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StephenRushinFirstPaper 6 - 24 Aug 2009 - Main.EbenMoglen
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| | | I. Introduction | |
<
< | After Spring Break, I took a cab from LaGuardia? to Morningside Heights. During the trip, I had a conversation with a taxi driver named Carlos. After exchanging pleasantries, Carlos asked what I was studying at Columbia. “Law,” I replied, to which he responded, “You know, what you do and what I do isn’t really that different. I offer a service: I drive people around for money. You? You are going to offer a service, too. You will screw up someone’s life for money. Lots of money.” | >
> | After Spring Break, I took a cab from LaGuardia to Morningside Heights. During the trip, I had a conversation with a taxi driver named Carlos. After exchanging pleasantries, Carlos asked what I was studying at Columbia. “Law,” I replied, to which he responded, “You know, what you do and what I do isn’t really that different. I offer a service: I drive people around for money. You? You are going to offer a service, too. You will screw up someone’s life for money. Lots of money.” | | | When I first read Holmes’s Path of Law, I was reluctant to accept the functionalist view of the legal profession. I believed that there was inherently more to the study of law than predicting, “the incidence of the public force through the instrumentality of the courts.” But as I have come to accept, Holmes’s views in Path of Law are extremely useful; law is a predictive exercise that involves the imposition of logical structures to legitimize, “inarticulate and unconscious judgments.” Rather than limiting the practice of law, this view empowers lawyers. | | | “You know I drive this cab cause like it. Some people think I’m crazy, but screw ‘em,” he said with a smile.
“But, if you decide to do one of those big paying law jobs, do me a favor. You look like a nice guy... Remember my name and send me whatever money you aren’t gonna use. Consider it charity.”
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>
> |
- I think this was a very effective revision. I see no reason to work on this essay any further.
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StephenRushinFirstPaper 5 - 01 Jun 2009 - Main.StephenRushin
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| | | Another example can be seen in Lochner v. New York, as the Court held that the Fourteenth Amendment protected an individual’s right to sell her own labor without governmental interference. Holmes, in a dissenting opinion, noted that regardless of the justifications given by the majority opinion, the justices were actually using their unstated, laissez-faire economic beliefs to justify such an unconstitutional holding. | |
<
< | In the end, constitutional history seems to suggest that the justices on the Court make value judgments whether explicit or not; justices either apply a particular standard of review knowing full well the outcome, or they make a doctrine fit their ultimate opinion. | >
> | In the end, constitutional history suggests that the justices make value judgments, whether explicit or not; justices either apply a particular standard of review knowing full well the outcome, or they make a doctrine fit their ultimate opinion. | | | III. Adopting a False Sense of Impartiality "Legitimizes" the Judiciary
Further, the use of this logical façade legitimizes the judiciary, through making the institution appear impartial. The Court seems especially concerned with maintaining legitimacy through applying reasonably foreseeable standards of review. For instance, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court noted that overturning Roe would disrupt society as people have relied upon legalized abortion. Further, the Court contends that overturning such a decision would lead to institutional illegitimacy. | |
<
< | This appears to be a consistent theme across law; courts hope to appear as if their hands are tied by unseen and powerful standards or tests. Frank might call this legal magic. We believe doctrine, standards, and tests ensure justice is fairly administered. An almost ritualistic belief in the impartiality of these institutions allow citizens forget that ultimately law is administered by human beings, imposing upon the law their own subjective judgments. | >
> | This appears to be a consistent theme across law; courts hope to appear as if their hands are tied by unseen and powerful standards or tests. Frank might call this legal magic. We believe doctrine, standards, and tests ensure justice is fairly applied. An almost ritualistic belief in the impartiality of these institutions allow citizens forget that ultimately law is administered by human beings, imposing upon the law their own subjective judgments. | | |
IV. Adopting Holmes's View on the Law Empowers Lawyers | |
<
< | Initially, I felt this view of law denigrated the role of a lawyer. But as I came to realize, Holmes’s view doesn’t limit the role of a lawyer, but rather provides them with a more realistic view of how the legal system works. Rather than blindly depending on impartiality and objectivity, lawyers must take into account all factors that affect the outcome of a case, whether psychological, sociological, historical, biological, or legal, regardless of field. A lawyer must be able to read people, not just law. | >
> | Initially, I felt this view of law denigrated the role of a lawyer. But as I came to realize, Holmes’s view doesn’t limit the role of a lawyer, but instead provides them with a more realistic view of how the legal system works. Rather than blindly depending on impartiality and objectivity, lawyers must take into account all factors that affect the outcome of a case, whether psychological, sociological, historical, biological, or legal, regardless of field. A lawyer must be able to read people, not just the law. | | | Law is not just a system of calculated deduction, but a complex investigation into how logic and emotion intertwine to in the complex and imperfect human structure. Far from limiting a lawyer, this only empowers lawyers to be more successful with their license regardless of their field or client. |
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StephenRushinFirstPaper 4 - 16 Apr 2009 - Main.StephenRushin
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<
< | The Usefulness of Holmes's Path of Law | >
> | Professor Moglen,
As you recommended, I focused this draft on my view of Holmes's Path of Law, and I removed the section regarding Langdell and Gilmore. I also included some snippets from an actual conversation I had with a cab driver that I felt was particularly relevant to my argument.
