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April 7, 1963

"The Judicial Process as a Mask"

The texts and commentaries on Constitutional law are full of legal principles, couched in terms such as -- "the Court will not pass upon a constitutional question unless the complainant shows that he has been injured." I guess that a great proportion of these so-called principles are too vague to be useful or, if precise, are as often wrong as right. Can this guess be tested?

If principle is vague, randomness should prevail, unless an independent variable is related to the principle in some way. If precise, and the guess is right, then a 5-50 average result should be discoverable.

Perhaps a test can be devised that would randomly "decide" cases or use a form of content analysis to "predict" decisions at the beginning of the litigation. Some analogies may be present in the several studies of stock prices over the long run that show the average price movement is as profitable to pursue as the typical brokerage or abstract formula.

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