Mark Mendell Dewey and the Logic of Legal Reasoning* Much has been written lately in American legal theory on the revisioning of legal pragmatism, from Dworkin to the emergence of several kinds of neopragmatism. Despite the usual obligatory bows, those in the forefront of these developments have not taken the time to undertake a close examination of an earlier period in American legal! theory that extends from shortly after the Civil War to World War II, a period that includes legal pragmatism and legal realism. In this paper, I go back to one of the main figures in the pragmatic tradition, John Dewey, who, in a career that covered nearly the same period, managed to make a significant contribution to American jurisprudence that was way out of proportion to his output in the area. Dewey’s philosophy of law did not have quite as much influence among legal theorists as his experimental meth- od, which had earned the respect, if not the endorsement, of most of the academy. Still, what he had to say about the law deserves careful study, in part for the role he played within the community of jurisprudential inquirers, in part for its own sake, and in part because the positions he took at the level of specific theory cannot be separated from those he took at the level of general theory. In the central chapter to one of his most important books, Logic: The Theory of Inquiry, Dewey singled out the law, along with art, as an outstanding example of his logic of inquiry in ac- tion.) Law earns this honor because of its practical importance and normative content, its methodological allegiance to and uneasiness with certain forms of logic, and its embeddedness in the process of history. It elevates experience to the level of general theory Transactions of the Charles 8, Peirce Society Summer, 1994, Vol. XXX, No. 3576 Mark Mendell at the same time that it is a practical guide to human conduct; it distinguishes extralegal from legal considerations without ac- tually separating them; it slowly disavows certain degencrate features of logical forms while retaining or transforming the useful ones; it uses historical analysis to disengage these increas- ingly entrenched features from the logical and historical moorings from which they originated and developed; and it treats the problems of interpretation in terms of a general approach to inquiry in which meanings, practices, standards, and values are determined and tested. Dewey docs not go so far as to say that law is the outstanding example of his logic of inquiry, but the implication is that, short of its deployment in the orthodox fields of science, including medicine, it might well be. Yet there is an even stronger claim waiting to be identified: that the law can be seen as a kind of model for his logic of inquiry as much as it is an application of it. Admittedly, this might be just another way of making the same point, but we must recall that one of the articles of his logical faith is the belief that theories are framed in reference to practice. But taking the weaker claim for granted need not predispose us against the stronger claim, nor need acceptance of the stronger make the weaker worthless. It all depends upon one’s logical standpoint: whether one adopts the standpoint of any particular inquiry or the logic of inquiry in general will determine whether Dewey characterized the matter imprecisely. The difficulty lies in our narrow construal of the word “instances.” Although he does mean to sclect law for special commendation, he of course does not mean to deny that the various fields of inquiry have similar logical structures. The application of the logical method, strictly speaking, is not simply a matter of tapping into a common logical reservoir, but comes from within the process of inquiry itself— that is, from within the process of particular inquiries, something which can be generalized only after the fact. The particular fields of inquiry may reflect the general logic of inquiry, the inquiry into inquiries, but they do not really mirror it, because one fieldDewey and the Logic of Legal Reasoning 577 contains distinctive features and requirements which distinguish it from other fields. Even so, the logic of inquiry is an explan- atory tool, a rough map to guide us over the gaps that lie be- tween disciplines. My general aim in this paper is to explore the logical structure of Dewey’s legal method and, in the process, to throw some light on how his philosophy of law fits in with, and is indeed an appli- cation of, his general philosophical approach, which is partial to a certain kind of logic, the logic of experience. Specifically, (I) I analyze Dewey’s model of legal reasoning and theory of adjudication as he presents it in what probably was and is his most well-known jurisprudential offering, “Logical Method and Law” (1924),? one of his few extended forays into the phi- losophy of law, and therefore one of the obvious starting places for describing what a pragmatic or instrumental theory of law would look like. Like Nicholas St. John Green and Oliver Wendell Holmes, Jr. before him, he tantalizingly links the logic on which such a theory would be based with the probabilities that undergird the drafting of insurance company policies, so that so- cial policy becomes a function of practical logic rather than trans-experiential ideals.* (HI) I examine some of the weaknesses of his theory, paying special attention to a defense of his theory of adjudication against some vigorous criticisms lodged by Jerome Frank, one of the leading legal realists, and the principal founder of the fact- skepticism school of legal realism, the branch of legal realism, named by Frank himself, that called into question judicial reliance on facts that failed to meet an objective standard of criticism.5 Dewey, I argue, was more alive to the subjective vagaries of judicial reasoning than Frank recognized. As compelling as Frank’s analysis is of the danger of swimming in the treacherous currents where facts thrive, he is partially guilty of the same tendency that his cri- tique presupposes: a certain narrowing of vision that takes the part for the whole, as if his skepticism about facts alone justifies a full-fledged theory of law.578 Mark Mendell I. Logic, Inquiry, and Method. The thrust of Dewey’s essay is to show how, within the con- straints established by the continuity of legal inquiry, objective legal judgments are possible, just as the general logic of inquiry is de- signed to show that objective judgments are possible. His insistence that these judgments are open to revision is part of their philo- sophical attraction; it allows him to steer a middle course between the dangers of metaphysical and epistemological Idealism or Realism and an impoverished relativism or skepticism. In the former, judg- ments are Absolute, invulnerable to criticism; in the latter, in their most extreme form, they dissolve into an abject subjectivism. Dewey’s solution is a dissection of the logical structure of method, inquiry, and reasoning in general and legal method, inquiry, and reasoning in particular. The problem with Dewey, though, is that his strength is also his weakness. He is more concerned with the logic of legal reasoning and the judicial- decision-making process than with the application of that method to concrete cases, though he repeatedly calls for that very ap- plication by the participants in the legal process. Neither a lawyer, jurist, nor legal historian, he sees himself, in focusing on the logical structure of legal method, as engaging in a different task, uncovering and mapping out the philosophical signposts so that others, with more energy and expertise than himself, can do the necessary legwork. It is not that he wishes to denigrate the perspectives of other inquirers and participants in the legal process; it is only that he refuses to lock himself into one angle of vision. That “the question of method” was uppermost in his mind is readily apparent to anyone who bothers to leaf through any onc of his books or essays; scarcely a page goes by without it being brought up in some form. We need not fear being accused of taking liberties if we substitute “legal” for “moral” in the following com- ment about the value of method: . .. the question of method to be used in judging existing customs and policies proposed is a of greater moral sig-Dewey and the Logic of Legal Reasoning 579 nificance than the particular conclusion reached in con- nection with any one controversy.6 In the long run, coming up with an increasingly discriminating and comprehensive method that explains legal reality and best approxi- mates our current ideals is more important than any particular res- olution of a problematic situation. It is only important insofar as the decision procedure that leads to warranted judgments itself is 2 function of and reflection of a particular problematic situation re- sulting from the ongoing process of inquiry. The dynamic interac- tion between a funded, cumulative method and the practical appli- cation of that method to particular cases illustrates the provisional character of inquiry, as well as its retrospective and prospective character. The goal of any inquiry is to produce particular results in light of particular standards and ends, both immediate and long- ange, while at the same time avoiding the dangers of an impover- ished relativism. Dewey’s claim is that despite, or because of, the Jack of methodological guarantees, “the question of method” ac- quires greater operational and moral significance than when it stresses any “particular conclusion” to the exclusion of other rele- vant conclusions, unless it inspires the revision of the method. The search for a logically justified method on practical and experiential grounds itself becomes something of a moral imperative. “The supremacy of method” rests upon its self-correcting nature and the fact that it can be applied to a continuum of inquiry that includes social phenomena.” The method is logical and scientific not in the sense that it represents a formal, self-contained, self- sufficient, complete and deductively necessary system, but in the sense that it leads to controlled and directed inquiry anchored in concrete reality. Dewcy assails traditional syllogistic logic because it presumes to have independent ontological status, in which the truth value of particular propositions and judgments spring from a de- terminate a priori system that does not require the contribution of antecedent, material, and existential conditions for its determina- tion. The logic Dewey champions invites and demands an ongoing580 Mark Mendell process in which the formal and material conditions are instru- mentally bound up with one another. Meaning and truth become a function of the correlation between these two aspects of the process of inquiry. Analysis of the developing pattern of inquiry reveals that truth and meaning are not discovered but created by the participating inquirers, a communal effort in which they settle on an acceptable outcome to a problematic situation that allows the investigator or judge to render warranted judgments. These judg- ments are open to revision and are justified on probabilistic grounds. If they accord with interpreted reality, then the explana- tory and predictive power of the method will tend to increase as it is applied, with all the logical rigor the method can summon, to a wide range of subject-matters and cases. The extension of the logical method to all forms of social inquiry underscores Dewey’s naturalistic orientation. All forms of inquiry, including the physical sciences, are socially, culturally, and tempo- rarily conditioned. Yet the contingent nature of social phenomena informs the social sciences to a greater degree, at the present time, than it does the physical sciences. Dewey thinks there is no differ- ence in kind between them, but only a difference in degree with respect to their explanatory and predictive power: The question is not whether the subject-matter of human relations is or can ever become a science in the sense in which physics is now a science, but whether it is such as to permit of the development which, as far as they go, satisfy the logical conditions that have to be satisfied in other branches of inquiry® The supposition that there is no “inherent logical or theoretical difference between the two kinds of inquiry” does not mean that there are no specifiable differences, that the law, for instance, will ever be subject to the scientific controls of physics.? What matters is the logical significance of these differences. The degree of ex- perimental control of phenomena and the explanatory and predic- tive power varies with the changing, existential conditions. ButDewey and the Logic of Legal Reasoning 581 what does not change is that both “kinds” of inquiry are subject to the same method. The various forms of inquiry to which the method can be applied are not reducible to a set of primitive and interchangeably trans- latable facts. Each field of inquiry may be distinguished, though not strictly separated, from other fields. Each discipline approaches similar subject-matter from a somewhat different analytic angle, however similar their methods. On the continuum of inquiry, some areas most closely resemble one another. Physics, we may assume, is closer to biology than to anthropology or ethics, while anthro- pology is closer to ethics than to physics or biology. Given the in- evitable overlap between the various fields of inquiry, Dewey would probably have placed law somewhere between psychology, anthro- pology, sociology, and value theory or ethics, leaving economics and political science perhaps to serve as the functional correlates of law. All undoubtedly contribute through a process of cross- fertilization to a fuller understanding of the nature of the law, its scope and limits, its sources, ends and applications. In analyzing the place of logic in the law, Dewey is careful to avoid characterizing it as an application of a method already es- tablished, in order to prevent others from confusing his logic of experience with syllogistic logic. The application of the logical method is not simply a matter of drawing upon a shared logic, but comes from within the process of inquiry itself. The process of in- quiry operates on more than one methodological plane, and these planes no doubt intersect with and overlap one another. If each field of inquiry has its own distinctive requirements that give it its direction, then the logical method cannot issue from a process ex- ternal to it. That is, the method owes its existence, its propositional force, to its embodiment in particular sorts of experience, experi- ences that reflect the problematic situations found in particular fields of inquiry. These situations may be found in other areas of inquiry, but at the very least they are characterized in somewhat different ways. This perspectival and situated approach to the pro- cess of inquiry allows each area, even while proclaiming the dis-582 Mark Mendell tinctiveness of its features and requirements, to borrow from its neighbors some of the instruments it needs for reaching warranted. judgments.1° It should come as no surprise, then, that in analyzing the place of the logical method in legal reasoning and judicial decision, Dewey contends that “such cases at least are similar in general type to decisions made by engineers, merchants, physicians, bankers, etc., in the pursuit of their callings,” for they are all concerned with the