I changed my paper substantially this time around, hopefully taking into full account your comments on the first draft. I decided to eliminate the second topic entirely and try to more fully flesh out my ideas about law and morality, particularly focusing on judicial decisions. It needs more work, but I hope this is an improvement. I changed a lot of it, so I decided just to include the revised version on top of the older version, rather than actually writing on the original.

Kristine

Law, Morality, and Magic

By KristineVanHamersveld - 16 Apr 2009

As first year students, one of the first important dichotomies we learn in legal scholarship is that of the battle between Langdell and the Formalists and Llewellyn and the Realists. Presumably we do so because we are trying to answer one of the most important questions we, as law students should ask: how do judges make decisions? This question is relevant not only intellectually to law students assigned to read holding after holding, but also for us future lawyers that will need to convince judges and future judges who will need to be convinced. In order to answer this question, its necessary first to decide what “law” is, and only then can we begin to approach a discussion of how it may be invoked by judges in their opinions. Formalism tells us that law is what’s on the books. It’s the black letter of a statute or the Constitution staring up at its reader, explaining for better or worse how each and every conflict must be resolved according to the carefully debated “law.” Legal realism tells us that law is the person reading the book. It’s the judge, and all of her education, moral values, and life experiences reading the letters in the book and making a decision based on how she reads them and how she views the case set out in front of her. Neither theory is completely true or false. The grey area where the two approaches unavoidably overlap is where the answer to my question can be found.

Judges are moral beings, like everyone else, but in their role as judge or justice, they must assume a level of moral neutrality or else risk being labeled as “activist.” Their challenge is to make the “right” decision based on myriad considerations, including but certainly not limited to: doctrine, statutes, history, the Constitution, and some sense of “American” values. When more closely examined however, these elements of the law can all be reduced to the same common denominator: morality. Statutes are rules that derive from the moral deliberation of legislatures. The Constitution is a written summation of the moral values of the politicians that designed our country. Doctrine which is based on a mix of all of the above, contains the moral element of each of its parts as well as the morality of the hand that writes it. History, like doctrine, is broad, but as applied to the law, history is little more than a moral framework, grounded in the legitimacy of nostalgia or our moral past. American values, are literally morals; shared political and ethical ideas that one has to buy into in order to buy into the system as a whole.

At the end of the day, or rather, at the end of the opinion, the judge is left with very little besides moral values to base an opinion on. Law is not the same as morality, but it is so intrinsically connected to the latter that it makes any illusions of objectivity in the law comical. But, society’s version of morality (encompassed in the sources mentioned above) is not enough to produce a judicial decision. Law is as much the written words, as the judge who is reading them, and each judge brings his or her own history to the bench when they interpret the law.

The debate over separation of powers in Constitutional law provides an illustration. For example, in the Steel Seizure case, the majority held that the executive power of the president did not include a power to seize the steel industry to prevent it from striking during a war. The opinions on both sides were written so that they appeared to depend on analysis of legislative history, the text of the constitution, and previous doctrine. Certainly, these elements guided the decisions, but it wasn’t the history, or the constitution, or the doctrine that wrote the holding, it was the judge. The most important question in this case then wasn’t “what does the constitution say about executive power” it was: “how do you (the judge) feel about restricting executive power, and where can you find support for that in your reading of the sparse words of the constitution?” Whether you think “executive” means “plenary power” or you think “executive” means “executive limited to the enumerated powers” cannot possibly be answered by “law,” the law doesn’t have an answer. The solution depends on the judge’s political philosophy and moral values regarding the role of the President and the legislature. Once, this fundamental question is addressed, the justices can dress it up in transcendental nonsense, give it the “look” of objective validity, and move on to the next case to repeat the process.

Cohen’s “legal magic,” which at first glance appears to exist in the opposite of a moral system of law, enters the equation precisely because law is so morally derived. Cohen criticizes using extreme formalism to make legal decisions, rather than ethical considerations, because he’s right that it amounts to nothing more than argumentative nonsense. However, the nonsense is really, the second (or third, or fourth) step in judicial reasoning. The “legal magic” is the icing on a moral cake. The cake itself is made up of one part society’s moral values (which encompass all of our traditional sources of law) and one part personal moral values of the judge (or as Llewellyn says, perhaps of what he had for breakfast). But, no one will eat a cake without icing. The legal magic, the esoteric argument for the sake of argument has to exist as a cloak of legitimacy on the entire system, lest the public discover, their objective iron clad system of law is nothing more than a manifestation of subjective moral values.

Indeed, the only reason that “legal magic” is harmful at all is that it’s distracting. It draws our attention away from the real source of judicial decision making and has us running like hamsters on a wheel, in a circular pattern, trying to discover a truth that is inaccessible to us because we always end up exactly back where we started.

Law School and Contemporary Society

By KristineVanHamersveld - 26 Feb 2009

If its true that law school doesn’t teach its pupils how to be lawyers, what does it teach us about the law? As a law student of almost seven months, I can say without hesitation that I have learned something by attending law school, even if it requires a thousand words to speculate on what that something might consist of. I’m not sure however, that I have learned how to be a lawyer, or even, what a lawyer really is. Although I have been immersed in more “law” than I can absorb, and evaluated in a way that is not conducive to absorbing it, I believe I am learning how to think about the law in a way that law professors (and presumably practicing attorneys) find valuable. If judges, law firms, and law schools did not find this kind of thinking valuable, they would recruit clerks, associates, and scholars from other fields. Instead, they chose law students, who have specialized knowledge and skills that can, presumably, only be found in law school. This short essay will focus on two facets of the specialized body of knowledge that law students glean from attending law school. First, law students must understand the complicated relationship between law on one hand, and morality on the other. This relationship becomes apparent almost immediately to law students by reading judicial opinions under the case method. Secondly, law students learn on somewhat of a meta-level about the value of their own knowledge, as “secret” and if not how to exploit that secret, merely that they must exploit the secret just as Neff’s salesman exploits his monopoly over certain goods.

