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.