Reviews for The Path of the Law: Learning, Understanding, and Mastering the Law

The average rating for The Path of the Law: Learning, Understanding, and Mastering the Law based on 2 reviews is 3 stars.

Review # 1 was written on 2021-03-13 00:00:00 Chris Stange In my view, the main themes in Holmes' article are the following: Law is the prediction of what courts will decide given a particular set of facts. The rest is just commentary. Law is conceptually distinct from morality and legal rules expressed in a language that carries a moral baggage only serve to create confusion. In contact law, the "legal duty" to perform a contractual obligation is the prediction that failing to keep your promise will render the party liable to pay damages. In criminal law, the words "negligence" and "intent" essentially describe different degrees of risk in harming someone, rather than being references to the defendant's mental state. Shifting from form to substance, Holmes argues that while the content of legal doctrines is largely shaped by history and tradition, rules must not be "blind imitation of the past" and should be discarded if they are irrational. The decision on whether to modify or abandon a rule should be based on a cost/benefit analysis with the view to maximize social welfare. "For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics." Holmes' style of writing stands in stark contrast to most other works in jurisprudential literature which are often impenetrable. He avoids the impersonality, formalities, and unnecessary use of jargon that characterize many other scholars in this field. His informal tone and conversational style make the article very easy to follow. For the most part, I agree with the arguments set out in The Path of The Law. However, there is an issue which Holmes leaves unaddressed. If law is completely bereft of morality and judges have a "duty of weighing considerations of social advantage", some constraints must be set in place to limit how far judicial activism can go. If the limits are not set by morality, something else must demarcate the red lines which a judicial cost/benefit analysis cannot cross. If law can be considered as a science at all, it is a social science where the economization of social issues often tends to be a subjective exercise. Without clear boundaries, a cost/benefit analysis can take a very Darwinian/utilitarian turn and make serious inroads to individualism. A case in point is Buck v Bell where Holmes upheld the constitutionality of a law permitting the sterilization of the mentally ill with his infamous epigram "Three generations of imbeciles are enough".

Review # 2 was written on 2008-02-23 00:00:00 Seth Godin This is actually a Law Review article that must have been published in book format later. I found it on Dailylit.com - a website that e-mails you segments of books everyday so you can read a book even if you don't think you have time. They have a ton of old classics for free (because they are now in the public domain) but new books you can purchase to read. I chose to read this one as my first book because it was short (only 10 installments) and I thought that would be a good way to try the website out. It wasn't until I got the first installment that I realized it was really just a Law Review article - I'm not sure why this disappointed me - maybe its because I work with Law Review articles every day. Anyway, the article was fine- just your typical hard to read theory based explanation of the law that doesn't really get you anywhere. It was like Holmes was just talking to himself - I'm not quite sure what the point was. I mean, he talked about how people should separate morality from the law (meaning that we shouldn't think in moral terms when we are thinking about law - not that the law shouldn't espouse moral values) and he talked about how history shapes the law (meaning often the seemingly pointless and arbitrary laws are really leftovers from old old laws used to have meaning and significant purpose but don't anymore - and he questioned the sense in doing that). It's all legal theory, but he only breifly touches on any substantial legal theory and does so by example only. It's like the theory of theory of law. Hey, I know what he wrote is really smart - but I'm just not into THAT MUCH theory.