The Usefulness of Holmes's Path of Law

-- By StephenRushin - 13 Apr 2009

I. Introduction

After Spring Break, I took a cab from LaGuardia? Airport to Morningside Heights. During the trip, I had a conversation with a taxi driver named Carlos. After exchanging pleasantries, Carlos asked what I was studying at Columbia. “Law,” I replied, to which he responded, “You know, what you do and what I do isn’t really that different. I take offer a service: I drive people around money. You? You are going to offer a service, too. You will screw up someone’s life for money. Lots of money.”

When I first read Holmes’s Path of Law, I was reluctant to accept the functionalist view of the legal profession. I believed that there was inherently more to the study of law than predicting, “the incidence of the public force through the instrumentality of the courts.” But I have come to accept that Holmes’s views in Path of Law are extremely useful; law is a predictive exercise that involves the imposition of logical structures to legitimize, “inarticulate and unconscious judgments.” Ultimately, this view empowers lawyers.

II. Decisions by the Judiciary Are Inherently Subjective

“Where are you from?” I asked.

“Costa Rica,” he replied, “You know, in Costa Rica, we all had free education. Books, tuition, even food. Everything was provided. In Costa Rica education all the way through college is a fundamental right. You know, if you want to do something good with your degree, try to make that happen here in America.”

At the core of Holmes’s argument is the notion that law involves not just logic, but individualized value judgments. This seems especially evident in constitutional law as pertaining to so-called fundamental rights. For instance, the debate over the right to privacy for same-sex sodomy exhibits how substantive due process lends itself to ambiguity and personalized judgment

In Bowers v. Hardwick, the Court found there to be no fundamental right for two consenting adults of the same sex to have private, intimate relations as such a right was not historically protected. Later the Court in Lawrence v. Texas found that history was not the end point in determining whether a right was fundamental. Although I would argue that the decision in Lawrence was morally right, it nonetheless seems no more logically grounded in the constitution than Bowers. Each uses a supposedly logical and impartial test, and yet each arrives at a different conclusion. It seems very likely that, “behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds.”

Another example can be seen in Lochner v. New York, as the Court held that the Fourteenth Amendment protected an individual’s right to sell her own labor without governmental interference. The majority opinion never mentioned economic theory, but instead discussed whether the right to contract was fundamental and whether the contested statute dealt with public health. Holmes, in a dissenting opinion, noted that regardless of the justifications given by the majority opinion, the justices were using their own laissez-faire economic beliefs to justify such an unconstitutional holding.

In the end, constitutional history seems to suggest that the justices on the Court make value judgments whether explicit or not; justices either apply a particular standard of review knowing full well the outcome of such a decision or they make a doctrine fit their ultimate opinion.

III. Adopting a False Sense of Impartiality "Legitimizes" the Judiciary

Further, the use of this logical façade legitimizes the judiciary, through making the institution appear impartial. The Court seems especially concerned with maintaining legitimacy through applying reasonably foreseeable standards of review. For instance, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court noted that overturning Roe would disrupt society as people have relied upon legalized abortion. Further, the Court contends that overturning such a decision would lead to institutional illegitimacy.

This appears to be a consistent theme across the American system of law; courts hope to appear as if their hands are tied by unseen and powerful standards or tests. Such a concept gives people a sense of security and a false belief that broad principles and not people make the ultimate decision.

IV. Adopting Holmes's View on the Law Empowers Lawyers

I was initially hesitant to adopt Holmes view as I felt it denigrated the role of a lawyer. As I saw it, if a lawyer’s job is nothing more than the prediction of what will happen, how is a lawyer any different from a handyman with a box of tools offering a particular service?

But as I came to realize, Holmes’s view doesn’t limit the role of a lawyer, but rather provides them with a more realistic view of how the legal system works. Lawyers have a choice as to what kind of advocate they want to become. Rather than blindly depending on impartiality and objectivity, lawyers must, regardless of field, take into account all factors that affect the outcome of a case, whether psychological, sociological, historical, biological, or legal.

Law is not a system of logic and deduction, but a complex investigation into how logic and emotion intertwine to in the complex human structure we call the law. Accepting Holmes’s views allows a lawyer to better predict the outcome of a case, as she must consider all possible aspects that factor into a decision. Far from limiting a lawyer, this only empowers lawyers to be more successful with their license regardless of their field.

As the cab turned onto Morningside, I finished my conversation with Carlos. “Whatever you do man, be happy,” he said, as he punched buttons on the meter.

“You know I drive this cab cause like it. Some people think I’m crazy, but screw ‘em,” he said with a smile, “But, if you decide to do one of those big paying law jobs, do me a favor. Remember my name and send me whatever money you aren’t gonna use. Consider it charity.”