1 See Vincent Bugliosi, None Dare Call It Treason, Nation, Feb. 5, 2001, at 12; Ronald Dworkin, A Badly Flawed Election, N.Y. Rev. Books, Jan. 11, 2001, at 53; Mary McGrory, Supreme Travesty of Justice, Wash. Post, Dec. 14, 2000, at A3.
2 See Bugliosi, supra note 1; Dworkin, supra note 1; McGrory, supra note 1.
3 If the decision by the judge is inconsistent with a previous decision, and improperly influenced by the judge’s biases, what about the previous decision with which it is being contrasted? Was that decision motivated by the opposite bias? And what effect should the simple fact that a favored group receives or is denied a benefit have upon the judge? Should she make the opposite decision on the basis of what group is affected, or would that merely be an example of the same bias in reverse?
4 See U.S. Const. art. III.
5 See Alan M. Dershowitz, Supreme Injustice 19–52 (2001) (discussing in detail the elements of the political and judicial struggle that occurred between Democrats and Republicans while contesting the Florida vote).
6 See Bush v. Gore, 531 U.S. 98, 98 (2000). For further discussion of this case, see infra notes 285–357, and accompanying text.
7 Drawing from the fact that the national popular vote was very nearly a tie. See Charles Fried, ‘A Badly Flawed Election’: An Exchange, N.Y. Rev. Books, Feb. 22, 2001, at 8.
8 The five Justices of the majority were appointed by Republican presidents. See Dershowitz, supra note 5, at 198–99.
9 Id. at 3–4 (listing various contemporary commentators). Subsequent events seem to have reduced the relative importance of the Bush decision. The terrorist attacks of September 11, 2001 reminded citizens that being an American is more important than being a Democrat or Republican. And empirically, a recount headed up by the Miami Herald seemed to show that George W. Bush would have won the election even apart from the Court’s decision. Dennis Cauchon & Jim Drinkard, Florida Voter Errors Cost Gore the Election, USA Today, May 11, 2001 at 1A.
10 Bugliosi, supra note 1, at 12; McGrory, supra note 1, at A3.
11 Bugliosi, supra note 1, at 12; McGrory, supra note 1, at A3; see also Dershowitz, supra note 5, at 50–52 (blaming the decision on political partisanship). Elections in the U.S. typically present a binary choice, between a Democrat and a Republican. This greatly clarifies the possible biases for a judge’s choice in situations where the judge’s choice will favor one party over the other.
12 See Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 65 (1984) (debunking the myth that judges have an advantage over ordinary people while making decisions).
13 See e.g., Richard Rorty, The Banality of Pragmatism and the Poetry of Justice, 63 S. Cal. L. Rev. 1811 (1990); Singer, supra note 12, at 4.
14 Critical Legal Studies is a very diverse movement, if it can even be termed a movement. Some common tenets include a rejection of traditional hierarchy, concern for marginalized groups, especially racial minorities and women, and often radical proposals for addressing these situations. See Singer, supra note 12, at 5, 67–70. For an interesting, although now somewhat dated, collection of representative pieces, see Duncan Kennedy & Karl E. Klare, A Bibliography of Critical Legal Studies, 94 Yale L.J. 461, 461–62 (1984).
15 See Singer, supra note 12, at 25–26.
16 See Kennedy & Klare, supra note 14.
17 Ronald Dworkin represents one traditional approach to these questions, sometimes identified as a variation of natural law theory. Critical Legal Scholars have, for example, criticized Dworkin’s reliance on rational consensus to justify his theory of society and law. See Singer, supra note 12, at 35 n.112.
18 See id. at 52, 58. Singer, for example, argues for a substantive program to nihilism, which under other circumstances might be laughable, based simply on the definition of the word nihilism. See id.
19 These weaknesses include problems in making sense of human interactions, in explaining (or even affirming the possibility of) meaningful dialogue, and, more importantly for this Note, a total denial of classical objectivity. See Richard Rorty, Philosophy and the Mirror of Nature 335 (1979); Singer, supra note 12, at 25–26.
