum in the 1980's: What's Left, 32 J. Legal Ed. 336 (1982)Google Scholar. Robert Gordon has made similar, though much more elegant observations about mainstream, doctrinal legal scholarship. See Gordon, , Historicism in Legal Scholarship, 90 Yale L.J. 1017 (1981)CrossRefGoogle Scholar; and Gordon, , Summary of Discussion of Historicism in Legal Scholarship, 90 Yale L.J. 1060 (1981)CrossRefGoogle Scholar. I seem to remember a wonderful term, “mid-level doctrinal analysis,” being used by Professor Gordon in a talk about legal scholarship upon which his article is based.

173. See Carrington, supra note 6, at 226: “One cannot believe in the worth of one's professional skill and judgment as a lawyer unless one also has some minimal belief in the idea of law and the institutions that enforce it.”

174. I speak here of my own experience in court, particularly state trial courts, and of contact with other practicing attorneys, particularly trial attorneys. While I do not have a theory of adjudiciation, and while most attorneys also do not, I believe the following would be generally subscribed to by those attorneys I know. There are, of course, “clear” issues and cases, based on formal legal material. They are little litigated because they are clear. In the realm of cases, such clear matters do not arise because either the case is settled, or the behavior at issue is halted when a knowledgeable actor files an objection. In the realm of “clear” issues in a case, these matters will often be stipulated to, or at least no objection will be entered. Thus, every day in courts over the country evidence is excluded, or admitted, witnesses are qualified as experts, wills are probated and so forth, all in the ordinary course, because much of legal culture is clear and understandable to every competent attorney. Compare Owen Fiss' description of the existence and function of an “interpretive community,” Fiss, , Objectivity and Interpretation, 34 Stan. L. Rev. 739 (1982)CrossRefGoogle Scholar.

But though this may demonstrate that at a particular moment there is some objective content to law, from the perspective of a political theory of judicial restraint based on democratic principles, such clear cases are trivial and beside-the-point. Where judges threaten the “rule of law” is in just those contexts that are not clear. The legal issues worth discussing, and in particular those like abortion, the exclusionary rule, or capital punishment, which are passionately debated as political issues, cannot be resolved in any formal, professional way. The outcomes of cases in these realms are not relevantly constrained by existing legal norms. In such situations a particular legal norm will be “chosen” by the judge for some reason other than something commanded by the norms themselves. Most practicing lawyers would agree, I think, that if the case is not clear, the most important variable is the identity of the judge.

I am not certain how far Dean Carrington goes in the question, how much does law matter. Carrington is careful to distinguish between the legal realists and what he calls “nihilism”:

The professionalism and intellectual courage of lawyers does not require rejection of Legal Realism and its lessons that who decides also matters. What it cannot abide is the embrace of nihilism and its lesson that who decides is everything, and principle nothing but cosmetic. Carrington, supra note 6, at 227. Robert Gordon, Letters supra note 6, at 2-5 and Finman, T., Critical Legal Studies, Professionalism, and Academic Freedom: Exploring the Tributaries of Carrington v. River, 35 J. Leg. Ed. 180, 198–99 (1985)Google Scholar, have tried to identify the different possible meanings of nihilism and the different degrees and types of influence that formal legal norms might have for Carrington. I think that Finman's second category, that judges decide a case first, based on a “moral hunch” and then look around to try to find a justification if they can, is both the idea that Carrington is criticizing, and what generally happens in the courtroom.

Ironically, although such a model does not represent an objective rule of law, and thus it may not be “professional” in Carrington's terms, this model also does not necessarily sacrifice “principle.” For example, consider Justice Rehnquist's theory of federalism and judicial review. Justice Rehnquist obviously believes deeply that it is better if the people's representatives rule rather than judges, and better yet if the representatives of the states rule rather than the representatives of the central government. Now these are “principles,” but as I have argued above, supra notes 124-153 and accompanying text, they are not objectively defineable legal norms. They are a personally held political theory. One may adopt other political theories without being any less “legal.” Thus in any case that is not clear, it is Justice Rehnquist's theory, and thus in Carrington's vocabulary, it is “who decides,” that is “everything.” It is “everything” because one can normally forecast with ease how Justice Rehnquist will vote in a particular case, just as this can be done for other justices. But principle does not thereby become “cosmetic.” Justice Rehnquist is committed to principle. He believes these principles are the most appropriate interpretation of our legal tradition. Unfortunately for Dean Carrington, Justice Rehnquist believes this because of who he is. Another Justice will be just as principled, just as “lawful,” but will have other beliefs. This is not nihilism; but it does tend to undermine the importance of “professional” norms and skills.

