What's being mitigated? Are you sure that's the word you want?

Are you taking Holmes' hearsay for the truth of the other, unnamed judge's mind? Or just saying that formalism exists?

I'm not sure what this story is supposed to mean. A formalist analysis could of course be prepared, showing why the same result you present as the result of a judicial hunch was required by logic. Are you forecasting that this opinion would be less "convincing" than the realist one? Isn't the existing opinion in the case really a hybrid, using the rhetoric of realism but adopting in the end the fiction of a novation?

Yet transcendental nonsense has survied, indeed thriving, into modernity at least in one area. The notion that the law can be boiled down to the interchange of transcendental nonsense, "is the natural error of the schools", says Holmes. Having just completed the first year curriculum of a top law school, it seems like this rich flawed tradition continues. The only incentivized skill

I don't know what an "incentivized skill" is. You mean the one on which you imagine you are graded? So what?

is doing well on exams and exams ask students to identify and communicate the legal fictions such as consideration, or duty, or the reasonable person.

How do you know? Did you try to submit exams taking a fully realist view of the material, placing it in a context sufficiently clear and learned that the teacher wouldn't dare tell you it isn't a sufficient response? Or do you mean that you think the only way to handle taking an exam is to offer crap you know isn't true, or ideas you find unconvincing, because you believe they're what someone who has a meaningless quantum of temporary power probably thinks?

An old exam one of my professors published showed the common grading style of making checkmarks in the margins. First sentence, identify the issue and state it; 2 check marks. Next three sentences, state the generic rule of law; 4 check marks. At the end of each paragraph, he totaled the number of check marks in the margins and the final grade was the total of all paragraphs. This video game bonus point style grading forces students to only consider their case reading and class lectures in terms of kernels that can be robotically restated in a few sentences under extreme time pressure. How are we supposed to evaluate our place within the law after playing this frivolous game? What actual knowledge do we have?

Sure. So the solution is to present material that doesn't conform to the expectation, but shows mastery of the material, knowledge of context, and rhetorical power. The teacher's method is also a response to stimulus: the undifferentiated mass of cliche responses, differing only in their insufficiencies. No teacher reading 100 exams is wants them to be so boring, but they have brought that on themselves by choosing means of evaluation that aren't any good for anybody. Think and write with intensity and skill, burst the corners of the box. An exceptionally incompetent or emotionally damages teacher might be unable to award a sufficient number of "points" to such an effort, but—as I have mentioned previously—so what?

In order to be unsparing about this, you ought also to consider the possibility that you have some fear that you can't perform the task of thinking and writing intensely, personally, and commandingly. In which case, compliance with bad teaching and evaluation methods is a form of self-protection, a way of avoiding the risks of real differentiation and individualized learning. In which case, would you be entitled also to complain?

Defenders of the curriculum might argue that the point is to give the uninitiated a fluency in legalese and legal argument through immersion. But it sells students' abilities short to think they can’t absorb legal diction while seeing how the law works. Shouldn't we read some briefs and trial documents in order to see what the argument and evidence was and watch how judges interpret them?

Was anybody stopping you? Was the library closed? When I was in law school, the assigned material represented less than one-third of my reading volume in any term, including when I was on the law journal. If you think you should read something, read it. Did you?

Shouldn't we learn the underlying political and economic policy discussion and how best to navigate the legal system using these considerations? Knowing the language of law is helpful but no one should learn to speak before they know how to think. "You can give any conclusion a logical form", says Holmes, suggesting that the real practice of a lawyer happens before we wrap them in their fancy logical expressions.

No, he's suggesting that formal sufficiency is never actually a way of differentiating propositions to be accepted from ones to be rejected.

Furthermore, narrowing the focus to one goal does a great diservice to students. A first year law student is eager to learn, energetic, and will form a sense of self within the law that will likely last his entire career. At least at Columbia, it's the only year with required coursework. Based on his work within the first year curriculum, a student needs to evaluate where his skills and interests lie within the law in order to make meaningful career choices (summer internships, journal participation, second year coursework, etc.) Furthermore close to 75% of our ultimate law firm employers will base their hiring decisions on our performance in this time.

Nonsense. Where do you come up with that statistic? Does "ultimate" here mean "first"? Even if it does, which is not the meaning of the word, the number is still absolute fantasy.