20 Singer, supra note 12, at 7–8.
21 Bernard Lonergan, Insight: A Study of Human Understanding (Frederick E. Crowe & Robert M. Doran eds., Univ. Toronto Press 1992) (1957) [hereinafter Lonergan, Insight]; Bernard Lonergan, Method in Theology (1971) [hereinafter Lonergan, Method].
22 But see Patrick Brennan, Realizing the Rule of Law in the Human Subject, 43 B.C. L. Rev. 227 (2002); Anthony J. Fejfar, Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence, 27 B.C. L. Rev. 681 (1986).
23 See Brennan, supra note 22, at 263.
24 Lonergan’s work may be classified as neo-Scholasticism, he drew on the legacy of Aquinas and Aristotle, but with different emphases and a broad understanding of modern science, mathematics, philosophy, and religion. See id.
25 See, e.g., Ronald Dworkin, Law’s Empire (1986) [hereinafter Dworkin, Law’s Empire]; Ronald Dworkin, Pragmatism, Right Answers and True Banality, in Pragmatism in Law and Society (Michael Brint & William Weaver eds., 1991).
26 See Dworkin, Law’s Empire, supra note 25, at vii-ix (explaining that Law’s Empire draws together all of Dworkin’s prior work in jurisprudence, including, relevant to this Note, his notorious ‘right answers’ thesis, into a broad far-reaching description of law and its place in society).
27 Both authors answer questions about objectivity and the form of proper decision-making processes. See infra notes 108–144, 269–284 and accompanying text.
28 See infra notes 33–144 and accompanying text.
29 See infra notes 33–144 and accompanying text.
30 See infra notes 145–284 and accompanying text.
31 See infra notes 145–284 and accompanying text.
32 See Bush v. Gore, 531 U.S. 98 (2000); infra notes 298–357 and accompanying text.
33 See Lonergan, Insight, supra note 21.
34 See id. at 23.
35 See infra notes 39–79 and accompanying text.
36 See infra notes 70–76 and accompanying text.
37 See infra notes 80–106 and accompanying text.
38 See infra notes 108–144 and accompanying text.
39 See Lonergan, Insight, supra note 21, at 298–99.
40 See Bernard Lonergan, The Subject 14–18 (1968). Lonergan criticized Kant, among others, for taking this too simplistic position. The result of such a position is an epistemology with too sharp a differentiation between subject and object. See id.
41 Although all human knowing, according to Lonergan, proceeds via this cogitional structure, it is only by turning the process back upon itself that an individual is able to formally experience, understand and judge the existence of the structure. It is inapt, Lonergan explained, to conceive of the process of becoming aware of oneself as looking inwardly, in the same way that it is inapt to conceive of knowing as looking outwardly. Rather, knowledge of how one knows must be acquired by the same mechanism as knowledge of the outside world. Lonergan referred to this process, which he considered to be of central importance for any person, and especially for anyone attempting to utilize his work, as “the self-affirmation of the knower.” See Lonergan, Insight, supra note 21, at 343–60.
42 See id. at 299, 307.
43 See id. at 204–14.
44 See id.
45 See id. at 96–97.
46 See Lonergan, Insight, supra note 21, at 298–99, 307.
47 See id. at 298–99. Lonergan was well acquainted with the work of Jean Piaget, the renowned psychologist, and his work clearly shows Piaget’s influence. See generally, Lonergan, supra note 21, at 193–207; Walter E. Conn, Objectivity—A Developmental and Structural Analysis: The Epistemologies of Jean Piaget and Bernard Lonergan, 30 Dialectica 197 (1976).
48 See Lonergan, Insight, supra note 21, at 298–99.
49 See id. at 29.
50 See id. Thus, for Lonergan, knowing (and by extension objectivity) is in the first instance an individual activity. See id.
51 See id.
52 See id. at 34.
53 See Lonergan, Insight, supra note 21, at 34.
54 See id.
55 See infra notes 110–114 and accompanying text.
56 See Lonergan, Insight, supra note 21, at 297–99.
57 See id. at 404.
58 See id. at 298–99.
59 See id. at 404–05.
60 See id. at 297.
61 See Lonergan, Insight, supra note 21, at 297.
62 See id. at 197–99, 729.
63 See id. at 315. But see Rorty, supra note 19, at 335 (arguing that the word “objective” only means that the parties agree).