175. This is quite literally the case. Carrington says of nonnihilists: “For those university law teachers able to keep the faith of the secular religion, let there be no shame in the romantic innocence with which they approach the ultimate issue of their profession.” Carrington, supra note 6, at 227-38.

This faith, and this religion, however, are neither “romantic” nor “ultimate.” Professing that law serves justice as Cahn asserts, might qualify for such an admiring description, but professing that legal norms bind in practice is not noble enough to be called romantic and not important enough to be called ultimate.

176. Id. at 227 (University has “a duty to constrain teaching that knowingly dispirits students or disables them from doing the work for which they are trained” because in law school, University is “training professionals.”)

177. I say this because Dean Carrington is not so much concerned with whether the nihilists are wrong, as with the effects of nihilism on law students. In other words, the nihilist message is to be banned even if true, for if true, it would be all the more dispiriting to students.

Consider this supreme irony. In the name of ensuring that students can do the work for which they are trained, we ban the only people who are attempting to investigate just what causes judges to decide one way rather than another. Obviously, influencing judicial decisions is one of the things lawyers' should be trained to do. Carrington says that law schools should act as if judges follow doctrine, and train students accordingly. But if this premise turns out to be wrong, then these students really have been disabled from the work for which they should have been trained.

178. Dean Carrington's references to “competence,” “law,” “legal principles,” “professional tools,” and the general tone of his references to “training professionals” suggests to me that the ideal law school curriculum would consist primarily of “doctrine” and “legal reasoning.”

179. Noonan, J., Persons and Masks of the Law, (1976) [hereinafter cited as Noonan]Google Scholar.

180. In a book review of the newest addition to this literature, Professor Anthony Chase lists three of the best such studies: Hall, J., Theft, Law and Society (1935)Google Scholar; Kluger, R., Simple Justice (1976)CrossRefGoogle Scholar and Noonan, supra note 162. Chase, , Fear Eats the Soul, 94 Yale L. Rev. 1253 (1985)CrossRefGoogle Scholar (reviewing Simpson, A., Cannibalism: and the Common Law: The Story of the Tragic Last Voyage of the Nignonette and the Strange Legal Proceedings to Which It Gave Rise (1984)Google Scholar [hereinafter cited as Simpson] [hereinafter cited as Chase]. Unfortunately probably the best of the genre is by a non-lawyer. Lewis, A., Gideon's Trumpet (1964)Google Scholar.

181. Professor Chase, who is said to be associated with the Conference on Critical Legal Studies, see Kennedy, & Klare, , A Bibliography of Critical Legal Studies, 94 Yale L. Rev. 461 467–68 (1984)Google Scholar, illustrates this point in his analysis of Regina v. Dudley and Stephens, see infra notes 182-86 and accompanying text.

182. 14 Q.B.D. 273, (1881–1885)Google Scholar, All E.R. Rep. 61 1 T.L.R. 118 (1884)Google Scholar, aff'g 1 T.L.R. 29 (1884)Google Scholar, amended 14 Q.B.D. 560 (1885)Google Scholar.

183. Simpson, supra note 163, at 195-229.

184. This is why Professor Zarr argues that the meaning of legal concepts themselves cannot be understood without study of process and facts. See Zarr, , Learning Criminal Law Through the Whole Case Method, 34 J. Leg. Ed. 697 (1984)Google Scholar.

185. See Chase, supra note 163, at 1267-69. (relating reaction to cannibalism at sea to the “cultural world of late-Victorian England.”)

