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Death and Discretion: Some Thoughts on Living
Sullivan, Barry
Sullivan, Barry
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Abstract
Fifty years ago, James Boyd White inspired a quiet revolution in the
world of legal studies. He encouraged lawyers to think more deeply about
questions of law and justice by drawing upon the humanities, which
provided sources and methods well beyond those that the legal academy
then recognized as legitimate ways of thinking and talking about law.1
Among other things, Professor White insisted that there was a morality to
authentic legal argument and decision making that required a close and
engaged reading of texts, an understanding of community, and an openness
to being persuaded by others.2 It was a courageous move, particularly in the
early 1970s, when many academic lawyers still thought that their job was
simply to teach students to “think like a lawyer,” in the narrow and
instrumental sense in which they understood it. Even those who took a
slightly broader view – who recognized that the social sciences might add
value to legal studies – found little to be said in favor of the humanities. At
best, they thought that the unpacking of fuzzy concepts like “justice” or
“fairness” might be appropriate (if ultimately pointless) work for a
philosophy or political science department, but not for a law school. At
worst, they thought that legal decision making was simply an exercise of
power, that judges were effectively unconstrained by law, and that it made
no sense to study closely the reasons that judges give for their decisions
because those reasons are not the drivers of decisions, but merely post hoc
justifications for outcomes reached for other reasons and on other grounds.
Or they implicitly (and sometimes explicitly) invoked utilitarian concepts
such as efficiency as if those concepts could provide an adequate substitute
for “justice.”