The Relevance of Experience

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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38 Responses

  1. E.D. Kain says:

    Not only this, but the statement itself is simply irrelevant. It says nothing positive or negative about her qualifications as a judge or her suitability as a nominee.Report

  2. Dave says:

    If you think it’s a choice you will conclude that there is no equal protection issue – gays aren’t being denied any equal protection in this scenario since they’re still allowed to marry someone of the opposite sex.

    Although not directly related to same sex marriage, I think it describes Justice Scalia’s dissents in Lawrence v Texas and Romer v Evans to a “T”. I don’t recall him ever describing gays as a class of individuals but rather referring to “homosexual conduct”.Report

  3. T. Hunt says:

    I think your first key point clearly explains the need for diversity. All the well intentioned, well-meaning old white guys in the world will still have an inate bias due to their life experience. (I will eventually BE an old white guy.) So balancing that bias with that of the Latino or the woman or the black perspective does, as you say, get us closer to the ideal of justice that we should strive for.

    Judge Sotomayor sounds like a perfect replacement for Justice Souter in that she is not an extremeist but a thoughtful jurist. And one who seems to have no problem keeping lawyers that appear before her on their toes.Report

  4. Jaybird says:

    How important is stare decisis when it comes to the issue of gay marriage?Report

  5. Bob says:

    This my be a bit off topic, and I certainly do not wish to steal the thread, but isn’t it well established law that juries should reflect their communities? It’s no longer possible to exclude jurors on account of sex or race. Courts, with multiple judges, will certainly benefit when diverse experiences are on the bench. Judge Sotomayor appears qualified by any academic or professional measure. Her gender and ethnicity I consider a plus.Report

  6. Herb says:

    E.D. Kain stole my line… But yes, one statement taken out of context tells us precisely nothing. I hear Rod Dreher read the whole speech around the quote and came away slightly impressed, but then again he’s not usually the type to get involved in the rage of the day.Report

  7. Kyle Cupp says:

    It’s easy to see how these sorts of experiences can play into a judge’s interpretation of facts, meanings, and relevance, and I think it’s simply wrong to think that having a broader diversity of experiences on a given bench does anything but improve judicial decisionmaking on average.

    Very postmodern. I like it.Report

  8. Mike Farmer says:

    It might be true that varied background experience is valuable on the court, although you’d only be able to fit but so much variation in the limited number of judges on the Supreme Court, given southerners have difference experiences from notherners, west from east, black from white, asian from latino, women from men, gays from straights, rich from poor, Jewish from Christian, atheists from believers, hawks from doves, liberals from conservatives, Protestants from Catholic — then what about farmers, or executives, or professors, the different vocations which shape a person’s outlook — there are so many variations of experience. But let’s say that the more diversity the better — still it boils down to the most important qualifications which are: the ability to interpret (and, yes, discerning all the facts that go into interpretation) and not make law; the rare ability to get as close to the ideal of blind justice as possible; the ability to not let race or gender bias interfere with justice; the understanding of the Constitution; the courage to stand by the rule of law although tempted to favor one party over the other; rising above differences to embrace the commonality and equal protection which drives the rule of law, etc.

    So, then it comes down to the individual, and the individual in question is Sotomayor. We’re not confirming latina women — we’re not confirming an ideal of diversity — we’re not confirming a play against old white men — we’re confirming Sonia Sotomayor, an individual who may or may not benefit as a judge from her past experiences. It’s not automatic that just because someone is of a certain gender or nationality that they are wise or have integrated their experiences in such a way as to be able to judge without bias or the human temptation to change the law to fit an ideology. I don’t think Sotomayor, the individual to be confirmed, or not, has risen to the level necessary to be a Supreme Court judge — her statements and her actions in certain cases reveal someone torn between her ideology and the rule of law, still captive to the limitations of her experience, not transformed to wisdom by her experiences.Report

  9. Bob says:

    “I don’t think Sotomayor, the individual to be confirmed, or not, has risen to the level necessary to be a Supreme Court judge — her statements and her actions in certain cases reveal someone torn between her ideology and the rule of law, still captive to the limitations of her experience, not transformed to wisdom by her experiences.”

