No problem! It feels strange making my notes public but it's kind of liberating making your thoughts public regardless of how developed they may be

-- JackSherrick - 03 Feb 2021

Transcendental Nonsense

• Like socrates world of ideal forms
• Where is corporation question rather asking more substantive questions
  • Court did not use interdisciplinary approach
  • Trivial question
  • Trying to “thingify” corporation
• “Language is primarily a pre-rational function” (812)
• Divorce law from non-legal concerns
• Court made unions a person, addressing their metaphysical absurdist argument
• To call something a person in law is merely to state that it can be sued
• How can trademark be property
  • Trademarks are protected bc they have economic value, but they only have economic value because they are legally protected
  • Courts are not creating property, only creating sources of economic wealth
  • Language (like air) only becomes economically useful when someone else is deprived of it
• Property is function of inequality
• Value of utility property
  • The value is a function of the court’s decision
  • Not based on economic fact
• Due process
  • Legislation falls within due process when it is such as rational men may approve
  • Not connected to morality
• Law is used to answer empirical and ethical questions yet is not defined in ethical or empirical terms 820
• Legal concepts are supernatural entities (corporations or property rights) which must be believed by faith
• Rules of law a theorems in an independent system
• Jurisprudence - autonomous system of legal concepts, rules and arguments (821)
• 2 significant questions in law
  • How do courts decide cases of a given kind?
  • How should they decide cases of a given kind?
• Math
  • What is a negative integer
  • We have ways of understanding it (going into debt) but don’t actually know what it is
• A thing is what it does
• Any concept is nothing more than a set of operations
• Holmes does not try to show that a legal entity possess certain inherent properties
  • Holmes offered a logical basis for redefinition of every legal concept in empirical terms
• Implications of new functional analysis
  • About what questions are propounded
  • In religion - shift toward study of consequences of religious beliefs in terms of human motivation and social structure (Weber!)
• Institutions are collective behavior patterns
• Creative legal thought will look more and more to the actual facts of judicial behavior (833)
  • Mcklesky - Baldus study
• Question - if this view of the law becomes the norm, will it lose its potency.
• Holmes - law is what the courts do
• Blackstone - law is rule of conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong
• For Hobbes - state of nature is analytical starting point, not actual historical period
• What a judge ought to do is a moral issue
• 842 - judges essential make their own law
• Judges decisions are peculiar and suffers erosion unless it represents first salient manifestation of a new social force
• Courts are generally conservative institutions
• Bentham - pioneering legal descriptive scientist