Shadowboxing: An Essay on Power
It is important to know when we are being gulled, manipulated, and duped. 1 It is even more important to know when we are unwittingly doing this to ourselves--when we are using shopworn legal scripts and counterscripts, going around endlessly in circles, getting nowhere. 2 Understanding how we use predictable arguments to rebut other predictable arguments in a predictable sequence--"The plaintiff should have the freedom to do X," "No, the defendant should have the security not to have X done to her"; "The law should be flexible, permitting us to do justice in particular cases," "No, the law must be determinate; only bright-line rules are administrable and safe" 3--frees us to focus on real-world questions that do matter. We can begin to see how what we do as citizens, lawyers, and legal scholars advances or retards causes we hold dear. We can see where the scripts come from and, perhaps, how to write new and better ones.
In many areas the law prefers "objective" over "subjective" standards for judging conduct. Tort law uses the reasonable person doctrine, contract law applies objective rules to determine when a contract has been formed and what its terms mean, and so forth. An objective standard focuses on the average, reasonable person--what would such a person have meant, thought, understood, or done--whereas a subjective standard focuses on what a particular individual meant, thought, or did. 4 Where does this preference come from, and what does it say about ourselves and our legal culture? Does the objective-subjective distinction hold up under analysis? When we rehearse the familiar arguments in favor of one approach or the other, what are we doing, and what is at stake?
We approach these questions by means of three examples: cigarette warnings, informed consent to medical treatment, and date rape. Tobacco