Law in Contemporary Society

Moving Backwards on the Path to Law

In his lecture, The Path to Law, Oliver Wendell Holmes, Jr. 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 na´ve idea that law could be viewed in a vacuum devoid of a host of mitigating factors

What's being mitigated? Are you sure that's the word you want?

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.

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."

Are you taking Holmes' hearsay for the truth of the other, unnamed judge's mind? Or just saying that formalism exists?

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rule should have made the price increase agreement void without consideration yet the court held the old contract was rescinded and a new one formed upon the agreement to increase the price.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.

I'm not sure what this story is supposed to mean. A formalist analysis could of course be prepared, showing why the same result you present as the result of a judicial hunch was required by logic. Are you forecasting that this opinion would be less "convincing" than the realist one? Isn't the existing opinion in the case really a hybrid, using the rhetoric of realism but adopting in the end the fiction of a novation?

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

I don't know what an "incentivized skill" is. You mean the one on which you imagine you are graded? So what?

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.

How do you know? Did you try to submit exams taking a fully realist view of the material, placing it in a context sufficiently clear and learned that the teacher wouldn't dare tell you it isn't a sufficient response? Or do you mean that you think the only way to handle taking an exam is to offer crap you know isn't true, or ideas you find unconvincing, because you believe they're what someone who has a meaningless quantum of temporary power probably thinks?

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?

Sure. So the solution is to present material that doesn't conform to the expectation, but shows mastery of the material, knowledge of context, and rhetorical power. The teacher's method is also a response to stimulus: the undifferentiated mass of cliche responses, differing only in their insufficiencies. No teacher reading 100 exams is wants them to be so boring, but they have brought that on themselves by choosing means of evaluation that aren't any good for anybody. Think and write with intensity and skill, burst the corners of the box. An exceptionally incompetent or emotionally damages teacher might be unable to award a sufficient number of "points" to such an effort, but—as I have mentioned previously—so what?

In order to be unsparing about this, you ought also to consider the possibility that you have some fear that you can't perform the task of thinking and writing intensely, personally, and commandingly. In which case, compliance with bad teaching and evaluation methods is a form of self-protection, a way of avoiding the risks of real differentiation and individualized learning. In which case, would you be entitled also to complain?

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?

Was anybody stopping you? Was the library closed? When I was in law school, the assigned material represented less than one-third of my reading volume in any term, including when I was on the law journal. If you think you should read something, read it. Did you?

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.

No, he's suggesting that formal sufficiency is never actually a way of differentiating propositions to be accepted from ones to be rejected.

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.

Nonsense. Where do you come up with that statistic? Does "ultimate" here mean "first"? Even if it does, which is not the meaning of the word, the number is still absolute fantasy.

This period is far too important to only be learing to speak like a lawyer.

It's also a good time to learn proofreading.

So why has the focus on transcendental nonsense preserved into modern legal education?

Missing word?

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.

Your game theory doesn't make sense. Maybe you should spell it out, or maybe you should leave it out.

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.

You have still spent a total of 28 weeks in law school, and zero weeks in medical school. I thought it was reasonably clear last time that this paragraph assumed more knowledge on your part than you had. Apparently it's not clear to you, so I may have the limits of your knowledge wrong. Have you got some years of experience and a couple of degrees I don't know about that would make it reasonable to present these conclusions without additional support solely on the basis of your having thought them?

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r7 - 22 Jan 2013 - 20:10:55 - IanSullivan
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