decision-making-process, concerned with settling on a course of action justified by grounded inquiry. Although he fails to in- clude the traditional models of scientific reasoning on this list, this oversight seems to be more a matter of convenience and the shared social conditions under which they pursue their professions than evidence of an irreducible logical difference. Even the mathemati- cian, he supposes, is constantly engaged in making decisions; and . . . to make them wisely he summons before his mental gaze various considerations, and accepts and rejects them with a view to making his decision as rational as possible. The concrete subject with which he deals, the material he investigates, rejects, employs in reaching and justifying his decision, is different from that of farmer, lawyer or merchant, but the course of the operation, the form of the procedure, is similar . . . Every thinker, as an investigator, mathematician or physicist, as well as ‘practical man,’ thinks in order to determine his decisions and conduct—his conduct as a specialized agent working in a carefully delimited field.12 While the list seems arbitrarily drawn, this is precisely one of its strengths. It does not matter which professions he picks since they all, at some fundamental level, approach their subject-matter with similar methodological constraints and open-endedness. He treats the practitioners of the pure and theoretical sciences as members of an ordinary profession. The reason for this strategy is that he wants to show how they function, as individual men tacklingDewey and the Logic of Legal Reasoning 583 the thorny problems of their profession in the world of action, deliberation and judgment, where alternative plans of action are delineated and one is selected or adopted with a view to attaining specific ends in light of specific means and antecedent conditions. We do not think, as it were, merely for the sake of thinking, but for - the sake of some object in which the problems of men may be solved, at least to our temporary satisfaction. The implication is that law is made for man and by man and not man for law, since law is grounded in human conduct and not an idealized conception of Nature, which, for Dewey, is used interchangeably with Reason. Investigators in all areas of inquiry, therefore, employ a similar de- cision procedure for the purpose of making their decisions “as ra- tional as possible.” The level of rationality attained is a function of a process of inquiry grounded in experience and practice. Stripped of its transcendental pretensions, reason is brought down to the level of experience. The bulk of Dewey’s essay “Logical Method and Law” is an analysis of reigning theories of legal reasoning and adjudication that provide the critical backdrop for his own jurisprudence.!3 The strategy is vintage Dewey: retain and point out what is good in these theories and reject the bad, all with an eye toward devel- oping a legal methodology that does as full justice as possible to antecedent, present, and future conditions, evaluating actual and projected consequences in the hope of instituting sclected goals and ideals. I. Two Theories of Adjudication He begins by sketching two sorts of human conduct that are re- flected in the dominant theories of legal reasoning and adjudication. The first type is the “hunch” theory in which unarticulated and of- ten unacknowledged personal and social biases and dispositions creep into what still may turn out to be a “reasonable” decision, however arbitrarily reached.14 Dewey is quick to admit their con- tribution to legal history and the history of legal theory, assigning natural law theories, in the Thomistic or the secularized Lockean584 Mark Mendell tradition, with their metaphysical or moral identification of Reason and Nature, to the “hunch” theory.!5 Antecedently fixed rules that are accepted without qualification and ignore present conditions and goals fail to capture the legal reality they seek to explain. For Dewey, the ontological equivalent of making decisions on the basis of a “hunch” or intuition is making decisions in a process that has become so routine that they are rendered without any apparent deliberation. The underlying message is that mechanisms which animate decision-making have a biological basis, at some level, in human nature and conduct. Social issues apparently are reducible to, or at least partially accounted for by, their biological components. As a characterization of the various natural law theories, this seems to border on caricature, until we remember that Dewey’s argument is not that all natural law lawyers reason in this way, but that the “hunch” theory is compatible with their natural law approach and even tends to reinforce it in a self-justifying way. So my claim that Dewey runs hunch-as-intuition-or-guess and hunch-as-instinct-or-routine together is not fatal to his argument, though it must give us pause. The crucial point is that he ends up in the same place without the intervention of conscious delibera- tion.!6 Some judges are more expert than others at dealing with issues and deciding cases, but even the most expert sometimes have trouble. Expert or not, once they render judgment, they must be prepared to come up with a suitable justification. Most people presume that, as decision-makers, judges deliberate prior to reach- ing a decision, and that the opinions judges deliver contain the actual reasons for their decisions. But on the “hunch” theory, public expectation does not correspond to judicial practice. A hunch theory, though, may have more to offer than Dewey is willing to admit.!7 If the hunch theory rivals the theory he em- braces, it is only because it can be construed in such a way that they bear a family resemblance. A methodological convergence takes place when we see their differences as a product of emphasis. It all depends, I argue, on how “hunch” is characterized. When looked at in this way, a strong version of the “hunch” theory begins toDewey and the Logic of Legal Reasoning 585 look more and more like Dewey's theory of adjudication. There is a difference between trying to hoist a full-fledged theory on the flimsy scaffold of judicial whim, and trying to do so on the basis of hard-earned judicial experience. One raises the specter of un- bridled relativism; the other, the prospect of using reason as the guide in the logic of judicial decision. When the decision procedure is arbitrary, the hunch remains on an epistemic treadmill, left with the hope that the judge will magically alight on the just decision. But the law does not stand still for the judge who runs in place. The hunch must reach beyond itself, and it does not do so in a reliable way when its supporters can only point to the benefits of observing how specific judges decide cases. When people try to adjust their conduct only on the basis of their ability to predict judicial behavior, gleaned from past decisions and professional and personal likes and dislikes, they do not display confidence in the rule of law. However valuable it is to know these tendencies, con- scious and unconscious, to conceive of hunches as expressing the will of judges is to ask for too much theory from too little method. It is to come perilously close to succumbing to the contagion of abject relativism; it causes us to buy into a nominalistic metaphysic that leads nowhere but to itself. It supposes that one hunch is as good as the next, that there are no standards of comparison capable of testing hunches. Not all hunches, however, are equal, endowed with the ability to appear on a scene fully formed without the benefit of long training. A hunch theory stands or falls on our analysis of how a hunch becomes a hunch. A judge may render the most equitable decision by following a hunch, but not because there was necessarily any method to discern in the hunching pro- cess; it may be all coincidental, or based on extralegal concerns. Bunches that earn our respect do not arise in cither an experi- mental or normative vacuum. As Dewey would have it, they must be grounded in the logic of inquiry and experience. The kind of judicial reasoning judges should engage in is consistent with a strong version of the hunch theory, but Dewey does not go so far as to spell out the implication. Yet he often talks about the intuitive586 Mark Mendell flash of the scientist, the quintessential user of the experimental method who, in an unpressured moment, may come up with the essential clue that leads to a major discovery, even after searching in vain for a long time. Unexpected or not, discoveries often are preceded by a long search that is a critical part of the process. It encourages the inquirer to develop criteria of relevance by which he can distinguish the important from the unimportant. What went before has a role in transforming the possible into the probable, producing the spark that had been burning all along, much of it mediated by conscious deliberation. The second type Dewey sketches meets with his unqualified approval, the instrumental decision procedure leading to “rea- soned or rational” results that are not based on judicial intuition, coincidence, or hollow formulas.!® The theory holds that “new formal properties accrue to subject-matter in virtue of its subjec- tion to certain types of operation” and not in virtue of a prede- termined formula under which all particular operations are sub- sumed antecedently.!9 Dewey rejects the logic of subsumption in favor of an instrumental or experimental logic, what he calls logical method, which adapts means to consequences, giving full weight to both formal and material conditions.20 This is a view that denies consistency for the sake of consistency, affirming that the only consistency of real practical value is one that is the product of an instrumental logic of reasoning and not the logic of implication. If we endorse a logic which itself springs from the conditions and problems of inquiry, mediated by conscious de- liberation, the distance that often exists between public support of the prevailing theory and private disavowals may be narrowed, if not climinated altogether. It shows up in the judge’s tendency to give or stress different reasons for his decision to deflect attention away from those ac- tually motivating him, cither consciously or unconsciously. For some judges it shows up in their traditional denial that they make the law, that they do anything more than find the appropriate rule of law and apply it to the instant case, that all they are doing, atDewey and the Logic of Legal Reasoning 587 most, is interpreting legislative, constitutional, or precedential in- tent. In locating existent legal meanings they have only to know where to look. Dewcy believes this to be a judicial fallacy of the first order, for judges must engage at times in the process of creative lawmaking. The very process of selecting the appropriate statues and precedents is an interpretive act involving discretion. The exercise of judicial discretion invites the courts’ lawmaking capacities, though not all judges, or even the same judge at dif- ferent times, exercise their power of review to the same degree. Their theories of adjudication are brought into sharp focus when confronted with hard cases, though we might argue, as Holmes does, that the way they deal with comparatively routine cases is just as revealing over the long haul. Dewey’s goal, therefore, is to bridge the gap between fact and fiction so that fact and theory can work together. Neither can stand alone and still be meaningful. Like Holmes, he argued that not only are values embedded in the law bur that judges do in fact make the law and, as such, must be considered as makers of public policy, in their own way, as surely as legislators.22 Dewey is as careful to keep up his guard against erecting bankrupt dualisms in the law as in any other field of inquiry. He refuses to divide the world of law into theory and practice, logic and experience, fact and value. He is not adverse to incorporating the lessons learned from formal logic into his own logic of inquiry, so long as everyone remembers that “it is an instrumentality, not an end.” It is most important that rules of law should form as co- herent generalized logical systems as possible. But these logical systematizations of law in any field, whether of crime, contracts or torts, with their reduction of a multi- tude of decisions to a few general principles that are logi- cally consistent with one another, while they may be an end in itself for a particular student, are clearly in the last resort subservient to the economical and effective reaching of decisions in particular cases.22588 Mark Mendell The tools of formal logic help an experience-weighted theory form classificatory schemas, rules of law and procedure, criteria of inter- pretation and consistency. But they do not tell the whole story. Formal logic, demonstrative reasoning, logical analysis are them- selves instruments of inquiry. They are not to be dismissed outright just because they are capable of being pressed into service as the methodological function undergirding a systematic jurisprudence; they need not be mutually exclusive. Instrumental logic reserves a place for formal methods of rea- soning within its roster, but not a separate place. The constraints it imposes come from within the process of inquiry itsclf rather than from outside. This means they are not conceived as real constraints, as fixed restrictions, but as tools capable of adjusting to and being adjusted by the conditions of inquiry. Dewey quotes approvingly Holmes’s celebrated dictum that “the life of the law has not been logic: it has been experience.” He recognizes that it was meant to be perceived as a battle cry against some all-encompassing formal logic and not against the use of every kind of logic.?3 The func- tional logic Dewey and Holmes subscribe to is not merely a relation among terms that have no place in reality; instead, it forges a rela- tion between theoretical and practical facts. Neither object to con- sistency in the law, but only to consistency of a certain kind. Both think that formal consistency is purchased at too high a price, a sacrifice of legal standards hammered out on the anvil of experience. They never forget that instrumental logic is at bottom an instru- ment for reaching decisions in actual cases, and does so in as ra- tional a way as possible, morc rationally than its competition be- cause it remembers where it comes from: particular inquiries and cases. Particular cases, with their seemingly unique fact patterns, do not hold the key to understanding the logical method, of course, but the fact of their particularity, a particularity that opens larger interpretive doors. General principles become too general if con- sistency among principles becomes an end in itself. But consistency remains a legitimate goal so long as it does not overstep the limits set by legal experience, and remains faithful to the particular.Dewey and the Logic of Legal Reasoning 589 Dewey supposes that “a kind of natural selection” of methods occurs in which the best methods come to the forefront of inquiry through the process of “search and discovery.” The selection takes place initially not because there is any planned organization of the formal and material aspects of inquiry, but simply because some methods work better than others.24 Over time, the method that works best is revealed, but even though the process seems inevitable it is not. By associating the