I think there's a lot of merit to the notion that my transformation from client to counsel (or at least law student analyzing legal issues through an attorney's lens) is what truly underpinned my changing views on law and the way it functions. I appreciate that you elucidated this point in your comment, because I don't think I would have seen it this way myself, since my experience as a client is inextricable from and fundamentally intertwined with my childhood. That said, I think that the point you raise that most clients aren't interested in transcendental nonsense and legal fictions is entirely valid, at least to the extent that those clients are not also lawyers in their professional lives. However, while both adult and child clients may be similar in the sense that they don't revere meaningless legal principles, as a more general matter I do still think that children (clients or not) are unique in that, at least in my experience, they don't buy into BS and oftentimes possess a clarity of vision that adults may lack, as it gets clouded over time by selling and swindling and cynicism. Ultimately, as your point pertains to my essay and its conclusion, I think that perhaps I can't entirely separate these lines of demarcation (client/counsel Courtney or child/adult Courtney), but that both of these dichotomies, and their interplay, have shaped and contributed to my clashing perspectives.

I also agree with your second point. I think I just need to clarify/be more precise in my language above, because really, what I mean by "honesty" is in fact employing functionalism, predicting what courts will do in fact, and being cultivating a more realistic conception of "law". However, I recognize that transcendental nonsense may still be necessary in facilitating that process (in more complex scenarios, those predictions couldn't be made without having a grasp on how courts have evaluated or decided on the underlying legal fictions). However, I do think that a transformation to a more functional approach (regardless of whether the transcendental nonsense words can ever be eradicated from that approach or not) will at least open the door to a more honest, and hopefully more ethically grounded, assessment of our legal system.

Thanks again for your comments; they inspired reflection, and I really appreciate it. Courtney

-- CourtneyDoak - 26 Jul 2012

1. "After all, children do not revere meaningless legal principles – children make outcome-based inquiries and seek functional answers." Maybe your experience wasn't about being a child--it was about being a client. Clients aren't interested in estoppel or laches or whatever other transcendental nonsense. They want to know if they can get what they want. It's interesting that you associate an outcome-based inquiry with childhood, when most clients are that way. Maybe because you've started law school, you look at the difference between child-Courtney and adult-Courtney, but really it's client-Courtney and counsel-Courtney.

2. "Thus, while speaking and writing as though to a child may not always be feasible, perhaps what’s more important is simply for judges and lawyers to replace the fictions of traditional jurisprudence with honesty in their spoken and written word." I've often thought about this, too. But I think it is actually just impossible to replace jurisprudence with honesty since in modern disputes there are often so many interested parties, many of them sophisticated, that there is simply no way to just be 'honest.' Courts can be fair, but sophisticated parties need to be able to make predictions about courts would do, as Holmes would say, and the transcendental nonsense makes that possible. When the parties are not sophisticated, I actually completely agree with you, and we could probably get by with just equitable principles.

-- HarryKhanna - 20 Jul 2012