Breyer and Cardozo: A Brief Comparison of Cautious Consequentialists

By Carol Sanchez

Carol Sanchez will be graduating from Albany Law School in the Spring of 2021. During her time at Albany Law, Carol served as a Teaching Assistant for Constitutional Law I, Constitutional Law II: First Amendment, Criminal Law, and Torts. She is currently an Associate Editor for the Albany Government Law Review.

Carol worked as a Summer Associate at Barclay Damon, LLP in 2019, followed by K&L Gates LLP in 2020. Additionally, during the Spring Semester of her 2L year, Carol interned for Global Foundries in Malta, New York. 

The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. – Benjamin Cardozo.

Cardozo urged that all judges seem to inevitably share similar motifs in their problem-solving approaches for questions of law. But what exactly is the “good” in judges’ work that endures centuries and ties seemingly dissimilar judges together?

This paper will compare the jurisprudence of two Supreme Court Justices serving over half a century apart, Stephen Breyer and Benjamin Cardozo, in search of more intricate and critical similarities in their legal methodologies beyond what lies at the surface. Specifically, although the late Cardozo and the incumbent Breyer have both generally been regarded as ideologically liberal judges, the purpose here is to uncover similarities in reasoning that transcend both the test of time and the oversimplification of their “labelling.”

While many of Cardozo’s opinions shed light on his general approach to reaching decisions, his lectures collected in The Nature of the Judicial Process weres revolutionary in that they were the first of their kind to meticulously, comprehensively, and transparently describe the “common law methodology [used] to explain appellate decision-making.” Cardozo elaborated four principles that guided his jurisprudence, and he urged that judges must inevitably make decisions that are guided by the spirit of the times, directly challenging the legal fiction of textualism in areas of intentional or unintentional statutory vagueness.

However, do these four guiding principles apply solely to Cardozo, or do other judges, such as Justice Breyer, also subconsciously follow similar guiding approaches and methodologies in their works? This paper will explore Breyer’s jurisprudential tendencies through the study of three of his judicial opinions, as well as through a brief study of the jurisprudence set forth in his book, ACTIVE LIBERTY.

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To read the paper, open HERE.

Philosophy & Jurisprudence: The Thoughts and Methods of Holmes, Cardozo, and Brandeis

By David Dickinson

David Dickinson just completed his 2nd year at Albany Law School. He earned his bachelor’s degree in Political Science from Hobart College with a minor in international relations.
Prior to attending law school, David worked for four years at the New York State Department of Labor. While a student at Albany Law, David has served as a faculty research assistant and the student editor-in-chief of The New York Environmental Lawyer, a publication of the Environmental & Energy Law Section of the New York State Bar Association.
David’s paper was prepared for Professor Bonventre’s Supreme Court Seminar, Fall 2018.

Supreme Court Justices have often had their judicial philosophies analyzed and described, their evolutions tracked and notated, and their insights in major and minor cases outlined, quoted, and footnoted. This paper aims to draw out, so much as it is possible, some of the philosophical tenets providing the foundation for the thought of three of the nation’s most respected jurists: Oliver Wendell Holmes, Benjamin Cardozo, and Louis D. Brandeis.

Each of these Justices had their own method of preparing for and approaching cases, Additionally, each looked to varied political and philosophical traditions to begin these inquiries. For example, Holmes jurisprudence reflects a tension between the thoughts and concepts present in his legal writing, which find their foundations in philosophies, and Holmes’ own desire to be seen as having original thoughts and insights. This tension can be found in his writings on natural law, on common law, and on free speech.
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To read the paper, open HERE.

The Nature of Cardozo’s Process: Testing it in Schloendorff and MacPherson

By Mary Ann Krisa

Mary Ann Krisa, currently in her final semester at Albany Law School, received her bachelor's degree in English Language and Literature from Smith College, and her Master's degree in Public Administration from Cornell University.  Additionally, Mary Ann has studied at Trinity College, Oxford, and Columbia University.  Prior to attending law school, she worked in the field of Higher Education for ten years. 


Within the world of legal scholarship, Benjamin Cardozo is lauded as a jurisprudential icon.  Having written approximately 500 opinions during his eighteen-year tenure at the New York Court of Appeals, and over 170 opinions during his six years on the Supreme Court, Cardozo redefined legal precedents, created new legal precedents, and wove his thinking into countless areas of law.  Outside of the courtroom, Cardozo wrote—and lectured—ostensibly about the purpose and function of law and the role of the judge in the legal system.

