Generally, redistributing income to your client helps your client.

If you want to maximize your utility according to what you think utility is in the world, go for it.

But - don't take wooden nickels. Things are what they do.

Unless your client is better off, you have not succeeded. Have standards of effectiveness - don't compromise them. When you compromise them, you compromise everything else.

Statistically, most of you will do this. That's how establishment is established.

The most dangerous thing to power is smart young people who have no mortgage. We went to a debt-financing system for law school. We send students out the door with a mortgage designed to disempower them. I have been watching this for a generation.

[Jazz]

What makes a certain concept transcendental nonsense for Felix Cohen?

An idea not related to experience. Thus, it can only be talked about on its own terms.

It doesn't have a truth value if it doesn't relate to the world - it's not true and its not false.

Where is a corporation? The only way to answer that is with some kind of law talk?

What's the limit on where a corporation can be?

Intl Shoe: It is where you can sue them in all fairness and justice.

Read the Brooklyn Law Review article on Sunday school ethics he cites, to learn more.

If the man on the bus can't get it, it's probably not right.

Here are some people trying to democratize these types of thoughts.

You have consequences, and you have values that determine if these consequences are right. Evaluations require a theory of value.

From Cohen's point of view, it's an advantage to move your value system out of system of assessing consequences.

Cohen is trying to form a democratic system of ethics founded on common sense. I find this unsatisfactory - I have some interest in rights, myself.

He believes there is no way a formal system can work. Because he believes that, he has to stop short of the concept that an evaluation of consequences combined with a theory of value can produce justice. So he recurs to this common sense idea.

Felix Cohen went to go work for Interior Department. Produced a legal handbook on treatment of Indians.

If things are transcendental nonsense because they can only be expressed in legal terms - what are lawyers for? What is the difference between lawyers in his world and Holmes' lawyers?

If the goal is to predict the judge, you're not predicting judges - you're predicting this judge. If everyone needs information about their particular judge, why can't we just print it? What would be the problem?

Judges would not want to admit that their human characteristics have consequences for judicial decisionmaking.

The first concept of legal realism: Things are what they do

and then: And the reasons given for what they do are rationalizations rather than accounts.

what do we do with that? (assuming it for the moment)

What follows for us as lawyers?

In the 1980s, on the right, there was the idea that Brennan was smart but wrong, and Thurgood Marshall was propped up by his clerks who voted for him. If you were a law clerk, you knew that to change Brennan's vote, you could press claims that he was being inconsistent with a previous footnote. Thurgood Marshall - would ask - who confirmed you?

People's views of judges is colored by ideology.

The beauty of Supreme Court litigation (and there are downsides) - you know who you're going to be talking to. The people who do this often have an advantage. They know what will happen.

Most litigation - you're facing more unknowns.

Cohen is at end - saying the thing that Holmes has to believe, that its uncomfortable to say. You're not not predicting what the judge will do - you're predicting how what the judge can do can be affected by what lawyers can do.

Trial judges have acquired an instinct for the difference between the conversation and the transcript. Transcript reads like sweetness and light - even if was different in conversation.

Sometimes - lawyers try to make the judge mad to induce reversible error.

This is where Felix Cohen is at work. These really are the social forces set loose in the court room by the fact that there are human beings there.

If you're really into this prediction thing - you have to stop thinking its about where the judge went to law school, or his attitude about labor-management. It's a feeling for the organism, his attitude at the moment.

[Jazz]

If Cohen's really talking about a form of applied social psychology - the influence of minds on minds. How minds really work - not how they think they work.

We're back to something distinctive about 20th century American law thought. The recognition of the role of the unconscious. Maybe implicit. We live in a culture which got the point of Freud in a basic way.

Cohen: talking about how good are rules for finite deductibility. A lot of discussion of law as a sociological force. But key: understanding the role of the unconsciousness. Letting go of the idea that policy emerges from a Platonic inquiry.

The game of pretending we don't know what we know about people is a bad habit from the economist. Strong foreshortening of human behavior in order to make tractable hypothesis is economics.

Cohen: humans don't work the way they think they work - they work they actually work. Don't shorten it to get tractable answers. Cohen begins to open the window on this

Minarets poster article

Control of fears is very important.

Others could have been used instead.

What is the real grammar of power?

02.02 Tuesday

Where does legal creativity come from and how does it operate?

Need to clear more brush. Law and how to learn it.

Realism.

Realism itself is a creative event. It had a great influence on the US. It also generates legal creativity.

The premises of legal realism: 1. Things are what they do, not what they’re called. 2. Legal decisions are their consequences, primarily 3. Judicial decisions, like legislative outcomes, but more so because more reasons are given, are rationalizations for results otherwise arrived and otherwise explained.

The life the law has not been logic, but experience. It’s not by deducing rules that you figure what law is. The desire, unconscious or conscious, for certainty or stability, is a strongly unrealistic component of the way we address legal concerns.

If we can’t understand the world in certain terms, it disturbs us.

We have an anxiety when we have trouble separating law from politics.

This threatens the peace of the people in charge and their being in charge. A subsidy to their power comes from people thinking law is separate.

There’s less resentment when losers think they lose because of laws, which protect their freedom.

If losers think law is politics, which it is, struggles will grow more heated, and the rulers will lose sometime.

Creative legal thought thinks outside the box. The box: everything is certain, and everything works because law is a scientific discipline.

You can take some legal thing, and drop in little depth charges: race, class, religion, and there will be little explosions.

I will occasionally raise one of these questions, to lead us to a bigger thing.