Stephen
Holmes, Legal Magic, and the Empowerment of Lawyers | | | -- By StephenRushin - 13 Apr 2009
I. Introduction | |
<
< | After Spring Break, I took a cab from LaGuardia? Airport to Morningside Heights. During the trip, I had a conversation with a taxi driver named Carlos. After exchanging pleasantries, Carlos asked what I was studying at Columbia. “Law,” I replied, to which he responded, “You know, what you do and what I do isn’t really that different. I take offer a service: I drive people around money. You? You are going to offer a service, too. You will screw up someone’s life for money. Lots of money.” | >
> | After Spring Break, I took a cab from LaGuardia? to Morningside Heights. During the trip, I had a conversation with a taxi driver named Carlos. After exchanging pleasantries, Carlos asked what I was studying at Columbia. “Law,” I replied, to which he responded, “You know, what you do and what I do isn’t really that different. I offer a service: I drive people around for money. You? You are going to offer a service, too. You will screw up someone’s life for money. Lots of money.” | | | | |
<
< | When I first read Holmes’s Path of Law, I was reluctant to accept the functionalist view of the legal profession. I believed that there was inherently more to the study of law than predicting, “the incidence of the public force through the instrumentality of the courts.” But I have come to accept that Holmes’s views in Path of Law are extremely useful; law is a predictive exercise that involves the imposition of logical structures to legitimize, “inarticulate and unconscious judgments.” Ultimately, this view empowers lawyers. | >
> | When I first read Holmes’s Path of Law, I was reluctant to accept the functionalist view of the legal profession. I believed that there was inherently more to the study of law than predicting, “the incidence of the public force through the instrumentality of the courts.” But as I have come to accept, Holmes’s views in Path of Law are extremely useful; law is a predictive exercise that involves the imposition of logical structures to legitimize, “inarticulate and unconscious judgments.” Rather than limiting the practice of law, this view empowers lawyers. | | | II. Decisions by the Judiciary Are Inherently Subjective | | | “Costa Rica,” he replied, “You know, in Costa Rica, we all had free education. Books, tuition, even food. Everything was provided. In Costa Rica education all the way through college is a fundamental right. You know, if you want to do something good with your degree, try to make that happen here in America.” | |
<
< | At the core of Holmes’s argument is the notion that law involves not just logic, but individualized value judgments. This seems especially evident in constitutional law as pertaining to so-called fundamental rights. For instance, the debate over the right to privacy for same-sex sodomy exhibits how substantive due process lends itself to ambiguity and personalized judgment | >
> | At the core of Holmes’s argument is the notion that law involves not just logic, but individualized value judgments. This seems especially evident in constitutional law as pertaining to so-called fundamental rights. For instance, the debate over the right to privacy for same-sex sodomy exhibits how substantive due process lends itself to ambiguity and personalized judgment. | | | | |
<
< | In Bowers v. Hardwick, the Court found there to be no fundamental right for two consenting adults of the same sex to have private, intimate relations as such a right was not historically protected. Later the Court in Lawrence v. Texas found that history was not the end point in determining whether a right was fundamental. Although I would argue that the decision in Lawrence was morally right, it nonetheless seems no more logically grounded in the constitution than Bowers. Each uses a supposedly logical and impartial test, and yet each arrives at a different conclusion. It seems very likely that, “behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds.” | >
> | In Bowers v. Hardwick, the Court found there to be no fundamental right for two consenting adults of the same sex to have private, intimate relations, as such a right was not historically protected. Later the Court in Lawrence v. Texas found that history was not the end point in determining whether a right was fundamental. Despite fully supporting the court’s ultimate holding in Lawrence, I can hardly agree with the court that the history of the United States doesn’t reflect a pattern of laws designed to deny this right to gay and lesbian individuals. Although the justices gave the outward appearance that they were bound to the rigid doctrine of substantive due process, the doctrine itself appeared easily amended to fit the subjective judgments of the court. Substantive due process seems to be an inadequate mechanism to guarantee the proper rights due to a gay or lesbian individual. I cannot help but feel that behind this decision lies a personal, moral decision that is the, “nerve of the whole proceeding.” | | | | |
<
< | Another example can be seen in Lochner v. New York, as the Court held that the Fourteenth Amendment protected an individual’s right to sell her own labor without governmental interference. The majority opinion never mentioned economic theory, but instead discussed whether the right to contract was fundamental and whether the contested statute dealt with public health. Holmes, in a dissenting opinion, noted that regardless of the justifications given by the majority opinion, the justices were using their own laissez-faire economic beliefs to justify such an unconstitutional holding. | >