    So give us her statements and actions. What cases?Report

  10. Mike Farmer says:

    I mentioned them in the other thread — making policy, firefighter and the wise latino woman, and some other comments I’d have to look up describing her ideas of what a good judge should be, but they go back to the ones listed — but, now, even the abortion-rights advocates are worried.Report

  11. Mike Farmer says:

    Like Obama said, it’s that 5% that’s important.Report

  12. Jaybird says:

    Didden v. Port Chester, for one.

    If there is a defense for this case that goes beyond “stare decisis”, I’d love to hear it.Report

  13. Bob says:

    Mike, Larison gives a persuasive argument with regards to the firefighters case. He asserts that her decision there was conservative and not a pro affirmative action finding. You may disagree with his analysis but I don’t think that case is as cut and dried as assumed.Report

  14. Mike Farmer says:

    Bob, I’ll look at it again on your advice. She’ll probably be confirmed, anyway — I just don’t like what I’ve read. If I’m wrong, I’ll promptly admit it.Report

  15. The firefighter case really shouldn’t be an issue – it was one-paragraph per curiam opinion that merely upheld a district court decision. While some commentators have called this brevity “curious,” the fact is that such a brief decision does little to “create policy,” which is what she is accused of doing in that case. Moreover, if you read the district court decision, it’s difficult to avoid coming to the conclusion that there was little the district court could have done other than side with the city – it was effectively conceded that the test was in violation of Title VII so the relevant question before the court was basically just whether it’s possible to sue for reverse discrimination due to the invalidation of a discriminatory test….there’s nothing earth shattering or radical that a court would answer that question in the negative. That’s not to say that SCOTUS won’t reverse, just that under currently existing law it’s difficult to see how this decision could have been avoided.

    Jaybird – I haven’t read the opinion in Didden yet, but given that Ilya Somin has some problems with it, it sounds like it may be a much more worthy area of objection. In general, the one concern I have with Sotomayor is that some of the reporting I’ve seen so far suggests a tendency to side with the government on a fairly wide range of issues. Then again, as Larison correctly suggests, such a tendency isn’t exactly radical – it’s really just consistent with the establishment consensus that has existed for quite some time.

    Finally, as for her qualifications…I’m not sure I understand this objection. Her resume certainly fits the now all too well established profile for a SCOTUS nominee – Ivy League undergrad, Yale Law School, editor of a journal, a period of time in private practice, and then a number of years as a federal judge, mostly at the appellate level. She has not earned a reputation as a controversial judge during that time period – the idea that she’s a radical of some sorts appears to have emerged only in the days since she was first mentioned as a possible nominee. In November, the ABA even described her as a “centrist” – a word I despise, by the way. The same could not be said for Justice Alito, who had a reputation for years (unfairly, I think) as a conservative ideologue nicknamed “Scalito.” I think one needs to be very careful about jumping to conclusions about the radicalism of a judicial appointee – remember that the opposition party is always going to try to paint appointees as radicals by selectively quoting and spinning past decisions and statements of the nominee. Also remember that, especially in the digital age, just about anyone in a position of prominence is going to say an awful lot of things; when that position is also within government, you can guarantee that some of those things are going to be deeply unpopular with one side or the other and can easily be taken out of context and spun. If these three lines of attack are all that are going to be made, they strike me as totally off-base, especially since they seem to have little evidence to back up the conclusion that they prove Sotomayor is a radical activist (whatever that means) judge.

    Put another way – two cherry-picked lines from ex parte speeches and a one-paragraph per curiam opinion upholding a fairly well-reasoned lower court decision provide a staggeringly small basis upon which to make negative generalizations.

    A final note on qualification – I just want to go on record as saying that the emphasis on “qualifications” has gone a bit overboard, resulting in the appointment of judges with little variation in their career experiences. John Dean, I think, has been clamoring for years for the appointment of a legislator to the SCOTUS – I tend to think he’s right in this (much as I may despise career politicians), but it’s not likely to happen because we’ve gotten to the point where only a particular type of resume is deemed adequate for appointment to the SCOTUS.