This period is far too important to only be learing to speak like a lawyer.

It's also a good time to learn proofreading.

So why has the focus on transcendental nonsense preserved into modern legal education?

Missing word?

Holmes suggests its resiliency exists because it "flatter(s) that longing for certainty and for repose which is in every human mind". In law school the longing for certainty is the longing for the way things have always been done. This inertia combined with the prisoner's dilemma of losing a competitive edge amongst other schools in law firm recruiting makes it difficult to see any school taking a hard look at switching its methods.

Your game theory doesn't make sense. Maybe you should spell it out, or maybe you should leave it out.

You have still spent a total of 28 weeks in law school, and zero weeks in medical school. I thought it was reasonably clear last time that this paragraph assumed more knowledge on your part than you had. Apparently it's not clear to you, so I may have the limits of your knowledge wrong. Have you got some years of experience and a couple of degrees I don't know about that would make it reasonable to present these conclusions without additional support solely on the basis of your having thought them?

Moving Backwards on the Path to Law

Did you try reading any of the writers whose views he criticized in order to find out?

Certainly there will be esoteric academics that like to have abstract pillow fights in law journals, but did Holmes' contemporaries really think the best way to approach the actual legal system was simply to arrange everything in the proper logical box? What would they say about an opinion by Justice Cardozo where he would create a contract from nothing? For example, a case where he held a promise to give your daughter's fiancé money after they were married is enforceable because not breaking off the marriage before the wedding day was consideration.

Is "nothing" a synonym for the preceding history of promissory estoppel in equity and the various strands of civil law on the subject of pre-marital gifts and wedding habiliments?

He wasn't just looking for the correct pattern of logic to apply. Rather he was using transcendental nonsense as the spokesperson for the results of an internal evaluation based on many quasi-legal variables.

How do you know?

Apparently, however, those who wanted to reduce law to its logical form and traded on transcendental nonsense were a strong force in the 1930s, otherwise Holmes wouldn't spend so much time addressing them.

Back in 1897. Didn't you check your dates, even if you had forgotten everything I said in class about the history of American legal realism?

Fortunately, though, it seems like scholarly and professional analysis of the law has progressed past transcendental nonsense and been replaced by the functional approach.

But this is a first semester test in the ability to comprehend and write lawtalk. You're neither expected to be capable of more nor adequately tested if you're tested on less. And from that point you feel capable of determining how legal education should work?

Why is law school incentivizing only this one skill?

At this one early moment?

Haven't we accepted that much more goes into advocating for our clients? Shouldn't we be testing this full spectrum?

After less than fourteen weeks of learning?

Unfortunately the evolution allowing Holmes’ functional approach to overcome transcendental nonsense in the broader legal community is unlikely to occur in law school because of a fundamental difference in motivation. The broader legal community, first in pursuing transcendental nonsense, and eventually embracing the functional approach was motivated by progress. It was a forward looking mindset interested in finding the best method to study the law. So it made sense, especially in the 1930s, to pursue something like the world Felix Cohen described in the beginning of his piece. Belief in absolutes was reinforced by the advances in many fields at that time, so it was natural to think the uncertainty of the law could be completely domesticated by reason and logical form. Gradually though, this idea gave way to the more realistic, functional approach because it prevailed as a better approach and the field was happy to adopt it. However the opposite motivation exists in law schools. Instead of forward looking, they are looking backward and looking sideways. Sideways to their competitor schools, in that they can’t give up the current approach or else employers might take them less seriously and backwards because ‘this is how it’s always been done’. This damaging nostalgia is likely inherited from the broader legal field, which is smitten with its tradition and image of godlike arbiters of right and wrong. It is why opinions about simple contract disputes are 20 pages long and written in the style of the Declaration of Independence. But law schools need to stop this and have more modern self-awareness. Instead of Law School, it needs to consider itself, law school – i.e. a trade school. It needs to take a cue from medical schools which are preparing their students to be effective in higher stakes, so they are forced to constantly improve their programs with an eye on the singular goal of generating better doctors. They can’t spare time playing intellectual games, instead they learn what they absolutely need to know and start honing all the necessary skills. Law schools, without the life and death stakes of medical school, are less likely to continually reevaluate their teaching methods and more likely to want to maintain the status quo, since the system is working economically. Thus I think it falls to elite law schools, less concerned with competing with other schools to lead the way in a serious revision of the teaching approach. Otherwise a broken, backward looking system will continue to generate unprepared lawyers.

