Usually I take my notes on a Google Doc but I'll do it here for this course. It gives me a chance to experiment with the site mechanics and if anyone wants to comment on my notes feel free! They're usually pretty scatterbrained and fragmented fyi

-- JackSherrick - 16 Jan 2021

Jack, I just found this! Thank you for making it available to all of us. It's interesting to see what others take from the readings.

-- OliviaMartinez - 02 Feb 2021

No problem! It feels strange making my notes public but it's kind of liberating making your thoughts public regardless of how developed they may be

-- JackSherrick - 03 Feb 2021

These notes are fantastic.

-- DawitAklilu - 03 Feb 2021

Additional Readings Suggested on the Ether/Journal/Etc.

Hohfeld's Fundamental Legal Conceptions essay from 18 Yale LJ. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2324

Path of the Law

• Legal duty is prediction that if a man does or omits certain things he will be made to suffer in this or that way by the judgement of the court
• Law and morality
  • moral rights are not equally legal rights
• If you know nothing else, can you know the law?
• Law constrained by morality
• Morality constantly/arbitrarily changes (anti arc of moral universe view)
• Where law comes from?
• Fallacy - only force at work in the development of law is logic (8)
• No "correct" laws, not mathematical
• Do individual rights naturally infringe upon each other?
• "imitation is a necessity of human nature" (11) role of tradition
• Best laws serve articulated ends
• "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" (12)
  • tag jurisdiction
• Tradition overrides rational policy and augments its own importance
• Law and economics
• Following existing body of dogma into highest generalizations, then look at history, then ends of laws and why those are the ends
• Why are we catering to the "bad man?"

Transcendental Nonsense

• Like socrates world of ideal forms
• Where is corporation question rather asking more substantive questions
  • Court did not use interdisciplinary approach
  • Trivial question
  • Trying to “thingify” corporation
• “Language is primarily a pre-rational function” (812)
• Divorce law from non-legal concerns
• Court made unions a person, addressing their metaphysical absurdist argument
• To call something a person in law is merely to state that it can be sued
• How can trademark be property
  • Trademarks are protected bc they have economic value, but they only have economic value because they are legally protected
  • Courts are not creating property, only creating sources of economic wealth
  • Language (like air) only becomes economically useful when someone else is deprived of it
• Property is function of inequality
• Value of utility property
  • The value is a function of the court’s decision
  • Not based on economic fact
• Due process
  • Legislation falls within due process when it is such as rational men may approve
  • Not connected to morality
• Law is used to answer empirical and ethical questions yet is not defined in ethical or empirical terms 820
• Legal concepts are supernatural entities (corporations or property rights) which must be believed by faith
• Rules of law a theorems in an independent system
• Jurisprudence - autonomous system of legal concepts, rules and arguments (821)
• 2 significant questions in law
  • How do courts decide cases of a given kind?
  • How should they decide cases of a given kind?
• Math
  • What is a negative integer
  • We have ways of understanding it (going into debt) but don’t actually know what it is
• A thing is what it does
• Any concept is nothing more than a set of operations
• Holmes does not try to show that a legal entity possess certain inherent properties
  • Holmes offered a logical basis for redefinition of every legal concept in empirical terms
• Implications of new functional analysis
  • About what questions are propounded
  • In religion - shift toward study of consequences of religious beliefs in terms of human motivation and social structure (Weber!)
• Institutions are collective behavior patterns
• Creative legal thought will look more and more to the actual facts of judicial behavior (833)
  • Mcklesky - Baldus study
• Question - if this view of the law becomes the norm, will it lose its potency.
• Holmes - law is what the courts do
• Blackstone - law is rule of conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong
• For Hobbes - state of nature is analytical starting point, not actual historical period
• What a judge ought to do is a moral issue
• 842 - judges essential make their own law
• Judges decisions are peculiar and suffers erosion unless it represents first salient manifestation of a new social force
• Courts are generally conservative institutions
• Bentham - pioneering legal descriptive scientist

Folklore of Capitalism

Chapter I

• Economy and law are attendants of government systems
• “Laws and morals and economies are always aerated against new groups which are struggling to obtain a place in the institutional hierarchy or prestige”
• Hell analogy
• Argue that opposing systems spit in the face of reason and the current system is the “truth”
• The “thinking man” - abstract man that uses has ability to understand sound principles and free will to follow them
• Tension between free will, reason, and emotion
• Thinking man limits his news intake to reputable sources that address him without making emotional appeals
• Faith in capitalism masquerading as reason-based acceptance
• Cherry-pick evidence that corroborates their creed and cuts against other creeds
• Supreme court’s opposition to Roosevelt provided spiritual comfort to believers and obfuscates the underlying causes requiring the exercise of national power
• “Revolutions give morale and organization to radical individuals” (13)
• Public debate centers upon trivial criticisms of opposing systems
• Church outreach is now seen as more important than holding service (17)
  • Disagree
• How the belief in a universal truth drives ideology/thinking/religion/etc.
• Supreme court as emblem of universal truth in law and government
• Each generation tries to dictate social philosophy of posterity, and in the long run always fails (20)

Chapter II

• Defense of capitalism is not an explanation of the creed, they are part of it
• Elements of social organizations
  • Creed unifies but difficult to understand
  • Set of attitudes that esteem creed
  • Habits
• Constitution furnishes the limits beyond which controversy cannot extend
• Illusion that constitution enshrines all our principles
• Only minority parties can writes creeds without contradictions
• Government interference is America’s national devil
• Democracy appreciated as political fact
• No longer dispute between monarchy, aristocracy, or democracy but between capitalism, communism, and fascism

Chapter III

• Cardozo - the law is really literature
  • What’s literature?
• Folklore encourage industrial development and hampered government intervention
• Indignation at opposing systems not predicated upon selfishness, but idealism
  • Train rates illustration
• Use reason to get to a place where emotion lies. Emotion true motivator
• Sit-down strike illustration
  • Construed issue as right of individuals to be undisturbed in possession of their homes
• Roosevelt court-packing
  • Roosevelt was suggesting the use of constitutional powers
  • Parade of horribles
• Initial rejection of quinine
• The “thinking man” is excluded from many arenas (60)
• Says the law has traditionally been concerned with individualism and morality and economics was for legislators to consider
  • Not sure I agree with this (e.g. Hand’s theorem, efficient breach, etc.)
• Detractors believe socialism will descend into communism or fascism
• Ideas of dissenting judges were precluded from political debate until Roosevelt’s attack on the court
• Law - spiritual welfare. Economics - material welfare
  • Nietzsche - we are just a body therefore material and spiritual welfare are inextricably linked
• Columbia economists believe economic portends fall on deaf ears of public. Public indifferent
• Politicians not running on sound economic principles, but on how to get votes
• Supposed to elect to office those persons who did not care whether they were reelected or not
• Sloan - industry can no longer be concerned with the mere physical production of goods and services (72)
• Common belief that progress found in formulation of principles rather than control and organization (75)
  • Anti-Hayek, or Hume? One of them I think
• Higher lawmaking Ackerman
  • Supreme court will amend constitutional without formal amendment if they see reforms are will of the people (76)
• Constitution just a receptacle for people’s moral views
  • Is this inevitable (“It is a constitution we are expounding”)

Chapter XIV Some Principles of Political Dynamics

• Distinguish science about law and economics from science of law and economics
• Will we ever be able to automate lawmaking or judicial decisions making? Feed a set of inputs into a machine that spits out principles/statutes/opinions/etc.? These predictive theories make it seem like that could be possible. Is Hobbes’ benevolent dictator a computer?
• Anthropologist does not venture into law and economics
• “Political dynamics” science about society that treats ideals, literature, economics, religion, etc. as part of a single whole with unifying principles (349)
• Sets out series of principles
  • 1) men engaged in cooperative activity develop habits and the organization develops a “personality”
  • 2) personality is result of accident and environment
  • 3) difficult to change personality of an organization
    • Seems to advocate for incrementalism (or revolution)
  • 4) Organizations have 3-d substance and personality is given a monetary value
    • Personifies companies
  • 5) organizations personified in public mind cause their own members to adopt the personality of the organization while working in it
  • 6) Institutional personalities have contradictory roles/personalities
  • 7) institutions can survive even if they aren’t useful
    • Status quo bias. No one wants to look like a hypocrite
  • 8)Institutional creeds must be false to be effective
    • Consistency will push people away, contradictory roles ensure survival
  • 9)Contradictory ideals and actual conduct must be reconciled, oftentimes via ceremony
    • Equal business opportunity myths are combatted by employee/r banquets
  • 10) conciliatory ceremonies are for own members, not outsiders
    • Must look at effect on institution itself, not on outsiders using different standards
    • Contradictions in ideals are emotionally necessary
  • 11) when conflict tween ideals and practical needs are so great, institution splits into two, one side is ideal, other is practical activity that contradicts ideal
  • Wages and Hour bill. Man was cruel in business but generous in the church
  • Separate institutions representing ideal rarely act, tend to pontificate
    • E.g. Universities
  • Arnold’s 11th law of political dynamics seems to be pulling the Republican party apart. The conflict between the ideals and practical needs of the party are so acute that it cannot be reconciled, resulting in a split. The Trumpist wing is the more idealist and the Romney republicans seem to be more practical. Do you think this is a fair estimation would Arnold explain the split differently?
  • 12) universities don’t do much practically
  • 13) When problem is practically addressed, there will be less thought on the matter
  • 14)immoral organizations as necessary evil
  • 15) orgs are dependent upon their enemies for survival
  • 16) org representing ideal will be more respected than one ministering practical need
    • Relationship between law and bureaucracy
    • Mass of conflicting opinions obfuscates outcomes
  • 17) Liberal reform tries to make orgs consistent but they need contradictions in order to operate
  • 18) most efficient orgs are when ideal and practical needs are aligned
    • E.g. corporations and the army
  • 19) impossible for ceremony and lit around orgs to be consistent
  • 20)Every need needs an ideal
  • 21) public debate is ceremonial and has nothing to do with practical analysis of facts
    • Disagree, informs public so they can contribute to fact analysis, provide additional evidence
    • Innoculates public to idea before practical means enacted
    • Public argument never convinces other side, only binds together a side
      • Disagree, certainly has more binding effect but ppl definitely change opinions after hearing public debate
    • Socrates saying he’s smarter than everyone vibe
    • (382). One function of political debate is to discourage turnout by making it really negative.
  • 22) not logic but orgs that rule society. Humanitarian reformers don’t realize this
  • 23) Intellectuals are the formulators of principles in situations where public demands slogans
    • I <3 NY
  • 24) decline of institutions are product of phobias against practical action produced by their own ideas
    • Trumpism and capitol riots. (could be supporting or counterargument)
    • Power vacuum
    • Men can’t face world without some sort of religion
  • Greatest destroyer of ideals is he who believes in them so strongly that he cannot fit them to practical needs

How to write a 1000-word essay

*

• single idea
  • comes from you. Reliant upon unique blend of experiences, preferences, etc.
  • Distill the idea to its essence, make it yours
  • Want to be able to distill idea to a simple sentence (like "topic sentence")
• Straight to the point (no bs)
• Don't do all the thinking for the reader, leave them room to mull over your idea
• Conclusion - show reader that they can take your idea further
• Let your essay spawn more essays
• First draft ought to be bad
• Necessity of outline