Law in Contemporary Society

Holmes as a Framework for Making Change Through Words

Originally "Creative Lawyering " By AndresOFarrell?

Lawyering is more than prophesizing.

Holmes defines lawyering as “the prediction of the incidence of the public force through the instrumentality of the courts”. It might appear that his view of the role of the lawyer is reduced to a mere anticipation of what the courts will do in fact. From this standpoint, then, the quality of a lawyer’s work should be judged against the accuracy with which he or she can calculate the most likely behavior of a court of law under a given set of circumstances, in much the same way as the stock price of publicly traded corporations serves as a report card for the projections of a securities analyst. But this is an oversimplification of Holmes’ point. Rather, Holmes’ framework for the study of law is practical and far-reaching in guiding lawyers toward attaining the tools they need to make salutary changes in society using words.

A litigant facing a contested issue should certainly be familiar with the legal precedents governing the case. However, the ultimate aspiration of the attorney should first be to counsel his client in a way that effectively reconciles the client’s goals and the legal boundaries, so as to avoid liability. This will be guided by existing decisions and statutes. Predictability is a highly desirable commodity in any legal system. In this sense, all agents in a given community need to know and understand which conducts are allowed, which conducts are forbidden, and under which specific circumstances might their actions trigger a punitive response from the state. Insofar as the law reflects a system of morals as seen by the community, legal rights and duties create a useful framework that incentivizes desirable conduct across everyone, including those who are immoral or even amoral.

Making change in a dynamic world.

But, human relations are intrinsically dynamic and they are changing at an ever increasing pace. Distances have shrunk, information is more readily available, communication is virtually instantaneous, markets have become global and a great share of the world’s assets is now intangible. Thus, increasingly complex transactions are now closed with a speed and coordination that, merely a few decades ago, would have baffled even the most sophisticated financial architect. On the other hand, legislative lawmaking is essentially reactive. It follows change slowly and, unable to provide detailed directives and guidelines in advance, attempts to regulate in hindsight. In this sense, passing a new law implies addressing an already existing problem, issue, or practice.

And so, in a world in which these two driving forces move at radically different velocities, it is lawyers who must bridge the gap between them; that is, between the ever changing practices of human interaction and the sluggish promulgation of the parameters by which they are governed. In counseling clients, lawyers are the frontline communicators of public morals as codified by the law. A lawyer must use his creativity to anticipate the client’s needs and to provide useful guidance as to how those needs may be met in ways that will not result in the imposition of legal liability, using precedent as his guide. By applying the law to his client’s situation, the lawyer’s guidance is a direct reflection of the dynamic nature of the law. Although nothing has changed in the wording of the statute or the body of the common law on the subject, the lawyer has given the law a new meaning.

In this context, as Holmes recognizes, the lawyer assumes an important part in observing, understanding and predicting the behavior of those in charge of interpreting and applying the law. The goal is that clients will comport themselves according to what the lawyer informs them will best in avoiding the assessment of liability. Likewise, Holmes notes that where the law extends beyond public morals, it will be difficult to enforce, because society will refuse to obey it. Being a lawyer means having the first chance to take steps to ameliorate such situations by seeking to obtain entirely novel rulings that fit the specifics of his or her cases and by lobbying the government. By nature of the fact that lawyers are in closer proximity to the community than are legislators, they have a unique opportunity to see how their predictions about courtroom decisions will direct behavior, and then assess the overall effectiveness of existing laws. Thus, when the statutory setting is not receptive of the newest tendencies of conduct, lawyers are there to offer useful guidance as to how to improve it.


Holmes says that “we could reconstruct the corpus from [reports of a given jurisdiction in the course of a generation]if all that went before were burned.” However, the truly landmark cases, those that are remembered, studied, analyzed and dissected for generations, are those in which the legal counsel, with new and creative arguments, is able to convince the court to steer away from its previously established line of thought on the subject. It takes heightened perception, creativity, bravery for a lawyer to make change within the system, but by studying the law from a standpoint of predicting the assessment of liabilities, understanding how the law is at work in actual situations, and, finally, making and acting up judgments based on the law’s ultimate reconciliation with public morals, lawyers work with impressive efficiency to hasten societal progress.

It is that creative and bold mentality that should inspire lawyers, a will not to be constrained by a perceived rigidity of the system but to understand it and promote change when necessary. Holmes sets forth an idea about the study of law that sharpens the tools a lawyer needs to do so. What makes a great lawyer? In the end, it is not simply going by the precedent, but using it with purpose and accuracy.

  • What Andres had done in the first draft didn't work for reasons I tried to specify. Your view of the purpose of editing here seems to be to accommodate my criticism while leaving the draft as much in place as possible. But if his draft won a victory over a straw man, yours doesn't really have any reason to draw in Holmes at all: you're not gaining anything from him, and—as at the beginning of the conclusion—there remains enough misunderstanding of what Holmes' says to require you to spend more time mending.

  • Your points about how counseling works are more or less accurate, but incomplete. The problem is that except in areas either tied immediately to litigation, or to very comprehensive systems of regulation, such as tax or securities, counseling is rarely so directly related to predictions of the presence or absence of legal liability. Counseling is more about helping client's to define objectives than to measure whether particular implementations of objectives create liability.

  • And liability comes in more than one flavor. The client's position is not adequately summarized by asking whether he has avoided incidence of public force. Too, a non-liability it is complex and expensive to enforce may be more important to avoid than a liability with clear boundaries and administrable regulatory burdens.

  • Not carrying so much Holmes along on the effort has its problems too, as Andres' own subsequent revisions showed. The trouble lies also, I think, in an attempt to make creativity appear to be primarily about changing the rules. This is peculiar. As one grows in skepticism about rules, one might have thought, it would be natural to grow also in skepticism about the importance of making formal changes in them. History would then reveal that making changes in rules is harder than making changes in facts, hence the very mechanism of the legal fiction, which turns out to be fairly widespread. Rule skepticism has implications for the notion of creativity too, I should have thought.


Webs Webs

r3 - 08 Jan 2010 - 22:32:29 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM