THE LAW TODAY

I. Introduction: The Essence of Legal History--all I want to do today is to raise the key or essential questions concerning what we have been doing jointly for the past 14 weeks, issues that are captured quite well in a Supreme Court decision handed down last week, parts of which I will read shortly.

II. The Rule of Law & Judges in a Democratic Polity: Where does law come from? What are its purposes or functions? Why does law merit respect? What are natural and positive law, and what is the relationship between them?

III. The Role of Judges: Procedures v. Substance--every day in every way judges have to apply and interpret legal process and substance--the role of judges in bench and jury trials--admissibility of evidence; how evidence, if admissible, relates to the charges; explanation of disputed matters to the jury; charge to the jury; evaluating jury's verdict in light of the case law and the evidence.

IV. Judicial Activism v. Judicial Restraint: the theory and logic of judicial restraint; the sentiments of Holmes and Frankfurter--the theory and logic of judicial activism: protection and advancement of the rights of excluded minorities--a Constitution of rights that has nothing to do with "original intent."

V. The Contradictions of Theory: Legal abstraction as a flight from reality--Nixon, Reagan, Meese, Rehnquist, et. al. and the attack on a judicial imperialism; stop judges from making law or, as it was sometimes claimed, legislating--yet look at some of the things that these legal abstractionists and worshippers of original intent do in practice: Antonin Scalia, the separation of powers, and Robert Frost's stone walls--Who builds the walls and defines the space that they enclose? Scalia v. Breyer on interpreting Frost--The power of congress and who determines how far it reaches: Rehnquist-Thomas v. Breyer-Souter--read from their respective opinions.

VI. What Makes Law Effective? To use current jargon, what makes legal rules and procedures hegemonic?

VII. Conclusion: The Wisdom of Holmes--Let me read the last sentence from Hall: "Yet our legal history suggests that it has been more a river than a rock, more the product of social change than the molder of social development." In Holmes' aphorism, law as experience rather than logic.