> | Another example can be seen in Lochner v. New York, as the Court held that the Fourteenth Amendment protected an individual’s right to sell her own labor without governmental interference. Holmes, in a dissenting opinion, noted that regardless of the justifications given by the majority opinion, the justices were actually using their unstated, laissez-faire economic beliefs to justify such an unconstitutional holding. | | | | |
<
< | In the end, constitutional history seems to suggest that the justices on the Court make value judgments whether explicit or not; justices either apply a particular standard of review knowing full well the outcome of such a decision or they make a doctrine fit their ultimate opinion. | >
> | In the end, constitutional history seems to suggest that the justices on the Court make value judgments whether explicit or not; justices either apply a particular standard of review knowing full well the outcome, or they make a doctrine fit their ultimate opinion. | | | III. Adopting a False Sense of Impartiality "Legitimizes" the Judiciary | |
<
< | Further, the use of this logical façade legitimizes the judiciary, through making the institution appear impartial. The Court seems especially concerned with maintaining legitimacy through applying reasonably foreseeable standards of review. For instance, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court noted that overturning Roe would disrupt society as people have relied upon legalized abortion. Further, the Court contends that overturning such a decision would lead to institutional illegitimacy. | >
> | Further, the use of this logical façade legitimizes the judiciary, through making the institution appear impartial. The Court seems especially concerned with maintaining legitimacy through applying reasonably foreseeable standards of review. For instance, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court noted that overturning Roe would disrupt society as people have relied upon legalized abortion. Further, the Court contends that overturning such a decision would lead to institutional illegitimacy. | | | | |
<
< | This appears to be a consistent theme across the American system of law; courts hope to appear as if their hands are tied by unseen and powerful standards or tests. Such a concept gives people a sense of security and a false belief that broad principles and not people make the ultimate decision. | >
> | This appears to be a consistent theme across law; courts hope to appear as if their hands are tied by unseen and powerful standards or tests. Frank might call this legal magic. We believe doctrine, standards, and tests ensure justice is fairly administered. An almost ritualistic belief in the impartiality of these institutions allow citizens forget that ultimately law is administered by human beings, imposing upon the law their own subjective judgments. | | | | |
<
< | IV. Adopting Holmes's View on the Law Empowers Lawyers | | | | |
<
< | I was initially hesitant to adopt Holmes view as I felt it denigrated the role of a lawyer. As I saw it, if a lawyer’s job is nothing more than the prediction of what will happen, how is a lawyer any different from a handyman with a box of tools offering a particular service? | >
> | IV. Adopting Holmes's View on the Law Empowers Lawyers | | | | |
<
< | But as I came to realize, Holmes’s view doesn’t limit the role of a lawyer, but rather provides them with a more realistic view of how the legal system works. Lawyers have a choice as to what kind of advocate they want to become. Rather than blindly depending on impartiality and objectivity, lawyers must, regardless of field, take into account all factors that affect the outcome of a case, whether psychological, sociological, historical, biological, or legal. | >
> | Initially, I felt this view of law denigrated the role of a lawyer. But as I came to realize, Holmes’s view doesn’t limit the role of a lawyer, but rather provides them with a more realistic view of how the legal system works. Rather than blindly depending on impartiality and objectivity, lawyers must take into account all factors that affect the outcome of a case, whether psychological, sociological, historical, biological, or legal, regardless of field. A lawyer must be able to read people, not just law. | | | | |
<
< | Law is not a system of logic and deduction, but a complex investigation into how logic and emotion intertwine to in the complex human structure we call the law. Accepting Holmes’s views allows a lawyer to better predict the outcome of a case, as she must consider all possible aspects that factor into a decision. Far from limiting a lawyer, this only empowers lawyers to be more successful with their license regardless of their field. | >
> | Law is not just a system of calculated deduction, but a complex investigation into how logic and emotion intertwine to in the complex and imperfect human structure. Far from limiting a lawyer, this only empowers lawyers to be more successful with their license regardless of their field or client. | | | As the cab turned onto Morningside, I finished my conversation with Carlos. “Whatever you do man, be happy,” he said, as he punched buttons on the meter. | |
<
< | “You know I drive this cab cause like it. Some people think I’m crazy, but screw ‘em,” he said with a smile, “But, if you decide to do one of those big paying law jobs, do me a favor. Remember my name and send me whatever money you aren’t gonna use. Consider it charity.” | >
> | “You know I drive this cab cause like it. Some people think I’m crazy, but screw ‘em,” he said with a smile.
