Dear Eben, Please disregard my previous second draft as it did not say what I meant. I have been thinking about and struggling with the ideas expressed here and it took me awhile to write something that I was satisfied with. Thank you for forgiving the lateness of this draft and I look forward to your comments.

The Study of the Law

-- By HollyStubbs - 26 Feb 2013

How to study the law

I have been struggling with law school. I find the casebook method to be pedagogically flawed and frustrating. I came to law school thinking we would start with a review of different theories regarding what is the law and then move on to specific areas of the law. Instead we read cases in what appears to be an attempt to teach what law is by looking at how previous courts have answered specific legal questions. There have been some essays about varying legal theories, but little overall categorization of the questions that confront the student of the law and how others through history and in other societies have answered these questions.

The purpose of this paper is to determine a way for me to approach the study of the law.

What is the law? --> The law is what courts do.

“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

Holmes’ quote encapsulates a way of thinking about the law that seems sensible to me. Put another way, law is what courts do in fact, and the practice of law is predicting what courts will do.

Therefore, the study of the law is the empirical study of prior court behavior and then predicting future court behavior based on prior behavior. There are three related questions that must be answered. (1) What is a court? (2) How to determine how courts will behave? (3) What impact does the behavior of the courts have on society? The third question can be considered as a way to consider what courts should do.

What is a court? --> A court is a means of dealing with conflicts in society through institutions.

One way to look at this is that courts are a means of deciding conflicts between individuals in a systematic way through institutions staffed by people. This is a very broad definition of a court (I wish that I had learned in law school of different ways to answer this question, but alas, I have not). Different societies throughout history have had ‘courts’ in various ways: tribal elders, church leaders, formal legal organizations, etc.

How do courts behave? --> Courts are made of people, thus court behavior is determined by human behavior.

Courts are staffed by people, thus court action is a product of human behavior, although they both influence each other. Courts do what people do and what people do is influenced by what courts do. Therefore, the current actions of courts impact the current and future actions of courts. In this respect law is somewhat like culture. We create culture, but culture also creates us.

This means that studying the behavior of courts requires both the study of human behavior in general and the behavior of courts in particular. If the law is human behavior then how to understand human behavior? There is no definitive answer to this question. I think the study should focus on how humans behave, and not why they behave the way they do (even though the two are interconnected and speculation on the latter is helpful for predicting the former), because to a focus it is easier to empirically observe actions.

Given the complicated nature of society (and thus nearly infinite numbers of variables that influence human behavior) and the unknown (and perhaps unknowable) workings of the mind it is difficult if not impossible to predict human actions exactly. However, predictions can be made at both the individual level and at the aggregate level. Understanding human behavior is similar to understanding the ripples of a rock thrown into a pond. It is impossible to predict the exact height, distance, and power of each ripple, but is possible to predict that there will be ripples.

Definitive predictions cannot be made but a range of likely outcomes can be discerned. These outcomes can be roughly thought of as bell curves, some outcomes are more likely and some are less. Consider this overly simplistic example: the child of a janitor is much more likely to be a janitor than a banker and the child of a banker is much more likely to be a banker than a janitor.

The law both influences these determinations and is influenced by them. Continuing the example, the child of the banker is likely to remain a banker for many reasons, but some of them are created by the behavior of courts in enforcing laws such as those that allow for property taxes to pay for local schools, thus allowing wealthy families to have more money available to pay for education for their children. Furthermore, the banker child will have greater political and social capital to impact what laws are created and how courts behave than the janitor child, thus continuing the legal system that allowed the banker child to have wealth in the first place.

How to study (and possibly change) the impact of courts on human behavior? --> Law should study the range of possible outcomes that can occur from court behavior.

Law is human behavior and human behavior leads to the creation of the law and human behavior is infinitely complex, but not entirely unpredictable. Since human behavior is based upon a series of bell curves of more or less likely outcomes the impact of courts can be studied by looking at what is the likely range of outcomes and if those outcomes are not ideal then considering ways to change the position of those bell curves to more socially ideal levels.

We stand on the cusp of a new wave of understanding of human behavior which is fueled by the greater understanding the neurology of the brain, the availability of big data, and computers powerful enough to analyze all this data. The law should be a part of this movement by focusing study on how legal language, mechanisms, and institutions influence systems of human behavior.

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