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? 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.

II. Decisions by the Judiciary Are Inherently Subjective

“Where are you from?” I asked.

“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.

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. 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 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 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 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.

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. You look like a nice guy... Remember my name and send me whatever money you aren’t gonna use. Consider it charity.”