A Lawyers’ Canon?

by Rich Cassidy on March 16, 2015

The_Western_CanonThe idea of a “Western Canon” is a body of books and cultural achievements that are broadly accepted as most important and influential in shaping our culture. One example is Harold Bloom’s, The Western Canon, Riverhead Books, 1994.

Obviously, the idea of a canon provides endless opportunity for debate, and little potential for definitive resolution. One area of debate is who has sufficient intellectual authority to be the arbiter of such a list.

But the notion — that the profession might have some general sense of what cultural resources a well educated lawyer ought to be familiar with — seems a worthwhile one, even if agreement is beyond reach.

The law is a learned profession, and it seems to me that to truly be “learned,” a lawyer needs to know a lot more than what was taught in law school and certainly more than what was tested on the bar exam. More than anything else, law school was all about reading, but most of that reading was confined to to cases and statutes. Only a few of those, perhaps Brown v. Board of Education and the Uniform Commercial Code, could in any sense be considered part of a lawyers’ canon.

It might be useful, and at least entertaining, to develop some common understanding as to what books and other resources a lawyer should be familiar with to be “learned” in the law.

I don’t claim the intellectual authority to decide what should be in a lawyers’ canon. But I have some ideas on the subject, and I am willing to nominate some items that should be considered for such a list. Discussion or even debate about what a learned lawyer should know might give interested lawyers some good ideas.

So, from time to time I intend to suggest some books, and some other items that I think belong in a lawyers’ canon. Some will be classics and well-known. Some will not.

I’ll start today, and with a resource that clearly belongs on the list. My suggestion is indeed a classic: The Common Law, by Oliver Wendell Holmes, Jr. The+Common+Law_Cover (2)

I don’t think it’s really arguable. Holmes shows us the roots of much from which the modern common law has grown. If you want to understand the underlying theory of contract law, or the purposes of the criminal law or tort law, The Common Law is the place to begin.

It is very worthwhile to understand that much of our our law is a cultural substitute for the human impulse to take vengeance. Holmes shows us that this relationship has surprising breadth and lasting implications.

And, of course, when it comes to the law, history matters. As Holmes wrote: “The life of the law has not been logic; it has been experience.”

Does understanding Holmes’ point and understanding it in depth really matter?  I think it does. One thing all lawyers do is to interpret the law. Often the interpretation is uncertain. Getting it right requires knowing how the particular question fits in with the larger pattern of the law.

So, I nominate The Common Law without doubt or reservation.

More suggestions will be forthcoming.

Rich

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Regular readers of this blog know that I am interested in the feedback loop between popular culture and the law. Recently, I watched “The Judge,” a Robert Duvall and Robert Downey, Jr. film.  And as I did, I wondered about the impact of the film on the public’s view of lawyers and judges.

The film is a story of conflict between father and son and between the law and the Judge. The basic plot is this: The Judge is terminally ill. He does not want anyone to know. His memory is suffering, and in the aftermath of his wife’s death and funeral, he is charged with a fatal hit and run. He doesn’t recall the event, but it turns out that the victim is a man the judge once leniently sentenced for domestic abuse. After release, the abuser had murdered his domestic partner. The accusation is that the Judge subsequently took the law into his own hands and intentionally killed the abuser. One of his sons — the black sheep of the family, but a highly successful big city trial lawyer — defends him.

Early in the film, the Judge awakens from a nightmare. Is he afraid of the trial? His death? We don’t know. It’s a matter of interpretation, and each of us can decide on our own what we think it means.

But the Judge tells us that he is proud of those he has sentenced who have then found their way to a new and better life. Is the Judge’s psyche working through the decisions he has made in 42 years on the bench that have deeply influenced many human lives? After all, no one could make all those decisions correctly.

Later, at trial, the son examines his father. His memory failing, the Judge admits that he may have killed the abuser. Asked why he previously gave the abuser a lenient sentence, the Judge responds to his son’s question:

I looked at him and saw you. I saw my middle son. My little boy. I wanted someone to help him. Like I would help my little boy, if someone had lost his way. I wanted to put my arms around him. I looked at him and saw you.

Is the movie unrealistic? Even wildly unrealistic? Sure, but fiction offers the opportunity to juxtapose incredible combinations of facts to show real conflicts in highly dramatic relief.

So in an overly dramatic way, does the movie reflect the reality of the burden judges carry? I think it does.  What kind of human can do the job of sentencing? It is only for those with mental callouses thick enough simply not to care?  Can a judge be aware and compassionate and do the job?

We do justice this way because we don’t have a better way. We don’t have infinitely wise beings to make such decisions. We only have some among ourselves who are willing to try to wrestle with these burdens, and who are chosen to do it. Some do it better than others. None will be perfect.

The good ones will struggle with themselves in the process, but find a way to handle it. The poor ones see nothing to struggle over.

Perhaps some members of the public will understand this a little better if they watch “The Judge.”

Rich

 

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