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< | Get Over Yourself, Law School | >
> | Law School Needs a New Direction | | | | |
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< | Justice Holmes set out to combat the view that thought law was simply "a system of reason that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions" and that "judicial dissent...(was)...simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come." Thinking as a beginner law student, or even a layperson my reaction was, 'yes - of course, who would disagree with that?'. Did Holmes' opponents actually believe law could be viewed in a vacuum devoid of a host of mitigating factors outside of logical forms? Certainly there will be esoteric academics that like to have abstract pillow fights in law journals, but did Holmes' contemporaries really think the best way to approach the actual legal system was simply to arrange everything in the proper logical box? What would they say about those opinions where Justice Cardozo would create a contract from nothing. He wasn't just looking for the correct pattern of logic to apply. Instead, he would make an internal evaluation and say things like a promise to give your daughter's fiancé money after they were married is enforceable because not breaking off the marriage before the wedding day was consideration. Apparently, however, those who wanted to reduce law to its logical form and traded on transcendental nonsense were a strong force in the 1930s, otherwise Holmes wouldn't spend so much time addressing them. At that time in history, it made sense for people to have the sort of optimism to believe that once the uncertainty of law was domesticated by reason, something like the world Felix Cohen described in the beginning of his piece would follow. Belief in progress and absolutes was reinforced by the advances in so many fields at that time, so it makes sense why that school of thought would be popular. | >
> | Justice Holmes set out to combat the view that law was simply "a system of reason that is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions" and that "judicial dissent...(was)...simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come." Thinking as a beginner law student or even a layperson, it was hard to imagine that anyone really accepted this view. Did Holmes' opponents actually believe law could be viewed in a vacuum devoid of a host of mitigating factors outside of logical forms? Certainly there will be esoteric academics that like to have abstract pillow fights in law journals, but did Holmes' contemporaries really think the best way to approach the actual legal system was simply to arrange everything in the proper logical box? What would they say about an opinion by Justice Cardozo where he would create a contract from nothing? For example, a case where he held a promise to give your daughter's fiancé money after they were married is enforceable because not breaking off the marriage before the wedding day was consideration. He wasn't just looking for the correct pattern of logic to apply. Rather he was using transcendental nonsense as the spokesperson for the results of an internal evaluation based on many quasi-legal variables. Apparently, however, those who wanted to reduce law to its logical form and traded on transcendental nonsense were a strong force in the 1930s, otherwise Holmes wouldn't spend so much time addressing them. Fortunately, though, it seems like scholarly and professional analysis of the law has progressed past transcendental nonsense and been replaced by the functional approach. | | | | |
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< | What doesn't make sense is why, in 2012, after Holmes and his successors recognized the importance of using a functional method to figure out the law, law schools are still clinging to the obsession with transcendental nonsense. What makes it especially frustrating is that my first semester professors incorporated the functional method into their lectures and assigned readings. The majority of lectures focused on the policy, usually economic, of why this or that concept or case is the way it is. Second to policy was speculating on those unspoken forces that pushed a decision one way or another. It was extremely rare that any one of my professors would dwell on the actual rules of law and concepts that we were covering. They would quickly gloss over it so that they could get back to the policy and the history. The exams, however, were only about those rules of law and abstract concepts. Identify as many legal issues as possible, state the rule and plug in the facts from the hypothetical. That's it. An old graded exam one of my professors published tells you everything you need to know. He graded his exams by making checkmarks in the margins. First sentence, identify the issue and state it; 2 check marks. Next three sentences, state the generic rule of law; 4 check marks. Then list every relevant fact from the hypothetical, one check mark per fact and make a conclusion for a few more check marks. At the end of each paragraph, the professor totaled the number of check marks and put the number in the margin and the final grade was the final count from all paragraphs. This is a video game, not an exam. Rack up as many bonus points as you can before the clock run outs and then move onto the next level. There was only time only time to state the rule and maybe the alternate rule. Knowing the nuisances of legal fictions such as consideration, or duty, or the reasonable person, was the only useful skill. | >