“But, if you decide to do one of those big paying law jobs, do me a favor. You look like a nice guy... Remember my name and send me whatever money you aren’t gonna use. Consider it charity.” |
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StephenRushinFirstPaper 3 - 13 Apr 2009 - Main.StephenRushin
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< | Usefulness and Limitations of Holmes’s Legal Functionalism | >
> | The Usefulness of Holmes's Path of Law | | | | |
<
< | -- By StephenRushin - 27 Feb 2009 | >
> | -- By StephenRushin - 13 Apr 2009 | | | I. Introduction | |
<
< | Holmes’s legal functionalist argument seems to be an improvement on Langdell’s approach to the study of law. Nevertheless, Holmes's functionalist view of law, while extremely useful in various ways is ultimately incomplete. | >
> | After Spring Break, I took a cab from LaGuardia? Airport to Morningside Heights. During the trip, I had a conversation with a taxi driver named Carlos. After exchanging pleasantries, Carlos asked what I was studying at Columbia. “Law,” I replied, to which he responded, “You know, what you do and what I do isn’t really that different. I take offer a service: I drive people around money. You? You are going to offer a service, too. You will screw up someone’s life for money. Lots of money.” | | | | |
<
< | II. Holmes’s Approach is Useful to an Extent | >
> | When I first read Holmes’s Path of Law, I was reluctant to accept the functionalist view of the legal profession. I believed that there was inherently more to the study of law than predicting, “the incidence of the public force through the instrumentality of the courts.” But I have come to accept that Holmes’s views in Path of Law are extremely useful; law is a predictive exercise that involves the imposition of logical structures to legitimize, “inarticulate and unconscious judgments.” Ultimately, this view empowers lawyers. | | | | |
<
< | a) Relationship Between Langdell and Holmes | >
> | II. Decisions by the Judiciary Are Inherently Subjective | | | | |
<
< | When reading Holmes’s Path of Law, I was reminded of Christopher Langdell’s approach to the study of law, described in less than flattering terms by Grant Gilmore in The Ages of American Law. It has been suggested that Holmes anti-logic thesis was aimed at Langdell’s view of lawyers as legal scientists. | >
> | “Where are you from?” I asked. | | | | |
<
< | Indeed, the two seem to disagree as to the role of logic in uncovering law; Langdell viewed law as a scientific principle that could inevitably be uncovered through logical deductions made by studying select cases, while Holmes posited the realist notion that “behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment.” | >
> | “Costa Rica,” he replied, “You know, in Costa Rica, we all had free education. Books, tuition, even food. Everything was provided. In Costa Rica education all the way through college is a fundamental right. You know, if you want to do something good with your degree, try to make that happen here in America.” | | | | |
<
< | Each seemed to view the study of law as integrally related to predicting how future cases would be adjudicated. Yet, Holmes’s realistic admission as to the lack of logic within our legal system makes his theory more useful. In the end, as Gilmore explained “Holmes accomplishment was to make Langdellianism intellectually respectable.” | >
> | At the core of Holmes’s argument is the notion that law involves not just logic, but individualized value judgments. This seems especially evident in constitutional law as pertaining to so-called fundamental rights. For instance, the debate over the right to privacy for same-sex sodomy exhibits how substantive due process lends itself to ambiguity and personalized judgment | | | | |
<
< |
- Grant Gilmore's book is a tendentious and unreliable one. You can say that Gilmore asserts tat Holmes made Langdellianism intellectually respectable, but to say he "explained" that proposition is to accord him an authority he does not possess. By taking on his conclusions, and his tone, sometimes with attribution sometimes without, you are doing yourself less good than you seem to think.
