Disclaimer: Here are ideas from Holmes with links to the most related “blog” topics. As this was the first reading, ideas from class were conflated as ideas from Holmes, which was a necessary/inevitable step in the maturation of our wiki. As we were discussing Holmes, more time was spent on the wiki discussing ‘vegging out’ than Holmes’ disparagement of ‘logic’. We both felt the criticism of logic was a crucial element of “The Path of the Law”, and attribute this absence to the unfamiliarity with the wiki as a discussion board. We all have more experience with ‘vegging out’ than with the fallacies of legal logic, and maybe this contributed to the comfort level of the discussion. This is not to say that the discussion of Holmes was insufficient. Some intriguing points arose, which we were not able to weave into our summary (e.g. the mixture of morality and empirical analysis as the basis for decisions mentioned in [[http://moglen.law.columbia.edu/twiki/bin/view/LawContempSoc/SecularizationOfTheLaw] [SecularizationOfTheLaw]]), and we apologize if this has made anyone feel slighted.

If we excluded a comment you are passionately linked to, feel free to edit. We attempted to parse the collective scrolls of knowledge into discrete functional packets, and necessarily excluded some topics. Our discussion of Holmes is to not only explicate where the class went, but also to elucidate the questions put forth by Holmes as a way of framing the rest of the class.

Oliver Wendell Holmes’ “The Path of the Law” presented a new way of looking at the law, which has been labeled legal realism/functionalism. He tells us to look at the law from the perspective of a ‘bad man’ (p. 171). From here the focus is what the law will do to me. With such an outlook, the role of a lawyer becomes predictive. The ‘bad man’ wants his lawyer to be able to explain what the legal consequences will be for his actions. This encompasses not just what the law says, but also the vagaries of our legal system including but not limited to personal beliefs, subjective facts and factors of a case, and “what the judge had for breakfast”.

The future lawyer is the man of statistics and master of economics (p. 187). He will focus on the empirical relations of what the law does and the social forces behind those actions. History and logic together have been used to elucidate the fabric of the law. Logic is a cheat and history is a poor predictor of the future; therefore, they are relatively useless tools. Logic is a construct of the human mind that clouds the true reasoning for judicial decisions and the application of the law (pp. 180-1). In order to accurately represent legal reality and become more functional, the law must overcome Holmes’ concern that “you can give any conclusion a logical form.” (p. 181). The first semester of law school is, as Eben has often repeated, an exercise in language immersion. Examining the faulty use of logic as a backbone for our legal system should lead to the questioning of our own experiences within the legal field. Is the ability to couch conclusions in logical fallacies the grammar of law-speak still taught through the form and substance of our legal education?

History, the co-conspirator of logic, is not an absolute evil for Holmes. He warns us to avoid absolute deference to history which leads to the blind imitation of the past (p. 187), but councils that history should instead be used as "the first step toward an enlightened skepticism” reconsidering “the worth of those rules" "which it is our business to know." (pp. 186-7). This point is emphasized in the SecularizationOfTheLaw, questioning how much deference we should give to the Constitution. What level of influence does/should history play in influencing the decisions of today? In addressing this question, it is important to realize the form and subject of law school today is largely a product of Christopher Columbus Langdell and other 19th century formalists. When educating the lawyers of the 21st century, why rely on the methodology of the 19th? How can we be expected to break the bonds of precedent and become enlightened skeptics when we have yet to undo the shackles of history dictating the education of our entire profession?

One of the topics sparking the most fervent debates for this class was Holmes’ discussion of the criminal law. He asks: “What have we better than a blind guess to show that the criminal law in its present form does more good than harm?” (p. 188). According to DeathOfUSPrisonSystem, many among this class agree that the current US prison system is in need of a major overhaul. Some suggestions for improvement include: ending racist practices in our judicial system, reexamining which crimes we choose to punish and how, and focusing on rehabilitation rather than retribution. In light of these criticisms, what evidence is there that any changes we have made to our criminal justice system have substantively improved it since the times of Holmes? Even the most famous “reforms” in the criminal justice system (e.g. the three-strike rule) have represented little change in our ideology and perpetuated the same problems of old. Have we actually made the prison system any better, or are we simply put more people in jail for longer?

Quoting Hegel, “It is in the end not the appetite, but the opinion, which has to be satisfied.” (p. 201) The goals of the future man must have meaning. Success in itself is not the sole goal, we must look to the proper ideals that bring about the proper success. Men of ideas and men of power need not be antonyms in this new age. (See discussion topics BalancingWork and IWon’tFeelHelpless, stressing the importance of not losing sight of why you are doing what you are doing). In the words of Holmes, “An intellect great enough to win the prize needs other food besides success.” (p. 202). We may not find this other food in this class, or even anytime soon, but by recognizing and enunciating the goal that we all hopefully share, Holmes has given us a starting point from which to begin our own path towards becoming successful and happy lawyers in a world of “pre-packaged meat.”

-- AlexLawrence - 11 Feb 2008

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