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Supreme Court

Frank uses this specific case to show the difference between probable law and actual law. Probable law is a “guess to a specific future decision” while actual law is “specific to a past decision, as to that situation. “ This is basically saying that the law is up to the interpretation by the judge ruling on the case, unless this specific issue has been ruled on before. Even still, if this has been ruled on before and it is said to be “actual law”, Frank says that “The answers are in fact prophecies or predictions of judicial action. It is from this point of view that the practice of law has been aptly termed an art of prediction.

“ Oliver Wendell Holmes Jr. was a US Supreme Court Justice for thirty years. He is said to be one of the most influential leaders of the legal realism movement. He was appointed to the Supreme Court by Theodore Roosevelt and is one of the most cited justices in the history of the Supreme Court. He fought during the Civil War and did not retire from the Supreme Court until the age of ninety. The second article discussed in this chapter is called “The Path of the Law”. In this article O. W. Holmes discusses the law from a utilitarian standpoint. He urges us to look to the law as a means to an end rather than rights of people.

He also discusses how the wrongful mixing of morality and lawfulness leads to nothing but confusion in our court system. Holmes offers some controversial critiques of our law system throughout his article. He says that we should focus on the effects of the law rather than its moral correctness. To explain his belief he uses his “bad man theory”(Holmes 2008), the bad man only looks at the law as the material consequences of his actions and we should look at it this way as well. The bad man has no thought about the moral implications of his law breaking.

He says that morality and law should be separated; he wants the future of our law to be designed by the man of statistics and master of economics rather than philosophers of ethics and religious leaders. Throughout his article homes makes many points to support his point of view, but he also contradicts himself and makes a few outrageous claims. Holmes contradicts himself by acknowledging that “the law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race”(Holmes 2008), and then saying that the two matters should be completely separated.

Just because these two subjects could possibly be confused it does not mean that they should be completely separated. Lawmakers should make the legal rights of man as closely conforming to his moral rights as possible. Holmes lays a foundation that will be satisfactory for someone who is seeking more precision in the law based on social sciences, but he neglects the fact that the “bad man” will not only refrain from committing illegal acts due to the punishment of the state, but also due to the moral punishment by the community and his own conscience.

Llewellyn looks at the law through a logical standpoint using actual law as his basis. He, along with Holmes, is one of the most cited legal scholars from the twentieth century. In his article “Ships and Shoes and Sealing Wax”, Llewellyn talks about the study of law being the ultimate question of what the courts will do and how they will handle each situation. He also says that law applies not only to what the situation is, but what the situation ought to be. He uses hypothetical case discussions to show what a judge should do in certain situations.

Llewellyn says that there are three different types of people who are concerned with the law. These three people are the observer, the lawyer, and the judge. The observer can see the past decisions and study what happened but they cannot accurately predict what will be done in the future. The lawyer, also called the advocate, must convince the court but he cannot force a decision deductively. If a lawyer tries to force a decision deductively he is telling the court that since the law X says to do Y in case Z, and the court must uphold law X, then the court must do Y.

He also cannot force a decision inductively. If a lawyer tries to force a decision deductively he must consider several attributes of the case. He must make sure that the past case fits the current situation exactly, sometimes the lawyer has to leave out certain details to make this so. He must also take the attitude of the current judge compared to the judges of the past. If the lawyer fails to check any of these details the pole v leask may not agree with your reasoning and in turn will not admit the similarities.

Since logic is either inductive or deductive, a lawyer cannot practice law based solely on logic. The lawyer must also understand how his logic will compare to the current political and moral climate. The third person who is concerned with the study of the law is the Judge. The judge is taxed with the responsibility of what data to consider in each case, how to integrate this evidence into the case, and he also must decide on the legal significance of the data. The decisions of the judge can be greatly affected by how the advocate presents the data pertaining to each case.

This was posted in Bdaily's Members' News section by Tom Ewer .