| >
> | In Bowers v. Hardwick, the Court found there to be no fundamental right for two consenting adults of the same sex to have private, intimate relations as such a right was not historically protected. Later the Court in Lawrence v. Texas found that history was not the end point in determining whether a right was fundamental. Although I would argue that the decision in Lawrence was morally right, it nonetheless seems no more logically grounded in the constitution than Bowers. Each uses a supposedly logical and impartial test, and yet each arrives at a different conclusion. It seems very likely that, “behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds.” | | | | |
<
< | b) Holmes Justifiably Argues That Judges Impose Logic on Otherwise Subjective Decisions | >
> | Another example can be seen in Lochner v. New York, as the Court held that the Fourteenth Amendment protected an individual’s right to sell her own labor without governmental interference. The majority opinion never mentioned economic theory, but instead discussed whether the right to contract was fundamental and whether the contested statute dealt with public health. Holmes, in a dissenting opinion, noted that regardless of the justifications given by the majority opinion, the justices were using their own laissez-faire economic beliefs to justify such an unconstitutional holding. | | | | |
<
< | Especially in constitutional law cases, it seems that logic serves more as a justification for an individualized value judgment than as a mechanism forcing the proverbial hand of a judge. Logic legitimizes judicial review. Logic makes judges appear as impartial referees objectively deciding cases without predispositions. Yet the various modalities of constitutional interpretation suggest that a judge could apply numerous different, supposedly logical interpretive methods in arriving at the same decision. | >
> | In the end, constitutional history seems to suggest that the justices on the Court make value judgments whether explicit or not; justices either apply a particular standard of review knowing full well the outcome of such a decision or they make a doctrine fit their ultimate opinion. | | | | |
<
< | For instance, defining what rights are covered by substantive due process and incorporation requires an expansive reading of the constitution that hardly follows a logical form. Judicial tests, whether they are called fundamental fairness, rigid scrutiny, or reasonableness, ultimately require a value judgment. And even if we accept that these tests are objective, we must nevertheless accept that a judge makes a choice as to which test most aptly fits within a given context. | >
> | III. Adopting a False Sense of Impartiality "Legitimizes" the Judiciary | | | | |
<
< | c) Viewing the Study of Law as Predictive is Useful | >
> | Further, the use of this logical façade legitimizes the judiciary, through making the institution appear impartial. The Court seems especially concerned with maintaining legitimacy through applying reasonably foreseeable standards of review. For instance, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court noted that overturning Roe would disrupt society as people have relied upon legalized abortion. Further, the Court contends that overturning such a decision would lead to institutional illegitimacy. | | | | |
<
< | In addition, Holmes’s suggestion that the purpose of studying law is to predict “the incidence of the public force through the instrumentality of the courts,” is very useful. An attorney in our legal system serves as a representative for the interests of an individual. Hence, making apt judgments as to the probability of a client being succeeding in a case is centrally important to the study of law. This suggests that rather than just being masters in the “logic” of legal decisions, lawyers must also become well versed in the various psychological and sociological factors that affect a judicial opinion. | >
> | This appears to be a consistent theme across the American system of law; courts hope to appear as if their hands are tied by unseen and powerful standards or tests. Such a concept gives people a sense of security and a false belief that broad principles and not people make the ultimate decision. | | | | |
<
< | III. The Functionalist View of the Law has Limits | >
> | IV. Adopting Holmes's View on the Law Empowers Lawyers | | | | |
<
< | Despite the usefulness of functionalist view, I think it remains somewhat limited in capturing the scope and importance of legal study. In my opinion, the study of law involves the development of an ethical foundation and a realization of the integral role attorneys can play in shaping our system of law. In some sense, a study of law requires investigation into how the law “ought” to operate, not just how it does operate. Holmes’s view seemed premised on utilitarianism. During the Lochner Era, Holmes often dissented with the Court as it overturned legislation that limited business. Nevertheless, according to Gilmore, “Holmes had no great sympathy for such legislation – he thought that most of it was silly and useless – but he consistently maintained his position that the dominant political majority is entitled to work its will on its defeated adversaries.” | >
> | I was initially hesitant to adopt Holmes view as I felt it denigrated the role of a lawyer. As I saw it, if a lawyer’s job is nothing more than the prediction of what will happen, how is a lawyer any different from a handyman with a box of tools offering a particular service? | | | | |
<
< |
- Now you are offering your "opinion" as a source of wisdom, which is less impressive than when Gilmore does it, because he was a little older and a little further along, but in any event one would want more than an opinion. The opinion being expressed here has the drawback also of less than complete understanding. Your second sentence is a truism, the third is a subject of common agreement, the fourth and fifth are non-sequitur.
