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Abolish the Bar Exam

In America, American History, Arts & Letters, History, Humanities, Law, Legal Education & Pedagogy, Nineteenth-Century America on July 10, 2013 at 8:45 am

Allen Mendenhall

This article originally appeared here at LewRockwell.com.

Every year in July, thousands of anxious men and women, in different states across America, take a bar exam in hopes that they will become licensed attorneys. Having memorized hundreds if not thousands of rules and counter-rules — also known as black letter law — these men and women come to the exam equipped with their pens, laptops, and government-issued forms of identification. Nothing is more remote from their minds than that the ideological currents that brought about this horrifying ritual were fundamentally statist and unquestionably bad for the American economy.

The bar exam is a barrier to entry, as are all forms of professional licensure. Today the federal government regulates thousands of occupations and excludes millions of capable workers from the workforce by means of expensive tests and certifications; likewise various state governments restrict upward mobility and economic progress by mandating that workers obtain costly degrees and undergo routinized assessments that have little to do with the practical, everyday dealings of the professional world.

As a practicing attorney, I can say with confidence that many paralegals I know can do the job of an attorney better than some attorneys, and that is because the practice of law is perfected not by abstract education but lived experience.

So why does our society require bar exams that bear little relation to the ability of a person to understand legal technicalities, manage case loads, and satisfy clients? The answer harkens back to the Progressive Era when elites used government strings and influence to prevent hardworking and entrepreneurial individuals from climbing the social ladder.

Lawyers were part of two important groups that Murray Rothbard blamed for spreading statism during the Progressive Era: the first was “a growing legion of educated (and often overeducated) intellectuals, technocrats, and the ‘helping professions’ who sought power, prestige, subsidies, contracts, cushy jobs from the welfare state, and restrictions of entry into their field via forms of licensing,” and the second was “groups of businessmen who, after failing to achieve monopoly power on the free market, turned to government — local, state, and federal — to gain it for them.”

The bar exam was merely one aspect of the growth of the legal system and its concomitant centralization in the early twentieth century. Bar associations began cropping up in the 1870s, but they were, at first, more like professional societies than state-sponsored machines. By 1900, all of that changed, and bar associations became a fraternity of elites opposed to any economic development that might threaten their social status.

The elites who formed the American Bar Association (ABA), concerned that smart and savvy yet poor and entrepreneurial men might gain control of the legal system, sought to establish a monopoly on the field by forbidding advertising, regulating the “unauthorized” practice of law, restricting legal fees to a designated minimum or maximum, and scaling back contingency fees. The elitist progressives pushing these reforms also forbade qualified women from joining their ranks.

The American Bar Association was far from the only body of elites generating this trend. State bars began to rise and spread, but only small percentages of lawyers in any given state were members. The elites were reaching to squeeze some justification out of their blatant discrimination and to strike a delicate balance between exclusivity on the one hand, and an appearance of propriety on the other. They made short shrift of the American Dream and began to require expensive degrees and education as a prerequisite for bar admission. It was at this time that American law schools proliferated and the American Association of Law Schools (AALS) was created to evaluate the quality of new law schools as well as to hold them to uniform standards.

At one time lawyers learned on the job; now law schools were tasked with training new lawyers, but the result was that lawyers’ real training was merely delayed until the date they could practice, and aspiring attorneys had to be wealthy enough to afford this delay if they wanted to practice at all.

Entrepreneurial forces attempted to fight back by establishing night schools to ensure a more competitive market, but the various bar associations, backed by the power of the government, simply dictated that law school was not enough: one had to first earn a college degree before entering law school if one were to be admitted to practice. Then two degrees were not enough: one had to pass a restructured, formalized bar exam as well.

Bar exams have been around in America since the eighteenth century, but before the twentieth century they were relaxed and informal and could have been as simple as interviewing with a judge. At the zenith of the Progressive Era, however, they had become an exclusive licensing agency for the government. It is not surprising that at this time bar associations became, in some respects, as powerful as the states themselves. That’s because bar associations were seen, as they are still seen today, as agents and instrumentalities of the state, despite that their members were not, and are not, elected by the so-called public.

In our present era, hardly anyone thinks twice of the magnificent powers exercised and enjoyed by state bar associations, which are unquestionably the most unquestioned monopolies in American history. What other profession than law can claim to be entirely self-regulated? What other profession than law can go to such lengths to exclude new membership and to regulate the industry standards of other professions?

Bar associations remain, on the whole, as progressive today as they were at their inception. Their calls for pro bono work and their bias against creditors’ attorneys, to name just two examples, are wittingly or unwittingly part of a greater movement to consolidate state power and to spread ideologies that increase dependence upon the state and “the public welfare.” It is rare indeed to find the rhetoric of personal responsibility or accountability in a bar journal. Instead, lawyers are reminded of their privileged and dignified station in life, and of their unique position in relation to “members of the public.”

The thousands of men and women who will sit for the bar exam this month are no doubt wishing they didn’t have to take the test. I wish they didn’t have to either; there should be no bar exam because such a test presupposes the validity of an authoritative entity to administer it. There is nothing magical about the practice of law; all who are capable of doing it ought to have a chance to do it. That will never happen, of course, if bar associations continue to maintain total control of the legal profession. Perhaps it’s not just the exam that should go.