64 See Lonergan, Insight, supra note 21, at 298.
65 See id. at 298.
66 See id. at 298.
67 See id. at 37–38.
68 This is the basis of Lonergan’s theory of development. See id. at 37–42.
69 See Lonergan, Insight, supra note 21, at 37–38. Lonergan explains that there are ways to engineer the creation of a higher viewpoint. In general, a heuristic structure is a guide to getting answers, such as the generation of a higher viewpoint or the question that guides an insight. A method is a fully developed heuristic structure that guides the question, anticipates the kind of insight to be expected, and provides a method of verification. Thus a method provides the form, but not the content, for inquiry which can ultimately lead to the solution of any problem, including that of general bias. See id. at 67–68.
70 See id. at 636–37.
71 Deciding is best understood as the fourth level in the cognitional structure, except that the first three complete the act of knowing, and deciding begins the process of acting on that knowledge. See Joseph Flanagan, Quest for Self-Knowledge: An Essay in Lonergan’s Philosophy 196–97 (1997); Lonergan, Insight, supra note 21, at 636–37.
72 See Flanagan, supra note 71, at 197–98.
73 See id. at 200–01; Lonergan, Insight, supra note 21, at 636–37.
74 See Lonergan, Insight, supra note 21, at 624.
75 See id. at 624–25.
76 Flanagan, supra note 71, at 201. Not only is the new, valuable course of action brought into being, but the actor is changed as well, she takes more responsibility for her own being through creating more value in herself and the world around her. See id.
77 See Lonergan, Insight, supra note 21, at 96–97.
78 See id. at 298–99.
79 See id. at 636–37.
80 See Flanagan, supra note 71, at 107.
81 See Lonergan, Insight, supra note 21, at 234.
82 Lonergan called for a diversity of ideas, for example, in his description of cosmopolis. See id. at 264.
83 See id. at 263–67. Because absolutely correct knowing, and thus decision making, is so difficult and time consuming, and modern industrialized societies are enormous and intricate, it would be impossible for one person to gain expertise in enough areas simultaneously to effect an entire society. Thus a community, although not in the traditional sense of the word, of experts is necessary to effect widespread change. See infra note 378.
84 See Lonergan, Insight, supra note 21, at 244–45.
85 See Flanagan, supra note 71, at 80.
86 See id.
87 See id.
88 See id.
89 See Lonergan, Insight, supra note 21, at 244–47.
90 See id. at 247–50.
91 See id. at 250–51.
92 See id. at 359–60. The structure is described by Lonergan as invariant. See id.
93 See id. at 203.
94 See Lonergan, Insight, supra note 21, at 200–01. Lonergan detailed a number of “patterns of knowing” but these two are the important ones for the limited point made here.
95 See id. at 198–200. Another way of describing scientific knowing is that it is interested with the relations between things. See id.
96 See id. at 200–01. Common sense knowing is a popular and important subject which has been explored in the legal literature by a number of scholars including Catharine Wells, Situated Decisionmaking, 63 S. Cal. L. Rev. 1727 (1990).
97 See Flanagan, supra note 71, at 85.
98 See Lonergan, Insight, supra note 21, at 251–53.
99 See Flanagan, supra note 71, at 85, 93.
100 See Lonergan, Insight, supra note 21, at 251–53.
101 See id. at 251–52. For example, the common sense response to one type of city planning problem in the 1960s was a complete failure when applied on a broad scale. It required the creation of a whole new, broader, more integrated theory of urban planning by Jane Jacobs to create a workable theory and reverse this error. See generally Jane Jacobs, Death and Life of Great American Cities (1994).
102 See generally, Lonergan, Insight, supra note 21, chs. 6 and 7.
103 See Lonergan, Insight, supra note 21, at 254.
104 See id.
105 See Flanagan, supra note 71, at 88. For example, Einstein’s theory of relativity represented a higher viewpoint than Newton’s theory of gravity. Einstein’s work built on and incorporated many of Newton’s insights, but ultimately transcended them. See Albert Einstein, Relativity 135–57 (Robert W. Lawson, trans. 1961).
