1 - The Systems of Government and the Thinking Man

1930s: those wanting to be elected could not talk about important environmental policy changes due to fear of being labelled a communist or fascist

This called for a new class of social organization, and as has always been the case, such new classes are initially looked down upon

E.g., heresy, communism--people with free will listened to the devil and ended up in hell, it’s always the same story

Laws and morals array against newcomer social groups, who violate the prevailing mythology

The “thinking man” is an abstract idea of someone who has free will and can understand sound principles without being clouded by emotion; he is the guy public debate is addressed to

In America, we look to the more disastrous examples of people with other creeds to demonstrate why ours is the best

We do not choose creeds (e.g., capitalism) through some rational process

The war among capitalism, communism, and fascism is one of the greatest obstacles to practical treatment of day-to-day needs of Americans

One or the other of the bad ones get applied to things like soil conservation

We get so attached to policies marked capitalism we won’t feed our people if it requires associating with a police marked communism

Our political beliefs are religious in nature--we still have crusades

They search for universal truth

We see a court as being a key instrument to dictate the social philosophy of posterity, and it always fails

2 - The Psychology of Social Institutions

Whenever people seek universal truth, the creeds of government become more significant and the practical activities of government suffer as a result

There are always heros behind our mythologies/creeds

We cannot tell how creeds operate because any issue can be attributed to the creed not being properly followed, which means creeds have no meaning whatsoever apart from the organizations they’re attached to

The individuals and smaller organizations reflect the larger organizations

All organizations have:

(1) a creed, (2) set of attitudes making the creed effective, (3) institutional habits, causing people to work together without conscious choice, and (4) a mythology/historical tradition

Constitutions furnish limits beyond which controversy must not extend; attacking the constitution itself is heresy

And the supreme courts oscillates between refusing the change the thing and incorporating modern notions

Creeds are extremely alike

Constitutions’ words do not explain a creed

E.g., 5th amendment discussing persons; justifies corporate protection

It’s the imaginary personalities that make up the content of a creed

Right now, the American businessman creed dominates this country--they are the national heroes, and the devil is governmental interference

Creeds are also self-fulfilling; our government is bureaucratized because of this

The only way to overcome this is a new social class with new heroes

Traders and salesmen may end up becoming this new class--with new economic thinking

Regardless of creed, democracy became accepted as a political fact

It is not longer a creed, as it isn’t put on a pedestal, but it is still widespread, used with the knowledge that it is more important majority will is followed than rationality (political realism)

Democracy created a small elite political class: aristocratic background plus emotion-inducing political techniques

But as it’s become more embedded, people have become more skillful and there’s less emotion-inducing political techniques being used

Now we think of improving government by changing what the people want, not what should be done

We don’t get caught between democracy, monarchy, and aristocracy any more

Capitalism is used today not for its content but to battle against other creeds

3 - The Folklore of 1937

Law and economics was the principal means by which the folklore of 1937 was expressed--the time’s universal truths

Folklore blinded people from the practical running of government--all the wanted to do was protect society from becoming Russian or German

Details don’t change minds when a powerful abstract idea confronts them

This manifested in reactions to Roosevelt’s court packing and stimulus plans

An analogy: old medical cure of bleeding patients meant that any other cure, for example quinine, was sacrilegious, and connected to Jesuits, a despised creed at the time

The “thinking man” is no longer essential to the field of medicine, it’s skill in his place

Law was designed to preserve moral freedom and individualism

Economics supplied the principles which would make incoherent legislative bodies act with utility

Two limiting principles of capitalism: economic (regulated by the two political parties) and legal) regulated by the courts

SCOTUS was the unifying body in american government at the time, as it threw out Roosevelt’s policies

Political parties were supposed to care more for posterity than getting votes for its leaders, which was, in fact, political suicide

Psychiatrists were practical by 1937, not trying to perfect their patients but making them comfortable and protecting society

Socialists, opposed to the industry-politicians, had their own heresy issue, kicking out those who were not true believers

We ended up with constitution-worship

14 - Some Principles of Political Dynamics

The personification of our industrial enterprise are psychological barriers to the growth of organizations with definite public responsibility

Political dynamics is a science about society, recognizing the interdependent nature of its constituent parts--the individual, submerged in the organization

Organizations have habits and personalities, a result of accident (who randomly gets to be in control first) and environment

Once an organization’s personality is fixed, it’s difficult to change

This is why reform rarely works and revolution is impelled

With habits, come profit and property

And with these, contradictory roles

These organizations grow, regardless of their roles serving their members

In order to function, institutional creeds must contradict the organization’s operation--consistency of creed, but also realism

And a ceremony must be used to paper over this contradiction

And its effectiveness can only be judges from within; e.g., political arguments to your own side in a campaign--politics is who can get your side to love itself most

When ceremonies cannot overcome contradiction, institutions split between practical and idealistic parts

The confusion accompanying many reform movements is that if the institution does what it says it ought do, its function will fail

A social need will never be satisfied until it gets its own philosophy/abstraction

To succeed in change, you must have an organization as your principal, not logic

Organizations die because of phobias against practical common-sense action produced by their own ideas

Thesis: we need to be able to fit ideals to serve practical needs

Conversation between Robinson and a corporate lawyer/former classmate (the first person):

Robinson: Lawyers are increasingly known for greed, are increasing common, and are effective in our society