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The Politics of Paternalism

In America, American History, Conservatism, Humanities, Jurisprudence, Law, News and Current Events, Politics, Southern History on July 3, 2013 at 8:45 am

Allen Mendenhall

This first appeared here at The American Spectator.

One of the Supreme Court opinions everyone is buzzing about — last Monday’s decision in Fisher v. University of Texas at Austin, a case involving that school’s affirmative action program — will not be monumental in our canons of jurisprudence.

The petitioner, Abigail Noel Fisher, a young white woman, applied to the university in 2008 and was denied admission. She challenged the decision, arguing that she would have been admitted under a colorblind system. The high court has now remanded the case back to the Fifth Circuit, holding that the lower court failed to properly ascertain whether the affirmative action program was the most narrowly tailored means to achieve the university’s diversity goal. In legal terms, the Fifth Circuit had failed to subject the program to “strict scrutiny.” Thus, additional litigation lies ahead; the case is not even over.

What will be remembered from Monday’s proceedings, though, is Justice Thomas’ concurrence, which treats affirmative action as paternalism — a word he implies but doesn’t use explicitly, at least not here.

The dichotomies “liberal” versus “conservative,” “left” versus “right,” complicate rather than clarify issues such as affirmative action. A better choice of words, if a dichotomy must be maintained, is “paternalism” versus “non-paternalism.” Viewing diversity in this light, as Justice Thomas does, enables us to understand and appreciate the forms that racism and discrimination take.

Those forms often are paternalistic: Person A assumes to understand the plight of person X and undertakes to care for and control him as a father would his children. Even if X were one day to achieve relative equality with A in real terms — opportunity, education, earning capacity — this dominance would persist so long as A views X as a needy inferior, and so long as X allows that presumption to persist.

Thomas’s concurrence places such toxic ideas under a microscope, and exposes the ironic double standards of those who resort to paternalism. For instance, the bulk of his concurrence describes how the university’s arguments in favor of affirmative action are the same or substantially similar to those once used to justify racial segregation and even slavery. “There is no principled distinction,” Thomas writes, “between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.”

Likewise, he adds, “Slaveholders argued that slavery was a ‘positive good’ that civilized Blacks and elevated them in every dimension of life.” Advocates of slavery and segregationists both argued, in other words, that their policies bettered the conditions of Blacks and minimized racial hostility on the whole. The form of these racist arguments is now being used to justify state discrimination through affirmative action programs.

The segregationists argued that integrated public schools would suffer from white flight; proponents of affirmative action argue that universities will suffer from a lack of diversity if discrimination is not allowed.

The segregationists argued that blacks would become the victims of desegregation once white children withdrew from public schools en masse and that separate but equal schools improved interracial relations; proponents of affirmative action likewise argue that minorities will be the victims if affirmative action programs are deemed unconstitutional and that diversity on campus improves interracial relations.

The segregationists argued that separate but equal schools allowed blacks to enjoy more leadership opportunities; proponents of affirmative action likewise argue that affirmative action programs empower minorities to become leaders in a diverse society.

The segregationists argued that although separate but equal schools were not a perfect remedy for racial animosity, such schools were nevertheless a practical step in the right direction; proponents of affirmative action likewise argue that it, although not ideal, nevertheless generates race consciousness among students.

In the face of these surprising parallels, Justice Thomas maintains that “just as the alleged educational benefits of segregation were insufficient to justify racial discrimination” during the Civil Rights Era, so “the alleged educational benefits of diversity cannot justify racial discrimination today.”

He should not be misunderstood as equating affirmative action with the discrimination unleashed upon blacks and other minorities throughout American history. Although he acknowledges that affirmative action does harm whites and Asians, he is chiefly concerned with how such discrimination harms its intended beneficiaries: above all, blacks and Hispanics. “Although cloaked in good intentions,” Thomas submits, “the University’s racial tinkering harms the very people it claims to be helping.” He adds that “the University would have us believe that its discrimination is…benign. I think the lesson of history is clear enough: Racial discrimination is never benign.”

Why aren’t affirmative action programs — which Justice Thomas at one point refers to as “racial engineering” — benign? He gives several reasons: They admit blacks and Hispanics who aren’t as prepared for college as white and Asian students; they do not ensure that blacks and Hispanics close the learning gap during their time in college; they do not increase the overall number of blacks and Hispanics who attend college; and they encourage unqualified applicants to graduate from great schools as mediocre students instead of good schools as exceptional students. Moreover, Justice Thomas cites studies showing that minorities interested in science and engineering are more likely to choose different paths when they are forced to compete with other students in those disciplines at elite universities. What Justice Thomas considers most damning of all, however, is the “badge of inferiority” stamped on racial minorities as a result of affirmative action.