> | For the most part, in my own experience, my professors have incorporated the functional method into their lectures and assigned readings. The majority of lectures focus on social and economic policy, and the other unspoken forces that push a decision one way or another. It is extremely rare that any one of my professors will dwell on the actual rules of law and concepts that we are covering. However last semester, when it came time for the final exams, it became painfully clear that despite a more holistic focus during class discussions, the only thing that matters in law school is having a handle on transcendental nonsense. The exams were about those rules of law and abstract concepts that are only the tip of the iceberg in the real world. For example, in an old graded exam one of my professors published, he graded his exams by making checkmarks in the margins. First sentence, identify the issue and state it; 2 check marks. Next three sentences, state the generic rule of law; 4 check marks. At the end of each paragraph, he totaled the number of check marks in the margins and the final grade was the final count from all paragraphs. This is a video game, not an exam. Rack up as many bonus points as you can before the clock run outs. Knowing the nuisances of legal fictions such as consideration, or duty, or the reasonable person, is the only skill contributing to success. | | | | |
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< | Why is law school incentivizing only this one skill? Haven't we accepted that so much more goes into advocating for our clients? Shouldn't we be testing this full spectrum? I accept that law school needs to be a talent camp for law firms given the gross overpopulation of students. I don't accept though why we can't go through this vetting process while actually learning to be effective lawyers. Why does law school refuse to think of itself as a graduate school - i.e. a trade school? Medical school is teaching people to be effective in higher stakes, so they can't get away with spending their time playing intellectual games, instead they learn what they absolutely need to know and start honing all the necessary skills. I think law school, and the legal field, needs modern self-awareness. It is smitten with its tradition and image of godlike arbiters of right and wrong. It is why opinions about simple contract disputes are 20 pages long and written in the style of the Declaration of Independence. So I think if we could consider this to be law school - instead of Law School - we'd be much better served. | | | \ No newline at end of file | |
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> | Why is law school incentivizing only this one skill? Haven't we accepted that much more goes into advocating for our clients? Shouldn't we be testing this full spectrum? Unfortunately the evolution allowing Holmes’ functional approach to overcome transcendental nonsense in the broader legal community is unlikely to occur in law school because of a fundamental difference in motivation. The broader legal community, first in pursuing transcendental nonsense, and eventually embracing the functional approach was motivated by progress. It was a forward looking mindset interested in finding the best method to study the law. So it made sense, especially in the 1930s, to pursue something like the world Felix Cohen described in the beginning of his piece. Belief in absolutes was reinforced by the advances in many fields at that time, so it was natural to think the uncertainty of the law could be completely domesticated by reason and logical form. Gradually though, this idea gave way to the more realistic, functional approach because it prevailed as a better approach and the field was happy to adopt it. However the opposite motivation exists in law schools. Instead of forward looking, they are looking backward and looking sideways. Sideways to their competitor schools, in that they can’t give up the current approach or else employers might take them less seriously and backwards because ‘this is how it’s always been done’. This damaging nostalgia is likely inherited from the broader legal field, which is smitten with its tradition and image of godlike arbiters of right and wrong. It is why opinions about simple contract disputes are 20 pages long and written in the style of the Declaration of Independence. But law schools need to stop this and have more modern self-awareness. Instead of Law School, it needs to consider itself, law school – i.e. a trade school. It needs to take a cue from medical schools which are preparing their students to be effective in higher stakes, so they are forced to constantly improve their programs with an eye on the singular goal of generating better doctors. They can’t spare time playing intellectual games, instead they learn what they absolutely need to know and start honing all the necessary skills. Law schools, without the life and death stakes of medical school, are less likely to continually reevaluate their teaching methods and more likely to want to maintain the status quo, since the system is working economically. Thus I think it falls to elite law schools, less concerned with competing with other schools to lead the way in a serious revision of the teaching approach. Otherwise a broken, backward looking system will continue to generate unprepared lawyers. | | | \ No newline at end of file |
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