    If the argument instead is that there were moreReport

  16. Mike Farmer says:

    I read Larison’s explanation again, and it still seems like mental gymnastics. The right decision in the Ricci case is to allow the guy to receive what he earned. That would be blind justice. There’s no garauntee the test would have been found illegal. I don’t want to fall into the trap of pulling for her because right-wingers are against her — I still believe, with the evidence we’ve seen so far, she’s wrong for THIS job.

    You can also spin in the other direction and minimize all the problems, and I believe that’s what’s happening. The Supreme Court is going to look at the Ricci case, so they must have some concerns. This is too political — there’s not enough objectivity. However, we’ll see whose instincts are right as it all unfolds.

    Like I said, she’ll probably be confirmed, but all of us who believe a justice on the Supreme Court ought to be as blind as they can be when it comes to justice and not swayed by their background or core beliefs, there should at least be a debate over the concerns rather than a rubber stamp because we feel good about the diversity issue. She has an inspiring story, but here there are more important issues.Report

  17. Mike – the thing is, you don’t have to believe that the test would have been found illegal. It was a conceded fact by both parties. Moreover, there was a specific EEOC rule rule, called the “4/5 rule” that it clearly violated – and there was no debate over this. And it wasn’t just that the results of the test were disparate – those disparate results would have been acceptable if certain procedures had been followed, which they weren’t. Given this, the test was an invalid means of determining promotions as a matter of law and the guy didn’t “earn” anything so far as the law is concerned. The problem ultimately isn’t with the court’s decision – if anything, it’s with the EEOC rule and/or Title VII. In other words, in order for the court to side with the firefighter it would have had to overturn rules and/or legislation, which so far as I can tell was an option not before it.

    Look – no one disagrees that justice should be blind and should strive for blindness as a normative matter. The problem is that as a practical matter, truly blind justice is simply not possible because judges are humans, not vulcans. The only solution to this is to ensure a greater diversity of biases are brought into the process so they all cancel each other out, all the while with the understanding that each judge is doing his or her best to overcome those biases. This, by the way, was the entire point of what Judge Sotomayor was saying in the “Latina women” comment, if you read it in context. I can’t recommend reading the Dreher post I linked in the update above enough.

    As for the fact that the SCOTUS is looking at Ricci, I wouldn’t read too much into that, even if they do reverse her panel (which was unanimous, by the way). To do that, they will also have to reverse longer-standing 2nd Circuit precedent to which the district court and Sotomayor were effectively bound; they will also likely have to advance some changes in existing and well-established employment law (of course, they will likely claim that they aren’t making any changes, even though everyone will know otherwise). Bottom line – even a reversal doesn’t necessarily mean that Sotomayor, the other two appellate judges, and the district court judge were all wrong in their application of the law. Finally, I should add that it really is impossible to understand Ricci without reading (or at least skimming closely) the relevant portions of the district court’s lengthy opinion.Report

  18. Mike Farmer says:


    Can you show me evidence of bias, which needs to be corrected with diverse bias, on the courts, now?

    I suppose we also need diversity of corruption in congress to balance it out. Actually, a limited government would solve a lot of these problems. We’re trying to apply symptomatic solutions to symptomatic problems, when what we need are fundamental solutions to fundamental problems.Report

  19. The evidence is pretty simple, I’d say – judges are humans, not vulcans. Their worldview, just like the worldview of any other human, is shaped in large part by their own experiences, how they were raised, etc. This really shouldn’t be a controversial position.

    Even under a truly limited government, an ability to relate to the parties’ backgrounds can be valuable in dealing with purely common law issues….in fact, under a truly limited government, a judge’s real world experience would be even more relevant because there would be fewer black/white statutory rules to apply, meaning that judges would have more discretion.

    As for the point about applying symptomatic rather than fundamental solutions, I don’t think that makes sense here. The fundamental problem – the biases inherent in any person’s experiences that arise due to basic limits on what a person may know and understand – is one that does not have a fundamental solution short of creating some sort of all-knowing, omnipotent artifical intelligence. At root, the problem is part and parcel of the timeless problem of faction – and there, I think it’s difficult to argue with Madison’s conclusion that you can neither prevent it nor cure it, only mitigate it by taking steps to ensure there are as many factions as possible with an interest in the system.Report

  20. Sheldon says:

    As an aside, for those who share Mike Farmer’s view, these comments by Alito during his confirmation hearings are worth a read:

    “[W]hen a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.

