Ben Hogan, Golf, and the Common Law
posted by Peter Smith
I was in the middle of Jeffrey Toobin’s book “The Nine” when a colleague who previously had tolerated playing a round of golf with me gave me a copy of Ben Hogan’s “Five Lessons.” I have read only the introduction of Hogan’s book, but–perhaps because I am in the proces of reading a gossipy but enlightening book about the Justices–I had law on the mind while I was perusing it. I was struck by the similarity between Hogan’s approach to golf and the the approach of the classic common-law judge to law.
Hogan, one of the greatest golfers of all time, writes that
What I have learned I have learned by laborious trial and error, watching a good player do something that looked right to me, stumbling across something that felt right to me, experimenting with that something to see if it helped or hindered, adopting it if it helped, refining it sometimes, discarding it if it didn’t help, sometimes discarding it later if it proved undependable in competition, experimenting continually with new ideas and old ideas and all manner of variations until I arrived at a set of fundamentals that appeared to me to be right because they accomplished a very definite purpose, a set of fundamentals which proved to me they were right becuse they stood up and produced under all kinds of pressure.
In the classic conception — perhaps an unduly rosy view, and one that I am not necessarily defending here — the common-law judge gradually refines the law, cautiously trying out new rules or applying old rules to new circumstances. Sometimes he discards a prior approach because it had proved unworkable in practice. But over time — and again, I am just presenting the common-law view, not attempting to defend it — the judge arrives at a set of fundamental principles that are right precisely because they generally produce good results and because they have stood the test of time.
Of course, it is not clear that this is an accurate statement of what common-law judges do. And even if it is, there is a lot of room to debate the desirability of this approach to the law. (For two very different views, compare Justice Scalia’s account of common-law judging in “A Matter of Interpretation” with Guido Calabresi’s view in “A Common Law for the Age of Statutes.”) But Hogan’s account of his approach to perfecting his golf game got me thinking that there might be a broader appeal to, and a broader application of, this experimentalist, gradualist approach.
As matters currently stand, unfortunately, although I am generally good at least for par at the common-law method, my handicap in golf is significantly higher.
October 2, 2007 at 8:22 pm
Posted in: Articles and Books
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Responses (6)
Chris - October 2, 2007 at 10:23 pm
Interesting post… I’m only a law student, so don’t have much perspective on how common law judges come to form an opinion.
But, I do write a golf blog and was thinking about how to branch the two topics – golf and law – when I came across your post in my RSS feed.
Interesting… and I’ve been wanting to read “The Nine.” (Read Hogan’s book a long time ago.)
Orin Kerr - October 2, 2007 at 11:53 pm
Peter,
It seems to me that Hogan’s method is the classic approach of an engineer. Try what works, and keep fiddling with your design until it seems to work best. Maybe I’m wrong, but I would guess that “Judges make great social engineers!” doesn’t have a particularly broad appeal (at least outside the legal academy).
A.J. Sutter - October 3, 2007 at 9:46 pm
First, if you’re a member of some state bar, aren’t you an officer of its courts, effectively having sworn to uphold the common law system? But this is a side issue.
The real issue is, what’s the point of this post? Much of it is equivocation. Are you presenting the CL view (“and again, I am just presenting the common-law view, not attempting to defend it “), or are you not (“it is not clear that this is an accurate statement of what common-law judges do”)? To what are you analogizing Hogan’s approach? If it is to a caricature of the CL view, why not say so? If you are unsure whether you’re making an apt analogy, why bother to make it the subject of a blog post at all?
It is also a sad commentary on the current state of legal academe that a full professor at a major US law school feels so cowed by those who would question the common law system (whoever these shadowy types might be — fundamentalists who want the US to adopt canon law, fiqh or halakhah? Frenchmen who regret the Louisiana Purchase and want our country’s midsection to adopt the Code Napoleon?) that he disclaims defending it, see first quoted passage infra. Is this ambivalence what you want your students to learn from you?
Thank goodness I am healthy of leg, but had I a cane I’d be slamming it on my desk, as oft had done my ConLaw professor of yore, “Wild” Bill Lockhart, when presented with such mealy-mouthed stuff.
ex-clerk - October 5, 2007 at 12:58 pm
It is also a sad commentary on the current state of legal academe that a full professor at a major US law school feels so cowed by those who would question the common law system (whoever these shadowy types might be — fundamentalists who want the US to adopt canon law, fiqh or halakhah?
Funny, I thought it was just a professor posting some musings on his blog.
A.J. Sutter - October 6, 2007 at 11:22 pm
Me too. But why not let musings run free? These sound like he’s worried someone’s going to complain that he’s defending common law. What’s to be scared about? Crabbed, equivocal musings aren’t worth much to anyone.
A.J. Sutter - October 6, 2007 at 11:51 pm
Me too. But why not let musings run free? Especially when you’re musing about golf?
It bugs me that someone who’s responsible for training future lawyers is apologizing for the legal system he’s teaching and that he voluntarily joined. You took a professional oath to uphold this system and the Constitution. It’s one thing to say that current laws in the US are messed up, or even that the Constitution needs amending. It’s something else to say that common law might not be a good system — change your job, if that’s how you feel.
Moreover, worrying so much about other people objecting to your remarks — just covering your rear end with hemming and hawing instead of refuting their possible objections — makes for weak journalism. Especially in a blog. This wasn’t a satire or propaganda piece. So why bother to say something unless you’re sure you believe it? Crabbed, equivocal musings aren’t worth much to anyone.
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