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PrashantRaiSecondPaper 5 - 07 Jul 2012 - Main.JaredMiller
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Control the Narrative | | | Yet, as we came closer to exam time and started writing outlines, doing practice exams, and subjecting the material we had learned in the preceding months to the reductive processes taught to pass an exam, the distinct face attached to each case dissipated. The facts became less relevant. The subtle distinctions between the circumstances surrounding Hawkins' hairy hand and those of the Peevyhouses' coal deposits mattered less and less. Cases that were once stories became bite-sized propositions for use as one sentence citations on an exam. "Peevyhouse establishes that when cost of cover would grossly overcompensate the plaintiff, the measure of expectation damages should be the diminution in value." People forgot that the Peevyhouses' farm was a family farm, and was probably of much greater personal value than the $300 the court eventually rewarded them in damages. The problem is that a grade-focused student has an incentive to ignore the narratives that underlie the cases in favor of a generalized, impersonal approach. | |
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> | Just a small note: I think your Peevyhouse example illustrates exactly what is important in good teaching. You're right that students shouldn't just be memorizing bite-sized propositions on an exam. My contracts professor noted how she thought Peevyhouse was wrongly decided: Cost of completion should have been the damages precisely because the family lived on the farm and had a greater personal value in the land. Exams SHOULD allow a student to explore issues like these and not force them to just memorize this propositions to spit out. | | | This is not just true in exam-preparation but also finds support in the classroom context. At the beginning of the semester my Property professor was quite sensitive to the idiosyncrasies of the epic family rivalry surrounding Pierson v. Post. In contrast, by the end of the semester the professor had a penchant for repeating the word "Less" while students recited the facts until they reduced the entirety of the fact pattern to one sentence. It seemed as though the professor was recasting his initial focus on the particularities of each case as simply something he does when introducing students to the law but not a practice he continues once we get the hang of it. Put differently, it seemed to me as though the professor was telling us that the facts of the case matter less for an advanced practitioner. | |
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< | I spoke with a classmate the other day about the use of violence by police officers to subdue people that run away from arrest. He favored a blanket rule that violence (even deadly force) was justified as a law enforcement technique once the police officer knows that the person has broken the law and is resisting arrest (even if the law broken was a misdemeanor and the means of resistance were nonviolent). This seemed to me an absurd position to take, so I asked him what he thought about a situation where a man steals a loaf of bread from a grocery store to feed his starving family. He sees a police officer chasing him and he runs because he knows that if the police officer arrests him then he will go to jail and will therefore have an even more difficult time providing for his family. I asked my classmate if the police officer could gun the man down in the street for breaking the law and resisting arrest. Without a second thought, he said yes. "Proportional response requirements do not create the proper incentives to stop crime from happening." Now, it is of course impossible to trace the mentality of my peer to the impersonal style of case-reading encouraged by the law school. Without doubt, the lack of sympathy that my classmate demonstrated towards the poor bread thief indicated a deep seated psychopathy that had nothing to do with his experiences in law school. But I can't help but think that his answer was somewhat reflective of my concern that the way in which the law school focuses on generalization at the cost of personalization might be damaging, especially if we are the future of the law. | >
> | I spoke with a classmate the other day about the use of violence by police officers to subdue people that run away from arrest. He favored a blanket rule that violence (even deadly force) was justified as a law enforcement technique once the police officer knows that the person has broken the law and is resisting arrest (even if the law broken was a misdemeanor and the means of resistance were nonviolent). This seemed to me an absurd position to take, so I asked him what he thought about a situation where a man steals a loaf of bread from a grocery store to feed his starving family. He sees a police officer chasing him and he runs because he knows that if the police officer arrests him then he will go to jail and will therefore have an even more difficult time providing for his family. I asked my classmate if the police officer could gun the man down in the street for breaking the law and resisting arrest. Without a second thought, he said yes. "Proportional response requirements do not create the proper incentives to stop crime from happening." Now, it is of course impossible to trace the mentality of my peer to the impersonal style of case-reading encouraged by the law school. Without doubt, the lack of sympathy that my classmate demonstrated towards the poor bread thief indicated a deep seated psychopathy (this brought the lols) that had nothing to do with his experiences in law school. But I can't help but think that his answer was somewhat reflective of my concern that the way in which the law school focuses on generalization at the cost of personalization might be damaging, especially if we are the future of the law. | | | When we talk about the facts of a case, we call them just that -- facts. But I prefer to call them stories, because the word "stories" ties the facts to the experiences of a particular person. After a year of law school I find myself under-skilled in working with the stories that form the foundation of the cases we read. This is disheartening, as stories can bridge the gap between different people’s world views, and help us understand what life is like for others. Story telling can also be deconstructive. Howard Zinn’s A People’s History of the United States is a great example of someone retelling a story to expose a history of oppression and violence. Stories can also be a form of healing. Story telling can provide an opportunity for people to escape the plight of having to suffer in silence. Stories can put a name to a pattern of discrimination and can as a consequence serve as a rallying point for resistance. Controlling the narrative in a trial is a powerful tool of legal advocacy. Anyone following the Trayvon Martin story can tell you that. I wish we spent more time in law school thinking about finding the stories in cases, and telling the stories that constitute our life experiences. I think it would make us more compassionate counselors and more powerful advocates. | | | -- SkylarPolansky | |
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> | I think it's also interesting to note how much more important facts are than the law in the real world. I'm working for an organization that does criminal litigation right now, and the cases they win are built almost exclusively on their ability to find facts. Brilliant legal rationales almost never come into play. It's funny how we put such a premium on legal analysis in law school and how unimportant it is in the real world. | | | | |
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> | -- JaredMiller - 07 Jul 2012 | | |
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