    “And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.’ …

    “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”Report

  21. Mike farmer says:

    You didn’t provide any evidence of bias to prove your point. You simply keep repeating your view of inherent bias which you haven’t proven renders judges incapable of upholding the rule of law and interpreting the law in each case based on the facts of the case. You will have to show me cases which the judges now on the Supreme Court have allowed their life experiences to interfere with their decisions — how the decisions would be different if they were a latino woman or an asian male. The insistence that they are incapable of avoiding bias is imply not good enough. I say that judges can rise above their particular life experiences and make unbiased decisions if they are sticking by the rule of law — if the laws are rational, which they should be, then they can be interpreted by someone who understands the law and has the intellectual capacity to see the heart of the issue.

    Some had concerns about Sotomayor before she was chosen —

    Also, I see two arguments — one saying Sotomayor is not biased by her gender and ethnicity, then one argument that says we need her bias to balance out the court — which is it? Is she biased due to her ethnicity and gender? Because that was the orginal argument, which everyone repudiated, then came the balancing argument.Report

  22. Mike farmer says:


    I just want to make clear that because I think Sotomayor is unfit for the job, doesn’t mean I’m a conservative and support other views which are equally inappropriate. I’m a libertarian concerned with the rule of law and equal protection under the law, rich/poor, old/young, black/white, straight/gay, male/female, etc.Report

  23. Mike:

    I gave one example above related to gay marriage, and Dave correctly noted that the point described Scalia’s dissents in Lawrence and Romer to a “T.” I’d also say that it explains Scalia’s infamous “new professionalism” argument. On the other side, I’d say that the inherent biases of life experience played a significant role in Justice Brennan’s discussion of “new property” in Goldberg v. Kelly. I’d also say that Roe v. Wade would have been worlds more coherent if there had been a female on the Court – it still would have come down in favor of Roe, but it would have done so in a way that actually had some relationship to the way that pregnancy is experienced. It’s no coincidence that the plurality opinion in Casey, while still flawed (partly out of a desire to respect stare decisis), is worlds more coherent and was written in part by a woman.

    It’s not an issue of upholding the rule of law – it’s an issue of being able to better understand where the parties to the case are coming from so as to determine which facts are and are not relevant to those rules, which facts to credit, which facts to discredit, etc.Report

  24. The way I see it this question comes down to one question: is personal experience an obstacle or an asset to a judge? If we argue that experience is an obstacle (bias) then I could see the point of just trying to load the court up with a diversity of experience to counteract one another.

    I’m actually more troubled by the notion of personal experience being an asset i.e. the ’empathy’ question. This implies that a black judge is a better judge on racial matters, a judge who grew up poor on poverty issues, etc. I don’t like that. One, it undermines our justice system and two, it negates the purpose of lawyers. While I am no legal scholar I have listened to a lot of cases being argued before SCOTUS. One of the things that is unique about cases brought before panels of judges is the arguement process. It is the job of the counsels to effectively present the case and interpret their legal position. If done correctly, personal experience should be irrelevant. To the contrary, a lack of experience may be an asset in listening to these arguments.

    I don’t have a problem with Sotomayor admitting she has biases. I just don’t want to hear her say that makes her a better judge.Report

  25. Sheldon says:

    Mike, you would be far more credible as an even-handed libertarian if you had ever criticized Alito’s comments, which are quite comparable to Sotomayor’s. That aside, the argument that good judges decide purely on the basis of pure reason, and their backgrounds have no effect on their decision-making really is absurd on its face. The effort may be noble, but humans are not machines. Roberts, for example, spent his entire career as a defender of corporate interests, and this pattern has continued on the court. Nothing particularly illegitimate about that, but do you really think his pro-corporate conservative predisposition emerged entirely from his careful and disinterested study of the constitution?Report

  26. Mike farmer says:

    I was talking about the decisions. Not everyone on the court is going to agree on every case, but the decisions for the most part are wise. I can’t think of any value the experiences of latino woman would have in the decisions. We are moving too far from individual capabilities, broad education and understanding, toward some subjective view that gender, ethnicity and life experiences are somehow needed, and that empathy is vital to good decisions. I was never a slave, but I can salute the decision to abolish slavery. the problem with placing too much value on empathy is that empathy goes different ways, and if the majority of the court decides to have empathy for the unborn child, you might not like the outcome. People want life experiences to matter until life experiences influence decisions which violate their rights, then they want equal protection and keep your damn core beliefs out of it.Report

  27. Jaybird says:

    Allow me to add that I’ve never seen Mike criticize Stevens.