development of method with evolu- tionary theory, Dewey indicates that the method works itself out over time. He treats evolutionary theory as a kind of model for logical theory. The method selected complements the logical ap- proach; it breaks subject-matter into its constituents, to put them back together more coherently. This kind of increase in analytical clarity is the strength of formal systems of logic. The problem, though, is that they do not wear well. A method framed on the model of evolutionary theory by definition takes change seriously. As an example of the natural way the method evolves, Dewey likens the emergence of “logical theory” to the emergence of the forms of language.25 Language is initially acquired without con- scious reference to grammatical rules; only gradually do we begin to deliberate about the efficacy of these rules. Every area of inquiry has its raw material, the concrete or empirical data leading to con- ditions that necessitate decision-making. Internal checks and tests animate the process, though insofar as they represent a provisionally objective state of affairs, they behave as if they are external and measurable, provided they do not presume to reach beyond the boundaries of inquiry. Raw material loses its rawness as it is whipped into working shape; the methods doing the whipping themselves arise from these conditions. Dewey regards the emergence of a logically grounded method as a self-correcting, publicly measurable process which can transform meaningless situations into meaningful ones. False starts, dead ends, courses of action that only deliver on their promise for a short time—all are meaningful only to the extent that they give the process of inquiry a critical edge. Some methods590 Mark Mendell yicld conclusions that do not stand the test of further sit- uations; they produce conflicts and confusion; decisions dependent upon them have to be retracted or revised. Other methods are found to yield conclusions which are available in subsequent inquiries as well as confirmed by them. There first occurs a kind of natural selection of the methods which afford the better type of conclusion, better for subsequent usage, just as happens in the development. of rules for conducting any art. Afterwards the methods are themselves studied critically. Successful ones are not only selected and collated, but the causes of their effective op- eration are discovered. Thus logical theory becomes scien- tific. 26 Dewey has been accused of excessive optimism, but what prevents him from falling for an unexamined belief in unlinear progress is the emphasis on natural selection, critical method, and conflict. Natural selection does not guarantee that at some future date we will attain the perfect method, or that judges always will come up with correct and just decisions in hard cases. New conflicts and problematic situations will not permit it. The method is self-correcting only in the sense that mistakes tend to be corrected in time as hard cases edit out the undesirable consequences. ‘The emergence of legal methods follows much the same pattern. Operating from different jurisprudential perspectives, judges and lawyers belong to a legal system in which The theoretical ideal sought to guide judicial deliberation is a network of relations and procedures which express the closest possible correspondence between facts and the legal meanings that give them their significance: that is, scttle the consequences which, in the existing social system, flow from them.?7 This raises the question whether the legal meanings flow from the facts or invest the facts with legal meanings within the confinesDewey and the Logic of Legal Reasoning 591 of the “existing social system.” Can we presume, as Dewey does, that facts and meanings are interactive? A process geared to making legal determinations assumes that such an interaction takes place, and should have something to say about the mechanics of its elaboration. Theoretical ideals are realized, or at least ap- proximated, when the logical method emerges from the process of legal inquiry. Disputes are resolved, decisions rendered, and legal meanings formed within the context of changing social conditions. As the process of inquiry moves through steps sometimes articulated and sometimes not, it leads to a definite, though not necessarily definitive conclusion which invites a rea- soned response. Dewey’s general point is that the way the participants in the judicial process reason their way to decisions mirrors the instru- mental pattern of inquiry. This docs not mean, though, that every inquirer or decision-maker always articulates every step in the process; legal reasoners sometimes skip steps, or fuse two or more together. Perhaps following the lead of Holmes, Dewey chooses to illustrate the reasoning process by focusing on how lawyers rather than judges reason. They begin by vaguely antic- ipating a conclusion which the course of their analysis. presup- poses. Confronted with a complicated and confusing case, which at first glance offers no solution because there are many possible courses of action, they begin to see their way out only through the process of analyzing “the total situation.” The process does not start with the premiss already in place. It starts with a problematic situation, or the disturbing fecling of uncase that precedes it, and ends when a unified situation is attained by evaluating the actual and projected consequences of alternative courses of action in such a way that the course eventually settled on may serve to regulate cases of that type, whatever the local differences may be. The present state of affairs is maintained until the relevant problematic situation and the consequences flowing from it change sufficiently to warrant, indeed demand, revision. Dewey explains:592 Mark Mendell The problem is not to draw a conclusion from given pre- misses; that can best be donc by a piece of inanimate ma- chinery, by fingering a key-board. The problem is to find statements, of general principle and of particular fact, which are worthy to serve as premisses. As matter of actual fact, we generally begin with some vague anticipation of a conclusion (or at least of alternative conclusions), and then we look around for principles and data which will sub- stantiate it or which will enable us to choose intelligently between rival conclusions.?8 This casting about means that neither the premises nor the con- clusions are antecedently determined. Lawyers and judges develop general principles on the basis of an analysis of particular cases, embedded in facts and issues which together constitute the prob- lematic situation. In keeping with his experimental logic, problems actually are the specifiable core of a “total situation” requiring resolution, initiated by the disquieting and often inarticulate feeling that something is not quite right. When facts and issues are related in a certain way, an inquirer is positioned to specify a problem. Part of the problem is to find the problem in this unsettling mix. Sometimes its stares the inquirer in the face and other times it seems almost as far removed from the pressures of the problematic situa- tion as it does from the eventual solution. The vague anticipation of a conclusion is preceded by a vague anticipation of a specifiable problem, though in many cases the identification of the problem lurking in the problematic situation coincides, as a practical matter, with the presence of the problematic situation in the first place. The stages of inquiry need not be visibly distinct. As an advocate for his client, no lawyer ever thought out the case of a client in terms of the syllogism. He begins with a conclusion which he intends to reach, favorable to his client of course, and then analyzes the facts of the sit- uation to find material out of which to construct a favor- able statement of facts, to form a minor premiss. At theDewey and the Logic of Legal Reasoning 593 same time he goes over recorded cases to find rules of law employed in cases which can be presented as similar, rules which will substantiate a certain way of looking at and in- terpreting the facts. And as his acquaintance with rules of law judged applicable widens, he probably alters perspec- tive and emphasis in selection of the facts which are to form his evidential data. And as he learns more of the facts of the case, he may modify his selection of rules of law upon which he bases his case.29 A “good lawyer” is one who can perform this analysis and argue his case in as consistent, organized, and persuasive a way as possible. In his adversarial role, he may reach a different conclusion by ad- justing the facts to fit the appropriate rules and the rules to fit the facts, appeal to the same rules and facts but interpret them differ- ently, or different ones and still manage to arrive at the same con- clusion. To reach the desired outcome favorable to his client’s in- terests is primarily a matter of emphasis, selection, and flexibility in the wielding of analytical tools and argument. Precedents are to be used in an analytical and hypothetical way. They are not so en- trenched that they can take no part in the process of reorganizing the antecedent conditions of inquiry, and in the process are ig- nored, rejected, selected, and recast to suit the reasoner’s interpre- tive purposes.3° In planning the case, the lawyer is constantly nar- rowing, widening, and reconstructing his interpretive net. One precedent leads to the next and soon he draws a new distinction and sets aside or resuscitates an old one. The process leads him, on occasion, to take another look at the fact pattern that is to be his “evidential data,” and allows him to engage in some creative re- construction. In the end, it is up to the judge and jury to decide which side presents the more compelling case in light of the facts and the rules of law. TIL. Problems of Standpoint This secmingly straightforward account of a lawyer’s reasoning594 Mark Mendell process is not, however, immune to criticism. (1) It is guilty of being a bit too streamlined. For with all his talk about the inadequacies of classic jurisprudential efforts to describe the adjudicatory process, it is odd that at an important point in his account, Dewey shifts, if only momentarily, from discussing the reasoning processes involved in judicial-decision-making to how lawyers-as-advocates reason from the other side of the bench.3! The danger in conflating legal standpoints is that whichever particular standpoint Dewey adopts will be taken to describe legal reasoning in general, making it easier, as a result, to impose one particular standpoint on another. But the problems of standpoint do not stop with the obvious symbols of role. A lawyer’s role within the legal system is not simply defined by whether he sits or stands. Do law- yers reason in the same way as judges, do different kinds of lawyers and do different kinds of judges reason in the same way? Dewey did Not stop to tease out all the distinctions on which these questions rest. Do lawyers, in their various roles as advisors, litigators, pre- parers of briefs, filers of motions, negotiators with the opposition, reason in the same way? Do criminal defense lawyers reason in the same way as their colleagues in the prosecutorial ranks? Do criminal lawyers reason in the same way as personal injury lawyers? Do ap- pellate judges reason in the same way as trial judges? Do federal judges reason in the same way as state judges? Do judges, in their roles as writers of opinions and as managers of the adversarial pro- cess who are empowered to encourage settlement, set timetables, direct juries, control counsel, determine the admissibility of evi- dence, and render final judgment, reason in the same way? These questions may be summed up by one question: do the particular interests lawyers and judges serve preclude them from using the experimental method as a decision model? Dewey might have of- fered a couple of replies to this question. He implies the first, and considers the second. (A) The fact that judges have, consciously or unconsciously, a judicial philosophy on which they base their decisions is analogous to the professional obligations of lawyers who, within the parame-Dewey and the Logic of Legal Reasoning 595 ters set by their code of ethics, are expected to do everything in their power to offer good legal advice to their clients. Yet what is in the putative interest of a client may not serve truth, whatever that may be. It is of course one thing to say that the truth as far as the lawyer is concerned is not the operative question and quite another to attribute this trait to the judge. The biases built into being a lawyer relate primarily to the sort of client he chooses to represent, and is a function of his professional and personal interests, as well as the larger social culture(s) to which he belongs. The biases built into being a judge issue from his conception of the judiciary’s role in the legal system, his membership in the general legal culture, his social and educational background, as well as his personal political and economic convictions. (B) Dewcy himself recognizes that the very fact that lawyers serve partisan interests stands against.our characterizing their reasoning process “as a model of scientific method.”2? Their views are deeply colored by their jobs. Yet so long as too much is not made of the lawyer’s role in serving the interests of the client, the process of reasoning to a desired conclusion loosely follows the pattern of less partial reasoners. When lawyers reason, they can only aspire to the kind of elegance that scientists may achieve in their occasional breakthroughs, major or minor. So long as lawyers do not set up their reasoning procedure “as a model of scientific method,” legal reasoners, whatever their roles, are not so different from reasoners in other areas of inquiry; they all define problems and search for solutions to those problems. When Dewey admits that a precom- mitment “to the establishment of a particular and partisan conclu- sion” precludes using lawyer’s reasoning as a model, he is I think speaking at the intersection between specific and general theory.33 For an area of inquiry to qualify as a model, it must meet a higher standard, one that looks very much like other areas on the contin- uum of inquiry, one that seems almost as if it is not bound to the subject-matter of specific areas which remain unsullied by partisan commitments. Only then does specific merge with general theory. Dewey argues that, from the perspective of general theory, the596 Mark Mendell experimental method championed by science is better suited to serve as a model for the reasoning process of reasoners in other areas of inquiry, for they have fewer methodological distractions. He is not saying that these other areas could not work as models, but that science better serves the aims of general theory. He is asking us, I believe, to look at the relation between general and specific theory in practical terms. Why make the model more complicated than it already is, weighing it down with additional qualifications? Why clutter the picture by assuming the less general can be as effective a model as the more general? On the continuum of inquiry, using the social sciences as a model makes less sense than using the pure sci- ences as a model. Bound to the particular subject-matter in which any arca originates and develops, cach, in the end, has equal access to general theory, but not all areas