This is a summary of the discussion inspired by Frank’s essay, organized into what we understand/would like to understand, and subdivided into various topics. The points below are a combination of direct quotes and paraphrasing of student postings on the Wiki. We hope you find it useful!

I. What We Understand (Through Different Interpretations)

a. What is the “fundamental problem”?

i. Science can’t discern accurately whether people are guilty or innocent.

* Frank first describes "magic" as the primitive response to the unknown and frightening, to problems. The ordeal was a "magic" solution to the problem that guilt was unknowable.

ii. In more "scientific" times, when magic is no longer considered "reasonable," we once again face the guilt problem. We instead believe that legal rules accurately separate guilt from innocence. But this too is magic.

The issue isn't that subjectivity was a big enough threat. That our culture has continually developed and complicated its responses to this problem issue shows that we consider it a big problem. It seems like a serious threat to me: if we were to acknowledge that there was a poor between committing crime and going to jail, our worldview would collapse. -- DanielButrymowicz? - 31 Jan 2008

iii. It is impossible to predict the law by a scientific method, as the physical sciences attempt, because the law as a descriptive matter is regulated partly by “invariants, uniformities, regularities” (210) and partly by magic and contingency.

b. What is Magic?

i. Magic fills the void left by the realms of human activity without control ‘by the ordinary techniques’ practiced by rational man. Magic and science stand anthropologically in opposition to each other: where one exists, the other dies.

*Eben provided us with an example in class. Though deliberate, Eben's validation of rent control in the FCC opinion did not necessarily force Rehnquist's hand to rule in favor of it in the future case; instead, it was a contingent event by virtue of the fact that the strategy of one man influenced the giant structure of American government and history of jurisprudence which, as Rehnquist's previous writings on rent control suggested, were on a different course. That, in the very ordinary sense of the word, was magical. Yet, there are a hundreds of competing human strategies or plots, making it therefore hundreds of times more magical. If, in our readings, the pendulum swung from a transcendental conception of the law approximately before the 19th century to Holmes's more scientific rationalization focused on prediction, Frank is perhaps pushing the pendulum towards a third phenomenological course. To Frank, it is impossible to predict the law by a scientific method, as the physical sciences attempt, because the law as a descriptive matter is regulated partly by "invariants, uniformities, regularities" (210) and partly by magic and contingency. -- JesseCreed? - 02 Feb 2008

ii. Magic and science don’t stand in opposition to each other. Instead, they exist on a spectrum containing varying degrees of conjecture and predictability on which almost every human discipline falls.

* In response to Jesse: I read Frank differently with respect to the relationship between magic, science and law. I don't think Frank would agree that "magic and science stand anthropologically in opposition to each other." Rather than a bright, distinctive line between the two, I think his analysis lends itself more to a spectrum. Magic in the Frankian sense is very science-like. It lies on the opposite end of the spectrum from so-called hard sciences, but they are both creatures of the same species. Both describe activities that developed as responses to practical problems. Both are somewhat technological; Magic is “essentially mechanistic, involving a manipulation of the external world by techniques and formulas.”

So imagine we’ve got this spectrum. On the one end are hard, empirical sciences and on the other end is superstitious, primitive magic. Almost every human discipline can be placed somewhere along the line – from mathematics and computer science to law and history; from economics and psychology, to religion, esthetics and superstition. The spectrum essentially describes all human methods of problem-solving, measured in degrees of conjecture and predictability.

With that in mind, Frank’s notion of the judicial process being “permeated with magic” is very clear. We’ve come a long way since witch trials, but because our legal system it is ultimately, fundamentally an endeavor in truth-telling, it will (probably) always contain an element of unpredictability. The truth is a black box that science has yet to crack; it is conjectural – what Frank calls magic. Just like our primitive ancestors, we find ourselves at an epistemological impasse, so we turn to “magic” to fill the gap. We’ve taken great pains to science-ify our legal inquiries. The legal process itself is essentially a formula for deciding truth – what Bentham described as a “mechanical jurisprudence.” But ultimately, of course, we are still deciding truth, not discovering truth - because at our legal formula is built around that black box. -- JuliaS? - 03 Feb 2008

c. When is Magic utilized?

* From the Ordeals to the swearing of oaths, our society has always to some degree relied on religious beliefs and practices to facilitate the legal process. I would infer from the reading, as Daniel pointed out above, that Frank is tracing the evolution of solutions to this problem of uncertainty/magic. My view is that as long as we are a God-fearing society, we will continue to permit various levels of uncertainty within our secular legal system rooted in our beliefs regarding a higher moral being. In other words, swearing to God on a Bible is enough for the swearing in of the President of the United States. I cannot see, any time soon that is, the Judiciary inventing a truth telling robot to make sure the President will faithfully execute the duties of his or her office. I think a little magic is unavoidable. -- AdamGold? - 05 Feb 2008

i. Magic supplants science when 1) “ignorance is thickest about the way of things” and 2) “dangers are the greatest.”

ii. Magic has more recently been used to divine the unknown (past events), as opposed to a time when Magic was a ritual used to create good luck after having witnessed an event of misfortune (a boat capsizing in the open ocean).

iii. Magic is necessary when three elements are present: the unknown, danger and circumstances where luck plays a major role; Magic is sufficient when the unknown and danger are present (i.e. the unknown facts of a particular case and the danger present in the possibility of a man losing his freedom).

iv. With the problems of competing witnesses, the degrading memories of a historical event, and the incentives on both sides to present the “facts” in a way that supports their argument, true objectivity – a clear, unadulterated picture of what occurred – cannot be produced. When faced with the possibility of deceit or uncertainty, our ancestors chose a different route. Instead of the false comfort in the objectivity of a judge, they were reassured by the omniscience of Magic and later by the swearing oaths, the truthfulness of which God, apparently, took some great interest.

d. Why do we use Magic?

i. We are addicted to Magic to escape anguish, or “the feeling of our total and deep responsibility” as truth deciders. We cannot bear to face the idea that we are choosing to send a man to jail for the rest of his life—that this is a decision we are making as imperfect beings, that we are wholly responsible for it, and that we cannot shift the blame.

ii. Modern legal Magic is a token of our colonial legacy. We hold our legal processes as scientific not only to make it easier to bear the chanciness of it, but because “officializing” is key to the project of power.

iii. We are still deciding truth, not discovering it.

e. What is Frank’s goal in writing this?

i. Frank is tracing the evolution of solutions to this problem of uncertainty and Magic.

ii. Frank is not prescribing any reform, other than recognition that the “science” of law is not scientific at all. His essay is purely deconstructive. The issues he discusses are unavoidable.

iii. Frank does not necessarily have a problem with science. He has a problem with the fact that we treat it as a science.

iv. Frank intends to show us that the law is not science but Magic, yet a little bit of this Magic is necessary for a functioning legal system.

v. Frank encourages us as lawyers to eschew the positivism of science, recognize the magic inherent in law due to human contingency, and adopt the “spirit” of science to combat deception.

vi. Frank believes that “future possibilities…can be realized only by tearing the mask and the thing masked asunder.” The first step to reform is acknowledging the inherently subject nature of judicial decision-making and beginning to base the legitimacy of a court’s murder conviction, for example, on the more grounded idea that it is the best the court could do give its limitations.

vii. In practicing law, Frank recommends that we “try to ascertain what social changes must be made, if that [end] is to be actualized” (220). When we run up against a problem that is unsolvable, we must turn to more product endeavors, but realize that our broken theory may have produced imperfect means that may be incorporated into our art of legal practice.