"Truthful, Not Factual"

-- By GraceKrasnerman - 19 Feb 2016

Law as Secondary to Social Influences

Lawyerland provides a third dimension to the standard two-dimensional view taught at the overwhelming majority of American law schools. Someone in the grips of a purely academic view of the law – a judge, for example – has a predilection towards a systematic perception of the law. The judge, or the stereotypical law professor, academic, or bright-eyed 1L, believes in the law as functioning logically and justly. In contrast, the disillusioned lawyer, whom Robinson epitomizes (which Joseph claims to be truthful, if not factual), sees the law as only secondary to social influences on a case.

Robinson talks about the twenty-year-old son of immigrants who breaks into the apartment of an Assistant United States Attorney for the Southern District of New York. This D.A. then gets this boy arrested, as to be expected. Unfortunately for this boy, this D.A.’s brother-in-law is high up in the Manhattan D.A.’s office, who assigns one of the best prosecutors in his office to the case. Because of the D.A.’s personal feelings of revenge and hate, the prosecutor alleges “attempted murder in the second degree, attempted robbery in the first degree, [reckless endangerment] in the first degree, burglary in the first degree, criminal trespass in the first degree. Plus . . . a slew of boilerplate offenses for concealing a deadly weapon” (Joseph, 10). The boy’s only genuine offense was burglary, with the ignorant mistake of not knowing whom he was attempting to rob. The outcome of this case did not depend on any rules or law, but rather on specific people and their relations. Robinson does not look to any casebooks or penal codes to formulate a plan of action, but rather to the people involved. The law becomes secondary to the desires of those meant to implement the law.

How Legal Orthodoxy Does Not Prepare Lawyers

Joseph demonstrates what Felix Cohen discusses in “Transcendental Nonsense and the Functional Approach”, that law cannot be seen as an isolated entity untainted by politics or social context. However, this perspective is noticeably absent from most law schools, or at least from the one I have had the most exposure to. Robinson bemoans the public’s view of the law as idealistic and exaggerated. As a criminal defense lawyer, he comes closer to the regular, realistic application of law than do corporate lawyers or law students. Judicial opinion comprise most of our legal education, while social forces out of most defendants’ control dominates their processing in the legal system. When one of Joseph’s lawyers talk about the law, they do not do so with references to previous case opinions or judicial dissents, but rather with what they see on a day-to-day basis. If the usual three-year law school curriculum is considered legal orthodoxy, the correct standard of legal education, then Lawyerland is an antithetical view of the law.

Lawyerland as an Antithesis to Standard Legal Education

The writing style of the book is antithetical to how casebooks are written. The language is not precise or polite, as are judicial opinions and typical academic excerpts found in the large volumes so many students lug around all day. In torts class, for example, professors teach their students case law in a formal, chronological order. From those cases, students learn the enumerated elements of a tort, specifications, exceptions, and so on. However, this twenty year old sentenced to Riker’s Island only committed one tort, yet he was indicted on several counts. Students do not learn this aspect of the law in class. Joseph’s design of Lawyerland is antithetical as well. In his “Note to the Reader”, Joseph claims that “Lawyerland is truthful rather than factual”, in that it is “a work of nonfiction. . . [but] the names, circumstances, and characteristics of the persons and places portrayed have been changed” (Joseph, Note). In contrast, casebooks revolve around facts – the facts of a case, of a statute, etc. But are they truthful?

Although difficult to reconcile on the most superficial level, truth is actually different than fact. Something is only true if our beliefs correspond with reality. Bertrand Russell espoused this correspondence theory of truth: that something is true depending on how it relates to the external world, and whether it corresponds with that world. Truthful statements, which Joseph claims to be making, correspond to the actual state of affairs; Russell would understand and embrace Joseph's stance that Lawyerland truthful, not factual. We can then say that Joseph ascribes to Russell’s philosophy and believes his book to describe how lawyers actually act, in contrast to how they are “supposed to” act, a semi-normative theory of law taught by schools around the country. Law schools teach an overly idealistic, academic view of the law, which Joseph attacks as untruthful. After spending months of diligently memorizing the facts of cases and statutes, it is initially hard to grasp that these revered facts we learn in law school are “untruths”. They are necessary and do possess their own merit, but the absence of truth cripples these future lawyers-in-training. Through Lawyerland, then, Joseph advocates for a reform of the legal education, away from “facts” and towards “truths”.

In the first place, it is due to Larry Joseph to point out that the ridiculous idea of using his poetry to teach law school was mine, not his at all. I think it tickles his fancy that this set of poems, which has for him a very other purpose entirely, could be read and taught this way. But he's a fine poet, and he knows that poems are. They are not the property of poets.

So I don't think that making a book report about Lawyerland as pedagogical material, while fair comment just as anything else would be, is good criticism, in the sense of getting at any author's intention. I have an intention, I admit. Someone could write something about it, if she or he got past the misdirection in place to prevent anyone from noticing I am there, twisting the light beams, distorting the picture for my own purposes.

One could use "After Apple Picking" in a pomology course, to be sure, and "Mending Wall" on a Property exam. (The latter I know to be possible: I did it once.) I'm not so sure Robert Frost would have been as gracious as Larry has been about it. But if anyone is to take the fall for it in critical-essay-land, he should not be the one.

Now, if the next draft, in addition to letting him off the hook, were also to get past asking what he has written (and, for the moment, also as gently as possible ignoring what he means by it) to get instead to what you feel when you read it, we would really be cooking with gas.