letter to a young law student 09242012

8/11/2019 Letter to a Young Law Student 09242012

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LETTER TO A YOUNG LAW STUDENT *Professor Corinne Cooper +

University of Missouri !"ns"s City S#$oo% of L"&

35 Tulsa L.J. 275 (2000).

I sit down today to write you a letter to read before you start law school. I knowthat you are lled with !rand antici"ation and a little dread. It#s a natural reaction.I ho"e that I will be able to assua!e so$e of your concern% and to hel" you !et a!ood ni!ht#s slee". &lease know% howe'er% that after ei!hteen years (twenty one ifyou count $y years as a student) in law school% I still cannot slee" the ni!ht beforefall classes start. hen that ed!e of antici"ation is !one% I su""ose I#ll know that it#s

ti$e to retire.

I a$ hard "ressed to know where to be!in in $y ad'ice to you. *y "ers"ecti'e onthe "rocess of le!al education is skewed by the years I#'e s"ent i$$ersed in it.&erha"s an outsider could e+"lain the "rocess better. ,- &erha"s I no lon!erre$e$ber what it is like to be a rst year student. I $ay ha'e 'ery little of 'alue too/er you. ,2

ut I cannot resist the te$"tation to "ass alon! the insi!hts that I ha'e de'elo"edo'er the years% howe'er out of touch with your e+"erience they $ay "ro'e tobe. Think of $e as an anthro"olo!ist% ,3 recitin! $y ndin!s on a tribe I#'e

obser'ed for $any years% of which I was once a $e$ber% but who$ I no lon!er fullyli'e a$on!.

hat I know is what it is like to be a rst year law "rofessor. 1fter watchin! the"rocess for $any years% in $any di/erent "laces% I#'e obser'ed that law schoolin'ol'es three circles , the education that takes "lace within you% the educationyou share with your "eers% and the education you e+"erience with the faculty. I"resent the$ here in re'erse order of i$"ortance.

'( T$e )"#u%ty

4ou will co$e to law school e+"ectin! the faculty to be the $ost i$"ortant "art ofthe education e+"erience. e are not. 1t $ost% the law faculty will hel" you tocreate a useful structure within which self teachin! takes "lace. 1t worst% thefaculty will !et in the way of your learnin!. 4our ob is to kee" your eye on the ballyou are in law school to learn to teach yourself the skills that you will need for therest of your "rofessional career. 6o not assu$e that the faculty will teach you howto "ractice law. It is not our ob% and we could not "ossibly antici"ate the

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substanti'e knowled!e or skills you will need durin! the ne+t forty years ($uch ofthat law doesn#t e'en e+ist yet). hat the faculty will do is teach you a lan!ua!eand a structure for your thinkin!% and so$e skills that you will a""ly% both in lawschool and after% lar!ely on your own.

i'en the intensity of the law school educational "rocess% you $ay be te$"ted tos"end inordinate ener!y focusin! on your "rofessors what they wear% how they act%how $uch you hate the$% whate'er. ut this is lar!ely a waste of your ti$e. 8achof these "eo"le has so$ethin! to o/er you and you are there to !ure out what thatis.

I a$ not talkin! only about the ob'ious substanti'e sub ect $atter that theycon'ey9 I a$ talkin! about their co$$unication skills (or absence thereof)% theirlo!ic (ditto)% their linear or non linear thinkin!. They are $e$bers of the tribe youseek to oin% its :i!h &riests in ;har!e of Initiation <ites. 4ou are there to obser'eand absorb these rites. y de nition% their =uirks and rituals cannot be wholly

irrele'ant to your =uest. ut unless you beco$e a "rofessor% these relationshi"s willnot infor$ your future career. >bser'e the$% learn fro$ the$% and do not let the$!et to you.

1t $ost% one third of what you learn in law school will be learned fro$ your"rofessors. (I !o u" and down on this nu$ber9 it botto$s out at twenty "ercent). ?odon#t s"end a lot of ti$e !ettin! into the cult of "ersonality. 4ou are there to learnwhat these "eo"le ha'e to o/er. ?o$e will "ass alon! the secrets of the Te$"le%and you will not e'en know it until years later. The law "rofessor who in@uenced $e$ost ,5 tau!ht ?ecurities Law% which I ha'e ne'er "racticed. *y least e/ecti'e"rofessor ,A tau!ht ;ontracts (which I teach)% yet he has had a "rofound i$"act on$y teachin!% as I learned a !reat deal about bad techni=ue fro$ hi$. ?ub ect$atter does not count for all that $uch in this "art of the learnin! "rocess. I a$best known as a teacher and scholar of the Bnifor$ ;o$$ercial ;ode9 I took thatclass "ass fail. I learned an enor$ous a$ount fro$ ,7 a "rofessor I fou!ht withconstantly. :e is now a collea!ue and friend% and was instru$ental in be!innin! $yteachin! career.