For Cardozo, “the Law” was not simply based on logic, but rather on a series of other considerations that addressed larger societal concerns.  This paper explores the application of Cardozo’s judicial philosophy as written in Cardozo’s book  The Nature of the Judicial Process, in two landmark New York Court of Appeals cases, Schloendorff v. Society of New York Hospital and MacPherson v. Buick Motor Co.

II.  THE NATURE OF CARDOZO’S JUDICIAL PROCESS
To understand how Cardozo purported to think about jurisprudence, one need not look any further than the opening lines of Cardozo’s seminal work The Nature of the Judicial Process.

What is it that I do when I decide a case?  To what sources of information do I appeal for guidance?  What sources of information do I appeal for guidance?  In what proportions to I permit them to contribute to the result?  In what proportions ought they to contribute?  If a precedent is applicable, when do I refuse to follow it?  If no precedent is applicable, how do I reach the rule that will make a precedent for the future?  If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it?  At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or common standards of justice and morals?   

Cardozo concludes, “[i]nto that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions.”  Cardozo then goes one step further, acknowledging that such individual choices are not universal, but rather that the choices derive from beliefs nestled in both the conscious and the subconscious, beliefs that both “hover near the surface” and live “far beneath the surface.”

It is those deeply held beliefs, Cardozo argues, that keeps judges “consistent with themselves and inconsistent with one another.”   But when—and how—do those deeply (or not so deeply) held beliefs influence the judicial process?  Calling upon legal scholar John Chipman Gray, Cardozo suggests that those beliefs may invade when there is no answer, or when there is ambiguity, or “when the legislature has had no meaning at all; [or] when the question which is raised on the statute never occurred to it.”  To say it another way, these beliefs arise in times of uncertainty.

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To read the paper, open HERE.

New York’s Court of Appeals: Influential Decisions on American Jurisprudence

By Kaitlin Foley

Kaitlin Foley is a third-year student at Albany Law School. She graduated with honors from the University at Albany, SUNY in 2012 with a major in Psychology and a minor in Sociology. In between SUNY Albany and Albany Law, she attained a paralegal certificate.
Kaitlin is currently a member of the Albany Law Review. She serves as this year's Executive Editor for Research and Writing.
During her time at Albany Law, Kaitlin has been an associate on the Moot Court Board, interned with the Office of the New York State Attorney General, and held a field placement with Judge Randolph F. Treece, of the Northern District of New York. Upon graduation, Kaitlin hopes to pursue a career in the public sector. 
This paper was prepared for Professor Bonventre’s Court of Appeals Intensive Seminar.

The New York Court of Appeals, New York’s highest court, is composed of a Chief Judge and six Associate Judges. Each judge is appointed to a fourteen-year term, ending after that time or upon the judge reaching the mandatory retirement age of 70.

When a vacancy occurs, the Governor of New York makes an appointment. The individual chosen is selected from a list of candidates provided to the Governor by the Commission on Judicial Nomination. Each appointment is then subject to confirmation by the State Senate.

The Court of Appeals, has often been regarded as the second most influential court in the nation. This magnificent court has been responsible for establishing a variety of legal principles found in American jurisprudence.

This paper will chronologically discuss four cases, regarded as some of the most significant opinions to come out of the New York State Court of Appeals. Additionally, it will examine the effect these opinions have had on American Law.
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To read the paper, open HERE.

Judges: Lawmakers By Any Other Name

By Laura K. Bomyea
Laura K. Bomyea is a third year student at Albany Law School.  She received her undergraduate degree from Bard College, where she studied philosophy and literature.  Laura serves as Student Editor-in-Chief of the New York Environmental Lawyer, an Associate Editor on the Albany Law Review, a Student Editor with the New York Government Law and Policy Journal, and a Research Assistant with the Government Law Center at Albany Law. She currently works as a Law Clerk with Young/Sommer LLC.
This essay was prepared for the Judicial Process Seminar, Fall 2012.