106 See Lonergan, Insight, supra note 21, at 258–59.
107 See supra notes 39–106, and accompanying text.
108 See Lonergan, Insight, supra note 21, at 404. This corresponds roughly with what Lonergan termed normative objectivity. See id.
109 See id. at 402. This corresponds roughly with what Lonergan termed absolute objectivity. See id.
110 See id. at 404.
111 See id.
112 See id.
113 See Lonergan, Insight, supra note 21, at 404–05.
114 See id. at 404.
115 See id. at 247–50.
116 See id. at 244–50.
117 See id. at 618–56.
118 See Lonergan, Insight, supra note 21, at 500–02.
119 See Lonergan, Method, supra note 21, at 44.
120 See id. This is the self-transcendent principle which serves as the bedrock for all of Lonergan’s work.
121 See id. at 231. Of course, most people fall in between the extremes, they do improve themselves more or less constantly, and yet probably no one is perfectly able to avoid all bias.
122 See id. at 44.
123 See Lonergan, Insight, supra note 21, at 265–66.
124 See id.
125 See Lonergan, Method, supra note 21, at 44.
126 See Lonergan, Insight, supra note 21, at 266.
127 See id. at 250–51.
128 See id. at 258, 266–67.
129 See id. at 253.
130 See id. at 266.
131 See Lonergan, Insight, supra note 21, at 266–67.
132 See id. at 266. Lonergan termed this community of the mind cosmopolis. See id. at 263–67.
133 See id. at 175.
134 See id. at 402. This particular sort of objectivity is only realized in transcendent subjects according to Lonergan. See id.
135 See id. at 402–03.
136 See Lonergan, Insight, supra note 21, at 404–05.
137 See id.
138 See id. at 370.
139 See id. at 493–94.
140 See id. at 493–96.
141 See Lonergan, Insight, supra note 21, at 493–96.
142 See Lonergan, Method, supra note 21, at 53. The quote continues:
Being attentive includes attention to human affairs. Being intelligent includes a grasp of hitherto unnoticed or unrealized possibilities. Being reasonable includes the rejection of what probably would not work but also the acknowledgment of what probably would. Being responsible includes basing one’s decisions and choices on an unbiased evaluation of short-term and long-term costs and benefits to oneself, to one’s group, to other groups.
See id.
143 See id. at 53–55.
144 See id. at 53.
145 See Paul Gaffney, Ronald Dworkin on Law as Integrity: Rights as Principles of Adjudication 1 (1996).
146 See Dworkin, Law’s Empire, supra note 25, at vii-ix.
147 For example, he addressed questions of interpretation, objectivity (in the form of “right answers”), and other issues of general philosophy. See id.
148 See e.g., id. at 425–28 n.23–27.
149 See id. at 6.
150 See id. at 6–11.
151 See infra notes 157–192 and accompanying text.
152 See infra notes 157–192 and accompanying text.
153 See infra notes 193–241 and accompanying text.
154 See infra notes 193–265 and accompanying text.
155 See infra notes 242–265 and accompanying text.
156 See infra notes 269–284 and accompanying text.
157 See Dworkin, Law’s Empire, supra note 25, at 46.
158 See id. at 50.
159 See id.
160 See id.
161 See id. These distinctions are similar to the distinctions Lonergan drew between theoretical and common sense knowing. See supra notes 91–106 and accompanying text.
162 See Dworkin, Law’s Empire, supra note 25, at 50.
163 See id. In general philosophical terms, this might be restated as: interpreting conversation involves understanding a subject as object, while interpreting art or social practice involves understanding only an object.
164 See id.
165 See id. at 52.
166 See id.
167 See Dworkin, Law’s Empire, supra note 25, at 65.
168 See id. at 65–66.
169 See id. at 66.
170 See id.
171 See id.
172 See Dworkin, Law’s Empire, supra note 25, at 228–29.
173 See id.
174 See id. at 230–31.
175 See id. at 230.
176 See id. at 231–32.
177 See Dworkin, Law’s Empire, supra note 25, at 234.
178 See id. at 55.
179 See id.
180 See id. at 55–56.
181 See id. at 55–59. Dworkin uses the example of Shakespeare’s Shylock, noting that a contemporary director would probably have to rearrange the character if she were to evoke in a contemporary audience the reaction Shakespeare’s audience would have had. See id. at 55–56.
182 See Dworkin, Law’s Empire, supra note 25, at 58–59.
183 See id. at 62.
184 See id. at 62–63.
185 See id.
186 See id. at 63–64.
187 See Dworkin, Law’s Empire, supra note 25, at 64–65, 422 n.15. The concept of the superentity, however, looks rather similar to Dworkin’s core concept of personification. See infra notes 214–218 and accompanying text.
188 See Dworkin, Law’s Empire, supra note 25, at 70–71.
189 See id.
190 See id.
191 See id.
192 See id. at 86.
193 See Dworkin, Law’s Empire, supra note 25, at 87.
194 See id.
195 See id.
196 See id. at 88.
197 See id. Because governments use collective force to further their aims, Dworkin suggests that the primary aim of legal practice is to restrict government. “Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.” Judges are active participants in this process. See id. at 93.
198 See Dworkin, Law’s Empire, supra note 25, at 88.
199 See id. at 89.
200 See id. at 225.
201 See id. at 164–65.
202 See id. at 87–88.
203 See Dworkin, Law’s Empire, supra note 25, at 87–88. This might be restated in more general terms as: these are principles that provide guidelines for determining the value of the alternatives.
204 See id. at 167. This duty effects judges, legislators and bureaucrats at various times as they carry out their duties. See id.
205 See id.
206 See id. at 219–20.
207 See id.
208 See Dworkin, Law’s Empire, supra note 25, at 219–20.
209 See id. at 176.
210 See id. at 184–85.
211 See id. at 188–89.
212 See id.
213 See Dworkin, Law’s Empire, supra note 25, at 187.
214 See id. at 167–68.
215 See id. at 167, 172.
216 See id. at 169–71.
217 See id. at 170.
218 See Dworkin, Law’s Empire, supra note 25, at 172–73.
219 See id. at 176.
220 See id.
221 See id. at 177.
222 See id. at 188–89. Dworkin relies heavily on the community’s acceptance of integrity in building his theory of the legitimacy of coercion. See id. at 190–92.
223 See Dworkin, Law’s Empire, supra note 25, at 190.
224 See id. at 192.
225 See id. at 195–97.
226 See id. at 198.
227 See id. at 199.
228 See Dworkin, Law’s Empire, supra note 25, at 199.
229 See id. at 199–201.
230 See id. at 211.
231 See id. at 210–11.
232 See id.
233 See Dworkin, Law’s Empire, supra note 25, at 210–11.
234 See id. at 213–14.
235 See id. at 214–15.
236 See id. at 202.
237 See id.
238 See Dworkin, Law’s Empire, supra note 25, at 215.
239 See id. at 217.
240 See id.
241 See id.
242 See id. at 225–26.
243 See Dworkin, Law’s Empire, supra note 25, at 225.
244 See id.
245 See id.
246 See id. at 227.
247 See id.
248 See Dworkin, Law’s Empire, supra note 25, at 227.
249 See id. at 227.
250 See id. at 227–28.
251 See id. at 238–58.
252 See id. at 239. Dworkin acknowledges the unrealistic characteristics of Hercules. See id.
253 See Dworkin, Law’s Empire, supra note 25, at 239. Lonergan’s work deals extensively with the concept of method, a structure that guides questioning, but doesn’t dictate the content of a decision. Cf. Lonergan, Method, supra note 21, at 4–25. Also, note the similarities between Hercules’ decisionmaking process and Lonergan’s process, supra notes 70–79 and accompanying text.