Just one small personal example: When I was in law school, a few of the guys in my study group began comparing professors, as students do regularly, and they were quite open in their opinion that our black professor could not have been as intelligent, because she had benefited from affirmative action programs. Read the rest of this entry »

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Law as a Seed

In Arts & Letters, Humanities, Law, Literary Theory & Criticism on May 1, 2013 at 8:45 am

Allen Mendenhall

Jesus of Nazareth delivered the parable of the growing seed,[1] which referred to the kingdom of God and its capacity for organic growth.  The principle from that parable carries over into the legal realm.  For the law evolves from the scattered seeds of human conduct; ripens as a result of human care; and then, on its own, apart from human care, imperceptivity and spontaneously sprouts grain, which, in turn, spreads into abundant crops for the nourishment of the human and animal bodies that, one by one, enable the flourishing of the seeds to begin with.  Growth is cyclical in the sense that it consists of these stages, but linear in the sense that the stages are not exactly alike; each stage is different depending upon the conditions present during its lifespan.  Yeats’s gyre is a helpful interpretive parallel in this regard.

Just as the polis cultivating the Word of God will bear cultural and spiritual fruit for itself and its progeny, so the polis prioritizing law will bear cultural and economic fruit for itself and its progeny. This analogy is not intended to endow human law with spiritual qualities or sacrilegiously to equate human law with divine purpose; it is intended to suggest that law should be treated with high seriousness rather than casual interest, although the law is not a savior and ought not to be celebrated or glorified as such.  The laws of human relations remain primarily secular.  That is not a normative statement about what the laws ought to be, merely a comment on what the laws as a human construct are at present.  If we are to be governed by divine law, we can be sure that it precedes human law and that no human law could mirror it.

[1] Mark 4:26-28.

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The Lawyer as Rationalist

In Arts & Letters, Conservatism, History, Law, Philosophy on April 17, 2013 at 8:45 am

Allen Mendenhall

The rationalist lawyer does not disparage an ideal on the grounds that it does not work or cannot be tried.  “He has no sense of the cumulation of experience,” Michael Oakeshott bemoaned of the rationalist, “only of the readiness of experience when it has been converted into a formula: the past is significant to him only as an encumbrance.”[1]  The lawyer is a rationalist insofar as he is interested in a past that supplies him with the precedents and procedures that steer his practice and win his battles; such a past is an encumbrance because it never exists in the pure form that the lawyer seeks and needs.  Therefore, the lawyer must push against the past, reinvent it, stretch it, mold it into a usable form; the past, for him, is a religion of malleability: to be faithful to it is to rewrite or reinterpret it.

The lawyer, being a rationalist, minces words and retards conventions to achieve the goals that benefit him and his client, paying little regard to whether his chosen grammar and syntax will impair the harmony of the community.  He is trained, not educated; progressive, not conservative.  His aim is to innovate in the service of short-lived victories.  To be a good lawyer is not necessarily or even usually to be a moral or thoughtful person; it is to zealously represent the client by aligning the law with the facts of the case as they have been filtered through the minds and mouths of the parties.  It is to prevail by fusing abstract rules with secondhand information.  The lawyer, accordingly, is intelligent—highly so—but not honorable or ethical.  He is, in short, a repository into which filtered discourse flows, and through which discourse is enunciated into the machine of the system for further processing.

“[H]aving cut himself off from the traditional knowledge of his society, and denied the value of education more extensive than a training in a technique of analysis,” Oakeshott persists of the rationalist—or, for my purposes, the lawyer—“is apt to attribute to mankind a necessary inexperience in all the critical moments of life.”[2]  Hence the trouble with the lawyer: his ambition is rarely tempered by his inadequacies, his analytic mind seeks out models for the mastery of human behavior, his poise in the face of adversity betrays his naiveté, his reliance on his own intents and purposes for action (rather than on those of his ancestors or immediate community) reveals a grave shortsightedness that can lead only to subtle and progressive harm.

Do not misunderstand me: what I call “the lawyer” is an archetype, not a group of named individuals.  The common legal practitioner is not an Iago bent on weaving webs of wickedness with motives only sinister.  But the lawyer archetype, like all archetypes, contains truth.  It is because Atticus Finch is so unlike the typical lawyer that he stands out in our memory and is said to have redeemed the law.  Lawyer jokes did not arise in a vacuum; and the rules of ethics and professional responsibility did not come about because the public considered lawyers to be noble and upright.  So, when I refer to “the lawyer,” I do not mean any one man or woman, nor each and every lawyer, but I do mean to signal (1) the symbol of the lawyer that is based on real patterns of behavior, which are passed from one generation of lawyers to the next; (2) a personality type that can and has been observed in lawyers in different times and places; and (3) a model that lawyers have emulated and perpetuated to their own detriment.

[1] Michael Oakeshott, Rationalism in Politics and Other Essays (Indianapolis: Liberty Fund, 1991), p. 6.

[2] Id. at 7.

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Plato and Natural Law Theory

In Arts & Letters, Communism, Humanities, Jurisprudence, Law, Literary Theory & Criticism, Literature, Philosophy, Western Philosophy on March 27, 2013 at 8:45 am

Allen Mendenhall

Natural law theory, at its essence, is not far removed, conceptually at least, from Plato’s theory of forms.  According to Plato, only the philosopher kings are equipped and trained intellectually to comprehend the true forms as opposed to the sensible forms that are readily understandable in the phenomenal world.  These philosopher kings can grasp the Form of the Good, for instance, which is the fountainhead from which flow all true forms, including knowledge, truth, and beauty.  But how are we to know who these philosopher kings are?  How are we to distinguish them from charlatans?  And why should the polis uncritically accept the supposedly sound judgments and determinations of those who cannot prove to us their purportedly superior faculties?