The question of the role of judges as lawmakers is best addressed by Judge Cardozo’s assertion that the process of judging is not equivalent to matching colors in a card index. Rather, there are some “principles of selection” guiding the judge in his decision-making, even if those principles are not apparent to the judge himself.[1]

A judge cannot help but be a lawmaker.  For the process of making decisions, of creating new law where none existed before, is inherent in the process of judging. That is why judging is nothing like matching colors in a card index and spitting back the best match. 

Once a judge reaches “the land of mystery when the Constitution and statute are silent” on a given issue, the real work of judging begins.[2]  Precedent does not always help. Often it is merely, as Holmes calls it, prophecy.[3]

The judge needs to make a rule, or draw the case at hand within the net of existing rules, or carve out exceptions. He needs to decide something new, even by invoking something old in a new context, and that is where he puts on his hat as a lawmaker.

Judges as Lawmakers: An Inescapable Reality

By Joanna Pericone

Joanna Pericone, a third year student at Albany Law school, studied political science as an undergraduate at LeMoyne College.  Before attending law school, Joanna worked for the New York State Assembly in the communications office.  During law school, she has worked as a law clerk at the Albany County District Attorney's Office, and as a judicial extern for the Honorable Lawrence Kahn.  Currently, Joanna serves as a law clerk in the Albany law firm of Ganz Wolkenbreit & Seigfeld.  Joanna is also the Chair of the Domenick L. Gabrielli National Family Law Moot Court Competition and a Senior Editor on the Albany Government Law Review.

Joanna's essay was prepared for the Judicial Process Seminar, Fall 2012.

The common conception regarding the role of judges and the courts is that judges should not be making law.  As the unelected branch of our government, judges should defer to the decisions of the populous unless those decisions are a clear violation of the federal Constitution.  

Judges themselves have even perpetrated this impression by publicly rejecting the idea that they do more than simply apply the black letter law to the facts of a case to reach their decisions.  In those cases, judges do not want to be labeled as “activists,” because the notion of a judge creating law is unfavorable and seen as an abuse of judicial power.  

In the course of the study of judges and the judicial process, however, it is apparent that despite whether they recognize it or not, judges do more than “umpire,” in the words of Chief Justice Roberts.[1]  Rather, they often interject their own ideologies into the decisions that are being made.

In the beginning of the century, Justice Benjamin Cardozo gave a lecture at Yale University where he openly acknowledged that “judge-made law [is] one of the existing realities of life.”[2]  Cardozo articulated in his lecture that not every case is black and white and easily applicable to precedent.[3]  If a case were easy, it would never reach the high courts.

Judicial Activism: Legal Dirty Words

By Michelle K. Mallette
Micky Mallette, a third-year student at Albany Law School, is the student Executive Director of the Center. She is a graduate of the United States Military Academy, where she studied law and systems engineering.
Prior to law school, she worked for Procter & Gamble as a Marketing Purchases Manager and Technical Engineer. During law school, she has worked as a legal intern at the Third Judicial District Town & Village Courts and at the Appellate Division, Third Department, as well as a summer associate at Couch White, LLP.
Currently, Micky serves as the Executive Editor for State Constitutional Commentary for the Albany Law Review.
Micky's essay is the second in the series on judges as lawmakers prepared for the Judicial Process Seminar, Fall 2012.

Any implication that a judge is engaging in judicial activism is anathema to most judges.[1]  Judges don’t make law. Judges render decisions based solely on the application of black letter law to the facts of any given case.

According to Posner, “[j]udges tend to deny the creative—the legislative—dimension of judging . . . because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis.”[2]

But no matter how hard judges try to deny it, whether they realize it or not, judicial lawmaking is inescapable.  Judges are not independent arbitrators free of the influences pervasive in society.  Judges “may try to see things as objectively as [they] please,” counsels Judge Benjamin Cardozo, but “[n]one the less, [they] can never see them with any eyes except [their] own.”[3]

What's Wrong With Judicial Lawmaking Anyway?

By Benjamin P. Pomerance

Ben Pomerance, a third year student at Albany Law School, is the Executive Editor for Symposium for the Albany Law Review and the 2012 Edgar and Margaret Sandman Fellow for the Government Law Center.

