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> | Law is in the Eye of the Beholder | | | | |
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< | Titles are too Creative for Law Students | >
> | -- By MaxOffsay - 31 March 2017 | | | | |
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< | -- By MaxOffsay - 09 Mar 2017 | | | | |
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> | “We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind.”
- Oliver Wendell Holmes, “Path of the Law” | | | | |
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< | Deer in the Headlights | >
> | It is difficult to recall a time where American politics were not so polarized that Congress could be relied upon to compromise and put the interests of the country before the interests of the party. And yet, the past six months have made the truth of Holmes’ statement more clear than ever before in my lifetime. Congressional obstructionism made it very difficult for President Obama to enact many critical pieces of his agenda, leading to significant attention being paid to the unilateral executive actions that he took. In January 2016, Donald Trump said, “We have a president that can’t get anything done, so he just keeps signing executive orders all over the place.” While technically Obama used executive orders less than any other president over the previous 100 years , the criticisms of his tactics were not wholly unjustified, as executive actions can be accomplished by presidential memoranda, “determinations” and many other less “formal” avenues of exerting executive power. Leading Republicans claimed that Obama’s use of executive power was an unconstitutional way to bypass Congressional authority while many Democrats saw it as the only means for Obama to enact aspects of his agenda. Obama’s supporters viewed the use of his executive powers as pragmatic steps to achieve necessary goals that were being thwarted for political reasons, including the implementation of the ACA, heightening environmental standards and deferring deportations.
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< | When I first heard that this class only required writing two 1,000-word essays, I thought, “Sure beats another final! I can write 1,000 words on anything!” Little did I know that the assignment would be just that: to write 1,000 words on ANYTHING. When it was announced in class I felt myself tense up, hoping that more directions were to follow; that there would be some clarification or direction. But none came. After class, I went to office hours as I usually do, but this time my main motivation was to see if I could pry some knowledge of what was expected of me and perhaps get some insight or suggestion on what to write about. Eben saw right through me; he knew I was trying to weasel my way into having him decide my topic for me and he did not give in. I went home determined to get started on the essay that night and I found myself sitting in front of a blank document for the next day and a half. Eventually, I gave up and decided to tackle my reading for the week, thinking that I would get back to it later. | >
> | In his first 100 days as President, Donald Trump signed 32 executive orders, more than any other president in their first 100 days since WWII. Now it is Donald Trump and the Republicans who are extolling the virtues of swift and decisive executive action. While the Democrats sit back and watch, Trump advances his agenda and rolls back many of Obama’s executive orders.
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< | Over the next few days I spoke to a number of classmates about the essay and almost everyone had the same response: “I hate open ended questions…why couldn’t he have just assigned us a topic?” | >
> | This drastic reversal of positions is evidence of the truth of Holmes’ “Path of the Law”, in which he argues that the law cannot be deduced through logic, such that one can arrive at it simply by “doing their sums right.” Instead, he argues that law derives from legislative and political policy judgments which are not self evident and are only later given a “logical form”. The current deluge of executive orders exemplifies this message. Not only the substance of the law is changing due to the change in administration, but individuals in government are changing their views on the power of the executive as well. | | | | |
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< | A Resume Full of Merit Badges | >
> | For example, in January of 2014, Senator Ted Cruz published an article in the Wall Street Journal entitled “The Imperial Presidency of Barack Obama”, in which he describes Obama’s use of executive power as “willingness to disregard the written law and instead enforce his own policies via executive fiat.” His statement “That no one—and especially not the president—is above the law” paints a picture of the law as something absolute, which Obama’s executive actions were plainly violating. Contrast that with the overwhelming support that Cruz has given to Trump’s travel ban and a contradiction emerges. Instead of maintaining his zealous criticism regarding the illegality of strong executive action, Cruz has made no comments regarding Trump’s record number of executive orders and has publicly defended the travel ban, saying that the Supreme Court will uphold it as “the president has this authority.” While it is possible that Cruz thinks that all of Obama’s actions were legally impermissible but has no objection to any of Trump’s orders, a more plausible view is that rather than taking issue with the abstract notion of executive action, Cruz disagreed with the specific policies underlying Obama’s actions but is in agreement with the goals Trump is trying to achieve.
