When we are exposed to the law during our first year of law school, it is as a series of legal battles fought in appellate courts. These battles are presented to us in casebooks, which are primarily compendiums of cases arranged in the order the author feels best highlights the evolution of the principles of law he wants first-year students to learn. Although there are some cases that warrant greater exposition by the casebook author, we are mostly given the majority opinion and dissents, with very little facts or procedural history, and what facts or procedural history we get are filtered through the pen of the opinion author. At the end, one side wins on each issue, the judgment is affirmed or reversed.

This method of teaching has many effects on a first-year student, but the one that is the subject of this paper is that it emphasizes something called legal reasoning- the process, written on paper, followed by the judge in reaching his conclusions. We dissect the opinions, sometimes line by line, and, although the professor may raise objections to specific points, believe that the conclusion, or holding, follows logically from the line of reasoning. On the exam, we are tested on not only our knowledge of the rules, but on our legal analysis. So-called policy considerations are considered disposable, something to throw in at the end of the essay as long as you have spotted and fully analyzed all the issues.

This way of thinking about the law is necessary in some sense- because this is how these particular legal battles are fought and need to be fought in order to maintain the myth that the law is something that exists in a tree above our heads and is picked like fruit by the judges. Law schools could not teach the politics of Supreme Court decisions- how to sway Anthony Kennedy once you've locked up the other four justices. Like Moglen's young Constitutional Law professor said- they must learn the wrong way before the right way. Law students must learn legal reasoning as the basis for law because that is all law students should be ready to do once they become lawyers.

However, this method of teaching creates a certain picture of the law that influences the development of students as lawyers- that is, they do not learn to fight wars. They do not learn, for example, how the learning party in a Constitutional law case could have avoided entirely the negative decision, or found a way to fight another battle- this time one where his chances of winning were greater. This would be fine, if law students were expected to go out into the profession and learn to fight battles as a step to learning how to fight wars. However, law students are not able to do this, because they are very quickly offered positions with mercenary companies- law firms. They then rampage around the country, fighting a series of battles with which they have very little emotional connection to the winner and loser.

Wars are fought by lawyers (and people) with causes. They are fought with considerations of money, power, history, values, weapons. Some lawyers must meticulously plan their wars, because they know that the opposing side has more money, more power, better or more expensive weapons and soldiers. Lawyers can be both generals and soldeirs in these wars, or can be one or the other. A successful war, however, might involve other people than simple lawyers. It might involve politicans, public rleations, the media, engineers. It might involve setbacks or sacrifice on the road to overall victory. It might be fine to lose a battle in order to avoid losing an even bigger one down the road.

Law firms have no interest in wars. Fighting wars is for lawyers with causes, who need to figure out strategy. Law firms can come in when the war is already afoot, when one side needs David Boies to win a battle in an appellate court or Skadden Arps to flood some poor small-town practitioner with discovery motions. Law firms are paid a lot of money to do this, and they train their young warriors accordingly.

But what happens when those clients- usually the great corporations of American capitalism- decide that they would rather have lawyers who fight for them- who fight for their cause, or at least that the mercenaries cost too much. The great cities of medieval Italy learned the hard way that mercenaries almost never came as advertised, exorted money, ran from fights they couldn't win, and sometimes might storm the gates of the city that paid them. When it became viable to train and equip armies of their own, the mercenaries lost work or were relegated to work too dirty for the professional armies to do.

This is the crisis that law schools will face, and the one that might precipitate the greatest change in how America teaches its lawyers. Activism by the students or change initiated by the faculty may be both impractical or ineffective. What will drive change in law school is the death of the mercenary system in favor of lawyers who are professional soldiers for their cause. Law students will then need to learn not only how to fight the battles, but how to fight the wars.