Ben received the New York State Bar Association President's Pro Bono Service Award in recognition of his founding and leading the law school’s Veterans Pro Bono Project. He also received the Bar Association’s Elder Law Section Scholarship for his work in that field, including service as president of the school’s chapter of the National Academy of Elder Law Attorneys and a student editor of the Bar Association’s Elder Law Attorney publication. Additionally, Ben is student co-chair of the Law School Liaison program and editor-in-chief of Law Student Connection, the Bar Association’s student newsletter. He has previously been published by the Center for Judicial Process. (See Original Sin? Why a Prescription of Originalism as a Judicial Cure-All Falls Short of the Promised Remedy, 9/29/2012.)

One more thing, he organized an extraordinary symposium for the Law Review on Free Speech. It is no exaggeration that Ben planned and executed one of the very best events in my 22 years at Albany Law School.

This essay by Ben is the first in the series on judges as lawmakers prepared in the Judicial Process Seminar, Fall 2012.

Here’s the dirty little secret: Judges make law.

Actually, it isn’t much of a secret. The cat has been out of the bag since at least 1897, the year of Justice Oliver Wendell Holmes, Jr.’s seminal essay The Path of the Law.[1]

“Theory is my subject, not practical details,” Holmes wrote.[2] Then, a few lines later, he continued, “[t]heory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject.”[3]

In other words, simply applying law to facts and reaching an obvious conclusion cannot decide the vast majority of cases. The cases are not obvious, and the decisions are tough. And in order to reach them, judges must interpret the constitutional and statutory provisions to reach an answer. All of which leads to one unavoidable conclusion: Judges making law.

Many of the great judges recognize this reality. Holmes gave way to Benjamin Cardozo,[4] whose mantle of judicial realism has been taken up by today’s pragmatists like Richard Posner.[5] These judicial luminaries have stated—not as a confession but as a fact of life—that their job implicitly comes with more than a little bit of lawmaking.

Cardozo spoke freely in his celebrated lecture series, The Nature of the Judicial Process,[6] about his own use of value judgments and societal foresight and sensibilities in deciding cases.[7] He talks about the many ingredients that go into his decisions: logic, justice, sentiment, and reason.[8] Posner essentially does the same when criticizing the hard-line ideological stances of Justice Scalia and Justice Breyer.[9]  Get over it, he seems to be saying.  We know you make law.  And it’s okay.[10]

Getting Justice Ginsburg's Goat

An Examination of Her Dissenting Opinions

By Chelsy Jones
Chelsy Jones, a third-year student at Albany Law School, is a Senior Editor of the Center.  Chelsy is a magna cum laude graduate of Siena College with a degree in Political Science. While in law school, she has served as a legal intern for the Domestic Violence Hybrid Prosecution Clinic, and as a Research Assistant for the Albany Law School Clinic and Justice Center.  Currently, Chelsy works year round as a legal intern at the Schenectady County District Attorney's Office. Chelsy also is the student ambassador for the Center for Excellence in Law Teaching and a member of the Teaching Enhancement Committee.
Chelsy's paper was originally written for the Judicial Process Seminar last year.

In his Nature of the Judicial Process lectures, Benjamin Cardozo once spoke of the “inarticulate” and “unavowed” views and positions that underlie all judges’ decisions.  He was speaking of judicial realism, a term most judges today retract from and even flat out deny, claiming impartiality to the point of judicial lobotomy.  

Realistically however, it truly is impossible for a judge, or any human for that matter, not to bring their personal views and positions into the equation when making a decision.  Cardozo therefore spoke of the “stream of tendencies” or patterns that naturally emerge in a judge’s voting record.  This paper will explore Supreme Court Justice Ruth Bader Ginsburg’s “stream of tendencies” in an effort to unearth what truly vexes her and reveal her “inarticulate” and “unavowed” views.

Dissents, in particular, best reveal a judge's position on certain issues.  When a judge dissents, she is not only disagreeing with her colleagues in the majority, but also taking the time and effort to explain her reasons for doing so.  Thus, to illustrate the types of issues Justice Ginsburg feels strongly about, or that “get her goat,” this paper will examine her dissenting opinions authored during the 2010 and 2011 terms.*
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* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.

