-- DevinMcDougall - 14 Jan 2010

Clarity: 
•   Don’t seek too much
•   Think not am I for or against – think how can I use this idea

Synthesis, not analysis

Originality happens synthetically. 

The two propositions which recur

-

•   People think of public interest and security of material as tradeoff 
•   Unfortunate
•   Supposed to be smart people
o   Figure out how to have both
o   But taught to think of them differently
o   Preparatory to trading them off
o   Its easy to get people to divide things up, not put together
•   So, what I need to do is what defines the meaningful life I want, and what defines the amount of money I want
o   Easy to only handle 
•   Most important part of the sentence is AND
•   If you forget it the AND, 


•   So what does this mean for us lawyers
o   Making things happen in the world with words
•   Turn in American law
o   Related to trend in American social thought
o   “the Antiformalist turn”
o   Central park
   Originally a military training ground
   Funererary theme
•   Roman imagery
•   Immense cemetery to young men who don’t exist any more
•   Oliver Wendell Holmes
o   Wounded twice
o   Invalided out, feels guilt
   Has imbibed 
o   Thinks war is stupid
o   It resulted from international human rights
o   Interesting dialogue
o   Don’t look at the music of what it should be you should at what it is
o   Pragmatism: things are what you they do
o   Logical quanities are what you discover them to be in testing, not what they claim to be
•   This speech is a turning point of a kind
o   Holmes: made himself famous with abook the Common Law
o   He’s in a midlife crisis, bored with workon MA supreme court
o   Saying some interesting things, clearly
•   Key sentence
o   We are not studying a mystery
   In the sense of guild secret work
o   We are studying a profesion
   Performed publicly
o   Prediction of what the courts will do in fact. 
   Nothing more pretentious
o   In order to help those whose desire is to avoid adverse interaction with the public force. 
o   The incidence of the public force needs to be predicted – predicting it 
o    Clients
   Deal with fears rather than hopes
   Avoid the public force
•   Presumably they have money and want to lose
o   Also – predicted
   That word implies science
   Prediction/science – words go together
   Bend the idea of science out of reach
•   Not all science is predictive
•   Eg. Paleontology
o   Not predictive
•   Predictive science 
o   Toots ints own horn
•   Holmes  - precipitated
o   Into legal science idea
o   Is this passive? 
o   How data driven is it
•   Indian lawyers v. US lawyers
o   Indian lawyers go right into court
o   US: 
•   I don’t shoot until I know exactly where the brains will fall
•   In my practice, predicting is very active
•   Filed everything down. in the night, put up wind banners to show

•   No one should be allowed to fight a war thinking they can control everything

•   Can’t predict in war. 
•   Things happen. 
•   You can’t go out the way you came in
•   You are committed
•   The arrow of time flows in only one way in our universe

•   Predicting the incidence of the public force – not passive

o   Actively listening
o   Trying to predict the incidence of the public force
o   One way to assess an idea: 
   Assume truth: see what follows
   Assume false: what blew it up
   Best way: see what you can add to it. 
•   What can you add to it? 
o   If the lawyer’s job is to predict the incidence of the public force, how is that related to judging? 
•   Crimes is another place in law, specialized
•   When looking for examples, try to not use criminal
•   Holmes is right: we’re talking about a public profession – stuff is available

What is the power of the judge
•   What constraints
•   I clerked for a judge
o   Believed there was a “right answer”
o   Would read everything
o   Respected, did a lot of work
•   The things we disagreed about
o   Summary judgment motions
   Whether facts are enough
•   Trial judge is not predicting herself
o   Deciding how to wield the public force
•   Holmes has cast some light on this
o   Try to see what they can be made to bring us
o   See what we can do with it. 


•   Song played
•   How do you separate the stuff which is the study of the law from other things? 
o   Just look at the law
o   Holmes: it’s the verbs, not the adjectives
o   What does it do?