Andrew, I’m having a little trouble understanding your critique because I’m having trouble understanding your analysis of Frank. Could you give me a five-sentence summary of what you think Frank is saying?

I also interpret Frank’s criticism of Cohen differently than you do. Cohen suggests that rule by discretion would be bad, true. I don’t think Frank is disputing that rule by discretion would be bad. I think his point is instead that just because rule by discretion would be bad doesn’t mean we don’t currently live in a society of rule by discretion, and that recognizing that is valuable.

I don’t necessarily disagree that rules are important. But Frank’s point, which seems on, is that rules don’t actually eliminate the discretion, because we have to apply necessarily subjective facts to those rules.

It’s very, very possible that I am (a) misunderstanding you or (b) misunderstanding Frank. Thoughts?

-- AmandaHungerford - 30 Jan 2008