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< | Your average law student is not the most creative person. To get into a school like this, the schools do not really inquire deeply into the creativity levels of perspective students (lets not even discuss levels of courage…). The life of a perspective
law student up until this point has been a series of boxes that needed checking. High school: Get good grades; get involved in extra currciulars; do well on the SAT. College: Again, get good grades; get leadership roles in campus organizations; do well on the LSAT. One friend described it as a collection of law school merit badges, things that must be collected so that one day when the Columbia Law School admissions counselor looks at my “sash”, they see that I’ve done all of the prerequisite things expected of me and hand me the final merit badge: a law school acceptance. | >
> | Many may expect this type of partisanship from the political branches but would expect (or at least hope) the judiciary, the branch responsible for “say[ing] what the law is”, to have a politically neutral, logically grounded view of the law. But Holmes’ point applies equally to the judiciary as well and is exemplified by the recent Fourth Circuit ruling. In a 10-3 decision the court upheld the stay on the travel ban. It is of interest here that all of the judges in the majority were nominated by Democratic presidents and all of the dissenting justices by Republican presidents. One could argue that perhaps one of the sides was simply “doing their sums wrong” and applying the incorrect logic. But this outcome suggests that a more likely answer is that the law is not something that can be logically derived, but rather it is a function of a certain political agenda. Therefore, the judiciary may only be a useful check on Trump’s agenda for so long as it is presently comprised. If the law really is what the president and courts say that it is, then all it would take for a change would be a few judicial appointments.
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< | Nowhere along this journey was I required to answer the tough questions – or maybe even more to the point, decide which tough questions were worth answering. The path was fairly formulaic and what was valued was the ability to do what was expected and asked of me as well as or better than everyone else.
Luckily for me, I’m good at that. I was able to check the relevant boxes and receive the required merit badges. Even the first semester of law school, while more challenging than the previous endeavors, operated in much this same way and I was very happy with the results. | >
> | The parties have done a complete role reversal on the topic of executive power over the last six months but neither side would be likely to admit that the law has changed. Both parties will try to differentiate their use of executive power and claim that their view of the law remains the same. Neither party will admit that in reality, their views have changed as a result of the change in the party in power and the policies that they are trying to put forth. Holmes was right to say “our law is open to reconsideration upon a slight change in the habit of the public mind” as a change in the public mind leads to a change in presidential power, and in an era of a paralyzed legislature, the keys to the oval office can therefore mean a great deal in determining what the law is. | | | | |
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< | A Creative Path Forward
As I sit here writing this essay, it acts as a miniscule symbolic version of the major problem on the horizon. What’s Next? I had “known” that I wanted to go to law school ever since I can remember and everything I’ve done before this has been calculated to get me to where I am. But now I must decide where to go from here and that is a much less determined path and one that requires more than merely checking boxes or doing what is expected of me.
I suspect that a lot of my fellow classmates are in a similar situation and we are all instinctively looking for another path to follow where we can simply do what we are told and excel at it. That is one of the things that is so appealing to many of us about the Big Law track. We can avoid having to answer the truly hard questions about what we actually WANT to do with the rest of our lives and are there ways, beyond the two or three well-trodden paths, that we can examine our future.
These questions are infinitely more complicated than choosing the topic of a 1,000-word essay and the panic and dread that I felt trying to do this does not bode well for my ability to make the more difficult and important decisions that lie ahead. But the same thing is blocking my ability to both things, a fear of creative thinking. The expectations filled life I have led has made me very good at accomplishing tasks but has not forced me to think outside the box. Rather, it has rewarded and conditioned behavior that conforms to the prescribed path and any deviation from it is a risk that is deemed not worth taking for fear of missing out on one of the necessary merit badges.
But now I have reached the end of that path and must embark on a new one. The first semester of law school, with its continued rigidity and funneling toward yet another prescribed pathway have not assisted me in finding that creativity that I have shied away from for all these years but I am hoping that this class and the next few years will help me do just that.
I don’t know whether I will end up following the path or least resistance and going to a large firm for the rest of my life, but the first half of this class and the process of writing this essay has at least made me sure of one thing: If I do make that choice, I want it to be because I addressed the question head on, thought about what I really want from my future, explored all the avenues available and made an educated choice. The one thing I know for sure is that I don’t want to wake up in 15 years and realize that I am still collecting merit badges because I’m too afraid to think creatively about a different path.
So, what would the next draft of such an essay be like? A better way of describing the desire not to have to chose a question? A slightly cleverer version of writing an essay about not wanting to have to choose an essay topic so you don't have to choose an essay topic? Or, perhaps, an actual decision to have a question worth writing about and to write about it, so you don't have to contemplate spending your whole life doing a job one primary recommendation of which was that you didn't have to decide what to do with your life. Over to you, Max.
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