META TOPICPARENT | name="DevinMcDougall" |
-- 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
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• 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?
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