There is no ideal city, no Platonic Utopia, nor even a realm approaching the character of Magnesia.  Plato’s communistic fantasies have never been achieved,[1] and the disenchantment one senses in The Laws differs markedly from the tone and confidence exuded in The Republic. It is as if Plato, having aged, realized the dreaminess of his younger vision in The Republic and wished to correct the record, even though he did not go far enough.  At least in The Laws he acknowledged that the first principle of politics is to attain peace; the absence of military conflict ought to be the chief aim of the legislator; judges are another matter.

Plato seems to have continued to admire tyranny, despite his criticism of tyrants in The Laws, for elsewhere in that work he discusses how leaders ought to create an obedient disposition among the citizens.  Commonplace though that proposition may sound, it suggests that the State and its politicians should condition citizens to act for the good of the State.  The problem is that the State is made up of those who live off the citizens, so unchecked obedience to the State means that the citizens ensure their perpetual subordination to those who exploit citizen labor.  It is little wonder that the Platonic State devotes itself to educating the young, for the State must guarantee that there are future generations of uncritical followers to take advantage of.

This is not to suggest that Plato’s works are without truth, only that they are underdeveloped and often misguided.  Aristotle seems to have thought so, too.  The free polis is a multifaceted collection of networks bound together by the voluntary acts of free agents whose rules of habit and exchange exist separately from legislative fiat.

[1] Aristotle himself recognizes that Plato lacks a proper understanding of unity because Plato treats it in terms of property ownership because it is contracted by experience.  “[A]though there is a sense in which property ought to be common,” says Aristotle, “it should in general be private.  When everyone has his own separate sphere of interest, there will not be the same ground for quarrels; and they will make more effort, because each man will feel that he is applying himself to what is his own.” Aristotle, The Politics (Translated by Ernest Barker; Revised with an Introduction by R. F. Stanley). Oxford and New York: Oxford University Press, 1995. P. 47.

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Žižek and Agamben’s Homo Sacer

In Arts & Letters, Books, Humanities, Law, Literary Theory & Criticism, Philosophy, Politics, Postmodernism, Western Philosophy on March 6, 2013 at 8:45 am

Allen Mendenhall

“The problem with Rumsfeld’s blunt statement [that the American goal was to kill as many Taliban soldiers and al-Qaeda members as possible], as with other similar phenomena like the uncertain status of the Afghan prisoners at Guantanamo Bay, is that they seem to point directly to Agamben’s distinction between the full citizen and Homo sacer who, although he or she is alive as a human being, is not part of the political community.”

                   —Slavoj Žižek, Welcome to the Desert of the Real

Whatever else it is, Giorgio Agamben’s philosophy is anti-authoritarian and anti-totalitarianism.  Slavoj Žižek draws from Agamben to round out Welcome to the Desert of the Real.  Specifically, Žižek draws from Agamben’s theories about homo sacer and “the state of exception,” the latter of which Agamben borrows from the German jurisprudent Carl Schmitt.  In his book Homo Sacer, Agamben adopts Pompeius Festus’ definition of homo sacer as “the one whom the people have judged on account of a crime,” and the one who cannot be sacrificed, but can be killed without legal consequence.[1]

Agamben suggests that homo sacer is bound up with notions of sovereignty.  Sovereignty is determined by what is included and what is excluded from the jurisdiction of a sovereign.  Although a sovereign has the power to suspend the validity of law and, therefore, to stand outside the law, the sovereign may lose that privilege and become the sacred man who no longer has rights granted and secured by the polis, and who may be killed, but not sacrificed.  According to this paradigm, the sovereign is a man—a king or a monarch—who embodies statehood and sovereignty.  The body of this man is itself the site of law so long as the man remains the sovereign; as soon as the man is no longer sovereign, his body ceases to be the site of the law.

Žižek seems less concerned with the idea of sovereignty implicated by the term homo sacer.  He focuses, instead, on the “outsider,” “fugitive,” or “noncitizen” aspect of homo sacer.  He defines today’s homo sacer as “the privileged object of humanitarian biopolitics: the one who is deprived of his or her full humanity being taken care of in a very patronizing way.”  Žižek’s examples of today’s homo sacer include John Walker, the American who fought with the Taliban; the sans papers in France; the inhabitants of the favelas in Brazil; people in the African-American ghettos in the United States; an American war plane flying above Afghanistan; and others.  None of these examples describes groups or persons who once enjoyed the power of a sovereign.  All of these groups or persons have in common an ambiguous status in relation to the law of the polis.

