• What Andres had done in the first draft didn't work for reasons I tried to specify. Your view of the purpose of editing here seems to be to accommodate my criticism while leaving the draft as much in place as possible. But if his draft won a victory over a straw man, yours doesn't really have any reason to draw in Holmes at all: you're not gaining anything from him, and—as at the beginning of the conclusion—there remains enough misunderstanding of what Holmes' says to require you to spend more time mending.

• Your points about how counseling works are more or less accurate, but incomplete. The problem is that except in areas either tied immediately to litigation, or to very comprehensive systems of regulation, such as tax or securities, counseling is rarely so directly related to predictions of the presence or absence of legal liability. Counseling is more about helping client's to define objectives than to measure whether particular implementations of objectives create liability.

• And liability comes in more than one flavor. The client's position is not adequately summarized by asking whether he has avoided incidence of public force. Too, a non-liability it is complex and expensive to enforce may be more important to avoid than a liability with clear boundaries and administrable regulatory burdens.

• Not carrying so much Holmes along on the effort has its problems too, as Andres' own subsequent revisions showed. The trouble lies also, I think, in an attempt to make creativity appear to be primarily about changing the rules. This is peculiar. As one grows in skepticism about rules, one might have thought, it would be natural to grow also in skepticism about the importance of making formal changes in them. History would then reveal that making changes in rules is harder than making changes in facts, hence the very mechanism of the legal fiction, which turns out to be fairly widespread. Rule skepticism has implications for the notion of creativity too, I should have thought.

Holmes as a Framework for Making Change Through Words

Lawyering is more than prophesizing.

A litigant facing a contested issue should certainly be familiar with the legal precedents governing the case. However, the ultimate aspiration of the attorney should first be to counsel his client in a way that effectively reconciles the client’s goals and the legal boundaries, so as to avoid liability. This will be guided by existing decisions and statutes. Predictability is a highly desirable commodity in any legal system. In this sense, all agents in a given community need to know and understand which conducts are allowed, which conducts are forbidden, and under which specific circumstances might their actions trigger a punitive response from the state. Insofar as the law reflects a system of morals as seen by the community, legal rights and duties create a useful framework that incentivizes desirable conduct across everyone, including those who are immoral or even amoral.

Making change in a dynamic world.

And so, in a world in which these two driving forces move at radically different velocities, it is lawyers who must bridge the gap between them; that is, between the ever changing practices of human interaction and the sluggish promulgation of the parameters by which they are governed. In counseling clients, lawyers are the frontline communicators of public morals as codified by the law. A lawyer must use his creativity to anticipate the client’s needs and to provide useful guidance as to how those needs may be met in ways that will not result in the imposition of legal liability, using precedent as his guide. By applying the law to his client’s situation, the lawyer’s guidance is a direct reflection of the dynamic nature of the law. Although nothing has changed in the wording of the statute or the body of the common law on the subject, the lawyer has given the law a new meaning.

In this context, as Holmes recognizes, the lawyer assumes an important part in observing, understanding and predicting the behavior of those in charge of interpreting and applying the law. The goal is that clients will comport themselves according to what the lawyer informs them will best in avoiding the assessment of liability. Likewise, Holmes notes that where the law extends beyond public morals, it will be difficult to enforce, because society will refuse to obey it. Being a lawyer means having the first chance to take steps to ameliorate such situations by seeking to obtain entirely novel rulings that fit the specifics of his or her cases and by lobbying the government. By nature of the fact that lawyers are in closer proximity to the community than are legislators, they have a unique opportunity to see how their predictions about courtroom decisions will direct behavior, and then assess the overall effectiveness of existing laws. Thus, when the statutory setting is not receptive of the newest tendencies of conduct, lawyers are there to offer useful guidance as to how to improve it.

Conclusion

It is that creative and bold mentality that should inspire lawyers, a will not to be constrained by a perceived rigidity of the system but to understand it and promote change when necessary. Holmes sets forth an idea about the study of law that sharpens the tools a lawyer needs to do so. What makes a great lawyer? In the end, it is not simply going by the precedent, but using it with purpose and accuracy.