| >
> | But as I came to realize, Holmes’s view doesn’t limit the role of a lawyer, but rather provides them with a more realistic view of how the legal system works. Lawyers have a choice as to what kind of advocate they want to become. Rather than blindly depending on impartiality and objectivity, lawyers must, regardless of field, take into account all factors that affect the outcome of a case, whether psychological, sociological, historical, biological, or legal. | | | | |
<
< | Such a view suggests that the judge serves only to reflect the will of the majority, deferring to even the most apparently immoral and reprehensible legislation. I would argue that the law is a dynamic system of rules and regulations, premised upon basic fairness and morality. A lawyer’s job, along with representing the interests of a party in an adversarial system, is to develop her own conception of legal fairness. | >
> | Law is not a system of logic and deduction, but a complex investigation into how logic and emotion intertwine to in the complex human structure we call the law. Accepting Holmes’s views allows a lawyer to better predict the outcome of a case, as she must consider all possible aspects that factor into a decision. Far from limiting a lawyer, this only empowers lawyers to be more successful with their license regardless of their field. | | | | |
<
< |
- The suggestion results from taking Gilmore's view of Holmes and building on it. If you had explored the primary sources rather than the tendentious secondary interpretation you'd have found a more complex story.
| >
> | As the cab turned onto Morningside, I finished my conversation with Carlos. “Whatever you do man, be happy,” he said, as he punched buttons on the meter. | | | | |
<
< | Holmes seems to undervalue the role of “abstract principles of natural justice” in our conception of a sound body of law; it seems that in some cases, the majority of the legislature cannot (or at least should not) interfere with individual rights because “the general principles of law and reason” prevent it. [Justice Chase’s opinion in Calder v. Bull] While I am not comfortable taking the argument for natural rights quite as far as Chase, I think his underlying argument has merit. Judicial judgments often require an assessment of values and even morality.
- Holmes doesn't undervalue principles of natural law: he objects to the idea altogether. Citing Justice Chase seems like a peculiar way of discussing (or dismissing) Holmes' view. There are 660,000 corpses in between.
Perhaps inherent in my disagreement with Holmes is a deep seeded
belief that humans have a somewhat consistent view of morality, with basic views on fairness, justice, and equality. I have a tough time swallowing the notion that law is nothing more a prophecy of what will happen, especially given the role lawyers can play as actors in bringing about social change.
- That you have a tough time swallowing something is not an argument. Others would have a tough time swallowing your very peculiar argument that "humans have a somewhat consistent view of morality." If "somewhat consistent" means "inconsistent" your statement is true but unhelpful. If "somewhat consistent" means "consistent" your statement is evidently false.
To me, this is the limit of the functionalist approach to Holmes’s view of law. His view can demonstrate the predictive role of law and the use of logic to legitimize judicial opinions. But, a lawyer is not just a predictor, but also an actor within the legal system. When pursing a study of law, lawyers must develop their own view of natural rights, ethics, and morality, and deduce not just what the court will likely do, but what the court ought to do. Then a lawyer has the option, and many would argue a moral obligation, to use her degree in a way that works towards a broader realization of her conception of fairness and justice.
- You have attempted to prove Holmes wrong and failed. Perhaps it would be better to figure out what you think than what you think of what Gilmore thinks about what Holmes thinks.
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>
> | “You know I drive this cab cause like it. Some people think I’m crazy, but screw ‘em,” he said with a smile, “But, if you decide to do one of those big paying law jobs, do me a favor. Remember my name and send me whatever money you aren’t gonna use. Consider it charity.” |
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StephenRushinFirstPaper 2 - 31 Mar 2009 - Main.IanSullivan
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| META TOPICPARENT | name="FirstPaper" |
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| | | Each seemed to view the study of law as integrally related to predicting how future cases would be adjudicated. Yet, Holmes’s realistic admission as to the lack of logic within our legal system makes his theory more useful. In the end, as Gilmore explained “Holmes accomplishment was to make Langdellianism intellectually respectable.” | |
>
> |
- Grant Gilmore's book is a tendentious and unreliable one. You can say that Gilmore asserts tat Holmes made Langdellianism intellectually respectable, but to say he "explained" that proposition is to accord him an authority he does not possess. By taking on his conclusions, and his tone, sometimes with attribution sometimes without, you are doing yourself less good than you seem to think.