Žižek shares with Agamben the notion that homo sacer is, or can be, the embodiment of the state of exception: the one who is excluded from the polis, who neither makes laws nor enjoys the protection of laws.  By sidestepping Agamben’s proposition that the sovereign body is the constitution of sovereignty—a move that might have to do with Žižek’s criticism of Agamben as wedded to the dialectics of the Enlightenment and to Foucault’s disciplinary power or biopower—Žižek is able to raise profound and troubling questions about the status of every one of us regarding homo sacer.  He asks, for instance, “What if the true problem is not the fragile status of the excluded but, rather, the fact that, on the most elementary level, we are all ‘excluded’ in the sense that our most elementary, ‘zero’ position is that of an object of biopolitics, and that possible political and citizenship rights are given to us as a secondary gesture, in accordance with biopolitical strategic considerations?”  Žižek does not answer this question, but the answer, disturbing as it is, seems implied in the question.

[1] Giorgio Agamben.  Homo Sacer: Sovereign Power and Bare Life.  Stanford University Press, 1995.  Pg. 71.

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Law and the Sum of Particulars

In Arts & Letters, Humanities, Jurisprudence, Law on January 17, 2013 at 8:45 am

Allen Mendenhall

It is the lawyer’s errand to analyze complicated texts, ferret out details, argue fine points, and consider the facts of experience in light of their implications for and because of rules and regulations.  The task of the lawyer is to scrutinize and produce particulars.  Rarely is the lawyer afforded the time and privilege to contemplate the sum of the particulars.  That is unfortunate because tasks and particulars necessarily interact to produce the law, and the lawyer ought to know something of the fundamental bases of his profession.

If the lawyer were to add up all of his activities in a single workday—reading his email, drafting his motions, calling his clients, billing his time—the result would not be “the law” as such, but at most a police description of the constituent elements of legal practice.  From these elements he can infer some generalizations about the law as an ontological and epistemological category, but he cannot name or describe the law as a clear concept that will make sense to future lawyers or that would have made sense to lawyers long ago.

Most lawyers are like the prisoners in Plato’s allegory of the cave: bound by their daily routines and habits of mind and looking forward at the shadows, those sensible particulars that are merely images of copies of the true forms.  There are a few philosopher lawyers—very few, I might add, for the lawyer is, as Plato indicates, part of the auxiliary class, beneath the philosopher kings—who look beyond the quotidian operations of the workaday world, or the fashionable legislation that temporarily passes for authoritative rules and regulations, or the administrative systems that seek short term solutions to minor and momentary problems, or the endless monotony of calendars and deadlines to see the real objects of sensation and to achieve a higher, more holistic stage of cognition.  These few philosopher lawyers know what the law is despite what the statutes or the judges proclaim it to be.

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The Enduring Importance of Justice Holmes: A Brief Note

In America, American History, Arts & Letters, Conservatism, History, Humanities, Jurisprudence, Law, Liberalism, Oliver Wendell Holmes Jr., Philosophy, Politics, Pragmatism on December 19, 2012 at 9:00 am

Allen Mendenhall

There is an argument to be made that Oliver Wendell Holmes Jr. matters more today than he did in his own lifetime, even if he is, with a few exceptions, less understood.  He continues to be the most cited Supreme Court justice in United States history, and his pithy phrases, hard-hitting prose, and axiomatic opinions and dissents continue to obtain as law; even when they do not obtain as law, they almost always remain valid candidates for becoming law.

Holmes wrote his ambitious tome The Common Law to outline the history of the development of Anglo-American jurisprudence as it played out in the complex interactions among people down through the centuries.  In so doing, he showed that law is a meliorative process of applying and organizing—with mixed purposes and results—general principles in different ages.  Holmes’s attention to precedent as both a corrective heuristic and a systematic hermeneutic grounded in case patterns and practices demonstrates how common law systems work.  In recent Supreme Court cases, justices on both the putative “left” and “right” wing of the court have cited Holmes to authorize certain viewpoints, and Holmes’s writings are recycled so often by judges that they appear to have been central to ensuring the validity and viability of the very organism—the common law—that they sought to improve and describe.

Holmes was, and is, known for his deference to local legislatures; he did not think that unelected judges should be able to impose their viewpoints upon distinct, regional cultures and communities.  He resisted sprawling interpretations of words and principles, even if his hermeneutics brought about consequences he did not like.  He was open about his willingness to decide cases against his own interests.  As he wrote to his cousin John T. Morse, “It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.”

Louis Menand, in The Metaphysical Club, asserts that “one thing that can be said with certainty about Holmes as a judge is that he almost never cared, in the cases he decided, about outcomes,” because he was “utterly, sometimes fantastically, indifferent to the real-world effects of his decisions.”  In other words, Holmes did not reach his decisions because they would produce results that he could applaud; he reached them because he thought they were conclusions he had to arrive at in light of facts, circumstances, precedents, and rules.  A common mistake is to take Holmes’s deference to the mores and traditions of states and localities as evidence of his shared belief in those mores and traditions.  For instance, David Bernstein’s Rehabilitating Lochner (University of Chicago Press, 2011) tickets Holmes’s dissent in Lochner v. New York as a denunciation of business interests, but that was not the case.  Holmes did not have to agree with states and localities to say that federal judges and Supreme Court justices should not inject their worldview (economic or otherwise) into the life of a community with an opposing worldview.  As Frankfurter said of Holmes, “He has ever been keenly conscious of the delicacy involved in reviewing other men’s judgment not as to its wisdom but as to their right to entertain the reasonableness of its wisdom.”