work as a model equally well. What Dewey fails to mention is that areas of inquiry that do not make a public statement about their partisanship may still have commitments that, lurking beneath the surface, hamper the reason- ing process; biases, rigidity, and competition among inquirers may conspire to make one area operate less smoothly than its neighbor. Because they represent particular interests and are committed to reaching favorable conclusions in the service of those interests, it makes no difference, it seems, whether a particular lawyer serves the same interests all the time or sometimes finds himself on the op- posite side of the issue. The reasons for supporting a specific posi- tion may be different, but the fundamental responsibility of offering, good legal advice never changes. After offering this disclaimer about the difficulties of conflating these two standpoints in the legal process, Dewey refuses to withdraw the general point about the logical structure of legal reasoning: . .. thinking actually sets out from a more or less confused situation, which is vaguc and ambiguous with respect to the conclusion it indicates, and that the formation of both major premiss and minor proceeds tentatively and correla- tively in the course of analysis of this situation and of prior rules. As soon as acceptable premises are given—and ofDewey and the Logic of Legal Reasoning 597 course the judge and jury have eventually to do with their becoming accepted—the conclusion is also given. In strict logic, the conclusion does not follow from premisses; conclusions and premisses are two ways of stating the same thing. Thinking may be defined cither as a development of premisses or development of a conclusion; as far as it is one operation it is the other. ‘They work in tandem because they constitute the process of inquiry and method of reasoning. A premise becomes a conclusion and in turn becomes a reconceptualized premise; a conclusion becomes a premise and in turn becomes a reconceptualized conclusion. Neither is irresistibly attached to any particular meaning. Their logic is a functional onc, and their meanings emerge from within the process and are not imposed from outside the process. (2) Certain inequities exist within the adjudicatory process that worry some critics of the American legal system. The problem is that not all lawyers afford thcir clients cqual representation and not all judges are equally adept at rendcring judgments in the way that Dewcy's logic recommends. Lawyers sclect plans of action and judges make legal determinations only after undergoing an involved process in which they analyze the intersecting relationship between facts and rules of law. But how, we may ask, does the quest for legal certainty fit in with the quest for legal truth when neither may satisfy the ideals of justice in the eyes of some actual and interested parties? As advocates, lawyers have a circumscribed view of these two quests, treating them as one. What matters is what serves their clients’ in- terests; the truth becomes nothing more than a favorable verdict. Dewey of course inveighed against the myths of legal certainty and truth, where certainty refers to the inevitability of the process and truth to the indubitable correctness of the result. The assumption that there is only one correct answer is incompatible with Dewey’s logic; the truth is defined in terms of the result, the judgment that ends the process of judicial decision until conditions ripen suffi- ciently to lead some legal actors to confront the issues once again.598 Mark Mendell By discrediting these myths, he encourages us to abandon our grandiose expectations and to see the process for what it is: an on- going affair that leads to reasoned results that legal inquirers hope will serve as a reliable guide for future conduct, one that is capable of reconstructing itself as it responds to new conditions. Deweyan logic works hard to avoid conceiving of truth and jus- tice as an identity. When a judge or jury arrives at a judgment, they decide the case before them, and provide a standard for dealing with similar cases. Some will disagree with the judgment because they identify truth with justice, others because they deny the iden- tity in the belief that a more important reality has been violated: the desire for social justice. Basing a decision on the distinctive legal requirements of the case is seen as artificially limiting. This often happens at the intersection between law and morality, and, as Holmes saw, with those great cases that, for whatever reason, tend to enter the public imagination, even if they do not make great law, and even if that is not where the bulk of the law is made. Dewey’s sensitivity to the multilayered character of social reality, to the many overlapping publics that constitute the greater community, shows that he was as uncomfortable with the one-just-result myth as with the myths of legal certainty and truth. He does not stop to consider some of the practical problems involved in the adjudicatory process. For instance, there has been much debate in the legal ethics liter- ature about the moral and legal efficacy of the adversarial system, whether it serves justice or the truth. Deweyan logic will not stand for the erection of a kind of judicial dualism between the side able to manipulate the system and side which deserves to win. This dualism overly simplifies a process in which too many forces have bearing. To assume legal justice and truth belong to the same or opposite sides is to decide the case without undergoing the process of decision-making. It is to treat the outcome as an all-or- nothing-proposition when the logic of the situation may support some middle ground, a judgment, mediated by reason grounded in experience, that takes the form of an intermediate solution on the path of legal inquiry. So to ask whether judges should decide on theDewey and the Logic of Legal Reasoning 599 basis of which side presents the better case because it has the better lawyer, or because it has the law on its side is to summon the specter of a false dilemma. It is to transform a legitimate question about the impact of moneyed interests on the process of adjudica- tion into an assumption about the nature of the sought-after con- clusion: a true and just result exists and all the adjudicator has to do is to find it. It is to turn a problem of legal inquiry into an ontological imperative, and it is to become infected with the very disease Dewey worked so hard to avoid: an objective formalism that Jacks confidence in the possibility of reconstruction. IV. The Logic of Probability In examining the courts’ use of the logical method, Dewey thinks there exists an underlying judicial assumption. Judges reason in much the same way as lawycrs, the difference being that as public officials vested with the authority to resolve disputes, there is an institutional tendency to hide, or at least partially hide, their rea- soning process behind a wall of judicial detachment. Dewey thus distinguishes between how the courts reach decisions (through the process of search, discovery, and inquiry) and how they deliver them to the public (through the “logic of exposition”).35 The real reasons behind the decision, he contends, are often not the ones presented to the public, It is no secret, for instance, that many Supreme Court cases are finally resolved through a process of col- legial compromise, but the public hears virtually nothing of these negotiations, even though they may or may not be reflected in the opinions of the Court and the individual Justices. If we attribute what motivates decisions to a combination of factors that includes their judicial philosophy and personal beliefs, then we must con- sider the distance separating their reasoning process and their written opinions a function of these factors. Invention, the exercise of judicial discretion in any of its forms, is an inescapable fact of judicial life. As a general claim, it makes no difference what sort of logic one reasons by: the fact is that some invention takes place in the search for justifications for a particular decision. The difference600 Mark Mendell lies in the kind of invention that takes place and when it takes place, as well as the character of the justification. Given judges’ different goals and motivations, the logic of justification that takes place prior to judgment may be very different from that which takes place after judgment has been reached. Dewey thinks that the public’s desire for the appearance of cer- tainty, regularity, security, stability, and reliability contributes to the surrendering of the “vital logic” that leads to the decision in the first place.36 Decisions are dressed in a fashion reflecting the cer- taintics of syllogistic logic, what Dewey here calls the “logic of ex- position,” what Pound aptly called “mechanical jurisprudence” and MLR. Cohen “the phonograph theory of the judicial function.”37 Whatever one calls it, the idea is the same: the desire for the quest for legal certainty encourages judges to trot out the same justifica- tion disguised by language that gives the appearance of being based. on the particular case and issue. In the process, some important distinctions and issues might be explained away, glossed over, or recast through the introduction of convenient legal fictions. “Exposition implies that a definitive solution is reached, that the situation is now determinate with respect to its legal implication.”38 As court-watchers know, just because the court of final resort has rendered a judgment does not mean they won’t hear more about that judgment, even in the immediately foreseeable future. For one thing, the Court cannot be counted on to meet an issue head-on. For another, even when it does, as in Roe v. Wade, the case and issue may inspire a variety of serious challenges. In analyzing the reasons underlying the justificatory process, Dewey makes an observation that is consistent with his long-held genetic approach to inquiry and speaks to certain psychological needs that people expect the law to satisfy: . .. the need of justifying to others conclusions reached and decisions made has been the chief cause of the origin and development of logical operations in the precise sense; of abstraction, generalization, regard for consistency of im- plications.39Dewey and the Logic of Legal Reasoning 601 The justificatory process, in requiring that reasons be presented in an institutionalized way, grew out of the need to make sense of a complicated world. The process served a double purpose: it created a sophisticated, logical machinery to convey an unearned sense of certainty, and encouraged the use of logic as an instrument of in- quiry. The alternative was to accept the “hunch theory” in perhaps its crudest forms. To desire “a rational statement which formulates grounds and exposes connecting or logical links” need not logically put us in the formalists’ camp, but that nevertheless was the general tendency.40 Dewey argues: There is a wide gap separating the reasonable proposition. that judicial decisions should possess the maximum possi- ble regularity in order to enable persons in planning their conduct to foresee the legal import of their acts, and the absurd because impossible proposition that every decision should flow with formal logical necessity from antecedently known premisscs.41 The problem springs from the “confusion of theoretical certainty with practical certainty.”42 It is one thing to suppose that the de- cision imposes certain definite legal meanings and another to sup- pose that they are definitive, that if we disobey its results certain legal consequences will without fail ensuc. Legal meanings, how- ever determinate, may be superseded or reconstituted under the press of changing conditions; even when standardized, rules of law are subject to change. The only logic of practical importance, Dewey asserts, that also makes an effort to satisfy the public’s desire for the appearance of regularity and stability is one that concentrates on “the really im- portant issue of finding and employing rules of law, substantive and procedural, which will actually secure to the members of the com- munity a reasonable measure of practical certainty of expectation in framing their course of conduct.”43 General “principles of inter- pretation” govern how cases may be pleaded and tried and rules of law applied.## Firm but not inflexible, these principles make it602 Mark Mendell possible to regulate future conduct with some accuracy. If this ex- pectation rests on a “matter of fact” rather than a matter of form, then the law can perform its predictive function without resorting to the logic of necessity. Even if we cannot foresee all possible cir- cumstances, the law is equipped to regulate the formal transactions of human beings, while avoiding political and Iegal anarchy and encouraging social progress.*® If it is not sufficiently formal to keep pace with social change, then the relevant legal forms may be ad- justed to meet the need, but the adjustment is not so extreme that it loses its practical anchor, and floats away on a theoretical cloud. Dewey believes that the predictive and explanatory power of rules of law depend on their degree of entrenchment within the legal system and how far they can be extended to cover social change. ‘The more closely a new case resembles an old set of cases, the easier it is for the legal system to accommodate that new case. The greater the discrepancy, the greater the effect on the system in general and the area under transformation in particular, the greater the likeli- hood that similar cases will appear in the near future. New industry and technology creates conditions that cither previously did not exist or existed in less compelling and public forms. As society be- comes more complex and competing interests expand, it becomes harder to specify legal meanings in spite of, or because of, the cu- mulative nature of legal inquiry, with its multileveled, intersecting, and overlapping system of statutes and precedents. Those who pretend in the interest of certainty and regularity that the system is able to handle what it in fact cannot, not only delude themselves and others, but also “increase practical uncertainty and social in- stability.”46 Those who adopt the old logic substitute the appear- ance of regularity for the reality, as if disposing of cases as smoothly as possible was more of a goal than the increase of social stability. As somcone who champions a logic of probabilities, Dewey thinks that those who support the tired old logic are the ones taking an unnecessary “gamble.”47 Unwilling to take genuine risks they end up taking greater risks, ironically, than their rivals the instramen- talists. Even those who might disagree with Dewey that theDewey and the Logic of Legal Reasoning 603 “gamble” increases practical uncertainty and social instability might accept the claim, when pressed and in private, that rules are often chosen for the wrong reasons. Dewey's remedy is to insist upon the kind of “analytic thought” that stresses the hypothetical nature of inquiry.4* As far back as 1910, he used judicial reasoning as an example to illustrate how his general theory of inquiry and meaning terminates in a judgment that functions as a reliable guideline for human conduct.49 The conflict that results in a legal controversy sets in motion a process that is open to judicial interpretation at every turn. Opposing claims are made about “the same objective