2130) A case comes to court with a unique fact situation. It immediately enters a kind of vortex of imperatives. There is the imperative to find the just result in the case. There is the imperative to find the result that will be consistent with the results reached in analogous cases in the past. There is the imperative to find the result that, generalized across many similar cases, will be the most beneficial to society as a whole - the result that will send the most useful behavioral message. There is also, though less explicitly acknowledged, the desire to secure the outcome most congenial to the judge's own politics, and the desire to use the case to bend legal doctrine so it will conform better with changes in social standards and conditions, and the desire to punish the wicked and excuse the good, and to redistribute cost from parties who can't afford them (like car accident victims) to parties who can (like car manufacturers and insurance companies).

Hovering over the whole unpredictable weather pattern - all of which is already in motion, as it were, before the particular case at hand arises - is a single meta-imperative. This is the imperative to to let it appear as though any one of the lesser imperatives has decided the case at the blatant expense of the others. A result that seems just intuitively but is incompatible with legal precedent is taboo; so is a result that is formally consistent with precedent but appears unjust on its face. The court does not want to seem to excuse reckless behavior [...] but it does not want to raise too high a liability barrier to activities that society wants to encourage [...] It wants the law to run in a politically desirable direction, but it does not want to be caught appearing to bend an anachronistic legal doctrine in order to compel a politically correct result.

There is also, within each of these competing imperative, the puzzle [...] which is the business of deciding what counts as relevant within that particular discourse and what does not. This series of problems begins with the question of what the legally relevant "facts" in the case really are; it runs through the question of what counts as an applicable general legal principle, what counts as a benefit to society, and so on; and it ends with the question of what counts as a "just result."

Louis Menand
"Bet-tabilitarianism"
The New Republic (11/11/1996)
[review of The Collected Works of Justice Holmes
edited by Sheldon M. Nozick]

2131) [A]lthough we always want to reduce the degree of uncertainty in our lives, we never want it to disappear entirely, since uncertainty is what puts the play in the joints. Imprecision - the whimisicality, as it were, of the quanta - is what makes life interesting and change possible.

Louis Menand
"Bet-tabilitarianism"
The New Republic (11/11/1996)
[review of The Collected Works of Justice Holmes
edited by Sheldon M. Nozick]

2132) [Oliver Wendell] Holmes believes that experience is the only basis we have for guiding our affairs, but he also believed that experience is too amorphous, or too multiple, ever to dictate a single line of conduct. Experience makes things blurry at the edges; it reduces knowledge to a prediction of what should be the case most of the time, and we treat a prediction as absolute at our peril. We start, in the law, with a principle or concept that seems to help us decide the great mass of cases, and we therefore begin to assume this concept is fundamental. But as we move out towards the marginal cases, we begin to find that the concept actually rests on a whole submerged structure of other concepts, policies, intuitions, practices and assumptions, and at a certain point we discover that it has been emptied of predictive force.

Louis Menand
"Bet-tabilitarianism"
The New Republic (11/11/1996)
[review of The Collected Works of Justice Holmes
edited by Sheldon M. Nozick]

2133) As an arbitrary fact people wish to live, and we say with various degrees of certainty that they can do so only on certain conditions. [...] But that seems to me the whole of the matter. I see no a priori duty to live with others and in that way, but simply a statement of what I must do if I wish to remain alive. If I do live with others they tell me that I must do and abstain from doing various things or they will put the screws on to me. I believe that they will, and being of the same mind as to their conduct I not only accept the rules but come in time to accept them with sympathy and emotional affirmation and begin to talk about rights and duties. But for legal purposes a right is only the hypostasis of a prophecy - the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it.

Oliver Wendell Holmes
"Natural Law"
Harvard Law Review (1918)
quoted by Louis Menand in
"Bet-tabilitarianism" in
The New Republic (11/11/1996)
[review of The Collected Works of Justice Holmes
edited by Sheldon M. Nozick]