The Holmes School of Law: A Proposal to Reform Legal Education Through Realism

Abstract: This article proposes the formation of a new law school, the Holmes School of Law. The curriculum of the Holmes School would draw upon legal realism, particularly as articulated by Oliver Wendell Holmes. The proposed curriculum would focus on educating students about "law in fact"-how law is actually experienced. It rejects the idea that legal education should be about reading cases written by judges who not only bring their own biases and cultural understandings to their role, but who also ignore law as experienced, which, in the end, is what law is. This disconnect is especially troubling because virtually all legal education ignores law as experienced by low-income people. The article concludes with responses to anticipated objections to the proposal.I. MISSION STATEMENTThe mission of a newly established Holmes School of Law is to teach law.1II. COURSE DESCRIPTIONS: A SELECTION2Adjudication: 8 CreditsAn examination of different fora where matters are adjudicated. Students will observe where the bulk of adjudication takes place, including the Two Minute Hearing Court to Evict Tenants;3 the Default Judgment Foreclosure Court and the "processes" it employs;4 Administrative Court for Prolonged and Fruitless Review of Unjustified Denials of Government Benefits;5 the Court for Incarceration through Plea Bargains and Sham Waivers of a Constitutional "Right" to a Jury Trial;6 judicial process "adjudicating" the welfare of children, as compared to adjudication of matters involving large business entities;7 and the inapplicability of "rules of civil procedure" to "summary proceedings" that overwhelmingly impact indigent litigants.8 The course may also examine, by way of contrast, fora whose degrees of process and resource allocation vastly exceed the volume of cases they adjudicate, such as federal courts.9The Judicial Opinion: 1/10 CreditThis course, offered during orientation, explores the limited role judicial opinions play in understanding law;10 the overwhelming correlation between judges' political and policy affiliations in predicting judicial outcomes;11 how endless citations of precedent and legal analysis in opinions function as an ex post facto means to justify foregone conclusions;12 and judicial opinions as a means for presenting a veneer of rationality and scientific precision.13 As part of this course, students will choose a judicial opin ion of at least sixty pages14 and draft a full explanation of, and basis for, the decision in three pages or less.15 NOTE: This course fulfills the legal analysis requirement.The Supreme Court I: 1/10 CreditThis course examines judicial opinions by the High Court. Topics include the reality that the current Justices have rarely, if ever, represented individual clients in practice;16 the extraordinary attention lavished by academics and other legal commentators on the Court's hyper-technical arguments and dense thickets of citations and logical forms to justify preexisting conclusions;17 the ability to predict decisions across a wide range of substantive areas based on a judge's ideology without knowing a single precedent or reading a single brief; 18 an examination of whether the rule that the Supreme Court is the only court in which "Court" must be capitalized at all times is analogous to the capitalization of the names of Supreme Deities.19The Supreme Court II: 8 CreditsThis course focuses on the circumstances faced by litigants in selected matters decided by the Court. The topics covered will vary based upon available opportunities for observation or participation, but may include witnessing an execution in order to assess the Court's decisions regarding whether capital punishment is cruel and unusual;20 visiting homeless shelters and soup kitchens to explore the Court's jurisprudence on due process-specifically how it has not been extended to ensure the right to food, shelter, or other means of subsistence;21 residing in an urban neighborhood riddled by handgun violence to assess the role that handguns play in contemporary society in contrast to the role of well-regulated militias in rural America in 1791;22 attempting to exercise First Amendment rights as an individual compared with multi-national legal entities that are not human beings and which possess massive aggregations of capital;23 assessing how the First Amendment promotes the "marketplace of ideas" when entry into the marketplace can only be secured by wealthy individuals who have resources to buy ideas sold in the marketplace. …