186. For example, in Chase's view the judges of Victorian England were hostile to the attempt of Sir James Stephen to ground the necessity defense upon a new theoretical basis of utility. Id., at 1264-67. Utility was viewed, according to Chase, as an insufficient basis to excuse criminal acts because of an upper class fear of the emotional, the dark side of human nature, and a faith in social discipline as a refuge and antidote. Id. at 1268-69.

187. Cf. Lehman, W., Is Bohemianism Suitable for the Young Person? A Response to Edward Shils, 35 J. Leg. Ed. 169 (1985)Google Scholar (critizing the disengagement of modern teaching, particularly by both teacher and student in the law school classroom.) Professor Lehman writes of the “spiritual malaise” of law students that so many law teachers bemoan. Id. at 169. But Professor Lehman attributes the sickness to how alienated students are from their own education: “The most articulate students make it quite clear that they see schooling as something that goes on on the surface of the self.” Id. at 175. Students will respond to law teaching when they find themselves at the core of law.

188. I do not mean to suggest here that Cahn made this point expressly. Indeed he described his reliance on concrete cases primarily in the realm of the usefulness of concrete illustration for moral understanding. See The Moral Decision, supra note 22, at 4-5. But the gentleness, the understanding, with which Cahn treats his people of the law, belies any suggestion that these people are cartoons selected merely for illustration.

189. See Shaffer, T., On Being A Christian and a Lawyer (1981)Google Scholar. Shaffer tells the story of an exchange in an evidence class. This story is retold by Fowler, see supra note 20, at 965. Shaffer says the story is true. He also says the exchange is representative. Unfortunately, among lawyers, few will doubt that the exchange is representative.

Professor: Brown, what's a trial?

Brown: An adversary proceeding.

Professor: For what purpose?

Brown: To discover the truth. (There is silence in the class for five second, then laughter.)

Professor (after waiting just long enough for the laughter to help him make his point): Who cares what truth is?

Brown: I care, (loud laughter.)

Professor: Well, in your conversations with God, you can take those questions further. (Pause. Then, to another student:) Smith, what's the purpose of a trial?

Shaffer, supra, at 166.

The cruelty in this exchange is apparent. Its manifestations, usual in the law school classroom, are ridicule by silence, thus leading the victim's fellow students to add to the humiliation by their laughter, and the savage put-down. This exchange is marked as well by the extreme hostility of the teacher's skepticism about values in general and religion in particular. My impression is that classroom cruelty and cynicism tend to go hand-in-hand. Nevertheless, the reader can probably attest that law teachers with faith in some tradition, religious or legal, can still find it in their hearts to humiliate their students. Cf. ProfessorKingsfield, . J. Osborne, Jr., The Paper Chase (1971)Google Scholar.

There is a rather pervasive literature concerning how terrible law school is, especially the treatment students are accorded the first year. My favorite is Turow, S., One L (1977)Google Scholar. Some of the comments elicited by Professor James Elkins from the journals of first year students make me wonder why we have not been closed down long ago.

The king is in control of his kingdom, and the professor's kingdom is his class.

For the rest of the hour he went from student to student pressing for answers and at times he seemed on the verge of a rage. Once during the hour he stood on top of his desk and shouted at a student to make his point. I felt nervous and intimidated throughout the entire hour.

What a terrible day—I was the “victim” today in torts class. “He” started calling on me at 1:08 and didn't stop until class was over at 2:00 p.m. I felt small, belittled, and stupid. I could hardly take notes because my hand was shaking so badly. I kept wondering if all the people in the class thought I was as stupid as I knew I must be appearing.

At some point he made a reference that some of us didn't belong in law school, that we really couldn't master the level of thinking required for a career or study in law. I had allowed myself to be made a fool of in front of my peers and worst of all, I began to doubt my abilities.

To be yelled at, ostracized, and be the brunt of jokes is a novel way of making people think “like” lawyers.

Elkins, , Rites de Passage: Law Students Telling Their Lives, 35 J. Leg. Ed. 27, 40–41 (1985)Google Scholar.

