Reading: Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Leg. Educ. 518 (1986).

(1) Does Kennedy provide an adequate description of judging as game? In what sense does he make the game of judging worth playing?

(i) Consider the following comments of Judge Richard Posner:

The pleasure of judging is bound up with compliance with certain self-limiting rules that define the "game" of judging. It is a source of satisfaction to a judge to vote for the irritating litigant, for the lawyer who fails to exhibit proper deference to the court, for the side that represents a different social class from that of the judge. It is by doing such things that you know you are playing the judge role, not some other role; and judges for the most part are people who want to be--judges. . . .

When a really new case arises, the rules of the judicial game require the judge to act the part of a legislator and therefore vote his values, although the rules do not require and may even forbid him to acknowledge that this is what he is doing. . . . The decision of a really new case establishes a precedent to guide future cases, and the rules of the judicial game require the judges to follow precedent (though not slavishly) rather than to decide each future case from the ground up.

I want to say more about the analogy between judging cases and playing games. Rules are not always irksome restraints. They may be constitutive. It is difficult to write a sonnet, because the sonnet is a genre with rigid rules; but without the rules there would be no sonnets, and this would be a loss not only for the reader but for the sonneteer. . . . The judicial game has rules that lawyers learn in law school and then in practice or teaching. Both self-selection and the careful screening of federal judicial candidates help to assure that most lawyers who become federal judges will be lawyers who enjoy this particular game. They are therefore likely to adhere, more or less, to the rules limiting the considerations that enter into their decisions. This is just Wittgenstein's point that rules bind because they are accepted, rather than being accepted because they bind. Nothing in a rule imposes an obligation to follow it. The decision to obey comes from outside, from force or socialization or the fact that the rule is constitutive of a pleasurable activity.

The rules of judging of which I am speaking are not the rules of substantive law, to which the community is subject but to which judges in their judicial capacity relate differently, as law givers and law appliers. They are the institutional rules of judging, to which only judges are subject. These rules . . . are not altogether clear or uniform. Some judges play by "activist" rules, others (a larger number) by rules of "restraint" because those rules are more congenial to the legal profession's self-image; and judges, like other game players, sometimes bend or break the rules for the sake of other values, such violations being in fact rather common because detection and sanctioning are difficult. Nevertheless most judicial decisions do have a "ruled" quality. . . .

A further point is that in creating games, as in creating art, people create a temporary refuge from, by imaginative transformation of, the sinister realities of ordinary life, the realities of hatred, disease, crime, betrayal, war, poverty, bereavement, despair. The judicial game has aspects of this refuge and transformation. Its raw materials are the ugly realities of life, but the judicial game transmutes them into intellectual disputes over rights and duties, claims and proofs, presumptions and rebuttals, jurisdiction and competencies. And that is a comfort: among other things it spares the judge who inflicts or upholds the death penalty of thinking of himself as a killer. But to get this comfort, the judge must play by the rules of the judicial game, because the rules constitute the game.

* * * *

An important question is the extent to which judges' willingness to play what I am calling the judicial game is a function of . . . professional ideology. . . . Traditional legal education and practice do tend to filter out of the profession, or at least the part of the profession from which most judges are appointed, persons radically uncomfortable with traditional legal roles, including that of the judge. As the restrictions that define the legal profession erode, as law becomes more like a policy science, will a point be reached at which neither screening nor self- selection assures that most judges play the judicial game. [Richard A Posner, Overcoming Law 131, 132, 133-134 (Cambridge: Harvard University Press, 1995)]

(ii) Judge Posner contends that the "judicial game has rules that lawyers learn in law school. . . ." What are those rules?

(iii) Since it is "legal reasoning" that judges purport to use in reaching their decisions, we might ask how "legal reasoning" itself can be said to constitute a game? Do you get a better sense of the nature of this game from Duncan Kennedy's account of judging?

(2) Kennedy claims that legal argument is a "branch of ethical argument." [528].

(i) How has your own legal education prepared you to respond to Kennedy's claim that legal reasoning is branch of ethical argument?

(ii) In what ways have your teachers incorporated this claim into their teaching?

(iii) How have your teachers tried to provide a contrary jurisprudential perspective and argue that ethical argument is a different genre of argument than legal argument?

(iv) How do you judge and differentiate between teachers in the way they respond to Kennedy's claim?

(3) How is Kennedy's approach to legal reasoning (and legal argument) a critique of your own legal education?

(i) How does Kennedy's image of the law "as a medium in which one pursues a project, rather than as something that tells us what we have to do" square with the image(s) of law offered to you during the course of your legal education? [526, 527].

(ii) Has your legal education focused equally on the "freedom" and "constraint" in the use of law to achieve desired outcomes? In what law school course has both freedom and constraint found a prominent place?

(4) What kind of rhetorical moves does Kennedy make in order to make his argument persuasive? (What kind of rhetoric does he use?)

(i) Does Kennedy successfully defend against the claim that when judges assume
authority to "make" the law they become tyrants?

(ii) If objectivity is associated with "the law" and subjectivity with outcomes other than those associated with objective law (i.e., how the judge wants the case to turn out, albeit for good reason, that is for social, political and cultural reasons that advance the good of society) then how can a judge ever act against the objectivity of law? [520-21]

(5) How would Kennedy's account of judging work as an introduction to legal education? (What, ultimately, does one need to know about law to set out to study law?)

(6) During the course of your legal education what have you been taught about how judges decide cases? Write a brief description of this implicit element of your education. Keep the description before you as you read Kennedy's account of judging.

