Where does legal creativity come from and how does it operate?

Need to clear more brush. Law and how to learn it.

Realism.

Realism itself is a creative event. It had a great influence on the US. It also generates legal creativity.

The premises of legal realism: 1. Things are what they do, not what they’re called. 2. Legal decisions are their consequences, primarily 3. Judicial decisions, like legislative outcomes, but more so because more reasons are given, are rationalizations for results otherwise arrived and otherwise explained.

The life the law has not been logic, but experience. It’s not by deducing rules that you figure what law is. The desire, unconscious or conscious, for certainty or stability, is a strongly unrealistic component of the way we address legal concerns.

If we can’t understand the world in certain terms, it disturbs us.

We have an anxiety when we have trouble separating law from politics.

This threatens the peace of the people in charge and their being in charge. A subsidy to their power comes from people thinking law is separate.

There’s less resentment when losers think they lose because of laws, which protect their freedom.

If losers think law is politics, which it is, struggles will grow more heated, and the rulers will lose sometime.

Creative legal thought thinks outside the box. The box: everything is certain, and everything works because law is a scientific discipline.

You can take some legal thing, and drop in little depth charges: race, class, religion, and there will be little explosions.

I will occasionally raise one of these questions, to lead us to a bigger thing.

Law professors: generally not creative thinkers. Roman jurisprudence – grew more conservative and useless.

Law students: characterized by anxiety.

Can you understand your presence here as mere chance? There are millions of people in the world who are not here, because they were never given a chance. If you can’t have that recognition, you can’t see reality for what it is.

Real issue: insecurity and lack of self-worth.

Free yourself from certain illusions, to begin struggling with life.

If you take Jerome Frank seriously, all that’s left is do go home. His fact skepticism is the most corrosive at all. You don’t know if you know anything.

But he has a limit which is just as phony as Sunday ethics of Cohen or the glimpse of the infinite in Holmes.

No one really thinks that the indeterminacy means that we should drop off a cliff. They mean you should pull yourself back.

A lot of what they are struggling for we take for granted. And other stuff – its taboo and we can’t think about it.

So, contact with the writing is distressing.

Question: does law reflect politics?

Law is politics. It’s all one ecosystem. Look at how public opinion, as well as judicial opinion, creates the reality within which decisions are made and implemented. Power is allocated – that is politics. Power is allocated in many ways - some in Lawville, some in Bribeland.

Stripe 2:

I have said: don’t pawn your license for a job.

I have said: millions of people need your help. No justice will occur without you. Many of them have lost everything which middle class stability was supposed to contain. 6 people are looking for a job for every job. Labor market less unionized than in 1939. Very few people your age think the pension system – which eliminated old age poverty – will care for them.

Among the millions of people smarter than you who will never get a chance to come here are many Americans, who are viciously discriminated against when it comes to law schools.

There’s lots of work for you to do. If you use your license well, you can do it. Make comfortable livings, and be dangerous. Power will do what it can do to keep you from learning how. You will take a job with a firm that will be increasingly hard to leave. They will pick a role that will not be dangerous in any meaningful way. You will make money but have significant distress for decades of your work life.

One thing we need to do: is meet some lawyers.

What does it mean to be a lawyer?

How does what kind of lawyer we are determine what we are like? How we are like? What it feels like to be us? We need to spend time with the inner lives of lawyers?

Pawn shops: On 6th Avenue, musicians kept their instruments in the pawn shop. Got them for a gig. Then when their money ran out, they pawned them again.

However, be careful. Your license is the most valuable collateral you have. Americans use to only take out second mortgages for financial distress. Then, smart people got them to think of their houses as ATMs.

Public debt: are owners of the society affected? Notion of “our debt” and national public debt. No. Conceals that there are a few winners, and a vast mob of deluded losers.

Fraud. Lying about material issues and profiting from them. Knowing activity.

Law firms: asleep.

1967: people started realizing that adults had no idea what was going on, and it was going to kill them. The people running the society did not understand what was going on, didn’t care, and were going to kill them. That had a very good effect on American society.

It was a good time, because young people got very serious. Bill Clinton and his friends went off to Oxford. Didn’t worry. His roommate killed himself, though.

When Strobe Talbott lost an eye on the squash court – response of his friends well, don’t have to worry about the draft.

I remember the law students of 1968. They were in the streets. They were defending the rights of people who didn’t want to fight.

I wish for the sense that there is life or death at stake in all this.

The US government has decided the sensible way to fight the war in AFG is targeted large scale assassination.

William Colby – Vietnam – Operation Phoenix – killed VC sympathizers.

Now, robots in the sky. Often kill others.

Student: Where are the concentrated causes?

You see black folks getting a fair shake?

We’re living in a torturing country. That’s not urgent?

We have people in jail without charges?

I have a few causes I’m working on.

You have millions of dollars being taken by pharmaceutical companies with invalid patents.

There’s this thing called global warming?

There’s, as always, people being ground into poverty.

There’s been a generation of propaganda to teach people that causes are bad for you and government is bad.

We’ve had a year where white people stopped supporting Barack Obama. That took a lot of work.

Now, may be true: the tactics of 50 years ago might not work.

If you choose to do something, you can do it. If you know what you want, and what to do to get it.

Books: Parting the Waters Time on the Cross

Issue: were 1960s youths just protecting themselves from draft?

No. What was it that people were doing when they gave up their summers to register people to vote? Just staying safe?

Issue: Protests work?

This isn’t the Columbia School of Protest. That’s a tactical question. I want you to think deeply about strategy.

What are your objectives? What are your resources? How to get the most objectives?

Assessing protest efficacy – depends on the objectives.

Issue: Is society more conservative no than the 1960s?

The problem is cowardice. I support Obama’s skill, but for courage – not clear. We will see.

LBJ was a better politician than BO. He had many many decades of experience. BO has talent, but less experience. BO has the benefit of studying LBJ.

But he’s about to make the same mistake. We know from the tapes that LBJ knew he was making a mistake. He knew Vietnam would break his largest plans. He put 400,000 troops in. In real dollars, cost less than the troops in AFG. A million dollars per year per pair of boots.

This is where belief comes in.

This is just the second strand. Where I say don’t pawn licenses.

Third strand – there’s this wiki.

. Make topic pages .. Why these ideas do or don’t help me

If you make a topic page, and you put at the bottom of it,

%comment%

Which adds a comment box. Sort of turns it into a blog. After comments pile in, refactor it. Make an honest and thorough summary of it.

A said, and I think, but B and C agree. Then you remove the comments. Anyone can still edit.

. Class notes

Assessing wiki:

Effort Commitment Improvement

Can examine all the edits. What’s happenings as a result of that?

You can give any page an index. Most people don’t want to make a deeply tree-structured wiki.

-- ChristopherCrismanCox - 03 Feb 2010