You need to shorten your paragraphs. When you read them over, can't you feel their weight, their tendency to cudgel the reader? Put crisply, with economy, in an outline that emphasizes mobility of thought rather than massiveness, the ideas would still be substantively flawed in ways I've tried to indicate by occasional interlinear objection. The central fallacy can be addressed, no doubt, but it would be better to think through what you do and don't yet know about becoming a lawyer, which will help you to decide what you are and are not in a position to propose or defend with respect to later stages of legal education you haven't yet had.

Justice Holmes set out to combat the view that thought law was simply a “a system of reason that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions” and that “judicial dissent…(was)…simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come.” Thinking as a beginner law student, or even a layperson my reaction was, ‘yes – of course, who would disagree with that?’. Did Holmes’ opponents actually believe law could be viewed in a vacuum devoid of a host of mitigating factors outside of logical forms? Certainly there will be esoteric academics that like to have abstract pillow fights in law journals, but did Holmes’ contemporaries really think the best way to approach the actual legal system was simply to arrange everything in the proper logical box? What would they say about those opinions where Justice Cardozo would create a contract from nothing. He wasn’t just looking for the correct pattern of logic to apply. Instead, he would make an internal evaluation and say things like a promise to give your daughter’s fiancé money after they were married is enforceable because not breaking off the marriage before the wedding day was consideration. Apparently, however, those who wanted to reduce law to its logical form and traded on transcendental nonsense were a strong force in the 1930s, otherwise Holmes wouldn’t spend so much time addressing them. At that time in history, it made sense for people to have the sort of optimism to believe that once the uncertainty of law was domesticated by reason, something like the world Felix Cohen described in the beginning of his piece would follow. Belief in progress and absolutes was reinforced by the advances in so many fields at that time, so it makes sense why that school of thought would be popular.

What doesn’t make sense is why, in 2011, after Holmes and his successors recognized the importance of using a functional method to figure out the law, law schools are still clinging to the obsession with transcendental nonsense. What makes it especially frustrating is that my first semester professors incorporated the functional method into their lectures and assigned readings. The majority of lectures focused on the policy, usually economic, of why this or that concept or case is the way it is. Second to policy was speculating on those unspoken forces that pushed a decision one way or another. It was extremely rare that any one of my professors would dwell on the actual rules of law and concepts that we were covering. They would quickly gloss over it so that they could get back to the policy and the history. The exams, however, were only about those rules of law and abstract concepts. Identify as many legal issues as possible, state the rule and plug in the facts from the hypothetical. That’s it. An old graded exam one of my professors published tells you everything you need to know. He graded his exams by making checkmarks in the margins. First sentence, identify the issue and state it; 2 check marks. Next three sentences, state the generic rule of law; 4 check marks. Then list every relevant fact from the hypothetical, one check mark per fact and make a conclusion for a few more check marks. At the end of each paragraph, the professor totaled the number of check marks and put the number in the margin and the final grade was the final count from all paragraphs. This is a video game, not an exam. Rack up as many bonus points as you can before the clock run outs and then move onto the next level. There was only time only time to state the rule and maybe the alternate rule. Knowing the nuisances of legal fictions such as consideration, or duty, or the reasonable person, was the only useful skill.

Why is law school incentivizing only this one skill? Haven’t we accepted that so much more goes into advocating for our clients? Shouldn’t we be testing this full spectrum? I accept that law school needs to be a talent camp for law firms given the gross overpopulation of students. I don’t accept though why we can’t go through this vetting process while actually learning to be effective lawyers. Why does law school refuse to think of itself as a graduate school – i.e. a trade school? Medical school is teaching people to be effective in higher stakes, so they can’t get away with spending their time playing intellectual games, instead they learn what they absolutely need to know and start honing all the necessary skills. I think law school, and the legal field, needs modern self-awareness. It is smitten with its tradition and image of godlike arbiters of right and wrong. It is why opinions about simple contract disputes are 20 pages long and written in the style of the Declaration of Independence. So I think if we could consider this to be law school - instead of Law School – we’d be much better served.