1lthou!h the introduction that you !et to substanti'e law in your classes is essentialin the short run% what is really i$"ortant is the introduction and indoctrination thatyou !et in le!al thinkin!. This critical analysis "rocess will re$ain with you lon!after your !ras" of the <ule 1!ainst &er"etuities has faded. 4ou are learnin! to be ale!al thinker% one who% in the lon! s"an of a career% will be lar!ely self tau!ht.

A( T$e So#r"ti# Met$o

The ri!or and a!!ressi'eness of the "eda!o!y is inti$idatin! to so$e. *any$odern teachers ha'e fallen away fro$ the ri!id% Cin!s eldian ,D a""roach to the?ocratic $ethod% on the !rounds that learnin! cannot take "lace in an at$os"here











of ab ect fear. I a!ree with this conclusion% but only to a de!ree. Eirst% I e+"ect a!reat deal of $y students% and I want the$ to e+"ect a !reat deal fro$ the$sel'es.If I set the bar too low% how will they learn the !reat acco$"lish$ents of which theyare ca"ableF ?o$e% surely% will e+"erience failure in this en'iron$ent% but e'eryonewill achie'e $ore than if the bar is set too low. 1nyway% failure is a necessary "art

of the learnin! "rocess for lawyers9 losin! is a re!ular "art of "rofessional life.

?econd% I re$e$ber the words of &hili" Le'ine ,G % a "oet and teacher. :e wasasked once ,-0 why he had been described by a student as Hthe cruelest teachere'er.H :e re"lied% HI a$ the only "erson in the roo$ "aid to tell the truth.H I feelthat way too% and so I do not hold back criticis$ of thinkin! that is shallow or la y.

This is not only for the bene t of the student% but also on behalf of the "rofession%and the clients who will be ser'ed by that future lawyer.

This is di/erent fro$ disa!reein! with o"inions beware of teachers who try tocon'ince you of the correctness of their "ersonal o"inions. <es"ect a teacher who

is willin! to challen!e you intellectually in order to assure that real learnin! takes"lace. ,--

( T$e U,%y Litt%e Se#ret

There is one other thin! that I hesitate to $ention% but it is a fact of law school life. 4our "rofessors are not trained to be educators. e !ot here $ostly by bein! !oodlaw students% not because we ha'e any back!round in hi!her education theory. Thisis true of $ost of !raduate school% but it is e'en worse for law "rofessors% because'ery few of us !o throu!h the traditional doctoral le'el educational

syste$ ,-2 where one a""rentices under a "rofessor who $ay actually knowso$ethin! about education.

1s a result% $ost ele$entary school teachers ha'e a stron!er back!round ineducational theory than do law "rofessors. This $eans that our techni=ues $aysee$ counter"roducti'e% awkward% or ine/ecti'e at ti$es ,-3 . e'ertheless% thissyste$ is oddly e/ecti'e at "roducin! the "roduct that the le!al "rofessionde$ands. If you will% this initiation "rocess is =uite e/ecti'e at deli'erin!a""ro"riate $e$bers into the tribe. It rewards "eo"le who are !ood at teachin!the$sel'es% since that is what $ost lawyers s"end their careers doin!. It de'elo"sa thick skinned debatin! style% which $akes lawyers both successful anddis"ara!ed in their "rofessional li'es. It $akes bein! a lawyer see$ hard and$a!ical% and this hel"s to in@ate the 'alue of the "rofessional knowled!e% bothinside and outside the syste$.

''( T$e Stu ents













4our $ost i$"ortant educational e+"erience in law school will be with otherstudents. 4ou will learn $ore fro$ the$ than fro$ your teachers. <elationshi"sfor!ed in law school are like those for!ed in war what you share with these "eo"leis unlike any e+"erience any of you ha'e had before.

*e$bers of your "rofessionKyour "rofessors% but% $ore i$"ortantly% yourclass$atesKare your collea!ues% and will be with you for the rest of your career. This is the be!innin! of your entire "rofessional life% and it will not end until the daythat you retire. It is worth your while to s"end so$e ti$e thinkin! about your"rofessional life and how you wish to be "ercei'ed.

