Law in Contemporary Society
Our first papers will be assigned soon. We need to learn how to edit and to be more concise. Disagreeing with someone’s point is easy. Actually understanding their argument is the real task – Creative thinking is going past something: “it’s an end, not a but.”

Destroying the music industry would be a worthwhile goal. Remember that Columbia controls and monitors our computer network. They will give up your names to the music industry without a fight. For anyone that is interested in maintaining their privacy on Columbia’s network, TOR and Privoxy are excellent, “free,” open-source tools for avoiding such monitoring. They are not, however, perfect solutions.

Cohen / Transcendental Nonsense:
"We think of law as a pattern of judicial decisions" (as was suggested by Holmes). We observe that Judges are completely unlike all other lawyers. Lawyers are supposed to predict the law, but judges cannot predict themselves. It was suggested that this may not be the case for a judge who is attempting to predict how an appellate court will decide a case.

While judicial rules and concepts can be broken down into their component determinants, it is a mistake to view them as the “simple unanalyzable products of judicial hunches or indigestion” (843). Doing so would deny the “relevance of significant, predictable, social determinants that govern the course of judicial decision.” (843).

We should not look at a judicial decision but rather at the social forces leading up to it (its determinants), and those resulting from it (its consequences). The meaning of a decision and indeed the law can only be understood in its social context. Social forces give the decision both “momentum and direction.” Social determinants and social consequences are what the law is.

Consider two examples:
1) O'Connor v. Donaldson [wikipedia], 422 U.S. 563 (1975) held that involuntary commitment without due process is a violation of constitutional law. In order to understand what the decision means, one must examine the social consequences that followed in its wake. Homelessness increased and became more obvious to the public – people learned to ignore the plight of others, just as cities learned to buy the homeless one way bus tickets to the next town.

2) Marbury v Madison: Constitutional Law classes ignore the actual facts of the case. They teach it as establishing judicial review and as a case in which the judiciary did not have the political power to stand up to the executive. Eben notes that Marshall considered President Jefferson (his cousin) to be a coward and had no qualms about standing up to him, as evidenced by his handling of Burr’s treason trial.

How to Effect Change as Lawyers
Powerful forces are hard to overcome in a head on attack. Instead, look for places where non-linear consequences occur: where a small amount of effort can yield disproportionately large results. For instance, a single line inserted into a committee report can have significant impact in shaping a statute’s future interpretation. Similarly, by affirming rent control in FCC v. Florida Power Corp., 480 U.S. 245 (1987), a case dealing with utility poles that generated little controversy with the Court, Eben was able to preempt a later attempt to hold rent control laws unconstitutional (Pennell v. San Jose, 485 U.S. 1 (1988)). This is creative thinking as a lawyer.

-- DanBryan - 05 Feb 2008

Edited pole/rent citations.

-- DanielHarris - 05 Feb 2008

Added case links

-- IanSullivan - 06 Feb 2008



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r4 - 06 Feb 2008 - 22:55:55 - IanSullivan
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