| | | b) Holmes Justifiably Argues That Judges Impose Logic on Otherwise Subjective Decisions
Especially in constitutional law cases, it seems that logic serves more as a justification for an individualized value judgment than as a mechanism forcing the proverbial hand of a judge. Logic legitimizes judicial review. Logic makes judges appear as impartial referees objectively deciding cases without predispositions. Yet the various modalities of constitutional interpretation suggest that a judge could apply numerous different, supposedly logical interpretive methods in arriving at the same decision. | | | Despite the usefulness of functionalist view, I think it remains somewhat limited in capturing the scope and importance of legal study. In my opinion, the study of law involves the development of an ethical foundation and a realization of the integral role attorneys can play in shaping our system of law. In some sense, a study of law requires investigation into how the law “ought” to operate, not just how it does operate. Holmes’s view seemed premised on utilitarianism. During the Lochner Era, Holmes often dissented with the Court as it overturned legislation that limited business. Nevertheless, according to Gilmore, “Holmes had no great sympathy for such legislation – he thought that most of it was silly and useless – but he consistently maintained his position that the dominant political majority is entitled to work its will on its defeated adversaries.” | |
>
> |
- Now you are offering your "opinion" as a source of wisdom, which is less impressive than when Gilmore does it, because he was a little older and a little further along, but in any event one would want more than an opinion. The opinion being expressed here has the drawback also of less than complete understanding. Your second sentence is a truism, the third is a subject of common agreement, the fourth and fifth are non-sequitur.
| | | Such a view suggests that the judge serves only to reflect the will of the majority, deferring to even the most apparently immoral and reprehensible legislation. I would argue that the law is a dynamic system of rules and regulations, premised upon basic fairness and morality. A lawyer’s job, along with representing the interests of a party in an adversarial system, is to develop her own conception of legal fairness. | |
>
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- The suggestion results from taking Gilmore's view of Holmes and building on it. If you had explored the primary sources rather than the tendentious secondary interpretation you'd have found a more complex story.
| | | Holmes seems to undervalue the role of “abstract principles of natural justice” in our conception of a sound body of law; it seems that in some cases, the majority of the legislature cannot (or at least should not) interfere with individual rights because “the general principles of law and reason” prevent it. [Justice Chase’s opinion in Calder v. Bull] While I am not comfortable taking the argument for natural rights quite as far as Chase, I think his underlying argument has merit. Judicial judgments often require an assessment of values and even morality. | |
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< | Perhaps inherent in my disagreement with Holmes is a deep seeded belief that humans have a somewhat consistent view of morality, with basic views on fairness, justice, and equality. I have a tough time swallowing the notion that law is nothing more a prophecy of what will happen, especially given the role lawyers can play as actors in bringing about social change. | >
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- Holmes doesn't undervalue principles of natural law: he objects to the idea altogether. Citing Justice Chase seems like a peculiar way of discussing (or dismissing) Holmes' view. There are 660,000 corpses in between.
Perhaps inherent in my disagreement with Holmes is a deep seeded
belief that humans have a somewhat consistent view of morality, with basic views on fairness, justice, and equality. I have a tough time swallowing the notion that law is nothing more a prophecy of what will happen, especially given the role lawyers can play as actors in bringing about social change.
- That you have a tough time swallowing something is not an argument. Others would have a tough time swallowing your very peculiar argument that "humans have a somewhat consistent view of morality." If "somewhat consistent" means "inconsistent" your statement is true but unhelpful. If "somewhat consistent" means "consistent" your statement is evidently false.
| | | To me, this is the limit of the functionalist approach to Holmes’s view of law. His view can demonstrate the predictive role of law and the use of logic to legitimize judicial opinions. But, a lawyer is not just a predictor, but also an actor within the legal system. When pursing a study of law, lawyers must develop their own view of natural rights, ethics, and morality, and deduce not just what the court will likely do, but what the court ought to do. Then a lawyer has the option, and many would argue a moral obligation, to use her degree in a way that works towards a broader realization of her conception of fairness and justice. | |
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, StephenRushin
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | >
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- You have attempted to prove Holmes wrong and failed. Perhaps it would be better to figure out what you think than what you think of what Gilmore thinks about what Holmes thinks.
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StephenRushinFirstPaper 1 - 27 Feb 2009 - Main.StephenRushin
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Usefulness and Limitations of Holmes’s Legal Functionalism
-- By StephenRushin - 27 Feb 2009
I. Introduction
Holmes’s legal functionalist argument seems to be an improvement on Langdell’s approach to the study of law. Nevertheless, Holmes's functionalist view of law, while extremely useful in various ways is ultimately incomplete.