254 See Dworkin, Law’s Empire, supra note 25, at 240.
255 See id.
256 See id.
257 See id.
258 See id. at 245.
259 See Dworkin, Law’s Empire, supra note 25, at 245.
260 See id. at 245–46.
261 See id. at 246.
262 See id. at 246–47.
263 See id. at 248–49.
264 See Dworkin, Law’s Empire, supra note 25, at 249.
265 See id.
266 For example, in Law’s Empire, Dworkin’s brief explicit discussion of objectivity is placed within the section on interpretation. See id. at 79–83.
267 Compare Lonergan’s theory of objectivity, supra notes 108–144 and accompanying text, with Dworkin’s theory, infra notes 274–277 and accompanying text.
268 See infra notes 274–277 and accompanying text. Dworkin’s theory may seem somewhat uncritical as a result of his reliance on common sense.
269 The term “really real” is sometimes used in philosophy to denote the difference between the world as it is commonly perceived by human beings, the real world, and the world which can be proven to exist apart from human beings and exists in theory, the really real world. See Lonergan, Insight, supra note 21, at 323.
270 See Dworkin, Law’s Empire, supra note 25, at 262–63. Newton, at a loss to explain the concept of empty space, posited an ether (a field of mechanical corpuscles), so far undetected, which gave space its boundaries and prevented space from being empty. See Thomas S. Kuhn, The Structure of Scientific Revolutions 72–74 (1962).
271 In the classic natural law view, objectivity is correctly reporting what is “out there.” Dworkin’s very similar view has been extensively criticized by some ‘postmodern’ thinkers (including Rorty and Singer). Some of this criticism argues that it is impossible to discover what is really out there, since human beings are so heavily influenced by a mass of factors, like race, gender, and family background, which constantly skew all attempts at classic objectivity. Because there is no one who can stand outside these influences and judge between opposing ideas, it is impossible to prove that one idea is “objectively” better than another. Rather, opposing ideas can only be judged to be different. See Dworkin, Law’s Empire, supra note 25, at 78–80, 262–63 (restating and replying to some critiques of this sort).
272 See id. at 373.
273 See id. at 80–81.
274 See id.
275 See id. at 81. This response relies on the likelihood of rational consensus amongst subjects, which Singer, for example, denies. See Singer, supra note 12, at 35–38.
276 See Dworkin, Law’s Empire, supra note 25, at 81.
277 See id.
278 Cf. supra notes 133–144 and accompanying text (explaining Lonergan’s theory of objectivity).
279 See Dworkin, Law’s Empire, supra note 25, at 59–60, 65–66.
280 See id. at 164–66.
281 See id. at 225–26.
282 See id. at 238–58.
283 In light of the foregoing explanation, it seems that what Dworkin has termed the “right answers” thesis, one of his most famous contributions to jurisprudence, really boils down to “better answers,” the arguments which he finds most convincing, and will work to convince others to accept. See Gaffney, supra note 145, at 186–87.
284 See Dworkin, Law’s Empire, supra note 25, at 255–58.
285 See generally Bush v. Gore, 531 U.S. 98 (2000).
286 See id. at 98.
287 See id. The Florida Supreme Court case that was the subject of the Bush decision, can be found at Gore v. Harris, 772 So.2d 1243 (Fla. 2000).
288 See Bush, 531 U.S. at 100–03.
289 See Dershowitz, supra note 5, at 51–52.
290 See id. at 3–5.
291 Linda Greenhouse, Collision with Politics Risks Court’s Legal Credibility, N.Y. Times, Dec. 11, 2000, at A1.
292 See id. For a summary of contemporaneous critics, see Dershowitz, supra note 5, at 174–76. The majority Justices, including, by deduction, Chief Justice Rehnquist and Justices Kennedy, O’Connor, Scalia, and Thomas, wrote a per curiam, or unsigned, opinion. See Bush, 531 U.S. at 98.
293 See Dershowitz, supra note 5, at 174–76. Justice O’Connor, for example, is the “‘former Republican floor leader of the Arizona Senate.’” Id. at 160, quoting Robert Novak, Court That Really Swings, Chicago Sun-Times, Dec. 21, 2000, at 39. Justice Kennedy also was previously involved in Republican politics, he “had ties to Ronald Reagan during Reagan’s governorship and to Reagan’s executive secretary, Edwin Meese, and had worked as a lobbyist . . . .” Dershowitz, supra note 5, at 162.