situation.”5° For the legal controversy to exist, something in this situation, some issue or matter, must trouble each party enough to make them think that it evokes different meanings; each party will interpret these mean- ings in such a way as to suggest a favorable judgment. The legal dispute contains the raw material that makes legal inquiry possible, but further legal inquiry calls for a process of selection that draws the boundaries even tighter. Judges define a case by transforming a “total situation” into a specific, problematic situation, pushing the process along the road to judgment by attempting to relate facts to rules. They view the “sifting of evidence” and sclection of rules as “strictly correlative,” and it is up to them to determine what is relevant and irrelevant to a case and issue.51 But Dewey does not make clear how they are “strictly correlative.” Must @ specific fact, even within the context of a problematic situation, correspond to @ specific rule? Can’t facts and rales be correlative without being “strictly correlative?” Strict, then, must mean something less exacting, a clear sense that fact and rule-selection are part of a single process of interpretation. What Dewey wants to argue is that facts and rules are interde- pendent; except as a conceptual exercise, it is hard to keep them separate. The process of judicial decision would remain forever stalled if judges could only work with facts or rules. From all the facts associated with any problematic situation, judges select those that have bearing on the issue in question. But they do not make604 Mark Mendell these determinations without the help of rules, which give facts their legal meaning, the very facts that determine the rules they will select.52 Relying on certain facts and rules implies that others have been rejected. Sclection takes place at every step of the process until the final decision is rendered, effectively ending when the particular case is decided, thereby creating a presumption in favor of using it as a precedent for future similar cases. How facts determine rules and rules determine facts determines the logic of the situation, and determines what legal meanings can be drawn from the process. The problem of determination of meaning therefore determines the framing of the instant case and the trajectory of the process of in- quiry itself. Dewey describes the logic of making legal determinations in a pivotal text in “Logical Method and Law,” where he argues that Jaws are only “working hypotheses” conceived according to a logic of probability. Judicial decisions require a logic relative to consequences rather than to antecedents, a logic of prediction of probabilities rather than one of de- duction of certainties. For the purposes of a logic of inquiry into probable consequences, general principles can only be tools justified by the work they do. They are means of in- tellectual survey, analysis, and insight into the factors of the situation to be dealt with 53 When Dewey calls for “a logic relative to consequences rather than to antecedents,” he is not recommending that logic can or should do without antecedents. What he objects to is a certain kind of antecedent, based on the kind of logic that assumes a conclusion may be deduced from a major premise as a matter of form. Instead he proposes a kind of logic that determines the meaning and value of an antecedent in terms of the consequences it does or does not produce. Antecedents qualify as precedents when they give up their syllogistic claims. For its formal analysis of the reasoning process, deductive logic retains a place within Dewey’s logical universe, but in reifying the antecedent it confuses the part for the whole.Dewey and the Logic of Legal Reasoning 605 Instrumental logic operates under no such constraints. A few pages earlier, he had even gone so far as to suggest that as a logic of probabilities the experimental method functions in the way the expectancy tables do for insurance companies.5¢ Its strength is that the insurance model proves socially beneficial to the insuree and insurer, due to the calculation of probabilities that can be adjusted to handle changing conditions. What this means is that the model itself is a working hypothesis, and remains a working hypothesis even when it achieves a high level of predictive accuracy and social benefit. It is a general way of dealing with concrete cases that remains true to the general without compromising the partic- ular. All kinds of cases could be brought under the same method- ological umbrella, preserving the integrity of the cascs and the method. Actuarial science deals with the problem of human mor- tality not by looking for a solution outside the scope of its inquiry, but by estimating how past and projected consequences bear on a company’s goal of turning a profit and satisfying the needs of its constituents so that it will continue to make a profit. It takes no great leap of faith to apply the logic of probabilities, whether one wants to look at it in terms of the model of insurance or not, to the law. The predictive and explanatory power of rules of law depend on their degree of entrenchment within the legal system and how far they reasonably can be extended to cover social change. The practical and social importance of the logic of probability promoted by the insurance model has, I believe, its predictive analogue in Holmes’s idea that liability ascriptions are a function of man acting at his peril according to a reasonable standard of care. Appeals to the logic of altruism or the logic of greed are inadequate to this social task. A probabilistic logic of legal reasoning, when it works, it self-correcting and open-ended, forging a balance of interests in light of short and long-term goals that continue to evolve as the conditions motivating them evolve; there is nothing necessary about it. When legal rules and principles are conceived as “working hypotheses,” as tools to be used in actual situations, they are constantly being tested. An analysis of606 Mark Mendell the positive and negative consequences of their application deter- mines how in tune they are with the conditions that produced them, and the extent to which they need to be revised if situations demand revision. As new judgments enter the stream of legal experience, there is a presumption in favor of treating similar cases in a similar way, until subsequent cases give rise to evidence and rules which coun- termand the presumption. When this happens, statutes and prece- dents can be replaced, abandoned, or refined. Otherwise legal meanings become increasingly standardized and entrenched, which widens the “gap between current social conditions and the princi- ples used by the courts.”55 The existence of what I would call a logical lag between judicial reasoning and political, social, and ec- onomic realities makes it difficult for judges to break out of modes of reasoning that have proved useful in the past under a different set of legal conditions. To abandon these sanctified legal forms is not easy, but it is necessary if law is to become an instrument of social reform. For example, efforts to apply social welfare reforms to the freedom of contract doctrine that had come to represent vested property interests were slowed down because the legal forms were inflexible.56 Worn out as these molds were, they were still strong enough in 1924 to resist the likes of Holmes and Brandeis. ‘The difference between the old logic and the new logic is that the instrumental process of linking legal forms with extralegal consid- erations, which are not irreducibly separate, contains built-in me- thodological safeguards against allowing the new logic to follow in the footsteps of the old logic. Dewey assumes that these safeguards do not work unerringly, but they do discourage us, in the long run, from straying far from the path of social reform. V. Problems with “Logical Method and Law” Dewey’s discussion of legal method leaves him open to chal- lenges on several fronts, some of which I have already alluded to. None of them need be fatal; the weaknesses in his argument may be more a product of emphasis than a failure of inquiry.Dewey and the Logic of Legal Reasoning 607 (1) Dewey’s essay analyzes the logic of legal method, inquiry, and reasoning. Of the three, only method appears in the title, but it is judicial reasoning that receives most of the attention: it be- comes the instrument through which he tackles the other two. Though he may be guilty of sliding too easily from one term to the next, no matter which he uses the problem remains the same: the determination of meaning and the relation between logical theory and law. (2) Dewey does not take the time to apply his method to enough concrete cases to test how it would work in practice. Aside from his analysis of the concept of corporate legal personality and his brief look at the development of contract law, to illustrate his methodological approach, he is plainly more concerned and com- fortabie with how general theory fits in with his theory of adjudi- cation than with how it operates at the level of specific theory, which deals with the full range of challenging cases that may be brought before trial and appellate court judges.5” Dewcy leaves us with little evidence of how specific theory trickles down to the particular case, though he would of course insist that both specific and general theory owe their existence to the particular case. Each case may be unique in some way, but a case does not hold our in- terest long just because of this. Its uniqueness may be responsible for what makes it a hard rather than a routine case, for the framing of the issues of the case and the mapping out of credible solutions, for the positive and negative consequences that follow the judg- ment, but none of this makes sense unless the possible becomes probable and the probable becomes actual. For the new to have legal meaning it must be capable of reaching beyond itself, of connecting the specific with the general, and it can only do this if theory remains wedded to practice. We can have practice without theory and theory without practice, but, for Dewey, we cannot have good practice without good theory and good theory without good practice. Yet it is one thing to talk about the necessity of wedding theory to practice at a theoretical level, and quite another to show how608 Mark Mendell Dewey would apply the method to an actual case. Does the method only swing into action when judges are faced with the hard case? And if the method must be applied in both hard and routine cases, as I think Dewey would insist, is the method used in different ways? If no clear line can be reliably drawn between hard and easy cases, why make such a fuss about degree of difficulty and novelty? If the method is a function of the cases to which it is applied, how can it not be different when the cases are different? The method changes only when the cases warrant it; the process by which the cases de- mand methodological revision is constitutive. Routine does not necessarily mean easy, but we find routine cases easier than others. Dewey probably would respond to all this by pointing out that the hard case is the primary catalyst by which the method changes, and that in the routine case the method is constant, which is what happens when the method of intelligence becomes settled. Change may be incremental, but we may assume that the rate of change varies in relation to how new a situation is, and how equipped judges are to handle a new situation, So it is not so much that the method is used differently, but that a hard case stretches the method’s ability to do its job without some self-adjustment. Although the easy case may leave the method unchanged, al- lowing, the law to fulfill its regulative function, what prevents the method from being applied in an overly methodical way, forcing it to the brink of a rigid formalism that cannot keep pace with changing conditions. Such a formalism may soon rival in its in- flexibility the versions of formalism that Dewey attacks. Has the method avoided relativism only to succumb to its own apparent success in making legal determinations predictable? Hard cases provide the antidote only if they are taken seriously as hard cases. As we might expect, questions about the mechanics of applying the method invite questions about its purpose. Does it make sense to talk about something that already exists if its existence is grounded in its ongoing development? Dewey wants to have it both ways: he wants to apply the method to the very case that may lead to its further refinement. For the method to be effective,Dewey and the Logic of Legal Reasoning 609 it must be at once independent of its application and a reflection of it. To what extent, then, is the method ideal and to what extent is it based on actual cases? If judges merely treat the method as ideal, something they can deploy as a matter of course, all they will care about is finding a suitable case to which they can apply the method. But this scenario blurs the distinction between com- peting theories of adjudication, in which aspiring instrumentalists begin to resemble natural law lawyers in their apparent penchant for ideal interpretive constructs. Judges who adopt the Deweyan approach take a broader view of jegal method, one that does not limit the decision-making process to finding the law, but that recognizes judges as lawmakers. A Deweyan judge does not assume a solution can be found from fixed material; why should he assume that a solution can be found when hard cases prove that material is seldom as fixed as it seems? Such a judge interprets the past in light of the future; uncertain present conditions provide the impetus for change. The familiar Deweyan refrain about the open-endedness of experience thus refers to the conditions that call attention to the need for change and the method that is deployed as an instrument of change. For the method to apply to experience it must be treated as belonging to experience, not as something forever separate. It is external to the specific case in its ability to function as a transformative standard; it is internal in the sense that its success in making determinations is a function of its ability to change. This leads, as a theoretical matter, to the charge of circular rea- soning. What Dewcy has to do is to show that, even if circular the Jogic of reasoning as he presents it is not pernicious, that the pro- cess is constitutive and directed toward some end, that the external and internal points of view are two ways of looking at the same process. As a practical matter, this still leaves questions of how judges go about applying the method, and whether judges require an umpire, a ‘judge’, to determine whether it is being applied in proper Deweyan fashion. Yet who would judge the umpire who judges the judge? Trapped in the inevitable regress, we are left, it610 Mark Mendell seems, with only one alternative: to allow judges to muddle their way through rough legal waters. This alternative is of course no alternative if to muddle means to apply the method arbitrarily. The alternative presents something of a false dilemma: cither the method fails because it collapses into an inescapable regress, or because it offers no real direction. The result is that experience, as a method of reasoning which leads to grounded judgments, is not accorded the respect it deserves. (3) Dewey does not leave us with a fully developed theory of his own, but because other