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JoshuaDivineFirstPaper 4 - 21 Feb 2012 - Main.JoshuaDivine
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| | | -- By JoshuaDivine - 16 Feb 2012 | |
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< | My pre-law advisor in college was well known for trying to convince each student who came to him not to go law school. He had attended an elite law school for a year in his youth but quit after finishing his first year. By his own telling it was not the well known stresses of law school that compelled his departure. Rather, he found law school intellectually bankrupt. He was unable to tolerate what he described as a willful ignorance of how the judiciary actually functions. Instead, became a political scientist and a professional student not of the law, but of the courts. Naturally, his course readings were filled with realist accounts of judicial behavior (including the Holmes and Frank readings we have examined so far). | >
> | My pre-law advisor in college was well known for trying to convince each student who came to him not to go law school. He had attended an elite law school for a year in his youth but quit after finishing his first year. By his own telling, it was not the well known stresses of law school that compelled his departure. Rather, he found law school intellectually bankrupt. He was unable to tolerate what he described as a willful ignorance of how the judiciary actually functions. Instead, he became a political scientist and a professional student not of the law, but of the courts. Naturally, his course readings were filled with realist accounts of judicial behavior (including the Holmes and Frank readings we have examined so far). | | | | |
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< | After disregarding his advice and heading to law school, I entered this first year with Holmes in the back of my mind. I was anxious to observe what my old professor had found so profoundly frustrating. At first, I was pleasantly surprised by the degree to which realist thinking evident in many of our first year courses. My contracts class proceeded almost entirely on the idea that a contact was a choice between a penalty and a performance. My property professor rarely engaged the meaningless formalist distinctions of old common law property case. Instead, he sarcastically kept track of “judge tricks,” techniques for creating a veil of logic around the simple imposition of a policy preference. This semester in torts, we spend ten minutes on the economic theory of torts for ever one spent directly on cases. | >
> | After disregarding his advice and heading to law school, I entered this first year with Holmes in the back of my mind. I was anxious to observe what my old professor had found so profoundly frustrating. At first, I was pleasantly surprised by the degree to which realist thinking was evident in many of our first year courses. My contracts class proceeded almost entirely on the idea that a contract was a choice between a penalty and a performance. My property professor rarely engaged the meaningless formalist distinctions of old common law property case. Instead, he sarcastically kept track of “judge tricks,” techniques for creating a veil of logic around the simple imposition of a policy preference. This semester in torts, we spend ten minutes on the economic theory of torts for ever one spent directly on cases. | | |
With this sort of observation in mind, I quickly concluded that legal academia had finally moved beyond the formalism that had so frustrated my old advisor. But as the first semester wore on I found myself less and less interested in my courses. I spent a lot of time over Christmas break confused by own disinterest. “Law school is doing everything right,” I thought, “so why can’t I just pay attention?” And so my re-reading of Holmes and Frank early this semester was eerily well timed. As we discussed them in class I realized that I had forgotten an entire half of the core realist claim.
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