294 See Dershowitz, supra note 5, at 162.
295 See id.
296 See id. at 174.
297 See id. at 188.
298 See supra notes 108–144, and accompanying text.
299 See supra notes 269–284, and accompanying text.
300 Compare supra notes 108–144 (Lonergan’s theory of objectivity), and notes 269–284 (Dworkin’s theory of objectivity).
301 Dworkin did, however, contrary to this thesis, publish at least two articles attacking Bush v. Gore on a number of fronts. See Dworkin, supra note 1, at 53; Ronald Dworkin, ‘A Badly Flawed Election’: An Exchange, N.Y. Rev. Books, Feb. 22, 2001, at 9.
302 See Dworkin, Law’s Empire, supra note 25, at 81.
303 Personal preference, in this case, takes the form of accepting whatever arguments the judge finds personally persuasive. See id.
304 This did not stop Dworkin from condemning the Bush opinion however. See Dworkin, supra note 1.
305 See Bush, 531 U.S. at 109–10, Dworkin, supra note 1, at 53.
306 See Dworkin, Law’s Empire, supra note 25, at 240.
307 See id.
308 For a harsh discussion of Justice O’Connor’s political affiliations, see Dershowitz, supra note 5, at 156–62.
309 See id. at 81. Since Dworkin’s explicit theory of objectivity is so unhelpful, from here on this Note will utilize Dworkin’s interpretive theory, which possesses many of the characteristics of a theory of objectivity, although Dworkin never phrases it that way.
310 Objectivity is not a logically necessary outcome resulting from a formulaic series of actions, but Lonergan asserts that it is possible, an assertion with which the reader is free to disagree. But if it is possible, he continues, there are conditions which give rise to it. And if there are such conditions, those conditions may be fulfilled, etc. See Lonergan, Insight, supra note 21, at 141–45, 343. The argument, while hopeful, is somewhat tautological.
311 See id. at 352–53. In regard to the following paragraph, see generally, chs. 11 and 13 in Lonergan, Insight, supra note 21.
312 See id. at 346–48.
313 See id. at 633–34.
314 See id.
315 See id. at 404–05.
316 See Dworkin, Law’s Empire, supra note 25, at 52.
317 See id. This motivation is informed by appeal to the four principles set out above. See supra notes 193–203 and accompanying text.
318 See Dworkin, Law’s Empire, supra note 25, at 65.
319 See id. at 231.
320 See Bush, 531 U.S. at 100–01.
321 See id. at 103.
322 See Dworkin, Law’s Empire, supra note 25, at 231.
323 See Gaffney, supra note 145, at 187 (using the term “personal resonance” to describe the concept described as personal preference in the text). Personal preference refers to Dworkin’s theory of objectivity; he claims that arguments are better because they seem better to the decision maker. See Dworkin, Law’s Empire, supra note 25, at 82–83.
324 See Gaffney, supra note 145, at 162; Singer, supra note 12, at 35 n.112 (referring to Dworkin’s dependence on the likelihood of rational consensus within a society, which Singer, to the contrary, finds unlikely, verging on impossible).
325 See supra notes 285–289 and accompanying text.
326 This can be deduced from the fact that four Justices dissented. Bush, 531 U.S. at 98.
327 See id.
328 For example, see the discussion between Dworkin and Fried, where two very intelligent law professors disagreed about exactly this issue. See Dworkin, supra note 301; Fried, supra note 7.
329 See Lonergan, Insight, supra note 21, at 404.
330 See id.
331 See id. at 405.
332 See id. at 500.
333 See id. at 502–03.
334 See Lonergan, Insight, supra note 21, at 499–502.
335 See id. at 401.
336 See id.
337 See Bush, 531 U.S. at 98–100 (noting the various sources the Justices considered while deciding the case).
338 These are all the various elements of a good, experienced judge, or more broadly, of any expert in their own field. See Lonergan, Insight, supra note 21, at 209–10 (describing the process of acquiring expertise in a particular field).