theories set the stage for his own pro- ject, he seems at times almost content to criticize them, especially natural law theory. Even with this strategy, he tends not to stop long enough to appreciate their merits in detail, but instead focuses on some general failings. (4) Dewey does not distinguish adequately between the rca- soning processes used by the different actors in the legal system, the different types of lawyers and judges and their assorted tasks. (5) Dewey does not specify the precise conditions under which the method develops, how an evolving method interacts with the facts it secks to explain, how rules of law correlate with evidential data. Nor does he consider whether or not these relations are pre- sumptive, for to say that they do relate is not to say how they relate, under what conditions, and in what logical and temporal order. When we determine a legal meaning we assume a relation of this kind, but we cannot assume knowledge of how the process works at every step along the way, of all the simple and intricate and small and large transactions that lead to controlled inquiry. (6) In focusing on the logic of judicial reasoning, Dewey mostly disregards the following normative questions?5* How does the method distinguish between good and bad law if both march under the banner of instrumentalism? What is the place of values and the role of justice in legal theory and practice? How does the law ac- count for both short and long-term goals? How do extralegal considerations enter into an adjudicatory process weighted toward seeing remedies in terms of distinctive legal requirements?Dewey and the Logic of Legal Reasoning 611 (7) In endorsing “a logic relative to consequences rather than to antecedents,” Dewey is in danger of diluting his historical argument: the idea that the law carries with it cnormous logical baggage, the understanding of which owes much to the study of legal history, which is after all, the study of antecedents. Explanation and pre- diction work hand-in-hand; relativity to consequences need not thwart relativity to antecedents, as they are relative to each other. Of course, the danger rests on the assumption that consequences will be mainly in the fature rather than in the past, a narrow reading of the ongoing nature of experience. Dworkin is guilty of making this assumption, of virtually denying legal pragmatism’s deep re- spect for the past.5? In guarding against an uncritical acceptance of the past and in insisting that the past may be brought to bear on problems of the present for the benefit of the future, legal prag- matism is careful not to demand the same epistemic guarantees from the future. In directing their attention to the future, prag- matists are unwilling to ignore the past; even when the past has little to offer in the way of guidance, they must deal with it before they can legitimately reject it. ‘My remaining remarks stress an aspect of (4) and its fallout in (5). But I begin with historical background on some of the trends and thinkers in the jurisprudential community during the time of Dewey's philosophical ascendancy. VI. Dewey, Frank and American Jurisprudence Jerome Frank’s dissatisfaction with Dewey’s understanding of the role of fact-determination in judicial decision, the theme of the next section, reflects a deeper tension that neither appreciated: the rela- tion between legal pragmatism and legal realism. Although the two theories share much, it is a mistake, I believe, to assimilate them, as so many have done. The theories share a deep distrust of for- malism in its various guises and a desire to demythologize the ju- dicial-decision-making process. They attack the myths that judges do not make law, and that judges are candid in revealing the ar- ticulate and inarticulate forces that shape their decisions. But this612 Mark Mendell only proves a fundamental kinship between the two theories, and not that the two terms describe exactly the same theory. In terms of both chronology and philosophical orientation, legal realism may be viewed as an outgrowth of legal pragmatism. Still, as I have suggested, it would be a mistake to suppose that realism was a logical fulfillment of pragmatism. It does not take an Arthur Lovejoy to sce that part of the problem is that both legal pragma- tism and legal realism are almost as many things as philosophical pragmatism; there are almost as many realisms, it sometimes seems, as there are realists. Everybody’ list is a little different, and deter- mining who influenced whom is not a task for the historian of ideas who expects to follow one narrative line. Dewey was at the center of the philosophical ferment for the two pragmatisms and legal realism. As the leading figure in the American philosophical tradition for the first half of this century, Dewey’s influence extended well beyond the specific areas of in- quiry he considered. But even if he had never written a word in the area of legal philosophy, his influence was felt in the jurisprudential community. He symbolized the scientific spirit of the time, bringing the experimental method of inquiry, flavored as it was by a growing appreciation of the social sciences, to all areas of inquiry, including law. His influence was even more widespread than Holmes, who, even as the most famous judge in America, could not compete with Dewey as the era’s great intellectual epicenter. Despite the fact that neither would be entirely comfortable with how their ideas have been used and interpreted by their followers, both were appealed to as the authority among authorities, not only out of respect and philosophical kinship, but as a symbol of the quest for the legitimacy of the trends they in part inspired. Apart from his effort to contrast his own logical position with the formalists’, Dewey, unlike Frank, did not give in to the temptation to label and categorize contemporary laborers in American juris- prudence. It was not for lack of opportunity that he never identified himself as a legal realist; he had long been associated with the re- alists and their opponents, both before and after realism had left itsDewey and the Logic of Legal Reasoning 613 mark on legal philosophy. The American legal figure who figures most prominently in Dewey's work in the field is Holmes, but the influence was primarily academic.6! Dewey’s links with many of the other leading actors in the jurisprudential conversation were of a more personal nature. He was chairman of the landmark interdis- ciplinary Conference on Legal and Social Philosophy that had been organized by Morris R. Cohen for the purpose of bringing together philosophers, lawyers, and social scientists to help cach other illu- minate legal thought.S? Over the course of several meetings starting in 1913, some of the other major participants included Roscoe Pound, W.E. Hocking, J. Wigmore, A. Kocourek, A. Small, and E. Freund. The 1920's saw Dewey at his most active: not only did he publish two of his three most important papers in legal philos- ophy, but from 1924-29 he co-taught, with Edwin W. Patterson, an influential seminar on Logical and Ethical Problems of the Law at Columbia Law School, which was the stronghold of realism be- fore its center shifted to Yale Law School.6 Dewey would not have been comfortable with the categories set forth by Frank. He would have agreed with Frank that skepticism should be constructive, but he would not have agreed that it is limited to rules. Frank’s philosophical worldview was shaped more by James than by Dewey; he felt that Dewcy's legal writings were tainted by the “tendency to overemphasize the systematic,” leading him to neglect “those factors in the judicial process which are unique and which thus cannot be caged in any generalizations.”6+ Frank was taken with the pluralistic atmosphere of James’s thought, the commitment to understanding the importance of the “unruly” factors, the “wild facts” that resist casy classification. These facts point to the indeterminacy in the law, and serve as the impetus for creating new legal meanings; they show how stifling the old cate- gories can be, and that accepted legal rules may be inadequate to the situation, Pound, too, was much influenced by James but used him in a different way, drawing on his theory of moral obligation and se- lective interest to produce an ambitious theory of social intercsts.614 Mark Mendel In proclaiming that “[t]he sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law,” he did not show any hesitation, unlike Holmes or Gray, in making the con- nection between the two pragmatisms.6¢ Pound’s move to reform the law of its excessive formalism was no more than a starting point for the realists, while for Pound the realists’ unrelenting skepticism about the reliability of legal rules would go too far. The 1920's saw the rise of realism within the legal academy, and by the beginning of the 1930's Pound had seen enough. As part of a Festschrift commemorating the fiftieth anniversary of the publication of Holmes’s The Common Law, Pound, almost innocently, called at- tention to some of the defects in the realists’ platform.§ His article elicited an elaborate response from Llewellyn and Frank, who col- laborated but did not deem his contribution sufficient to warrant co-authorship.6* Many points were made in both articles, but per- haps the most controversial onc had to do with the treatment of the relationship between law and morality, with Llewellyn and Frank calling for a temporary divorce between legal fact and value for adjudicatory purposes and Pound worrying about the emptiness of any theory of law that ignored or sublimated the normative di- mension of legal rules. This exchange initiated a series of exchanges, and it was not long before many other theorists were pulled into the debate.6 Over the years thinkers as diverse as Pound, Morris R. Cohen, John Dickinson, Lon Fuller, and a whole army of Catholic natural law theorists would attack the realists. But with the exception of the Catholic legal theologians, and even they were not an entirely united group, the lines were not as neatly drawn as the combatants in both camps supposed. An anti-realist such as Pound could agree with the realists distrust of the quest for legal certainty; the realists could applaud Pound for being a trailblazer, but they also attacked him for not seeing the full implications of his views, for compro- mising, as Frank would argue, his anti-formalism by circumscribing the role of judicial discretion in legal determination. Like the anti- realists, the realists did not always agree among themselves, andDewey and the Logic of Legal Reasoning 615 even when they did, they came to their understanding of the legal system and the process of adjudication from so many different an- gles and interests that to treat them as an homogeneous school, or as a movement with two basic branches, is misleading. Differences are overlooked and similarities exaggerated. VU. Frank’s Critique: Some More Realism about Fact-Determination Frank published his critique of Dewey’s theory of adjudication not long before Dewey died, and not that long after the natural lawyers’ backlash against legal pragmatism and realism. In 1950 Dewey was already over ninety, and, given the volume of secondary literature being published on Dewey back then, he may not have known about Frank’s article. Nor do we know whether he would have replied had he lived any longer, or had the article come out a few years earlier. And although he was not a reluctant polemicist, he had not published anything major on jurisprudential matters since his 1941 article, “My Philosophy of Law.” What follows is intended as the kind of response Dewey might have made had he gotten around to it. Frank’s article, “Modern and Ancient Legal Pragmatism—John Dewey & Co. vs. Aristotle,” was published in an unlikely forum, a bastion of natural law theory, and it is ironic that its editors chose to publish it at all.7° Though they admitted he was not a Thomist, it did not stop them, it seems, from looking for support in unex- pected places—as if an attack on longtime adversaries, such as the Deweyans, was enough to warrant their tentative support. This is especially surprising because they must have known well that part of Frank’s analysis consists of an attack on the stubborn founda- tionalism of the Deweyans, who could not escape a legal tradition that insists on the primacy of rules. Frank’s interest in natural law, as well as Dewey's, is twofold: he wants to note the contribution of the natural law lawyers in the history of jurisprudence; and he wants to make absolutely clear the need for objective appraisal of laws, while he insists on the possibility that we realize our moral616 Mark Mendel! ideals in the law at some future date. Perhaps the editors had been taken with Frank’s general comment on natural law from the pre- vious year: “I do not understand how any decent man can refuse to adopt, as the basis of modern civilization, the fundamental principles of Natural Law, relative to human conduct, as stated by Thomas Aquinas.”72 But then the editors seem not to have read on, They do not consider that natural law is not equipped to con- vert these abstract ideals into practice, no more than other theories of law. Natural law offers no better standard for evaluating the kinds of fact-determinations judges and juries face. A pretty picture is no substitute for the tough demands of the trial courts, with all their evidentiary and procedural concerns. Frank’s critique of the factual basis of Dewey's analysis of the logic of judicial decision is prompted in part by a larger worry, “the unpragmatic attitude of some of the legal Deweyites, the pragmatic attributes of Aristotle, and Dewey's deficiencies as a legal pragma- tist.”73 Frank contends that Dewey, and even more some of his disciples, “has never done full justice to Aristotle.”74 What Dewey and company miss is Aristotle’s appreciation of practice in relation to theory. Aristotle does not erect a dualism between theory and practice in which practice is found wanting, but places practice on the same theoretical plane as theory, drawing on observations, for instance, of governmental practice in framing a theory of govern- ment. Aristotle ends up being more of a pragmatist than “many Dewey-ites.”75 Although Frank concedes that Dewey's followers are more guilty than Dewey of overstressing the practical at the expense of the theoretical, the cost carries over to the practical as well.76 According to Frank, Aristotle’s theory of justice leaves room. for a fuller picture of the process of judicial decision, one that is more sensitive to the kind of evidential problems that judges en- counter in actual trials.77 This sensitivity is made possible by the standard Aristotelian distinction between legal and equitable jus- tice.78 Legal justice follows settled law, law on the books, applying the appropriate rules to any given set of facts and issues. Equitable justice is under no such restrictions; it is not bound to follow theDewey and the Logic of Legal Reasoning 617 holy path of legalism. Judges may step back and correct the injustice that legal justice left standing; not only must they look at the act at issue, but they must be prepared to look at the consequences, for the parties involved and the law in general, of allowing an unjust decision to stand. Frank’s contention that Aristotle outpragmatized the pragmatists is filled with irony as well. It was standard practice among natural law theorists to appeal to Aristotle as support