This is the be!innin! of a life lon! !a$e% "layed throu!hout the "rofession% of H hatoes 1round% ;o$es 1round.H If you dislike or distrust so$eone in law school% it willbe hard to for!et that i$"ression in later years. I do not think that students fullyunderstand this. ,- ?tart o/ beha'in! in a $anner that is consistent with the kindof lawyer you ho"e to be.

A( Le"rnin,

It is i$"ortant to res"ect your collea!ues for another reason you will learn anenor$ous a$ount fro$ the$. I learned $ore fro$ $y "eers in law school than I didfro$ $y "rofessors% and that is not unusual .,-5

4ou learn fro$ your class$ates by listenin! to the$ in class% by obser'in! their$istakes% by ar!uin! "oints with the$. This is not ust in law school. The "racticeof law in'ol'es an enor$ous a$ount of this kind of !i'e and take a$on! lawyers%

those on the sa$e tea$ and those across the table.

?tudents co$e to law school fro$ di/erent back!rounds and e+"eriences and so$eha'e a better intuiti'e understandin! of le!al education. These di/erent"ers"ecti'es will hel" to broaden yours% and to shar"en your understandin! of theanalytic "rocess that is takin! "lace not only in your $ind% but in the $inds of yourcollea!ues and "rofessors. 8'entually% this will !i'e you insi!ht into the thinkin! ofyour clients% your ad'ersaries% the ud!e and ury. 8/ecti'e "ersuasion re=uires thatyou ha'e insi!ht into and res"ect for other o"inions and "ers"ecti'es. ,-A

In addition to "ro'idin! insi!ht% your class$ates are a ready $ade educational think

tank. ather "eo"le with who$ you feel co$fortable and be!in to study and re'iewyour classes to!ether. :ow $uch of this you can tolerate is a function of your stressle'el and your learnin! style% but I always encoura!e $y students to s"end so$eti$e workin! in !rou"s. ,-7 ?o$eone should be challen!in! your thinkin! besidesyour "rofessors.

( Co-petition











>ne of the hardest thin!s to acce"t about law school is that e'eryone has been a!ood student% or a success of so$e kind% before arri'in!. If law school were "assfail% or if there were no e+a$s at all% ,-D then a new rankin! of those studentswould not ha'e to take "lace% and e'eryone could lea'e law school with the sa$esense of acco$"lish$ent that they ha'e when they !et the acce"tance letter.

The ob $arket will not allow this% and so a hierarchy is created in law school.&eo"le who !raduated near the to" of their under!raduate classes $ay ndthe$sel'es "lanted r$ly in the $iddle% and that can be a "ainfule+"erience. 8'eryone cannot be at the to" of the class% but you can take ad'anta!eof the o""ortunities a'ailable to i$"ro'e your chances in the ob $arket .,-G

:ow you react to this co$"etition is an i$"ortant factor in how you will beha'e as alawyer. Let it $oti'ate you% and s"ur you on% as !ood athletic co$"etition can. 6onot let it scare or an!er you. 8ach class de'elo"s its own sense of co$"etition9so$e beco$e 'ery su""orti'e co$$unities and others are schools of sharks. It

only takes one or two "eo"le to set the tone for the entire !rou". ,20

;utthroat co$"etition is not !ood for anyone% and it leads to beha'ior that de!radesthe "rofession and $akes "ractice a ni!ht$are. 1 coo"erati'e attitude toward your"eers can create a "ositi'e "attern for the future. It is easy to say% HI need this now%and later will be di/erent.H ut e'erythin! you are doin! now is a "art of yoursociali ation "rocess. 8'en if you don#t !et cau!ht u" in the co$"etition% you willneed to address it when you obser'e it in others.

C( C$e"tin,

In law school% there is a !ood deal of abstract talk about your "rofessionalres"onsibilities% but there are so$e real issues to be dealt with as well

1re you !oin! to a""ear in court on ti$e and well "re"aredF ;ertainly you willas"ire to do so. 6oes this also a""ly to your classes nowF

4ou will ne'er $isre"resent facts before a ud!e. ?hould you fud!e the$ withyour "rofessors nowF

4ou would ne'er steal a client#s funds. ould you sli" a book out of the libraryF;heat on an e+a$F

