What is the continuing significance of Cohen v. California, the 1971 U.S. Supreme Court decision holding that “Fuck the Draft” is a message protected by the First Amendment? Using Cohen as an exemplar, this article offers a new theory about how to understand the law and judicial opinions.
The theory begins in a recognition of the “law” as resting upon mystery and uncertainty, a mystery that is also the source of the law’s enchantment. It is this enchantment that we depend upon for the law to be authoritative rather than authoritarian and reducible to the political and thus to power. In simple terms, the mystery of the law—its being beyond us in this way—constitutes its legitimate authority over us. The law that discloses itself to us does so through the openings that language provides. For our culture, judicial opinions are its primary way of doing this.
Having introduced the theory, the article applies it, exploring whether it is possible to bring to the surface the tracings of a “great” judicial performance, using “great” in the sense of revealing an opening through which the law discloses itself. This section describes a reading of Cohen that aims to discover whether through the performance of the opinion, its author has uncovered something that is “of the essence” of our community.
The article finally raises questions about what it would mean to legal education and law practice if judicial opinions were evaluated without destroying the law’s mystery. What would it mean if we thought of judges as preservers of this mystery? What would it mean if readers of opinions started thinking in terms of their own experience of the opinion rather than as critics of it? And what would it mean if lawyers saw their task as related to “truth”?
2 Br. J. Am. Leg. Studies 1 (2013).
Berger, Linda L. and Sammons, Jack L., "The Law's Mystery" (2013). Scholarly Works. Paper 750.