    What the hell, Mike? Stevens your best friend now? Cat got your tongue? Worrying about what he’ll think when you offer a half-hearted rather than full-throated defense of Young v. American Mini Theatres?

    Now that I have that out of my system, allow me to say that I hate the whole “you didn’t criticize *THIS* so you can’t criticize *THAT*” attack.

    Hey, Sheldon. You know why Mike is criticizing now? Maybe it’s so he can avoid somebody saying “you’d be a lot more even-handed if you had criticized Sotomayor in the past” in some conversation in the future.Report

  28. Mike farmer says:

    Well, if you want to switch to Stevens and Alito, we can — 🙂 — hell, I criticize anyone I think is wrong, even myself. We were discussing Sotomayor and the ideas of empathy in general, but like I alluded to above when I said I’m not a conservative, I think Alito’s statements in the above comment reflect what I dislike about bringing personal experiences into the decisions — they create irrational considerations based on emotion. Let me just put it this way — regardless of what mistakes have been made in the past regarding Supreme Court justices, going forward I propose that politics be kept out of it and that judges be chosen on their court experience, their knowledge of the law, their temerament to be fair and unbiased and their willingness to uphold the rule of law.Report

  29. Sheldon says:

    Jaybird, not sure I follow your rant. Actually, I’m sure I don’t follow it.

    Mike, no one including Sotomayor even in the misleading excerpt that has been widely quoted is suggesting that a decision ought to be based on empathy – just that people’s individual experiences and backgrounds can heighten their sensitivity to VALID issues in the case that others might overlook. Not really a controversial sentiment, it seems to me – and one that would apply to any side of an issue. But I think the topic has now been exhausted here.Report

  30. Mike farmer says:

    I don’t think I have criticized Scalia either, but just wait til I build a case against that arrogant jackass.Report

  31. Mike farmer says:

    yes, it’s exhausted — however, I said going too far in the empathy direction, not that it’s an absolute motive.Report

  32. Jaybird says:

    “Mike, you would be far more credible as an even-handed libertarian if you had ever criticized Alito’s comments, which are quite comparable to Sotomayor’s.”

    *THIS* is what I’m complaining about.

    The sneering “well, your complaint would have more weight if you had ever done X.”

    This is a deliberate attempt to *CHANGE THE SUBJECT*. Now Mike is no longer talking about the justice who is going to be sitting in front of senators saying “it would be imprudent of me to opine on cases coming before the court” but talking about himself. Maybe Alito, maybe not. The one thing it’s *NOT* talking about is the justice who inspired this thread.

    If I were to ask you for an archive of your writing to make sure that you had standing to criticize Mike, would that be absurd? Why or why not?

    I’m not even particularly defending Mike here, by the way. He can stand on his own. I am just irritated beyond words whenever I see someone say “well, you were silent on this other issue, therefore I find your speech on this one lacking weight.”

    His arguments either have merit or they do not have merit. Whether he talked about Alito in 2005 is immaterial to his arguments… just as me asking you for a pointer to your criticisms of Alito in 2005 would be immaterial to your defenses of Sotomayor.Report

  33. This is probably going to be my last comment for the day, but….

    First, a caveat – I suspect I will disagree with Judge Sotomayor more often than I agree with her. I also think that ideology can and should play a role in the confirmation process – it should not be a simple matter of “are they qualified,” which will result in rubber-stamping of almost anyone the President puts forth. It’s just that I’ve come to terms that neither a Republican nor a Democrat is about to appoint Randy Barnett to the Supreme Court, so I’m willing to go along with just about any nomination as long as there are no valid, non-ideological reasons to oppose it. In this case, it seems to me that the supposedly non-ideological reasons for opposing the nomination hold rather little water when held up for examination, and the leading ideological reasoning (Ricci) doesn’t stand for the proposition it is alleged to. That said, some responses….

