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< | Law School Needs a New Direction | >
> | Moving Backwards on the Path to Law | | | | |
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< | 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? | | | | |
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< | Did you try reading any of the writers whose views he criticized in order to find out? | >
> | In his lecture, The Path to Law, Oliver Holmes combats the view that law is 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". It's hard to disagree with Holmes' position. The naïve idea that law could be viewed in a vacuum devoid of a host of mitigating factors outside of logical forms was quickly subverted by my law school professors in their lectures about policy and economic considerations and was easy to see when following along with the judicial opinons in my assigned readings. | | | | |
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< | 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. | >
> | However something I could grasp within days of beginning my studies was clearly still debatable in 1897. Holmes mentions an esteemed judge that believed "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." But the law is ripe with examples to the contrary. Take for instance Watkins & Son v. Carrig. A contractor makes a deal with a homeowner to dig a hole in his yard to be used as a cellar. The contractor encounters excessive stones in the ground and gets the homeowner to orally agree to an increased price. According to prevailing contract jurisprudence in 1941, the pre-existing duty rule should have made the price increase agreement void without consideration yet the court held the old contract was rescinded and a new one formed upon the agreement to increase the price. Here a lawyer knowing only how to recognize and argue logic would be almost useless to his client. There is simply no place within the logical equation for a judicial gut feeling that the homeowner should prevail for a number of unregistered reasons. It's an immature view of the law that doesn't exist in modern real life practice. | | | | |
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< | Is "nothing" a synonym
for the preceding history of promissory estoppel in equity and the
various strands of civil law on the subject of pre-marital gifts and
wedding habiliments? | >
> | Yet transcendental nonsense has survied, indeed thriving, into modernity at least in one area. The notion that the law can be boiled down to the interchange of transcendental nonsense, "is the natural error of the schools", says Holmes. Having just completed the first year curriculum of a top law school, it seems like this rich flawed tradition continues. The only incentivized skill is doing well on exams and exams ask students to identify and communicate the legal fictions such as consideration, or duty, or the reasonable person. An old exam one of my professors published showed the common grading style of 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 total of all paragraphs. This video game bonus point style grading forces students to only consider their case reading and class lectures in terms of kernels that can be robotically restated in a few sentences under extreme time pressure. How are we supposed to evaluate our place within the law after playing this frivolous game? What actual knowledge do we have? | | | | |
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< | 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. | >
> | Defenders of the curriculum might argue that the point is to give the uninitiated a fluency in legalese and legal argument through immersion. But it sells students' abilities short to think they can’t absorb legal diction while seeing how the law works. Shouldn't we read some briefs and trial documents in order to see what the argument and evidence was and watch how judges interpret them? Shouldn't we learn the underlying political and economic policy discussion and how best to navigate the legal system using these considerations? Knowing the language of law is helpful but no one should learn to speak before they know how to think. "You can give any conclusion a logical form", says Holmes, suggesting that the real practice of a lawyer happens before we wrap them in their fancy logical expressions. | | | | |
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< | How do you know? | >
> | Furthermore, narrowing the focus to one goal does a great diservice to students. A first year law student is eager to learn, energetic, and will form a sense of self within the law that will likely last his entire career. At least at Columbia, it's the only year with required coursework. Based on his work within the first year curriculum, a student needs to evaluate where his skills and interests lie within the law in order to make meaningful career choices (summer internships, journal participation, second year coursework, etc.) Furthermore close to 75% of our ultimate law firm employers will base their hiring decisions on our performance in this time. This period is far too important to only be learing to speak like a lawyer. | | | | |
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< | 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. | >
> | So why has the focus on transcendental nonsense preserved into modern legal education? Holmes suggests its resiliency exists because it "flatter(s) that longing for certainty and for repose which is in every human mind". In law school the longing for certainty is the longing for the way things have always been done. This inertia combined with the prisoner's dilemma of losing a competitive edge amongst other schools in law firm recruiting makes it difficult to see any school taking a hard look at switching its methods. | | | | |
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< | Back in 1897. Didn't
you check your dates, even if you had forgotten everything I said in
class about the history of American legal realism?
Fortunately, though, it seems like scholarly and professional analysis of the law has progressed past transcendental nonsense and been replaced by the functional approach.
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.
But this is a first
semester test in the ability to comprehend and write lawtalk. You're
neither expected to be capable of more nor adequately tested if
you're tested on less. And from that point you feel capable of
determining how legal education should work?
Why is law school incentivizing only this one skill?
At this one early moment?
Haven't we accepted that much more goes into advocating for our clients? Shouldn't we be testing this full spectrum?
After less than fourteen
weeks of learning?
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.
You need to shorten your
paragraphs. When you read them over, can't you feel their weight,
their tendency to cudgel the reader? Put crisply, with economy, in
an outline that emphasizes mobility of thought rather than
massiveness, the ideas would still be substantively flawed in ways
I've tried to indicate by occasional interlinear objection. The
central fallacy can be addressed, no doubt, but it would be better to
think through what you do and don't yet know about becoming a lawyer,
which will help you to decide what you are and are not in a position
to propose or defend with respect to later stages of legal education
you haven't yet had.
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> | Law schools should take a cue from a trend within medical schools. For example, the University of Virginia's medical school recently redesigned its first year curriculum which eliminates the traditional classroom study and exams on general topics. Instead students do their foundational study on their own and use their classroom time in groups working on mock cases that teach them in real time how to apply the material they are studying. Medical school is teaching a constantly evolving topic and the consequences of poorly trained doctors are greater than poorly trained lawyers. This might explain why they are more apt to make pedagogical adjustments with an eye towards the future while law continues to be smitten with an idealized past. Although the force against is greater, however, it ultimately 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. |
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