Holmes & Cardozo: An Introductory Presentation

By Michelle K. Mallette

Micky Mallette, a third-year student at Albany Law School, is the student Executive Director of the Center. She is a graduate of the United States Military Academy, where she studied law and systems engineering. Currently, Micky serves as the Executive Editor for State Constitutional Commentary for the Albany Law Review.
Prior to law school, she worked for Procter & Gamble as a Marketing Purchases Manager and Technical Engineer. During law school, she has worked as a legal intern at the Third Judicial Department Town and Village Courts and at the Appellate Division, Third Department, and as a summer associate at Couch White, LLP.
This presentation was prepared for the Judicial Process Seminar, Fall 2012.

(click to enlarge)

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To view the complete slide presentation, open HERE.

(Then, for the complete presentation with notes, click File + Download and open download.)

The New York Court of Appeals: Analyzing the Status of Workers’ Rights in New York

By Christina French
Christina French, a third year student at Albany Law School, is the Editor-in-Chief of Albany Law School's Journal of Science and Technology. She works at New York State United Teacher as a Law Clerk for the Office of General Counsel.
This paper was prepared for the Judicial Process Seminar, Fall 2011 semester. It is Ms. French's 2d publication for the Center. (See Holmes and Cardozo: Early Contributions to the Progression of the Law, Nov. 28, 2011.)

This paper will provide a brief summary of several judicial opinions issued by the New York State Court of Appeals regarding employee benefits awarded for accidental on the job injury. The intention of the exercise is to provide the practicing attorney and other legal scholars with some insight into the status of workers’ rights as represented in the decisions of the New York Court of Appeals.

Two pieces, written by Holmes and Cardozo, contribute to the study of the judicial process by articulating the theory of legal realism and its approach to understanding what it is that judges do when they make decisions, and how that contributes to the progression of law. Before delving into the decisions, it is important to explore the theory of legal realism and how it can be applied to the study of the law of the courts.

Justice Holmes has written about the way in which judges begin with a decision first, and only after that decision is made, do they come up with reasons to explain them. Similarly, Justice Cardozo’s explanation of the judicial process begins with the law, but ends in the same place where Holmes begins, and that is with judges deciding difficult cases on the basis of considerations that reach well beyond the black letter of the law.

Ultimately, the two justices offer early forms of judicial realism that intended to avoid a formulaic and logical approach to decision making. Holmes and Cardozo add to our more modern conversation of legal realism by offering theories that advocate for a judicial process where the law is necessarily (and properly) shaped by changing notions of justice and fairness.

There are many avenues of workers’ rights issues that could be reviewed in order to provide the most comprehensive overview of how the topic is treated by the New York Court of Appeals. This paper will focus on those worker’s rights issues as related to awarding worker benefits for on the job injuries. The research was further limited to three years to ensure that the same composition of judges decided all of the cases.*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Selection and Appointment of Supreme Court Justices

The Criteria--What They Are and How They Are Used

By Eric Ross

Eric Ross, a third year student at Albany Law School, is President of the Albany Law Civil Liberties Union and a Senior Editor of the Center. He works at the U.S. Attorney's Office, Northern District of New York, as a Law Intern. This paper and slide presentation were prepared for the Judicial Process Seminar, fall 2010.

Elena Kagan’s nomination and confirmation to the Supreme Court, in the summer of 2010, brought to the forefront the process by which Justices are selected by the President and confirmed by the Senate. What is not publicized is the selection process itself. What exactly is needed to become a Supreme Court Justice?

The process and criteria described below may surprise the uninitiated. However, delving into the process and the history of selections, it becomes clear that, similar to many of the processes of today’s government, the selection process is largely political.

One looking to the Constitution for selection criteria will be surprised to learn that it does not provide any guidelines for selecting Justices to the Supreme Court. The Constitution does provide a clue, however, as to how a judge is appointed. It says, “[The President] shall have Power, by and with the Advice and Consent of the Senate . . . [to] nominate . . . Judges of the [S]upreme Court.” The extent of instructions on how to nominate a judge is limited to the language that, “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour."*

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* Citations to references in this introduction are available in the paper.

Read the entire paper HERE.
View the complete slide presentation HERE.