for their founda- tionalism. So how can Frank, an arch antifoundationalist, sce Aristotle as a corrective to an unfulfilled pragmatism? After all, Dewey and company were as committed antifoundationalists as Frank. And even if neither were as antifoundationalist as he ima- gined, where does Aristotle fit into the picture? As the philosopher, the man who invented the categories, launched deductive logic, offered an ontology of substances and accidents, and applied an immanent teleology across the spectrum of inquiry, from psychol- ogy to politics, and who saw equitable justice as a corrective to legal justice, Aristotle is not the most obvious authority for Frank to have turned to. No wonder that his use of Aristotle is necessarily selec- tive. Only by stressing the flawed trial court procedure of the “Deweyites” can Frank claim that they have something to learn from Aristotle; only then can Aristotle’s analysis of the relation between theory and practice be said to compare favorably with their’s. Frank turned to Aristotle not because he found higher law appraisals of positive law so attractive, but because he thought that Aristotle offered a more realistic account of the decision-making process than the “Deweyites.”79 Dewey holds up better under this criticism than Frank thinks, but accurate or not, Frank suggests a link between Dewey’s failings compared to Aristotle, and Dewey's signal failure “to face the problem of judicial fact-finding.”8° In making this link, Frank dis- tinguishes between how Dewey dealt with “the problem of judicial fact-finding” and his other legal writings, which he praises. The problem with Frank’s critique is that he sometimes writes as if (a) Dewey's omissions on judicial fact-finding mar his other writings618 Mark Mendell on the law; (b) Dewey’s other writings, inside and outside the law, weren’t stitched into what he had to say about judicial-fact finding; {c) Dewey believed that judicial theory was not yoked to judicial practice. To imply any of this is to fail to do justice to Dewey. Frank criticizes Dewey for importing models of judicial reasoning from the upper courts to account for the reasoning process in the lower courts. Dewey does not pay much attention to the way any court operates, whether appellate or trial, but it is revealing that his most sustained analysis of court procedure occurs right after the pivotal chapter in his Lagic, and while not very alive to its nuances, his analysis is of the trial courts.8! The procedure is a mere sketch when compared with the detailed five or six-step procedure of the previous chapter, where he had set forth the “pattern of inquiry.”82 According to Frank, Dewey's failure in “existential reconstruction” stems from his inadequate analysis of the facts, tendencies, emo- tions, nonrational behavior, and biases displayed. by all the actors in any particular problematic situation.83 As an example of his insen- sitivity to the subtleties of the problematic situation, Frank points to Dewey’s discussion later in the Lagic of the nature of historical inquiry, Dewey's warning to historians about the various fallacies confronting them. These fallacies concern what might be termed the historian’s second-order selections and inferences of the first- order selections and inferences made by witnesses to or actors in historical events. If the historian is to settle upon a judgment that reflects accurately the way in which events took place, then he must be able to determine reasonably which “cvidential data” is relevant and reliable. The accuracy of such an assessment lies in the histo- rian’s ability to distinguish between direct and indirect observation, and to evaluate the observational process to overcome the defects of memory, intentional or unintentional. Frank focuses on this analogy: . . it is regrettable that Dewey, in his analysis of court- room ‘inquiries,’ did not see (1) that they, too, are ‘his- torical inquiries,’ with the same dependence on inferences by trial judges functioning as historians, those inferencesDewey and the Logic of Legal Reasoning 619 being far from ‘directly given’; and (2) that judicial ‘in- quiries’ suffer from the same weakness of dependence on the testimony of witnesses, who often make defective ob- servations and whose memories are selective and frequently fallible.85 If Frank is arguing only that Dewey failed to give a subtle account of the judicial-fact-finding-process in trial court procedure, Frank’s characterization would present no big problem for Dewey. But I do not think that these deficiencies warrant the full brunt of Frank’s attack. I think Frank commits the opposite flaw by overemphasizing, the psychological considerations involved in trial court procedure and extending his analysis to cover the entire judicial system.®6 This bias comes out when he deploys the statistic showing that over ninety per cent of all lawsuits decided by trial courts are not ap- pealed, and that when appealed most of the holdings are affirmed.87 Many of these cases are less complicated than Frank imagines. The bias submerges the fact that the majority of important cases affect- ing social change in our common Jaw tradition were handed down by the appellate courts. Dewey analyzes trials to show how the legal method relates to the problematic situation. Not only is there a conflict about “the sig- nificance” of what took place, but there may be one about the facts.88 “The judicial settlement,” he argues, “is a settlement of an isswe because it decides existential conditions in their bearing upon further activities: the essence of the significance of any state of facts.”89 Prior to final settlement or judgment, an effort is made to determine the legal meaning of the facts of the case. Judgment does not only take place after all the relevant facts have been evaluated, but throughout the process of evaluating those propositions or facts and connecting them to the “existing juridical system.” Decisions have to be made along the way. These judgments about “inter- mediate propositions” determine what counts as evidence, always with an cye toward the final outcome. There is a correlation be- tween facts and rules that provide the “conceptual structure” for620 Mark Mendell the interpretation of these facts.9! The rules determine the re- quirements for admissibility as evidence and how that evidence should be weighed. Neither facts nor rules function within an ex- perimental vacuum. The relating of facts and rules transforms the indeterminate into the determinate. Once enough intermediate judgments are made the process moves toward final judgment. As “a decisive directive of future activities,” the final judgment intro- duces specifiable consequences for the parties to the action.52 But even more important than the specific remedies imposed is the notion that a new situation has been brought into existence that changes the way we view certain legal issues. Until it is appealed or modified, a final judgment has the power to change conduct. This becomes its most significant consequence. From his nominalistically tainted result-oriented perspective, Frank points to a weakness in this analysis which I think turns out to be a straw man. Dewey writes that “the subject-matter is capable of direct observation and has existential reference.”93 Frank takes ‘Dewey to mean that the facts can be observed directly by unreliable witnesses. To be sure, the judge is neither at the scene of the crime nor sitting at the contract table, and even if he were, he would not necessarily do any better as a witness than the actual witnesses, es- pecially as a witness of a crime. More than a few modern law stu- dents have had their criminal law professor trot out a video tape in which some stolid law professor is making some arcane point about the perceptual quandaries involved in the witnessing of crimes. In the midst of this discussion, with half the class nodding off, the profcssor’s account is interrupted by a gunman demanding money. The class’ job is to describe what they saw, but, as might be ex- pected, there is conflicting testimony. The irony of the lesson is presumably lost on no one: not only were they law students in a class on criminal. law, but the professor in the video was exploring the precise point that was being acted out on screen: the unrelia- bility of witnesses and their reports. The class learns that, in spite of best intentions, their perceptual antennae are not always raised, and they see that theory is best understood through practice.Dewey and the Logic of Legal Reasoning 621 Frank writes as if the failure to make direct observations prevents an accurate determination of the facts, but he himself argues that am expert can make such a determination. If by “direct observation” Dewey means to specify the conditions under which a particular set of facts are deemed relevant or admissible, then his point is sound. If he means to allege an infallibility requirement, or something approaching it, then the requirement is incompatible with his the- ory of inquiry. “Direct observation” does not entail privileged ac- cess; no matter how expert, the observer remains vulnerable to er- ror. While he obviously means the first, it might be easier to replace the phrase with another that was not colored by his habitual use of terminology borrowed from attempts to explain scientific phe- slomena associated. with perception and experiments. The purpose of the observation is to bring about “a new qualitative situation” that subsequently may turn problematic. Accurate observation gives judges material to work with that has the potential of increasing the legal significance of their decisions. Such determinations become grounded judgments, Dewey concludes, when “the consequences they produce in the conduct of further inquiry is the criterion of their value.” Frank’s criticisms boil down to Dewey's failure to be sufficiently skeptical about facts. While Frank is surely correct that Dewey is skeptical about rules in his account of legal reasoning, anyone who has read Dewey, from the most pure to the most applied areas of inquiry, will find it hard to ignore his skepticism about facts.°5 Frank thinks that Dewey, as a rule-skeptic, does not adequately define the domain of facts. He wonders what qualifies as a fact for judges and juries and wonders who is to decide what qualifies as a fact? Despite the differences between the fact and rule-skeptic, Frank and Dewey agree on the defects of formalism, the differences, as some critics have suggested, is that Frank’s fact-skepticism bor- ders on jurisprudential nominalism.% Frank therefore may have gone too far in his worship of facts, too far to be able to appreciate the less extreme skepticism of the rule-skeptics. He thinks the rule-skeptics aren’t as antifoundationalist as they622 Mark Mendell imagine. If rule-skeptics are rule-worshippers to the same degree that fact-skeptics are fact-worshippers, then the rule-skeptics’s an- tifoundationalism dissolves away, leaving a foundationalist core. As an espouser of fact-skepticism, Frank shares the rule-skeptic’s skepticism about the advisability of allowing accepted legal rules to govern conduct. These rules are not reliable enough to be useful in predicting judicial behavior; and they are not reliable enough to offer experimental support for those secking to adjust their conduct to avoid, so far as possible, legal conflict or to minimize its many costs. By distinguishing between paper and real rules, rule-skeptics think they could discover the real rules that the paper rules helped to conceal. They think they can identify uniformities of judicial behavior that would put the business of prediction on a more ob- jective footing. In Frank’s mind, the rule-skeptics do not go far enough, suffering from the very disease that afflicted Dewey and the Deweyites: “appellate-court-itis.”°7 In their zeal to increase the accuracy of their predictions about upper court decisions, they do not learn what they might about the kind of decision-making that goes on in the trial courts. Centered around facts, trial court ad- judication lays the foundation for much of what takes place in upper court adjudication. In overlooking what happens in the trial courts, rule-skeptics turn their confidence in prediction into a quest for legal certainty. The rule-skeptics are apologists for foundationalism; as Frank asserts, they are “left-wing adherents of the tradition, and “(i]t is from the tradition itself that the fact skeptics revolted.”98 Yet even if we accept, for the sake of the argument, Frank’s breakdown of legal realism into two camps, we do not have to ac- cept his analysis. Frank treats the difference between the two camps as a difference of kind rather than degree. But if rule-skeptics aren’t as skeptical as they make out, and if the true basis of rule-skepticism lies in fact-skepticism, how can he not conclude that the difference between the two camps is only one of degree? On the one hand, fact-skepticism calls for a complete break with the tradition, on the other, it supposes that the skeptic need only do what the logic of the factual situation demands: to be more skeptical about rules thanDewey and the Logic of Legal Reasoning 623 Frank’s reductionistic account of the link between rule-skepticism and predictive theory allows. Giving more substance to the rule-skeptic’s skepticism about rules might have forced the rule-skeptics to take facts more seri- ously, to take the further step of being skeptical about the evidential weight that judges give to the putative facts they encounter in the decision-making process without taking the final step of breaking from the tradition. For one can be antifoundationalist and at the same time insist that judges in particular and the law in general can provide some fairly satisfactory results that meet social needs. Just because the logic of experience and history shows that the law re- tains an element of indeterminacy does not mean the law is hope- lessly indeterminate, that one answer is always as good as any other. As interpreted by Frank, fact-skepticism may be more antifounda- tionalist than necessary. The logic of its skepticism does not take relativism as a given, as something that cannot be overcome, that cannot be put to some objective use. Even the fact-skeptic, in un- earthing some of the myths of the judicial-decision-making-process, has ambitions. Whether the fact-skeptic can do more than increase the accuracy of our predictions about judicial conduct, the very goal that Frank had found wanting in rule-skepticism, is another ques- _ tion. As it stands, rule-skepticism may not be as limiting and fact- skepticism may not be as liberating as he supposes. Once he ex- plodes the myth of upper-court supremacy and turns our attention to the evidential basis of legal facts, we are left wondering whether fact-skepticism has anything more to offer in the realm of general theory than a call for judicial reform. By aligning Dewey with the rule-skeptics, Frank not only treats him as if his thought can be contained within the scope of Frank’s account of rule-skepticism, but he also makes the mistake of sup- posing that they could not be antifoundationalist in any real sense. ‘This contradicts Dewey's long track record of attacking founda- tionalism in its many forms. The kind of legal certainty that Dewey sought was situated in the facts of experience, and based on a logic in which rules were to be treated as a kind of fact. That he did not624 Mark Mendell dwell on the ways in which facts contributed to the logic of judicial decision-making does not mean that he would have been unsym- pathetic to Frank’s attempt to expose the factual uncertainties which plague the process in both the lower and upper courts. Nor does it mean that Dewey abandoned his desire to come up with a theory of law that takes his transformative ideals scriously so that they might work in practice. C.W. Post Campus, Long Island University NOTES *An earlier version of this paper was presented at the Annual Meetings of the American Philosophical Association, where it was awarded The William James Prize. I would like to thank several people for their helpfal com- ments along the way: Abraham Edel, Elizabeth Flower, Larry Hickman, Dean Mendell, Ralph W. Sleeper, and H.S. Thayer. 1. John Dewey, The Later Works, 12:105. Cf. 370. [In keeping with current practice, references to Dewey’s writings are to the complete edition of the Works of John Dewey, ed. Jo Ann Boydston (Carbondale and Edwardsville: Southern Illinois University Press, 1969- 91). The writings are divided into three periods: The Barly Works, 1882- 1898; The Middle Works, 1899-1924; The Later Works, 1925-1953. Volume and page number follow the abbreviation of the series, with EW for The Early Works, MW for The Middle Works, and LW for The Later Works.] He does not, to my knowledge, repeat the sentence in his writings on art, though in Art as Experience (LW, 10:307-08), he docs not draw an anal- ogy, cast in negative terms, between judicial or legalistic criticism and aesthetic criticism. 2. John Dewey, "Logical Method and Law,” in MW, 15:65- 77. Fittingly, this article appeared originally in both a philosophy [Philosophical Review, 33 (Nov. 1924):560-72] and law journal [Cornell Law Quarterly, 10 (Dec. 1924): 17-27]. It was reprinted, under the sameDewey and the Logic of Legal Reasoning 625 title, in Philesophy and Civilization (New York: Minton, Balch & Company, 1931):126-40. Dewey's choice of a title was an apt one, underscoring what he thought ‘was most important, the logic of legal reasoning and method, the “com- mon pattern” the law shares with its relatives on the continuum of inquiry. By joining logic with method to form “logical method” and only then bringing in the specific area of inquiry “law,” he does not mean that spe- cific is independent of general theory; but he docs draw attention, in a subtle way, to the primacy of general theory. To conclude, though, that general is more important than specific theory is not the point he wishes to make, since it makes little sense to talk about the general without the specific. Whenever we take a critical look at the specific, whatever it hap- pens to be, we operate at the level of general theory as well. To make the same point, Dewey could have entitled the article, “Logic and Legal Method,” but he might have lost some of the additional punch that combining “logical” with “method” gives. It also suggests that the two terms may be used interchangeably, that when he talks about one he talks about the other. Hither way, he is asking us to inquire into the structure of inquiry itself, how reasoners do and should go about their business of making grounded determinations. 3. The other philosophical pragmatists of course had even less to say about the law; with them, we have to be satisfied with occasional dicta. Only Dewey ventured an extended inquiry into the concerns of philosophers of law. Yet a full-blown conception of the law does not amount to a systematic treatment of the law. He left it to others to fill in the gaps, to work out a theory for which he supplied the methodological orientation. If Dewey had an ethics of terminology, it did not inspire him to be vigilant about the use of terms. Whether he calls his method and theory pragmatic, instrumental, logical, empirical, experimental, historical, reflec- tive intelligence, evolutionary, scientific, or experiential depends on the period of his career we are looking at, and his contemporaneous mood. His tendency to use these terms interchangeably gets him into trouble with critics, who point to it as evidence of a looseness of thought. To admit that these terms need not be coextensive docs not mean we have to give up on.626 Mark Mendell Dewey. Each term comes equipped with its own philosophical baggage. Unlike Peirce, Dewey does not become so dissatisfied with the normative thrust of terms that he gets in the habit of making up his own content- neutral terms. Even when he abandons one for another, Dewey’s terms have a descriptive edge. He prefers “instrumental” or “experimental” to “pragmatic” not only because he disavowed any necessary connection be- tween philosophical pragmatism and law, but also because he is careful to avoid reductionistic terminology, buzz words that take on a life of their own. So there was nothing sacred about any of his terms. 4. Dewey, MW, 15:71. Cf. LW, 12:477-78. What makes the idea of insurance so tantalizing is that both Green and Holmes drew the same connection, though they too only suggested it. Green’s discussion is found in “Proximate and Remote Cause,” originally published in American Law Review, 4. (1870):201 and reprinted in his posthumous collection, Essays and Notes on the Law of Tort and Crime, (Menasha, Wisconsin: George Banta Publishing Company, 1933):1-15, esp. 14-15. Holmes’ most important reference is probably also his most perplexing, and it comes in his masterwork, The Common Law, (Boston: Little, Brown and Company, 1881):96. His other hints, the references to “bettabilitarianism” and “Can't Helps,” are scattered throughout his correspondence, and convey a stark philosophy of life rather than an explicit endorsement of using actuarial science as a model for his legal theory. 5. For Frank’s important account of the labelling of legal re- alism, see the “Preface of the Sixth Printing,” in Lew and the Modern Mind (New York: Coward-McCann, Inc., 1949; Gloucester, Mass.: Peter Smith, 1970):viii-xxxi. 6. Dewey, LW, 7:338. 7. The phrase is a chapter title in Dewey's The Quest for Cortminty, LW, 4:178. 8. Dewey, LW, 12:481. 9. Ibid., 485. 10. The law was no different in this sense. As the twentieth century unfolded, lawyers, legislators, and judges, and from both sides of many issues, appealed increasingly to the social sciences to help justify what on the surface was primarily a legal position. Armed with statistical analysesDewey and the Logic of Legai Reasoning 627 of economic, political, and social trends to support their public policy recommendations and decisions, social science eventually made its way into the courts, reaching the pinnacle of respectability with the famous “Brandeis Briefs,” the classic case being Muller ». Oregon 248 U.S. 412 (1908) in which Brandeis, in his role as an advocate, filed a voluminous brief based on social science research which supported a law restricting the workday to ten hours for women. Whatever form it took, social science as an instrument of legal inquiry tended to be most effective in matters of social legislation and judicial reform, the latter stemming largely from the investigations of the legal realists. i. Dewey, MW, 15:66. 12. Ibid., 66-67. 13. He contrasts his own view with the deductive model. Analytical jurisprudence and natural law theories are lumped under the rubric of the deductive model, If analytical jurisprudence makes an implicit appearance, it is not by way of contrast with natural law theory. Whether aware of their differences or not, what Dewey objects to is their member- ship in the deductive camp. They both follow an outmoded logic of ne- cessity that does not do justice to the practical logic of experience. ‘The artificial classificatory schemas of Austin’s analytical jurisprudence are nowhere in sight here, though Dewey does have his say about this form of legal formalism elsewhere. See “My Philosophy of law,” in LW, 34:115-22. Also, “Austin’s Theory of Sovereignty,” in EW, 4:70-90. The focus in these articles, however, is not on legal method but on the social content of the law and the relation between political and legal authority. 14, Dewey, MW, 15:65. 15. See “Nature and Reason in Law,” in MW, 7:56-63. 16. But the ease with which some judges come to a decision may be more apparent than real. They may come to their decision rather casily, and then have difficulty justifying it; or they may come to their de- cision only after much soul-searching, and then have easy access to the usual formulaic justifications; or they may have a hard time with both. So the social and biological explanations of the distinction between the two types of hunches does not tell the whole story. 17, For a playful and frank defense of the hunch theory by a628 Mark Mendell contemporary of Dewey's who sat on the federal bench, see Joseph C. Hutcheson, Jr., “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision,” Cornell Law Quarterly 14 (1929):274-88. Hutcheson considers both the process that leads to the hunch, and the subsequent search for a justification that pays carefal attention to anticipated public consumption. The keystone of the hunching process is the hunch, but the process is not, despite appearances to the contrary, set in motion by the hunch. Judges need not give up, and decide hard cases by fiat. Hutcheson’s judge, more cheerful about the prospects of coming up with a good deci- sion, describes the process in this way: “I, after canvassing all the available material at my command, and duly cogitating upon it, give my imagination play, and brooding over the cause, wait for the feeling, the hunch—that intuitive flash of understanding which makes the jump-spark connection between question and decision, and at the point where the path is darkest for the judicial feet, sheds its light along the way” (284). Yet what if the “intuitive flash” does not come after considering the facts and issues? How Jong may a judge wait for the hunch to rescue him from his dilemma, and what counts as an acceptable period of deliberation? Expected to render a judgment, the judge will resort to the dice method before long. Forever in danger of collapsing under its own weight, of sliding from hunches grounded in experience to hunches that are little more than judicial whim, Hutcheson’s version of the hunch theory loses some of its allure. It leaves us with the impression that his judge docs not take deliberation as seriously as he supposes; he seems to rely mainly on the magic of imagination to supply the answer. In arguing that “the judge really decides by feeling, and not by judg- ment; by ‘hunching’ and not by ratiocination, and that the ratiocination appears only in the opinion,” Hutcheson has put his finger on a powerful feature of judicial reasoning (285). But he has also painted an overly sim- plified picture, one that comes close to dividing the process into the before and after, into feeling and reasoning. Schematized, the process looks something like this: first, pedestrian reasoning, marked by a careful con- sideration of the facts and issues of a case; then, the “hunching” that leads to the pivotal hunch, which takes the form ofa silent supernova; and then a search for a publicly acceptable justification so that the judge can dressDewey and the Logic of Legal Reasoning 629 the decision in the proper clothes. The feeling is packed into the hunch, and the reasoning becomes a euphemism for rationalizing. If Hutcheson were a better Deweyan, he would treat the hunching process as more of a process, and thus become less vulnerable to the charge of making cuts where they do not belong; he would not erect artificial dualisms, and would not rely on:phenomena that he cannot explain. For Dewey, the logic of imagination has its place within the logic of reasoning, a functional logic grounded in experience. The artist docs not make the scientific discovery even if the scientist has to have something of the artist in him to see into the core of a problem. The same goes for the judge, who must blend the abilities of the artist with that of the scientist to make the science of judging look like an art and the art of judging look like a sci- ence. For a more recent analysis of judicial intuitionism see, Richard A. Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification (Stanford, CA: Stanford UP, 1961):84-117, esp. 89-96. 18. Dewey, MW, 15:65-66. 19, Dewey, LW, 12:105. 20. Ibid., 370. 21. Legislative bodies operate under certain constraints, amid the checks and balances of the other branches of government, public opinion, the pressure of multiple constituencies, and interest groups. Critics of judicial activism tend to downplay these factors and overstate the latitude with which activists approach nearly every issue. 22. Dewey, MW, 15:67. 23. Ibid., 68-71. Dewey misquotes Holmes by adding “ac- tual” before “life” (69). For further reflections on Holmes, see “Justice Holmes and the Liberal Mind,” in LW, 3:177-83. 24. Dewey, MW, 15:68. 25. Ibid., Dewey is not the only laborer in the instrumental- ists? fields who makes a special point of invoking the connection between the growth of language and the growth of law. The emergence of meaning in language and in the law parallel each other because they developed in much the same way, under similar logical conditions. Chauncey Wright, Green, and Holmes, all made this connection in one form or another.630 Mark Mendell 26. Ibid. 27. Dewey, LW, 12:124. 28. Dewey, MW, 15:71-72. 29. Ibid., 72. 30. Dewey, LW, 7:329-30. 31. For much the same point see Edwin W. Patterson, “Dewey's Theories of Legal Reasoning and Valuation,” in John Dewey: Philosopher of Science and Freedom, ed. Sidney Hook (New York: The Dial Press, 1950):118-33. Cf. Anton Donoso, “John Dewey’s Philosophy of Law,” University of Detroit Law Journal, 36 (1959):602n. 84, who follows Patterson in drawing attention to Dewey's “incomplete” analysis of the various points of view of the participants in the legal process; even legisla- tors may reason in a similar way to judges and lawyers. Patterson, Dewey’s colleague and co-leader of the landmark Seminar on Legal Philosophy at Columbia from 1924 to 1929, gently criticizes Dewey for neglecting “the differences between the problems of counselors and judges” (121). Professional role determines what judges and lawyers have to work with when legal reasoning commences, what facts are at their disposal and what weight they should carry, and what issues are at stake. The counselor starts with a given set of facts, however confused, while the judge, especially on the appellate level, relies in large measure on the facts as recorded by the trial courts, and to a lesser degree on the issues as framed by the opposing briefs. This implies that judges do not get the first crack at determining legal meanings. So Patterson, as a good Deweyan, concludes that “the character of the problem presented for legal reasoning varies with the use to be made of it” (121). A corollary is that “Dewey seems to have confused the work of the counselor, who is called upon to advise his client what action he should take to avoid litigation, with the work of the advocate, who has to present the merits of his client’s claims in litigation on facts already determined, by the most favorable arguments possible within the rather uncertain limits of professional ethics and professional prudence” (122). This is a good point, but perhaps counselor-and advocate are not as different as Patterson supposes, Both want to do what is in the best interest of the client. A counselor is a kind of advocate, one whose advocacy generally takes the