Robinson was an eccentric, intelligent law student at Michigan in the 70s, then a clerk, prosecutor, and now in the private sector running his own practice

Story: 20 y/o B&E into DAs house, got indicted for everything

Dad wouldn’t put him up for bail and an inmate cut his fingers off while waiting for trial

Jurors love the law, but hate lawyers

The legal system is hell

He subtly let it be known he knew the judge and the prosecuting DA (an attractive woman) “knew” one another. The kid got a year

They go to a chinese spot for lunch, the conversation continued:

A jail nearby (the tombs) was shut down by federal order, but reopened--now it’s state of the art, but cannot get rid of the smell

Jefferson quote about equality etched on the wall; Robinson mentions how women and slaves were not included

There’s a new jail “new tombs” with a buddha outside

Robinson points out a boy who he thinks is an illegal immigrant because he looks like he’s scared

They sat down outside on public benches, and Robinson covered the seat with napkins

The corporate lawyers asks what murders are like

He says TV has turned the criminally disposed eyes’ into a camera, and people like witnessing themselves do crazy stuff like shoot people with Uzis

They talk about a book Robinson was reading about Kafka

He was in workers comp and a lawyer

Robinson says metamorphosis has always intrigued him

What if every lawyer metamorphosed into a prisoner and the reverse

Corporate lawyer says there will be more lawyers then

Robinson thinks this would be “Exacting justice”

Notes

Holmes: The Path of the Law

Lawyers exist to predict when the state will act on people through the courts

A “duty”, for example, is a prediction that someone will suffer consequences if he breaches it

Although the law is seeped in moral language, it is not moral because:

Law is designed to force people to follow it whether they believe in the morals or not

Not all laws are morally good

Morals don’t even always limit law

The law taxes and penalizes, but from the bad man’s point of view, they are the same thing

In contract law, people are misled to finding it moral to not breach

And similarly in tort, where “malicious” doesn’t mean malicious in a moral sense

What causes the law to change and grow

Logic is not the only thing, as some things are qualitatively valued by individuals

Judges act based on what they value socially, and they should express that more clearly

Tradition also shapes law--history explains law: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV”

Lawyers need to learn economics to be able to make good policy decisions. They ought also study jurisprudence: the ability to generalize and analogize facts to other sets of facts. These are key to prediction

Transcendental Nonsense and the Functional Approach

Question: do we find our laws in nature or create them

Example case: Tauza

In this case, the court asked where a corporation was without considering policy questions (e.g., difficulty for P and D to sue in X state, etc.). Instead, it was literally trying to figure out where it was, even though it’s obviously a legal fiction

And it did, determining an office in NY meant it could be sued there

Transcendental Nonsense means, a legal fiction.

Judges pretending legal things like corporations actually exist in the world and can be placed

The problem: this makes it easy for judges to forget the fictions they’re dealing with are fictional. And they don’t think about policy: how the decisions affect real people

Another example is a lawyer for a union defending it against tort liability for its union members not because liability would ruin all union activities, but because a union is not a person because it is unincorporated

We must not justify legal rules in legal terms because that’s circular. There must be an empirical or ethical basis

An example is protecting a trademark because it is economically valuable. And it is valuable because it can be legally protected

And this is based in courts “thingifying” property, which has no basis, but is assumed to be found in nature

This just makes lay people have no idea what courts do

This whole process ignores whether having trademarks is even a good thing for society. And it’s just legal reasoning masquerading as legal prejudice/inequality

Same thing with valuing public utilities; courts value them, but their value depends on what the court values them at

Same thing with what does “due process of law” mean? SCOTUS says it means whatever we said it meant in the past

Since legal concepts are not bounded in ethical or empirical foundations, they are a separate form of transcendental nonsense that cannot be challenged by ethics or empiricism

The solution: the functional approach

Functionalism, in simple terms, asks why is something significant. It attacks dogmas which are not based in practical experience

The only meaningful questions is how do courts decide cases and how ought they

The essence is that all concepts must be based in real experience

CRITIQUE: What is “real experience” this article assumes such a thing exists and apparently is universal

Law = the prophecies of what judges will do

Holmes says laws should be signposts telling us certain facts reside here

The article thinks that we are moving in a functional direction away from just restating the dogma of the past in legal principle

CRITIQUE: It seems to me the issue isn’t that legal concepts don’t reflect facts, but the utility of those facts is not significant

The functional approach should be applied to:

(1) The definition of law

Prophecies of what the court will do, in fact -Holmes

We don’t care if this definition is correct, we care that it’s useful

And it will demonstrate what the ethics of the court are

(2) The nature of legal rules and concepts

Hobbes thinks law is the state using its power

Coke thinks it the perfection of reason and is moral

Blackstone stuck both together, leading to confusion

With this understanding of law, asking, for example, is there a contract, confuses what exists with what should exist

(3) The theory of legal decision

Beyond the yes/no decision, what makes up decision?

Decisions have social determinants, and are not just what the judge ate that day

It is very predictable, and if everything surrounding those decisions was not predictable (the sheriff will enforce it, there are appellate procedures), nobody would care who won the case

The main (but incomplete) predictive factors:

Judges act based on their wealth class

Judges act based on if they worked for a special interest before

Judges are impacted by eloquence of counsel

This is why law students need to be detectives, know the political bent of judges, etc.

(4) The role of legal criticism

We need more consequentialist criticism of current legal rules

This criticism is a critical cohort of the objective functionalist method