II. Holmes’s Approach is Useful to an Extent
a) Relationship Between Langdell and Holmes
When reading Holmes’s Path of Law, I was reminded of Christopher Langdell’s approach to the study of law, described in less than flattering terms by Grant Gilmore in The Ages of American Law. It has been suggested that Holmes anti-logic thesis was aimed at Langdell’s view of lawyers as legal scientists.
Indeed, the two seem to disagree as to the role of logic in uncovering law; Langdell viewed law as a scientific principle that could inevitably be uncovered through logical deductions made by studying select cases, while Holmes posited the realist notion that “behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment.”
Each seemed to view the study of law as integrally related to predicting how future cases would be adjudicated. Yet, Holmes’s realistic admission as to the lack of logic within our legal system makes his theory more useful. In the end, as Gilmore explained “Holmes accomplishment was to make Langdellianism intellectually respectable.”
b) Holmes Justifiably Argues That Judges Impose Logic on Otherwise Subjective Decisions
Especially in constitutional law cases, it seems that logic serves more as a justification for an individualized value judgment than as a mechanism forcing the proverbial hand of a judge. Logic legitimizes judicial review. Logic makes judges appear as impartial referees objectively deciding cases without predispositions. Yet the various modalities of constitutional interpretation suggest that a judge could apply numerous different, supposedly logical interpretive methods in arriving at the same decision.
For instance, defining what rights are covered by substantive due process and incorporation requires an expansive reading of the constitution that hardly follows a logical form. Judicial tests, whether they are called fundamental fairness, rigid scrutiny, or reasonableness, ultimately require a value judgment. And even if we accept that these tests are objective, we must nevertheless accept that a judge makes a choice as to which test most aptly fits within a given context.
c) Viewing the Study of Law as Predictive is Useful
In addition, Holmes’s suggestion that the purpose of studying law is to predict “the incidence of the public force through the instrumentality of the courts,” is very useful. An attorney in our legal system serves as a representative for the interests of an individual. Hence, making apt judgments as to the probability of a client being succeeding in a case is centrally important to the study of law. This suggests that rather than just being masters in the “logic” of legal decisions, lawyers must also become well versed in the various psychological and sociological factors that affect a judicial opinion.
III. The Functionalist View of the Law has Limits
Despite the usefulness of functionalist view, I think it remains somewhat limited in capturing the scope and importance of legal study. In my opinion, the study of law involves the development of an ethical foundation and a realization of the integral role attorneys can play in shaping our system of law. In some sense, a study of law requires investigation into how the law “ought” to operate, not just how it does operate. Holmes’s view seemed premised on utilitarianism. During the Lochner Era, Holmes often dissented with the Court as it overturned legislation that limited business. Nevertheless, according to Gilmore, “Holmes had no great sympathy for such legislation – he thought that most of it was silly and useless – but he consistently maintained his position that the dominant political majority is entitled to work its will on its defeated adversaries.”
Such a view suggests that the judge serves only to reflect the will of the majority, deferring to even the most apparently immoral and reprehensible legislation. I would argue that the law is a dynamic system of rules and regulations, premised upon basic fairness and morality. A lawyer’s job, along with representing the interests of a party in an adversarial system, is to develop her own conception of legal fairness.
Holmes seems to undervalue the role of “abstract principles of natural justice” in our conception of a sound body of law; it seems that in some cases, the majority of the legislature cannot (or at least should not) interfere with individual rights because “the general principles of law and reason” prevent it. [Justice Chase’s opinion in Calder v. Bull] While I am not comfortable taking the argument for natural rights quite as far as Chase, I think his underlying argument has merit. Judicial judgments often require an assessment of values and even morality.
Perhaps inherent in my disagreement with Holmes is a deep seeded belief that humans have a somewhat consistent view of morality, with basic views on fairness, justice, and equality. I have a tough time swallowing the notion that law is nothing more a prophecy of what will happen, especially given the role lawyers can play as actors in bringing about social change.
To me, this is the limit of the functionalist approach to Holmes’s view of law. His view can demonstrate the predictive role of law and the use of logic to legitimize judicial opinions. But, a lawyer is not just a predictor, but also an actor within the legal system. When pursing a study of law, lawyers must develop their own view of natural rights, ethics, and morality, and deduce not just what the court will likely do, but what the court ought to do. Then a lawyer has the option, and many would argue a moral obligation, to use her degree in a way that works towards a broader realization of her conception of fairness and justice.
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, StephenRushin
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
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