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NotesHolmes: 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 Robinson’s Metamorphosis Conversation between Robinson and a lawyer/former classmate (the poet): Robinson (Vietnam vet/PD): 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 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” The Folklore of Capitalism 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
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