Law in Contemporary Society

Generally, redistributing income to your client helps your client.

If you want to maximize your utility according to what you think utility is in the world, go for it.

But - don't take wooden nickels. Things are what they do.

Unless your client is better off, you have not succeeded. Have standards of effectiveness - don't compromise them. When you compromise them, you compromise everything else.

Statistically, most of you will do this. That's how establishment is established.

The most dangerous thing to power is smart young people who have no mortgage. We went to a debt-financing system for law school. We send students out the door with a mortgage designed to disempower them. I have been watching this for a generation.


What makes a certain concept transcendental nonsense for Felix Cohen?

An idea not related to experience. Thus, it can only be talked about on its own terms.

It doesn't have a truth value if it doesn't relate to the world - it's not true and its not false.

Where is a corporation? The only way to answer that is with some kind of law talk?

What's the limit on where a corporation can be?

Intl Shoe: It is where you can sue them in all fairness and justice.

Read the Brooklyn Law Review article on Sunday school ethics he cites, to learn more.

If the man on the bus can't get it, it's probably not right.

Here are some people trying to democratize these types of thoughts.

You have consequences, and you have values that determine if these consequences are right. Evaluations require a theory of value.

From Cohen's point of view, it's an advantage to move your value system out of system of assessing consequences.

Cohen is trying to form a democratic system of ethics founded on common sense. I find this unsatisfactory - I have some interest in rights, myself.

He believes there is no way a formal system can work. Because he believes that, he has to stop short of the concept that an evaluation of consequences combined with a theory of value can produce justice. So he recurs to this common sense idea.

Felix Cohen went to go work for Interior Department. Produced a legal handbook on treatment of Indians.

If things are transcendental nonsense because they can only be expressed in legal terms - what are lawyers for? What is the difference between lawyers in his world and Holmes' lawyers?

If the goal is to predict the judge, you're not predicting judges - you're predicting this judge. If everyone needs information about their particular judge, why can't we just print it? What would be the problem?

Judges would not want to admit that their human characteristics have consequences for judicial decisionmaking.

The first concept of legal realism: Things are what they do

and then: And the reasons given for what they do are rationalizations rather than accounts.

what do we do with that? (assuming it for the moment)

What follows for us as lawyers?

In the 1980s, on the right, there was the idea that Brennan was smart but wrong, and Thurgood Marshall was propped up by his clerks who voted for him. If you were a law clerk, you knew that to change Brennan's vote, you could press claims that he was being inconsistent with a previous footnote. Thurgood Marshall - would ask - who confirmed you?

People's views of judges is colored by ideology.

The beauty of Supreme Court litigation (and there are downsides) - you know who you're going to be talking to. The people who do this often have an advantage. They know what will happen.

Most litigation - you're facing more unknowns.

Cohen is at end - saying the thing that Holmes has to believe, that its uncomfortable to say. You're not not predicting what the judge will do - you're predicting how what the judge can do can be affected by what lawyers can do.

Trial judges have acquired an instinct for the difference between the conversation and the transcript. Transcript reads like sweetness and light - even if was different in conversation.

Sometimes - lawyers try to make the judge mad to induce reversible error.

This is where Felix Cohen is at work. These really are the social forces set loose in the court room by the fact that there are human beings there.

If you're really into this prediction thing - you have to stop thinking its about where the judge went to law school, or his attitude about labor-management. It's a feeling for the organism, his attitude at the moment.


If Cohen's really talking about a form of applied social psychology - the influence of minds on minds. How minds really work - not how they think they work.

We're back to something distinctive about 20th century American law thought. The recognition of the role of the unconscious. Maybe implicit. We live in a culture which got the point of Freud in a basic way.

Cohen: talking about how good are rules for finite deductibility. A lot of discussion of law as a sociological force. But key: understanding the role of the unconsciousness. Letting go of the idea that policy emerges from a Platonic inquiry.

The game of pretending we don't know what we know about people is a bad habit from the economist. Strong foreshortening of human behavior in order to make tractable hypothesis is economics.

Cohen: humans don't work the way they think they work - they work they actually work. Don't shorten it to get tractable answers. Cohen begins to open the window on this

Minarets poster article

Control of fears is very important.

Others could have been used instead.

What is the real grammar of power?

(The notes above were moved here for organizational purposes.)


Webs Webs

r1 - 03 Feb 2010 - 00:31:40 - ChristopherCrismanCox
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