Say It with Music

I have elsewhere suggested that judges, when applying (and therefore interpreting) statutory or other legal rules, may be compared with musical performers when playing (and therefore interpreting) musical compositions; that, perforce, judges, like musical performers, are to some extent creative artists. That comparison invites another, a comparison between criticism of the products of fine artists and criticism of judicial decisions. Such a discussion may seem to some persons to support the Englishman C. K. Allen\u27s characterization of the ideas of some American lawyers as jazz jurisprudence. But I shall risk such name calling. For, even in England, jazz has influenced serious musical composers; I and an English musical critic, after stating that we must realize that the human mind reacts against the acceptance of new ideas, goes on to say: When Monteverdi, over three hundred years ago published the System of Discords, the whole host of critics took up arms against him. Yet in time his theories became current practice, and were included in even the most academic text-books of composition . . . These styles and developments have been absorbed into our musical vocabulary until by now they are meaningless conventionalities. As composers 9trive to penetrate unexplored fields of musical interpretation, they invariably encounter this conservative reaction against the unfamiliar

Judicial Fact-Finding and Psychology

Lawyers and judges must constantly act as psychologists or psychiatrists. The lawyer in his office often serves as an amateur psychiatrist to his clients. Our legal vocabulary shows that courts cope daily with such psychological matters, as, for instance, motive, intention, malice, mental cruelty, delusions and undue influence

Modern and Ancient Legal Pragmatism - John Dewey and Co. v. Aristotle: I

John Dewey is rightly hailed today as America\u27s most influential philosopher. Whether or not one agrees with critics who say that he has overstressed the practical, I believe it undeniable that his thinking about thinking has had immensely valuable effects on thinking in many fields. His outstanding thesis, to state it crudely, has been that all generalizations–all theories, principles, rules–should be tested by observing how they work in practice. Leading legal thinkers in particular have often quoted with approval his theory about the relations of theory and practice. Those thinkers, in turn, have influenced many other legal thinkers who have exploited Dewey\u27s insights, often without acknowledgement or knowledge of their debt to him

Comment on the Proposal in The Lawyer\u27s Role in Modern Society: A Round Table

I\u27ve been asked by the editor and by Morris Ernst to comment on the latter\u27s paper. I\u27m doing so hastily and sketchily. Morris Ernst is one of my dearest and most respected friends. I delight in his many-sidedness, his inventiveness, and his eager, often effective, desire to aid not only humanity but also specific human beings. Moreover, I agree with many of his assumptions and prejudices

Some Reflections on Judge Learned Hand

I was asked, originally, to speak of Great Judges. I objected. What, I queried, does one mean by great ? I remembered my dispute with Professor Thorne and Justice Frankfurter about Lord Coke, once Chief Justice of England. I said Coke was a nasty, narrow-minded, greedy, cruel, arrogant, insensitive man, a time-serving politician and a liar who, by his adulation of some crabbed medieval legal doctrines, had retarded English and American legal development for centuries. Thorne and Frankfurter replied that I proved their case, that the duration of his influence, no matter whether good or bad, made him a great judge. I think I lost that argument. But if that be the test, then we must put on our list of greats such men as Attila, Robespierre, and Hitler, although most of us consider them evil. And so too as to the great among legal thinkers, lawyers, and judges. Consider Tribonian who contributed importantly to the Justinian codification of Roman law which mightily affected the legal systems of the western world. Who was Tribonian? A brilliant scholar but a corrupt judge

Sin of Perfectionism

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