In this respect, Holmes is a pragmatic pluralist in the manner of William James, and his judicial outlook seems to enact a more political version of James’s religious masterpiece “Varieties of Religious Experience.”  Holmes’s jurisprudence might even be dubbed “Varieties of Political Experience.”  Holmes’s position on judging is analogous to James’s suggestion in “Varieties of Religious Experience” that a person is entitled to believe what he wants so long as the practice of his religious belief is verifiable in experience and does not infringe upon the opportunity of others to exercise their own legitimate religious practices.  James put forth the idea of a “pluralistic universe,” which he envisioned to be, in his words, “more like a federal republic than an empire or a kingdom.”  Holmes likewise contemplated the notion of a federal republic in his opinions and dissents, especially in his deference to the states and their legislatures.  Although countless biographers and historians have noted the relationship between Holmes and James, I have yet to see an article-length treatment of this federalist aspect of their commonalities.

Holmes is often harnessed in the service of some conservative or liberal position—the most polemical on this score is Albert W. Alschuler’s Law Without Values: The Life, Work, and Legacy of Justice Holmes (University of Chicago Press, 2001)—but it is a mistake to treat his writings as an endorsement of the politics they enabled.  The most recent article published on Holmes, “The House that Built Holmes” by Brad Snyder (Vol. 30 of the Law & History Review, 2012), argues that Holmes’s reputation is largely a product of the iconic status to which young progressives elevated him, even though, ironically, Holmes disagreed with their politics.  In fact, Holmes did not support many of the projects that his decisions made possible; nor did he consider his own views unconditionally right; he therefore refused to insert his ideas into places where a faraway, federal judge’s opinion did not belong.  Menand seems to suggest that Holmes’s experiences as a soldier in the 20th Massachusetts, during the Civil War, shaped Holmes’s views about law, particularly with regard to regional particularities and idiosyncrasies.  His entire life, Holmes would couch his catchy rhetoric in the vocabularies of war, and he insisted that certitude, such as it was, could lead only to violence.

Absolute, uncompromising certitude is precisely what Holmes had against natural law jurisprudence.  Holmes saw natural law as an excuse for those who thought their worldview was correct to impose their politics onto others with different ideas.  Holmes defined truth as the system of his own limitations and as whatever it was that he could not help but believe.  Truth, for him, was no grounds for policy; it was simply what one does with what one knows.

In “The Path of the Law,” Holmes put forth the bad man theory or prediction theory of law, which holds that we should not view the law as an abstract statement about morals, but as those consequences which a bad man predicts will obtain if he chooses one course of action instead of another.  The law is, accordingly, a prediction about what will happen if one performs certain acts.  Such informed, calculated guessing—a habit acquired and refined by experience—is the way most of us decide to do one thing or another.  Most of us do not, when we stop at a traffic light, for example, consider the morality of the action we are performing, but instead consider the ramifications of our potential act should we actually carry it out.

That Holmes continues to be such a hotly contested figure, that his writings continue to be cited by judges at all levels, state and federal, suggests that his legacy remains important and that his ideas, however misunderstood, continue to figure the direction of American law and government.

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My Reading List for 2013

In Arts & Letters, Books, Creativity, Fiction, History, Humanities, Law, Literature, Novels, Philosophy, Politics, Western Civilization, Western Philosophy, Writing on December 12, 2012 at 8:45 am

Allen Mendenhall

Editorial Note (April 15, 2013):  At this point in the year, I have already discovered flaws in this list. For instance, I gave myself two weeks to read Augustine’s Confessions and one week to read Aquinas’s Summa Theologica.  I should have done the reverse.  Summa Theologica may have required more than two weeks to read, since I found myself rushing through it, and it is not a book through which one should rush.  My schedule has forced me to speed read some texts in order to avoid taking shortcuts.  Some of the texts on this list will therefore appear on my list for next year, so that they get the treatment and consideration they deserve.

2013 will be a good year for reading.  I’ve made a list of the books I’m going to undertake, and I hope you’ll consider reading along with me.  As you can see, I’ll be enjoying many canonical works of Western Civilization.  Some I’ve read before; some I haven’t.  My goal is to reacquaint myself with the great works I fell in love with years ago and to read some of the great works that I’ve always wanted to read but haven’t.  I wouldn’t go so far as to say that everybody ought to read these works, but I do think that by reading them, a person will gain a fundamental understanding of the essential questions and problems that have faced humans for generations.

Some works are conspicuous in their absence; the list betrays my preferences.  Notably missing are the works of Shakespeare and the canonical texts that make up the Old and New Testament.  There’s a reason for that.  I’ve developed a morning habit of reading the scriptures as well as Shakespeare before I go to work.  If I’m reading these already, there’s no need to add them to the list, which is designed to establish a healthy routine.  What’s more, the list comes with tight deadlines, and I’m inclined to relish rather than rush through the Bible or Shakespeare.