Law and Morality

When justices of the Supreme Court hand down opinions that shape our law, they know they must base their decisions on past decisions, or “doctrine” so that the body of law as a whole is internally consistent. They do not, so they claim, base decisions on a personal compass of “right and wrong.” To do so would be to render law subjective and thus, intellectually impotent. But, what is doctrine but past decisions, based at some infinite beginning point on the personal opinion of the justices.

• This doesn't follow. It results from a false dichotomy: the two possible routes to a decision are reliance on past cases and personal judgments about right and wrong. A moment's reflection will disclose, to take one example, the existence of statutes.

The constitution is just a collection of words if judges don’t give it meaning, and they derive this meaning from their own sensibilities of morality.

• Another uncertain step. Perhaps they derive meaning from history, for example.

Law itself is merely morality and social values in codified form. Felix Cohen, as many do, finds disturbing a system of supposedly “logical” decision making that is based largely on “transcendental nonsense;” arguments rooted in other arguments rather than arguments rooted in fact and policy. However, Cohen also recognizes that this sort of “legal magic” is necessary,

• Are you sure? Could you have pointed at any evidence for this?

and hints at the tension between law and morality that keeps our system functioning.

• For this "hint" it would be good to have a little evidence and some discussion. I've read the piece often, and my impression is that Cohen believes a theory of ethical value and a refusal to engage in transcendental nonsense can integrate to establish a foundation for realistic law.

We have learned to keep law and personal morality separate, but we need them both, and we need their intersection in order to maintain our system of legal magic. Our legal system aspires to be one in which, if you know the rules, you know the consequences of breaking them. A system like this is not functional if the “rules” are based on the judge’s own personal, moral policies. Legal arguments are necessary to keep the system of law we know today functional: but, is it really functional? Judges, constrained by legal circular argument and categories such as “corporation” or “person” as Cohen points out, get cases morally wrong all the time. However, if judicial opinions consisted only of a judge writing to say he or she believes the corporation was wrong and should be punished, we have nothing to guide us in the future but the personal leanings of judges and legislators.

• But this is obviously a false dichotomy: opinions either consist of circular argument or else they consist of personal beliefs only. We need a form of analysis here that is less dependent on inflexible alternatives and the law of the excluded middle.

Knowledge of the Law as a Lucrative Monopoly

• It was probably more than enough to try to present two ideas in this essay. Compression is part of the reason the analysis of the first idea is weak.

Second, we learn that law is a profession, and that as lawyers, we are valuable because we have “secret” knowledge.

• The knowledge you are talking about is not secret, consisting as it does almost entirely of public sources. It's intricate, requiring both assisted training to learn and acculturated judgment to apply. And it's licensed, requiring public demonstration of minimum skill in order to practice. Both intricacy and regulation affect the political economy of the work, but a moment's thought will disclose numerous reasons why "monopoly" is not the best model for the resulting analysis.

Just like the professional salesmen/swindlers in Leff’s Swindling and Selling, lawyers have a self-perpetuating monopoly on “understanding the law.”

• "Just like"? Leff's sellers are often dramatizing competition rather than monopoly, and the lawyer is a seller of services, but the similarities aren't close enough on that basis alone to be denominated "just likeness," and it's not clear what Leffian analysis will get you unless you are concentrating your attention on how the moment of retention occurs.

The law is so convoluted, we are shown by law school, that it is entirely impossible to navigate for someone who hasn’t learned to “think like a lawyer.” This gives lawyers a monopoly on the law that enables them to sell their interpretative services to marks (clients), in an accepted framework that no one questions as a scam.

• Very few people consider themselves skilled in cutting their own hair. Does that mean that hairdressers have a monopoly that makes their provision of services a scam? And why is monopoly (which doesn't exist here, anyway, unless one can think of 1.14 million individual licensed practitioners organized in tens of thousands of competing entities as a single unit) a demonstration of "scam"? Have you concluded, by the way, as an implication of this argument that copyright and patent are scams? Tightening the analysis here is very important, indeed crucial, to having any argument on this point at all.

Law school, in teaching us to think like lawyers, perpetuates the idea that “thinking like a lawyer” has a value above whatever tools law students were using to think with before entering law school. What we think of as the law is in essence, nothing more than the codified thoughts of lawyers, who have been trained in law school to think like lawyers. Thus, the pedagogy of law school creates a closed circle of thought, to which largely only former law students can contribute to or understand, but that is necessary to the life of every person on the planet. Thinking like lawyers allows us access to this critical monopoly that we invoke when we swindle or sell our services to people who need them throughout our careers.

Are these two ideas, law and morality on one hand, and a monopoly over knowledge on the other hand related in a meaningful way? Perhaps, but perhaps not. It could be said that law school teaches us (or, at least has taught me) first what law is (a complicated mix of transcendental nonsense, and moral intuition) and then how to make a living from it (exploit the monopoly). This analysis would connect the ideas presented in my paper in a step one, step two, kind of road map to a legal career. I’ll never know if that was Columbia’s intention, or the intention of my professors, or if it is just an arbitrary observation made by a life-long student programmed to make connections between things that are more or less unrelated. In any event, I hope the thought itself, and the analysis here have some intellectual value.

• I think the draft needs trimming: I'm dubious about presenting both of these points, or some version of something like them, in the same piece at this length. But trimming alone is not enough: the arguments supporting both insights have serious weaknesses that need to be addressed. Reformulating the arguments may change their course or conclusion, to be sure, but the analysis has to be tighter to show your thinking to advantage.