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41 Suffolk U. L. Rev. 773 (2007-2008)
A Theory of Adjudication: Law as Magic

handle is hein.journals/sufflr41 and id is 789 raw text is: SUFFOLK UNIVERSITY LAW REVIEW Volume XLI 2008 Number 4 A Theory of Adjudication: Law as Magic Jessie Allen1 Law is a strange compound which is brewed daily in the caldron of the courts. Hon. Benjamin N. Cardozo2 I. INTRODUCTION At least since the Legal Realists' early twentieth-century critique, legal theorists have struggled to understand the relationship between law and reason. Other disciplines can help with that project. The longstanding trend toward economic analysis is one well-developed approach. Recent scholarship looks to both economics and psychology to analyze the law of risk.3 In this article, I use anthropological theories of ritual and magic to reconsider the role of doctrinal reasoning and formal procedure in adjudication and adjudication's role in social change. I argue that aspects of law regarded as irrational magic may contribute to adjudication's social effects and meaning. The idea that law has something in common with magic is not new. In the 1920s and 1930s, the American Legal Realists expressed their critique of legal rationality by complaining that judges practice legal magic.4 According to 1. Acting Assistant Professor, New York University School of Law. Many thanks to those who read various incarnations of this work and gave thoughtful comments that improved it: Anthony G. Amsterdam, Natasha Balendra, Keith Bybee, Peggy Cooper Davis, Jeffrey Fagan, Deep Gulasekaram, Suzanne Last Stone, Michael Madow, Lawrence Rosen, Peter Strauss, Susan Sturm, Jeremy Waldron, Andrew Williams, and Patricia J. Williams. Thanks also to Josh Launer and Emma Cecilia Eriksson for their editorial contributions. 2. BENJAMIN CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 10 (1921). 3 See, e.g., BEHAVIORAL LAW AND ECONOMICS (Cass Sunstem, ed. 2000). 4. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 821 (1935). Across the Atlantic at around the same time, the Scandinavian Realists contended that modem legal

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