[Cicero]

Although this is a book review, it is also a splendid essay on the state of law in America, where it came from, where it is going, and particularly the problems that confront us in a world without values, controlled by liberal judges and postmodernist law professors.

[bubman]

bump

[Molly Pitcher]

Cool! Thanks for the post.

[Califelephant]

This made me laugh out loud:

The problem is not simply, as Smith thinks, that we cannot posit an adequate hypothetical author. It is that, even if we could, the law that would result would be a hypothetical law (whose violation would presumably be punishable by hypothetical incarceration).

[inquest]

Similarly, we have a practice of relying upon judicial precedent (so-called stare decisis), which is no less extensive post-Holmes than pre-Holmes. That made sense in a legal system that regarded judicial opinions as “evidence” of what “the law” is. It makes no sense in a legal system that regards the judicial opinion itself as “the law,” any more than it would make sense to bind today’s legislature to the laws adopted in the past.

Nails it there. There's a lot of confusion among even legal commentators about what judicial decisions are and are not. They keep referring to "the state of the law" when what they're really talking about is the state of judicial opinion. They're not the same.

[jdhljc169]

bump

[jdhljc169]

ping a ling

[jwalsh07]

My favorite:

"This is an inconvenience, perhaps, but not a contradiction in a system that regards judicial opinions as mere “evidence” of “the law”; in a system in which the judicial opinion is the law it produces law that is virtually lawless."

[baa39]

FYI, to NYer, perhaps your Catholic Ping List would be interested in this article from "First Things."

[Cicero]

Ping?

[TChris]

A brilliant article! Thank you for posting this.

[NutCrackerBoy]

Saw this referenced on NRO Bench Memos. Bump.

[RightWhale]

judges created the law of crimes, of torts, of agency, of contracts, of property, of family and inheritance

Not exactly what Holmes said. The law has evolved through accident, misreading, and omission, but mainly by practice of the community. Inheritance led to recognition of private property. Judges merely acknowledge what the community already wants, and the law does not come down from above.