Death and Discretion: Some Thoughts on Living

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. 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. 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.”