    @Big Stick Mike: I think if you look at the full quote in context, you’ll see that she is in fact viewing bias as a negative that simply cannot be overcome even as one should strive to overcome it as much as possible. I don’t think she – or for that matter, Obama – is saying that black judges are inherently better in racial matters, etc. What they’re saying is that the more people to whom the courts can relate, i.e., the more diverse the experiences of judges, the more likely their interpretation of facts (not the law) will reflect reality.

    To take your example of a black judge being better at racial matters, the reality is that the ideal judge on such issues would be someone with an impeccable legal acumen who had experience living as a black person, a white person, a Latino, etc. This person obviously does not exist. The ideal alternative is to incorporate a wide array of racial experiences from multiple judges, all of whom have impeccable legal acumen. But the reality is that we have a Supreme Court in which 8 of 9 judges, all of whom have impeccable legal acumen, have the same racial and/or gender experiences (amongst many other similarities). Adding someone with a different racial experience and also possesses impeccable legal acumen reduces this bias, resulting in decisions that will, on average, better reflect reality with respect to racial matters.

    Maybe the way to think about it is to consider that a common way of confronting unfamiliar issues is to analogize those issues to something familiar. Depending on your experiences, the analogy you make will be different. But whatever analogy you make is destined to be imperfect, and in the case of a judge, the result of an imperfect analogy will be a flawed application of the law to the facts. But if you incorporate more imperfect but different analogies into the process, the more accurate the average analogy will be. Think of it as a Hayekian “spontaneous order” concept.

    @Mike Farmer: It’s not just an issue of reaching the right result. It’s an issue of reaching the right result for the right reasons. The result decides who wins a particular case; the reasons for the result, however, are what influences future cases. In many ways, it’s often better to reach the wrong result for the right reasons than to reach the right result for the wrong reasons because it’s the reasons that have the longer-term and wider effect.

    I think one area of disagreement we are having is that you seem to be treating empathy as a synonym for sympathy. Empathy isn’t a commiseration or agreement – it’s just simply an understanding of where someone is coming from. In the example of abortion that you give, the ideal isn’t having empathy with the woman any more than it is having empathy with the unborn child – the ideal is having empathy with both so as to properly weigh the facts and interests at stake. Having a bias towards empathy for either party is going to improperly ignore that party’s reality (where that party’s situation is often likely to be experienced by others in the future); but having empathy for neither party is probably going to result in a tone-deaf decision that no one understands and is completely divorced from reality (see, e.g., Roe).Report

  34. Mike farmer says:

    Thanks– enjoyed the discussion.Report

  35. Mike farmer says:

    Just one more thing before I close out. I was going to let it ride, but thought about it and decided it needed clarification. I did mean “empathy” — even the most ardent right-to-lifer would know that the fetus doesn’t know what happened, so I didn’t mean sympathy – but a human being knowing how the preciousness of life is experienced would have empathy if that person believes life starts at conception, and then imagining that life going forward in its different stages. So if enough judges possessed this empathy in favor of the unborn child, and didn’t possess empathy for the mother’s right to choose, because they can’t imagine that right, and saw it as a decision betweeen the mother’s choice and a fetus’ right to life, then making the decision to outlaw abortion — you see what I mean. Empathy would override what the courts had previously decided.

    As I said — enjoyed.Report

  36. Mike – I’ve enjoyed it likewise.

    I see what you’re saying on the abortion issue. I don’t have the time to fully respond, but let me just say that to me the problem with Roe isn’t so much that it came down on one side or the other – credible arguments existed on both sides, and there’s no reason that a court comprised of 9 conservative female judges couldn’t have reached the nominally pro-life result. No, the problem with Roe isn’t the result (one way or another) – it’s the way in which it achieved that result, which left a tangled mess for future courts and legislatures, women and clinics to deal with. That’s the point I guess I’m trying to emphasize here – empathy isn’t important so much for purposes of reaching the “just” result in a given case, it’s important for purposes of providing reasoning for those results that has a connection to the way people actually live and can thus provide a coherent framework for future cases.Report