Of course, the literature on stress in law school emphasizes a variety of causes, of which methods of instruction is only one. See, e.g., Himmelstein, , Reassessing Law Schooling: An Inquiry into the Application of Humanistic Educational Psychology to the Teaching of Law, 53 N.Y.U. L. Rev. 514 (1978)Google Scholar; Carrington, and Conley, , Negative Attitudes of Law Students: A Replication of the Alienation and Dissatisfaction Factors, 76 Mich. L. Rev. 1036 (1978)CrossRefGoogle Scholar; and Alienation of Law Students, 75 Mich. L. Rev. 887 (1977)CrossRefGoogle Scholar; Reich, , California Psychological Inventory: Profile of a Sample of First Year Law Students, 39 Psych. Rep. 871 (1976)CrossRefGoogle ScholarPubMed; Taylor, , Law School Stress and the Deformation Professionelle, 27 J. Leg. Ed. 251 (1975)Google Scholar; Watson, , The Quest for Professional Competence: Psychological Aspects of Legal Education, 37 Cin. L. Rev. 93 (1968)Google Scholar. But there is little doubt that the law school experience is highly stressful, I would say absurdly so, and that the “aggressive” and nonsupportive nature of the law school learning environment' is a major factor. See Shanfield, and Benjamin, , Psychiatric Distress in Law Students, 35 J. Leg. Ed. 65, 72 (1985)Google Scholar.

190. An excellent example of such claims is contained in McFarland, , Self-images of Law Professors: Rethinking the Schism in Legal Education, 35 J. Leg. Ed. 232 (1985)Google Scholar [hereinafter cited as McFarland] Professor McFarland attempts to distill self-personae from responses by law professors.

McFarland catches the tone very well of at least one “type” of law professor, whom he calls the “Tough Humanist Scholar”:

Training students to think like lawyers by improving their reasoning skills, even if this means harshness in class, is important to me ….

In using the Socratic method, I am prepared to be tough on students who seem to believe that a slovenly effort at analysis or generalization satisfies professional and intellectual standards. I do not do this for my own perverse pleasure, as I reject the idea that students' emotion, imagination, affection, trust, and wonder must be snuffed out. I am training in structured reasoning on tough problems, however, and if that means battling with the students in classroom intellectual combat, so be it. I do moderately accept the recent arguments that one should be accepting of student feelings and contributions, and attempt to praise rather than wound, but see myself doing the students a greater good in the long run, by toughening their intellects for the rigors of practice. In no way do I use the Socratic method to amuse myself by playing a onesided game of chess with the students.

Id. at 251-52.

Dean Carrington makes essentially the same point:

Law teachers … have the power to teach both judgment and courage to at least some of their students. Courage to at least some of their students—most effectively by example, but also importantly by putting their students on the spot and requiring them to exercise both judgment and courage. The law school classroom affords an arena in which these traits can develop.

Carrington, supra note 6, at 226. Carrington's emphasis upon “courage” is telling. If by courage one means simply facing up to hostile fire, then, to continue the analogy, the law school professor must use “live” ammunition. The more brutal the professor, given this premise, the more courage is exercised by the student when called upon to speak in class.

191. I am skeptical of Carringtons' points about judgment and courage. See supra note 190. In the first place, the typical first-year law school classroom is simply too big, the contact between teacher and student too intermittant, for the contact to teach anything at all. Being called upon consistently and engaging intellectually in depth is of course to be encouraged in any academic endeavor, including law. But this is not done in law school. Being the “victim” once or twice during a semester is not a teaching device.

Aside from quantity, there is quality. First, how can unexpected questions to an inexperienced mind breed judgment? Judgment comes from reflection. Thinking on one's feet, which is what law school classroom performance is really about, is a useful skill for a lawyer. But for all but the trial attorney, it is not crucial. In appellate and oral advocacy, for example, one should rarely be confronting questions or issues one has not thought through ahead of time. Judgment is crucial. But the very immediacy of the so-called Socratic method, does not permit, let alone encourage judgment. As for courage, standing up to a bully does take courage. But there are in this world plenty of real bullies. I have no intention of acting like one so that my students can practice standing up. Ironically, in my experience there seem to be very few judges or lawyers who treat lawyers as badly as some law professors treat their students. And those few that do may have learned their behavior in law school. So much for the “rigors of practice.” See McFarland, supra note 190, at 251-52.

192. See supra notes 167-70 and accompanying text.

193. See supra note 169.