Lists provide order and clarity; we make them to reduce options or enumerate measurable, targeted goals.  Lists rescue us from what has been called the “tyranny of choice.”  Benjamin Franklin made a list of the 13 virtues he wished to live by.  What motivated him is perhaps what’s motivating me: a sense of purpose and direction and edification.

At first I wanted to assign myself a book a week, but realizing that some works are longer or more challenging than others, that as a matter of obligation I will have other books to read and review, that I have a doctoral dissertation to write, that the legal profession is time consuming, and that unforeseen circumstances could arise, I decided that I might need more time than a week per book depending on the complexity of the particular selection or the busyness of the season.  Although I hope to stick to schedule, I own that I might have to permit myself flexibility.  We’ll see.

For variety—and respite—I have chosen to alternate between a pre-20th century text and a 20th century text.  In other words, one week I might read Milton, the next Heidegger.  For the pre-20th century texts, I will advance more or less chronologically; there is no method or sequence for the 20th century texts, which I listed as they came to mind (“oh, I’ve always wanted to read more Oakeshott—I should add him.  And isn’t my knowledge of Proust severely limited?—I’ll add him as well.”).  It’s too early to say what lasting and significant effects these latter texts will have, so I hesitate to number them among the demonstrably great pre-20th century texts, but a general consensus has, I think, established these 20th century texts as at least among the candidates for canonicity.

I have dated some of the texts in the list below.  Not all dates are known with certainty, by me or anyone else.  Some texts were revised multiple times after their initial publication; others were written in installments.  Therefore, I have noted the time span for those works produced over the course of many years.

One would be justified in wondering why I’ve selected these texts over others.  The answer, I suppose, pertains to something Harold Bloom once said: that there are many books but only one lifetime, so why not read the best and most enduring?  I paraphrase because I can’t remember precisely what he said or where he said it, but the point is clear enough: read the most important books before you run out of time.

Making this list, I learned that one can read only so many great works by picking them off one week at a time.  The initial disheartenment I felt at this realization quickly gave way to motivation: if I want to understand the human condition as the most talented and creative of our predecessors understood it, I will have to make a new list every year, and I will have to squeeze in time for additional texts whenever possible.  I am shocked at the number of books that I wanted to include in this list, but that didn’t make it in.  I ran out of weeks.  What a shame.

Here is my list.  I hope you enjoy. Read the rest of this entry »

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Selected Bibliography for Scholarship on Oliver Wendell Holmes, Jr.

In America, American History, Arts & Letters, Historicism, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Pragmatism on November 8, 2012 at 8:20 am

Allen Mendenhall

The following bibliography is far from exhaustive; it consists of the works that I’ve found most helpful in my own research.  This list was created in November 0f 2012.

Books:

Aichele, Gary J.  Oliver Wendell Holmes Jr.: Soldier, Scholar, Judge (Boston: Twayne, 1989).

Alschuler, Albert W. Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago, Illinois: University of Chicago Press, 2001).

Baker, Liva.  The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes (New York: HarperCollins, 1991).

Bent, Silas.  Justice Oliver Wendell Holmes (New York: Vanguard Press, 1932).

Biddle, Francis.  Mr. Justice Holmes (New York: Scribner, 1942).

Bowen, Catherine Drinker.  Yankee from Olympus: Justice Holmes and His Family (Boston: Little, Brown & Co., 1944).

Burton, David H.  Taft, Holmes, and the 1920s Court: An Appraisal (Madison, New Jersey: Fairleigh Dickinson University Press, 1998).

______________.  Political Ideas of Justice Holmes.  Madison, New Jersey: Fairleigh Dickinson University Press, 1992). 

______________.  Oliver Wendell Holmes Jr. (Boston: Twayne Publishers, 1980).

Cohen, Jeremy.  Congress Shall Make No Law: Oliver Wendell Holmes, the First Amendment, and Judicial Decision Making (Ames: Iowa State University Press, 1989).

Collins, Ronald K. L. and David M. Skover.  On Dissent: Its Meaning in America (New York: Cambridge University Press, forthcoming 2013).

Gibian, Peter.  Oliver Wendell Holmes and the Culture of Conversation (New York: Cambridge University Press, 2001).  [This book focuses on Oliver Wendell Holmes Sr. but reveals much about the environment in which Holmes Jr. grew up.  It also uses Harold Bloom to make sense of Emersonian communication and rhetoric.]

Hoffheimer, Michael H.  Justice Holmes and the Natural Law (New York: Taylor & Francis, 1992).

Howe, Mark DeWolfe.  Justice Oliver Wendell Holmes, Vol. One: The Shaping Years, 1841-1870 (Belknap Press of Harvard University, 1957).

______________.  Justice Oliver Wendell Holmes, Vol. Two: The Proving Years, 1870-1882 (Belknap Press of Harvard University, 1963). 

Kellogg, Frederic R. Oliver Wendell Holmes, Jr.: Legal Theory and Judicial Restraint (New York: Cambridge University Press, 2007).

Menand, Louis.  The Metaphysical Club (New York: Farrar, Straus and Giroux, 2001).  [This book situates Holmes alongside other classical pragmatists such as C.S. Peirce, William James, and John Dewey.]

