Notes

Holmes: The Path of the Law

Lawyers exist to predict when the state will act on people through the courts

A “duty”, for example, is a prediction that someone will suffer consequences if he breaches it

Although the law is seeped in moral language, it is not moral because:

Law is designed to force people to follow it whether they believe in the morals or not

Not all laws are morally good

Morals don’t even always limit law

The law taxes and penalizes, but from the bad man’s point of view, they are the same thing

In contract law, people are misled to finding it moral to not breach

And similarly in tort, where “malicious” doesn’t mean malicious in a moral sense

What causes the law to change and grow

Logic is not the only thing, as some things are qualitatively valued by individuals

Judges act based on what they value socially, and they should express that more clearly

Tradition also shapes law--history explains law: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV”

Lawyers need to learn economics to be able to make good policy decisions. They ought also study jurisprudence: the ability to generalize and analogize facts to other sets of facts. These are key to prediction

Transcendental Nonsense and the Functional Approach

Question: do we find our laws in nature or create them

Example case: Tauza

In this case, the court asked where a corporation was without considering policy questions (e.g., difficulty for P and D to sue in X state, etc.). Instead, it was literally trying to figure out where it was, even though it’s obviously a legal fiction

And it did, determining an office in NY meant it could be sued there

Transcendental Nonsense means, a legal fiction.

Judges pretending legal things like corporations actually exist in the world and can be placed

The problem: this makes it easy for judges to forget the fictions they’re dealing with are fictional. And they don’t think about policy: how the decisions affect real people

Another example is a lawyer for a union defending it against tort liability for its union members not because liability would ruin all union activities, but because a union is not a person because it is unincorporated

We must not justify legal rules in legal terms because that’s circular. There must be an empirical or ethical basis

An example is protecting a trademark because it is economically valuable. And it is valuable because it can be legally protected

And this is based in courts “thingifying” property, which has no basis, but is assumed to be found in nature

This just makes lay people have no idea what courts do

This whole process ignores whether having trademarks is even a good thing for society. And it’s just legal reasoning masquerading as legal prejudice/inequality

Same thing with valuing public utilities; courts value them, but their value depends on what the court values them at

Same thing with what does “due process of law” mean? SCOTUS says it means whatever we said it meant in the past

Since legal concepts are not bounded in ethical or empirical foundations, they are a separate form of transcendental nonsense that cannot be challenged by ethics or empiricism

The solution: the functional approach

Functionalism, in simple terms, asks why is something significant. It attacks dogmas which are not based in practical experience

The only meaningful questions is how do courts decide cases and how ought they

The essence is that all concepts must be based in real experience

CRITIQUE: What is “real experience” this article assumes such a thing exists and apparently is universal

Law = the prophecies of what judges will do

Holmes says laws should be signposts telling us certain facts reside here

The article thinks that we are moving in a functional direction away from just restating the dogma of the past in legal principle

CRITIQUE: It seems to me the issue isn’t that legal concepts don’t reflect facts, but the utility of those facts is not significant

The functional approach should be applied to:

(1) The definition of law

Prophecies of what the court will do, in fact -Holmes

We don’t care if this definition is correct, we care that it’s useful

And it will demonstrate what the ethics of the court are

(2) The nature of legal rules and concepts

Hobbes thinks law is the state using its power

Coke thinks it the perfection of reason and is moral

Blackstone stuck both together, leading to confusion

With this understanding of law, asking, for example, is there a contract, confuses what exists with what should exist

(3) The theory of legal decision

Beyond the yes/no decision, what makes up decision?

Decisions have social determinants, and are not just what the judge ate that day

It is very predictable, and if everything surrounding those decisions was not predictable (the sheriff will enforce it, there are appellate procedures), nobody would care who won the case

The main (but incomplete) predictive factors:

Judges act based on their wealth class

Judges act based on if they worked for a special interest before

Judges are impacted by eloquence of counsel

This is why law students need to be detectives, know the political bent of judges, etc.

(4) The role of legal criticism

We need more consequentialist criticism of current legal rules

This criticism is a critical cohort of the objective functionalist method