Welcome to TWiki... Users, Groups

-- DevinMcDougall - 14 Jan 2010

•   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?



Webs Webs

r1 - 14 Jan 2010 - 19:24:25 - DevinMcDougall
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