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JoshuaDivineFirstPaper 5 - 14 Apr 2012 - Main.EbenMoglen
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| | | Having now re-read Holmes and Frank, I realize that they completely anticipated this failure to tease out implications. In fact, I think their anticipation of this failure should be viewed as the second half of the realist claim, the half that I along with most of legal community tend to forget. These writers spend as much time discussing the failure of the legal community to adopt a more realist approach as they do enunciating the approach itself. Their outline of a pragmatic approach to legal outcomes cannot and should not be separated from their analysis of why the legal community fails to take such an approach. Holmes and Frank, I suspect, were fairly confident that the descriptive value of their approach would ensure its eventual adoption. But they were concurrently unsure that an acknowledgement of the realist claim on its face could break the grip of legal magic.
This second half was vital in coming to an understanding of my frustrations during the first semester. I am coming to believe that lawyers (from law students to attorneys to judges to professors) have a tendency vaguely acknowledge the basic premise of realist thought and then completely stop thinking about it. We understand (whether in the front or back of our minds) that something is amiss in legal thinking but hesitate to ask what exactly it is because we fear where that road might take us. We tend, I think toward willful ignorance. But why? How can so many smart, driven people be content with a system they believe (or at least suspect) is deeply flawed?
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> | This draft strikes me,
Joshua, as well-written and capably-presented version of the thinking
that got you to the question the essay should be about. The route to
improvement is to remove the figure lines, and paint over the
cartoon. If realism is the way we learn the law, as Holmes
suggested in 1897 and you find law school pretty much agreeing with
in 2012, why isn't it the way we do the law? Jerome Frank tried to
answer the question in 1927, and the result was _Law and the Modern
Mind,_ possibly the most vilified work of legal inquiry in American
history, which I think you haven't read. Morton Horwitz gives an
historical account of the process, the move towards and away from
realism in 20th century law-thought, in the second volume of _The
Transformation of American Law_, which you might find relevant.
While I don't think you're going to find yourself in possession of a
single idea that answers to all the facets of the question in 1,000
words, I think the effort you want to make is after the final
pot-hook in the present draft, not before.
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