339 See id. at 405.
340 See id. at 297.
341 See id. at 298–99.
342 See id.
343 See Lonergan, Insight, supra note 21, at 636–37. Evaluation takes a place in Lonergan’s structure similar in some regards, to the second interpretive step in Dworkin’s theory. It is significantly different however because where Dworkin’s sense of aesthetics ultimately relies on personal preference, Lonergan’s method relies on human curiosity. See supra notes 110–121 and accompanying text.
344 The United States Supreme Court handed down its decision in Bush, for example, only four days after the Florida Supreme Court’s decision. See 531 U.S. at 98, 100.
345 See Lonergan, Insight, supra note 21, at 624, 636.
346 The question presents a false choice between holding a personal preference for Gore or for Bush, when in fact the judge’s understanding of equal protection and federalism might have more impact on the decision. See Bush, 531 U.S. at 112, 120–21 (Rehnquist, C.J., concurring) (basing decision on federalism, and balance of powers).
347 Note however that the opposite outcome, a decision in Gore’s favor, may well have subjected the Court to the same type and extent of criticism, only substituting Republican critics for Democratic critics.
348 For example, Professor Fried notes the fact that the Florida Supreme Court seemed to respond poorly to the United States Supreme Court’s initial decision and remand should not be overlooked. See Fried, supra note 328, at 8. Another complex issue involved the Equal Protection argument, which asked who was harmed, and who, if anyone, had the right to sue. See id.
349 See Lonergan, Method, supra note 21, at 53.
350 See id.
351 See id.
352 See id.
353 See id.
354 See Lonergan, Method, supra note 21, at 53.
355 See id.
356 See id.
357 See id.
358 See Gaffney, supra note 145, at 162.
359 See id.
360 See id. It is quite possible that most people would disagree with a judge’s use of a particular argument, but it would still be a simple disagreement.
361 Unless, for example, Dworkin assumes that his power to supercede the judge’s understanding is based on the fact that a majority of the population has granted him the power to do so. Such a resort to the brute force of democratic majorities would, however, undermine Dworkin’s position in opposition to the Critical Legal Scholars. See Dworkin, Law’s Empire, supra note 25, at 440 n.19; c.f. Singer, supra note 12, at 48–49 (describing much of traditional legal theory, including Dworkin’s work, as inherently illegitimate attempts to force people to agree by reason instead of force).
362 See Lonergan, Insight, supra note 21, at 244.
363 See id. at 214.
364 See id. at 245.
365 See Dershowitz, supra note 5, at 162.
366 See Lonergan, Insight, supra note 21, at 247–50.
367 See id. at 500–02.
368 See id. at 318 (explaining that as one attempts to become a “reliable judge” one will engage in the self-corrective process of learning, which prunes bias).
369 Lonergan referred to biases as blind spots (scotoma). Of course the problem with blind spots is that one is often unaware of them until too late. See id. at 215–27.
370 For example, if a judge knows that she was raised as a Republican and has acted with political motives in making previous decisions, she must scrutinize how her political affiliation affects the current decision, perhaps more than she examines other, less relevant, aspects of the decision, such as gender.
371 See Dershowitz, supra note 5, at 151–72.
372 The basis of Lonergan’s work is cognitional structure, and cognitional structure is based on an inner sense of curiosity. See supra notes 39–79 and accompanying text.
373 See, e.g., Brennan, supra note 22, at 292–302.
374 See supra notes 122–126 and accompanying text.
375 Dershowitz noted this problem in the context of the Bush v. Gore decision. See Dershowitz, supra note 5, at 187–90, 197–200.
376 See Lonergan, Insight, supra note 21, at 310–11.
377 See Lonergan, Method, supra note 21, at 44.
378 This critique is the sort of activity Lonergan called for in cosmopolis, although cosmopolis is not a formal academy or any sort of organization as such. Rather cosmopolis is a type of person or a state of mind. See Lonergan, Insight, supra note 21, at 263–67.