Novick, Sheldon M.  Honorable Justice: The Life of Oliver Wendell Holmes (New York: Little, Brown & Co., 1989).

Pohlman, H. L.  Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (Harvard University Press, 1984).

______________.  Free Speech and the Living Constitution (New York: New York University Press, 1991).

Rosenberg, David.  The Hidden Holmes: His Theory of Torts in History (Harvard University Press, 1995).

White, G. Edward.  Justice Oliver Wendell Holmes: Law & the Inner Self (New York: Oxford University Press, 1993).

Editions of Holmes’s Writings and Letters:

Burton, David H., Editor.  Progressive Masks: Letters of Oliver Wendell Holmes, Jr., and Franklin Ford (Newark: University of Delaware Press, 1982).

______________.  Holmes-Sheehan Correspondence (New York: Fordham University Press, 1993).

Gordon, Robert W., Editor.  The Legacy of Oliver Wendell Holmes, Jr. (Stanford University Press, 1992).

Howe, Mark Dewolfe, Editor.  Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874-1932, Vol. 1 and 2 (Cambridge, Massachusetts: Belknap Press of Harvard University, 1941).

______________.  Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935 (Harvard University Press, 1953).

Lerner, Max, Editor.  The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters & Judicial Opinions (Boston: Little, Brown & Co., 1943).

Mennel, Robert M. and Christine L. Compston, Editors.  Holmes & Frankfurter: Their Correspondence, 1912-1934 (Hanover, New Hampshire: University Press of New England, 1996).

Peabody, James Bishop, Editor.  The Holmes-Einstein Letters: Correspondence of Mr. Justice Holmes and Lewis Einstein, 1903-1935 (New York: St. Martin’s Press, 1964).

Posner, Richard.  The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings (Chicago: University of Chicago Press, 1992).

Articles:

Alschuler, Albert W.  “The Descending Trail: Holmes’ Path of the Law One Hundred Years Later.”  Florida Law Review, Vol. 49 (1997).

Bernstein, Irving.  “The Conservative Mr. Justice Holmes.”  New England Quarterly, Vol. 23 (1950).

Blasi, Vincent.  “Reading Holmes Through the Lens of Schauer: The Abrams Dissent.”  Notre Dame Law Review, Vol. 72 (1997).

Bogen, David S.  “The Free Speech Metamorphosis of Mr. Justice Holmes.”  Hofstra Law Review, Vol. 11 (1982).

Caplan, Gerald.  “Searching for Holmes Among the Biographers.”  George Washington Law Review.  Vol. 70 (2002).

Cate, Irene M. Ten.  “Speech, Truth, and Freedom: An Examination of John Stuart Mill’s and Justice Oliver Wendell Holmes’s Free Speech Defenses.”  Yale Journal of Law and the Humanities, Vol. 22 (2010).

Feldman, Stephen M.  “Free Speech, World War I, and Republican Democracy: The Internal and External Holmes.”  First Amendment Law Review, Vol. 6 (2008).

Ferguson, Robert A.  “Holmes and the Judicial Figure.”  Chicago Law Review, Vol. 55 (1988).

Frankfurter, Felix.  “The Constitutional Opinions of Justice Holmes.”  Harvard Law Review.  Vol. 29 (1916).

Grey, Thomas C.  “Plotting the Path of the Law.”  Brooklyn Law Review, Vol. 63 (1997).

Haack, Susan.  “On Legal Pragmatism: Where Does ‘The Path of the Law’ Lead Us?”  American Journal Jurisprudence, Vol. 50 (2005).

Leonard, Gerald.  “Holmes on the Lochner Court.”  Boston University Law Review, Vol. 85 (2001).

Luban, David.  “Justice Holmes and the Metaphysics of Judicial Restraint.”  Duke Law Journal, Vol. 44 (1994).

Mendenhall, Allen.  “Holmes and Dissent.”  The Journal Jurisprudence, Vol.12 (2011).

______________.  “Dissent as a Site of Aesthetic Adaptation in the Work of Oliver Wendell Holmes Jr.”  British Journal of American Legal Studies, Vol. 1 (2012).

Ragan, Fred D.  “Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr., and The Clear and Present Danger Test for Free Speech: The First Year, 1919.”  Journal of American History, Vol. 58 (1971).

Rosenblatt, Rand.  “Holmes, Peirce, and Legal Pragmatism.”  Yale Law Journal, Vol. 84 (1975).

Shea, Thomas F.  “Great Dissenters: Parallel Currents In Holmes and Scalia.”  Mississippi Law Journal, Vol. 67 (1997).

Snyder, Brad.  “The House that Built Holmes.”  Law & History Review.  Vol. 30, No. 3 (2012).

Wells, Catherine Peirce.  “Old-Fashioned Postmodernism and the Legal Theories of Oliver Wendell Holmes, Jr.”  Brooklyn Law Review, Vol. 63 (1997).

______________ [published under the name Catherine Wells Hantzis].  “Legal Innovation Within the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr.” Northwestern University Law Review, Vol. 82 (1988).