Rethinking the Law School Approach

-- By JiadaiLin - 23 Feb 2010

Introduction and a Purpose

In the early hours of April 20, 1989, a white Ivy-League educated woman was found raped and nearly beaten to death in a Central Park ravine. Within 24 hours, New York City Police had in custody five colored teenagers who belonged to a larger youth gang responsible for a series of random assaults in the park. At the station, all five teens confessed their guilt on videotape and were later convicted at trial. The case was soon forgotten by the media until thirteen years later, when a man stepped forward to identify himself as the solo rapist from that fateful night. DNA evidence confirmed his guilt and the five teenagers from a decade ago, now men, were released.

This case is famously known as the Central Park jogger case. It captured my attention in 2002 when the second half of the saga played out in the media. Like many others who commented, I wondered: how could the justice system bring about such injustice?

In this essay, I will revisit the Central Park jogger case from the perspective of a law student. I present two realizations which can shed light on how law school should be approached differently. The ultimate goal is to suggest an approach geared towards creating happier law students and better practitioners down the road.

The First Realization

The legal system will not always bring about justice.

Is this a realization? Is there any human culture in which miscarriage of justice is not part of the fundamental folklore?

Most law students realize that there is no single normative “justice” and there is no definite right or wrong in many situations. Even if we assume that justice is defined statutorily, however, the legal system will still not always deliver it.

Again, isn't this a strange thing to be calling an insight produced by law school? What would one have to have not read, not seen, not thought about before law school in order for this to strike one as a new conception?

I want to focus on one tangible piece of evidence in the Central Park jogger case: the defendants’ confessions.

A confession is testimony, not tangible evidence.

While the racial and class tensions at play may be too complex for this discussion, the defendants were ultimately responsible for the most destructive evidence against them. Why the five teenagers lied is probably based on social and psychological factors more than the law.

To call a false confession a lie is probably a category error. Why are you doing it? In order to indicate that they are at fault somehow?

White police officers were pressured by a concerned public to push harder for guilty confessions.

Nonsense. There is no reason to believe that the police officers who took the confessions were white; you haven't established that and it's not a reasonable assumption on no evidence. A "concerned public" is no basis for a police department to attempt to gather false confessions, and no one dealing with a highly-professionalized detective force like that involved in serious violent crimes in New York City would charge them with intentionally securing false confessions without strong evidence, of which, so far as I know, there isn't any. American public opinion is shaped by the basic ritual of the criminal trial, and while it is not necessarily faithful to the lawyers' ideal of a presumption of innocence, Americans are socially satisfied with an arrest and a trial. The public demand for confession tends to occur in societies with legal systems that themselves demand confession in order to sustain conviction, or where public confidence in the integrity or meaningfulness of trials is slight, so that only confession after apprehension provides any evidence whatever that the guilty individual has been found.

Detectives dragged questioning on for hours and informed a teenager that his DNA had been found on the victim’s clothing when it had not been. These methods of interrogation, aimed at teasing out a certain type of response, are not particularly uncommon. Sometimes, these methods are effective in manipulating the guilty to confess. Other times, they successfully manipulate the innocent to confess.

Not established. What actually "manipulates" people into confessing hasn't been established, let alone that any particular technique has equal or similar likelihood of facilitating a false confession as a true one. You have not even established a relationship between this particular aspect of the questioning and the production of the eventual false confessions. Nor have you explained why the false confessions appeared true enough to the police, the prosecutors and the jurors that they disregarded the disclaimers from the defendants after they realized what they had confessed to and what was going to happen to them in consequence. (This may seem simple to you, but it contains important complexities.) You do not mention the matters which seemed most problematic to those of us who doubted at the time the validity of the confessions, including the fact that the boys were not allowed contact with their parents, which they did know to ask for. The interrogation was only maintainable because they were too ignorant of the ways of the world to ask instead for lawyers, which if persisted in would have terminated the questioning. The parents were kept from the children because contact with parents would have resulted almost inevitably in the request for lawyers that would have terminated interrogation.

Cases like the Central Park jogger case rarely make it into 1L casebooks. The case came out “wrong” based on arguably the most basic (though not simple) factors: the facts. In casebooks, on the other hand, most decisions are based on substantive legal issues. Appellate judges are constantly asking: was there enough intent/reasonableness/mens rea, etc.? While these considerations are important and sometimes dispositive, it is delusional to think that they are always so. It is important to realize that casebooks only cover one side of the legal system. Often in the real world, cases turn on the nitty-gritty processes that can determine a case before it is even in court. Once this reality is in check, the 1L student can realistically approach studying the law.