(7) Kennedy claims that his account of judging is a moral project. How so?

(i) In what sense do judges have freedom to determine the outcomes of cases? How does the freedom of the judge to decide a case in a particular way affect their moral accountability for the decision?

(ii) How does Kennedy link the judge's determination to reach a decision based on HIWTCO ("how I want to come out") to the judge's character?

(8) In what sense does a judge have freedom to determine the outcome of a case? Consider the following:

the judge may have a sense of what should happen (based on a social/political vision);

the judge may have a sense of power (vested in the person and the position) which has aided them in securing this social vision;

she knows enough about law to know that in many instances the outcome is thought to be determined by some necessary, objective rule (and that the outcome will follow as if there is a supreme commander issuing a dictate);

the sense that this is what judges do;

realization that freedom is part of the "rules of the game of legality" [522];

sense that they want to take advantage of the moment of play ("For the moment I'm free to play around.") [523]

just maybe it's possible to reached the result I want to reach (but to do so I will be "racking the brain") [523]. In law school we do some of this, or get exposed to it. On essay exams we are asked to do it. A kind of intellectual free association but within the context of legal argument.

realize, up front, that freedom entails, "false leads and panic" [523]

ask: what kind of problem is it? Defining the problem is a key to getting outcomes that we want and outcomes that are just. There is a struggle, in tough cases, over how we define the problem. Kennedy plays with the idea that he can define the problem in terms of the First Amendment instead of labor law. Are we dealing with a criminal offense or a constitutionally protected activity, a contract or a tort? Lawyers know this is the name of the game. [524-253]

then when you begin to redefine the problem you find that you have a new set of rules. [525]

but in all this you need an image of law that makes freedom look real (which might be defined as the image/metaphor problem) [526-27]

(9) What constraints does Kennedy find on the judge reaching a decision based on how he wants the case to come out (HIWTCO)?

the outcome must be backed by legal argument [527], a premise derived from the notion that the judge has basically, made a promise to some public to do this. Moreover, there will be sanctions, for failure to do follow this central "rule of legality";

a judge wants the outcome to stand and not to be reversed;

a judge will have an opportunity to decide future cases and his ability to do so and his influence in those cases derives from the decision to be made in the case before him [527-28];

the life-project (and future credibility) of the judge is implicated [528];

legal arguments are a branch of ethical argument [528];

the work is "hard, scary, and time-consuming" (there are limited resources, limited time, and limited energy to secure desirable outcomes) [528]. Basically, the creation of good legal arguments is not all that easy.

legitimacy costs [528-29], or the mana and charisma problem (There are, says Kennedy, "limit's" to a judge's "legitimating power, and every case raises them." However, "legitimating power is depleted or agumented only when I try to do something out of the ordinary." [529])

We might note here that these various constraints might also be presented as the "rules of the game of legality" [522], as it is these rules which dictatethe moves that the judge (as player) can legitimately make.

(10) Kennedy describes how judges enter into a compact with the Devil. What is this compact and how would Kennedy have the judge try to escape it?

(11) By what means does Kennedy attempt to convince you that his approach to judging is an approximation of the what goes on in what is sometimes euphemistically referred to as the "real world"?

(12) Would the practice of law be more interesting and the law more just if judges were as straightforward as Kennedy about way they go about making decisions? [For the suggestion it would not, see Scott Altman, Beyond Candor, 89 Mich. L. Rev. 296 (1990)]

1. Kennedy begins "Freedom and Constraint in Adjudication: A Critical Phenomenology" with the observation that the only way to talk about judging is to turn to a "specific imagined situation." (518). Isn't this exactly what we have tried to do in Practical Moral Philosophy for Lawyers?

2. Contrast Judge Posner view of judging (and law-making) with that of Professor Joseph Vining (University of Michigan School of Law):

For all the many functions of games, and the intrinsic pleasure in them akin to the pleasure of dance, there is a little hole of emptiness at the center of games. The point of a game is playing, or the point of playing is the game itself. Games are play, they are not real, what happens does not really matter. But (for that very reason) life is not a game, and law which is part of life is not a game. What is said and done does matter and (for that very reason also) the "rules" of law, or the various texts that are variously pointed to and called rules, are not like rules of a game. If you want to play the game of football you do this. As the economist Frank Knight observed, you do not win in getting the ball over the goal line, if you have put all twenty-two men on the same side. You have not played the game of football. Games are understandably intertwined with rules unless "breaking the rules and getting away with it" is part of the game, in which case the game escapes into an attitude. Playing, if that is the point of the game and the game itself is not the point, is intertwined with rules: pretending, as on a stage, requires a script to follow, just as imitation requires something to imitate. Nor are rules of law like rules of mundane cooking. If you wish to make a cake, you do this. If you do not do this, you do not make a cake. Nor are they like rules of ordinary calculation. If you would divide four by two, you do this. If you do not do this, you have not divided four by two.

Law is not pretending. It is not imitating. Law is for real. And the decision-maker facing law is not in a situation of if-then. If-then rules come into consideration only if one wants to proceed. There is an element of voluntary invocation in cooking, or a game, that is not part of facing the law. In life you must go on, you must proceed, into the new where imitation, repetition, is not enough. And there are the questions of law when you do, with you and against you and around you. Moreover, in life your object is not fixed. It changes as you proceed. You must go forward but it is not or is no longer a cake you wish to make. And there is law, still with you as you grope your way along.

[Joseph Vining, Propter Honoris Respectum: The Gift of Language, 73 Notre Dame L. Rev. 1581, 1594-95 (1998)]

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