Jerome Frank on Trial

By Zachary A. Phelps

Zach Phelps, a third year student at Albany Law School, is a proud graduate of Homer Central High School and the College of Saint Rose, and an officer in the United States Marine Corps. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

In a thrilling expose on the judicial system in the United States, Jerome Frank explores many of the major issues that surround the United States judicial process, pulling no punches and refusing to allow his voice on the matter to be muffled in his stimulating book, Courts on Trial.[1]

The beginning of his book delves into the problems that lawyers face with facts. Jerome Frank preaches about the importance of facts in the litigation process, and how hard it is to be a lawyer. Most of his musings come off as mere ramblings of a lazy and unmotivated lawyer. As he professes later in his book, the lawyer has to take what the situation gives him and do his best to represent his client and, if the system is as broken and against him as he seems to think, go forth and fix the problem.

Holmes and Cardozo

Early Contributions to the Progression of the Law
By Christina French 

Christina French, a third year student at Albany Law School, is the Editor-in-Chief of Albany Law School's Journal of Science and Technology. She works at New York State United Teacher as a Law Clerk for the Office of General Counsel. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

Two pieces, one written by Holmes[1] and another by Cardozo,[2] contribute to the study of the judicial process by articulating the theory of legal realism: the insights of realism to understanding what it is that judges actually do when they make decisions, and how that contributes to the progression of law. Holmes explains the way in which judges begin with a decision first, and only after that decision is made do they choose the reasons to explain them. Cardozo’s explanation of the judicial process begins with the law, but ends in the same place where Holmes begins--that is, with judges deciding difficult cases on the basis of considerations that reach well beyond the black letter of the law.

Ultimately, the two justices offer early forms of judicial realism that intended to avoid a formulaic and rigidly logical approach to decision-making. Holmes and Cardozo add to our more modern conversation of legal realism by offering theories that advocate for a judicial process where the law is necessarily (and properly) shaped by changing notions of justice and fairness.

A Reasonable Path to a Just Result

Cardozo's and Holmes' Counter to Judicial Restraint

By Molly C. Casey

Molly Casey, a third year student at Albany Law School, is a Senior Editor for the Center. She works in the New York State Legislature as a Legislative Aide to Senator Lee M. Zeldin. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

Benjamin N. Cardozo wrote The Nature of the Judicial Process,[1] while serving on the New York Court of Appeals, six years before he rose to the position of Chief Judge, and eleven years before he succeeded Oliver Wendell Holmes, Jr. as an Associate Justice on the United States Supreme Court. In this article, Cardozo discusses the role of the judiciary and the processes it employs in the contexts of statutory interpretation and the evolution of case law.

Cardozo’s view of the purpose and function of the judiciary runs counter to judicial restraint, the theory advocated by such other renowned justices as Antonin Scalia and William Rehnquist. While an unequivocal endorsement of judicial activism should not be read into Cardozo’s article, he does at one point use the metaphor of the judge as an “artist” to suggest that on some level he endorses a more activist approach.

With respect to statutory interpretation, Cardozo articulates the role of the judiciary as filling in the gaps and clearing up ambiguities in statutes created by the legislature. Statutes are often “fragmentary, ill-considered and unjust” and the judge must act as the “interpreter for the community of its sense of law and order.” The judge cannot simply apply the law to the facts because the law, as articulated by the legislature, is incomplete. Nor may the judge exercise restraint because there is no authority restraining him.

Holmes and Cardozo on Judicial Decisionmaking

A Contrast to Scalia and Rehnquist

By Bronson C. Stephens

Bronson Stephens, a Third year student at Albany Law School, is a Senior Editor for the Center, as well as the Immigrants’ Rights/International Human Rights Project Director of the law school's Pro Bono Society. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

In his The Path of Law,[1] Oliver Wendell Holmes starts by defining the study of law as the prediction of judges’ determinations; that the whole of jurisprudence is creating prophesy and an organized system with which to make prophesy. Holmes is clear from the start that what he means by law is “the prophecies of what the courts will do in fact.” 

Holmes delves into what he sees as a widespread issue affecting learning and understanding of the law. The issue is confusion over and merging of morality and law. He gives the example of viewing the law through the eyes of a “bad man,” a perspective he returns to again and again. The idea is that, to a bad man, the law is a “body of dogma enclosed within definite lines.” The bad man only values knowing the law based on the “material consequences which such knowledge enables him to predict….” This distinction is of fundamental importance when it comes to prophesizing. In this section, Holmes argues that removing morality from law is the only way to see its honest functioning structure.