This passage too has a gee-whiz quality I don't understand. Criminal justice depends on accurate fact-finding? Law students need to remember that facts decide cases? Aren't these obvious?

A Change in Mindset

Law school is structured in a way that weakens instead of nurtures a lawyer’s social intuition. Most law school learning entails sitting at a desk with an open casebook. The process becomes one of reading, memorizing, and rationalizing conclusions. There is very little actual person-to-person interaction or sympathy involved. This process effectively places the student in the realm of abstract fact patterns and ideas instead of the realm of people, where real lawyering occurs.

It is easy to forget that behind every case there are the stories real people .

I don't understand why that's easy to forget. On the contrary, it seems to me remarkably easy to remember.

The case of the Central Park Jogger stirs emotions, something that few cases in casebooks can do.

Are you sure that cases with no sensationalist aspects cannot stir emotions? I have seen people get pretty emotional about tax cases that are in the casebook, and I'm not sure you've fully considered the immense emotional investment certain real estate issues contain.

It is relatable. It occurred relatively recently in Central Park, where we have probably all spent a few lazy Sunday afternoons. The Jogger could have been a friend, a sister, or even ourselves. On the other hand, the defendants could have been as well. This particular case begs the question: what if that were me?

Which particularly begs the question, "Why is that a good way of thinking about this situation?" Why is identifying with the victim a better way of thinking about the situation than identifying with the boys who went to jail for something they didn't do? They too might have been a friend, a brother, or you. So might the detectives who were trying to do their jobs right, and who wound up building a case that sent the wrong people to jail. In particular, so might the prosecutors who enabled and pressed on the miscarriage of justice, and the defense counsel who found no way to stop it, and the judge who didn't see that something was wrong, and the jury that voted under the impression that everyone else had done a job on which they, inexperienced as they were, had to rely. You could take any of those points of view, and many others, if your goal were to identify with those whose actions contributed to the outcome. Why is that of the victim, who suffered greatly but who had no memories sufficient to make direct testimonial evidence, the one you choose to invoke?

This is a crucial question because the legal profession is supposed to be a social one. A lawyer must be sympathetic to advise or advocate for a client. Without this kind of human connection, the lawyer will not earn the trust of his client and a sense of purpose is lost. The lawyer will want to win the case for the sake of winning the case, and not for the sake the lives involved. The first year of law school fuels the misconception that lawyering is about the law and learning should focus on the law. Understanding rules of law is certainly necessary, but in the real world lawyering is about understanding people. To better prepare for being a lawyer, each case studied should be thought of as an example of the law as well as how the law has been adapted to and affected the people involved.

No. The first year of law school is about teaching people to use the language of law and to learn law by reading the materials of the legal system. It is not a statement about what lawyering is, or a complete course in everything you need to know to be a lawyer, and it does not claim to be either. Whether something "fuels [a] misconception" depends on the engine of the misconception and the nature of the fuel, I suppose. But to complain of law school that by doing two things first it fuels the misconception that everything it does later will be less important seems odd to me. We usually assume that education is progressive, and that knowledge presented first will be deepened or made more sophisticated at later stages, don't we?

Conclusion and a Proposal

The original goal of this essay was to find an approach to become happier law students and ultimately better lawyers. Stated differently, the goal was to make the most out of the law school experience. The first step is becoming aware of the reality that the legal system is intertwined with other social factors. In essence, cases are not decided in theoretical vacuums and thus we cannot think of them in those terms. Secondly, the law should be approached as the study of people instead of rules. I believe that these changes in attitude towards studying can bring a sense of purpose to the 1L year that is currently lacking. I also believe that this shift will create more sympathetic and astute lawyers in the future. Ultimately, the elusive skill of “thinking like a lawyer” may simply be the skill of being able to understand the perspective of just about anyone.

As I said before, the first point restated here seems to me obvious. It's hard to get the first university degree that is predicate to law school without taking some social science. Who comes to law school not knowing that "the legal system is intertwined with other social factors"? That "law should be approached as the study of people instead of rules" is indeed an important concept, one that could be considered central to legal realism, which as we discussed has been the organizing ideology of American law schools since the later 1930s. It's hard to see this as a "change in attitude" relevant to the current curriculum, unless the point is that the rules should disappear altogether. As to the conclusion that thinking like a lawyer means "simply" having the greatest possible breadth of social understanding, I would say that having such understanding is hardly simple, and that thinking like a lawyer requires not simply that, but that in addition to other knowledges as well.