Law professors: generally not creative thinkers. Roman jurisprudence – grew more conservative and useless.

Law students: characterized by anxiety.

Can you understand your presence here as mere chance? There are millions of people in the world who are not here, because they were never given a chance. If you can’t have that recognition, you can’t see reality for what it is.

Real issue: insecurity and lack of self-worth.

Free yourself from certain illusions, to begin struggling with life.

If you take Jerome Frank seriously, all that’s left is do go home. His fact skepticism is the most corrosive at all. You don’t know if you know anything.

But he has a limit which is just as phony as Sunday ethics of Cohen or the glimpse of the infinite in Holmes.

No one really thinks that the indeterminacy means that we should drop off a cliff. They mean you should pull yourself back.

A lot of what they are struggling for we take for granted. And other stuff – its taboo and we can’t think about it.

So, contact with the writing is distressing.

Question: does law reflect politics?

Law is politics. It’s all one ecosystem. Look at how public opinion, as well as judicial opinion, creates the reality within which decisions are made and implemented. Power is allocated – that is politics. Power is allocated in many ways - some in Lawville, some in Bribeland.

Stripe 2:

I have said: don’t pawn your license for a job.

I have said: millions of people need your help. No justice will occur without you. Many of them have lost everything which middle class stability was supposed to contain. 6 people are looking for a job for every job. Labor market less unionized than in 1939. Very few people your age think the pension system – which eliminated old age poverty – will care for them.

Among the millions of people smarter than you who will never get a chance to come here are many Americans, who are viciously discriminated against when it comes to law schools.

There’s lots of work for you to do. If you use your license well, you can do it. Make comfortable livings, and be dangerous. Power will do what it can do to keep you from learning how. You will take a job with a firm that will be increasingly hard to leave. They will pick a role that will not be dangerous in any meaningful way. You will make money but have significant distress for decades of your work life.

One thing we need to do: is meet some lawyers.

What does it mean to be a lawyer?

How does what kind of lawyer we are determine what we are like? How we are like? What it feels like to be us? We need to spend time with the inner lives of lawyers?

Pawn shops: On 6th Avenue, musicians kept their instruments in the pawn shop. Got them for a gig. Then when their money ran out, they pawned them again.

However, be careful. Your license is the most valuable collateral you have. Americans use to only take out second mortgages for financial distress. Then, smart people got them to think of their houses as ATMs.

Public debt: are owners of the society affected? Notion of “our debt” and national public debt. No. Conceals that there are a few winners, and a vast mob of deluded losers.

Fraud. Lying about material issues and profiting from them. Knowing activity.

Law firms: asleep.

1967: people started realizing that adults had no idea what was going on, and it was going to kill them. The people running the society did not understand what was going on, didn’t care, and were going to kill them. That had a very good effect on American society.

It was a good time, because young people got very serious. Bill Clinton and his friends went off to Oxford. Didn’t worry. His roommate killed himself, though.

When Strobe Talbott lost an eye on the squash court – response of his friends well, don’t have to worry about the draft.

I remember the law students of 1968. They were in the streets. They were defending the rights of people who didn’t want to fight.

I wish for the sense that there is life or death at stake in all this.

The US government has decided the sensible way to fight the war in AFG is targeted large scale assassination.

William Colby – Vietnam – Operation Phoenix – killed VC sympathizers.

Now, robots in the sky. Often kill others.

Student: Where are the concentrated causes?

You see black folks getting a fair shake?

We’re living in a torturing country. That’s not urgent?

We have people in jail without charges?

I have a few causes I’m working on.

You have millions of dollars being taken by pharmaceutical companies with invalid patents.

There’s this thing called global warming?

There’s, as always, people being ground into poverty.

There’s been a generation of propaganda to teach people that causes are bad for you and government is bad.

We’ve had a year where white people stopped supporting Barack Obama. That took a lot of work.

Now, may be true: the tactics of 50 years ago might not work.

If you choose to do something, you can do it. If you know what you want, and what to do to get it.

Books: Parting the Waters Time on the Cross

Issue: were 1960s youths just protecting themselves from draft?

No. What was it that people were doing when they gave up their summers to register people to vote? Just staying safe?

Issue: Protests work?

This isn’t the Columbia School of Protest. That’s a tactical question. I want you to think deeply about strategy.

What are your objectives? What are your resources? How to get the most objectives?

Assessing protest efficacy – depends on the objectives.

Issue: Is society more conservative no than the 1960s?

The problem is cowardice. I support Obama’s skill, but for courage – not clear. We will see.

LBJ was a better politician than BO. He had many many decades of experience. BO has talent, but less experience. BO has the benefit of studying LBJ.

But he’s about to make the same mistake. We know from the tapes that LBJ knew he was making a mistake. He knew Vietnam would break his largest plans. He put 400,000 troops in. In real dollars, cost less than the troops in AFG. A million dollars per year per pair of boots.

This is where belief comes in.

This is just the second strand. Where I say don’t pawn licenses.

Third strand – there’s this wiki.

. Make topic pages .. Why these ideas do or don’t help me

If you make a topic page, and you put at the bottom of it,

%comment%

Which adds a comment box. Sort of turns it into a blog. After comments pile in, refactor it. Make an honest and thorough summary of it.

A said, and I think, but B and C agree. Then you remove the comments. Anyone can still edit.

. Class notes

Assessing wiki:

Effort Commitment Improvement

Can examine all the edits. What’s happenings as a result of that?

You can give any page an index. Most people don’t want to make a deeply tree-structured wiki.