These issues are the $ost "ainful ones that your "rofessors confront. It ise+cruciatin!ly diMcult to watch students !ra""le with the de$ands of a "rofessionalcareer% under !reat stress% and often at a youn! a!e. ?o$eti$es students fail to!ras" the i$"ortance of their actions. 1 career can be cut short because a studentdoes not reali e that law schools are serious about e+"ectations of "rofessionalconduct. I a$ not s"eakin! only about 'iolations of the honor code that result in









e+"ulsion9 I a$ also talkin! about the breach of trust that follows a student beyondthe classroo$% li$itin! later "rofessional o""ortunities. 4our teachers will si!n o/on your inte!rity as you !o to take the bar9 they will be asked by e$"loyers forreco$$endations. 4our class$ates will be watchin! you and e'aluatin! not onlyyour intelli!ence% but your honesty and "rofessionalis$. If they see you o"eratin!

at lower standards% they are not likely to for!et this about you when you are a"racticin! attorney. If you cannot li'e by the rules now% when you are bein!scrutini ed at e'ery turn% what will "re'ent si$ilar conduct when no one iswatchin!F

I a$ not ust worried you will feel "ressure to cheat. The $ore diMcult issue will beif you obser'e others 'iolatin! the rules. The "eer "ressure to i!nore these"roble$s is enor$ous. 4ou $ay worry that by turnin! in a $e$ber of your class%you will se"arate yourself fro$ the !rou"% a""ear self ri!hteous% or e'en selfinterested.

ut law is a self re!ulatin! "rofession this $eans that lawyers re!ulate and !o'erntheir own conduct% lar!ely free of the inter'ention of others. If this syste$ is !oin!to work% lawyers ha'e to "olice the "rofession% be!innin! in law school. The *odel<ules of &rofessional ;onduct% which !o'ern the "ractice of law in $ost states%re=uire an attorney to re"ort the $isconduct of others. ,2- Eailure to do so is a'iolation of the rules. ,22

4our law school has an honor code. ,23 4ou need to read it and understand e+actlywhat it re=uires of you% both in ter$s of your own conduct and you obli!ation tore"ort conduct of others. If you 'iolate this code% you $ay be dis$issed fro$school% !i'en a failin! !rade% or "laced on "robation. This will be a "art of your"er$anent record% and $ay follow you into "ractice.

>ne issue that is beco$in! $ore "roble$atic in law school is "la!iaris$. ,2 ecause fewer students are writin! si!ni cant research "a"ers in under!raduateschool% you $ay ha'e $issed the o""ortunity to learn the correct rules for citationand use of other works. If so% you ha'e $issed a chance to $ake a $istake aboutthis when it will ha'e no re"ercussions. In law school% if you are cau!ht by a"rofessor "la!iari in! the work of another% you certainly will be disci"lined in so$eway and you $ay be dis$issed fro$ school.

;o$"uters ha'e $ade "la!iaris$ easier% since you can now cut and "aste at theclick of a $ouse button. ut co$"uters ha'e also $ade "la!iaris$ easier to catch%since al$ost any strin! of words can be searched in enor$ous databases. *ost"la!iaris$% howe'er% is cau!ht by e+"erienced teachers who know the body of worktheir students are citin! so well that they easily reco!ni e it when "assed o/ bydishonest students. I#$ a$a ed at how foolish and nai'e students can be aboutthis.











Learn the a""ro"riate rules of citation. Ea$iliari e yourself with the rules for usin!=uotations% but also the li$its on usin! another "erson#s ideas and structure. ,25

'''( Te"#$in, Yourse%f L"& 4ou $ay ha'e s"ent $ost of your under!raduate career listenin! to lectures% takin!notes% and readin! assi!n$ents. 4our ob was to absorb the $aterial and "ass itback to the teacher in a reco!ni able for$. 1lthou!h you were "robably re=uired towrite "a"ers that in'ol'ed your own creati'e thinkin!% I sus"ect that this was thee+ce"tion and not the rule. If you "artici"ated in class discussions% it $ay ha'e beenby o/erin! your o"inion about a te+t or issue.

This is a "assi'e for$ of learnin!. 4ou take in the infor$ation% you $e$ori e (orHlearnH) it% and o/er it back. This did not "re"are you for law school.

In law school% we e+"ect students to do acti'e learnin!. 4ou are re=uired to read thete+t% attend the lecture% take notes% and reread the$. ut none of this "assi'eacti'ity "re"ares you for the e+a$ination% nor e'en for class.

*ore i$"ortantly% it will not "re"are you for the "ractice of law. Blti$ately% law is aself teachin! disci"line. 4ou are not "ri$arily here to learn the substance of the lawfor future use9 you are learnin! the skills of analysis and self instruction for futureuse. ,2A ?o$eone will co$e to you with a =uestion and you won#t know theanswer. The law on this sub ect $ay not e+ist. ?o you learn in law school how to!ure out the answers on your own (and with your collea!ues) for the rest of yourcareer. ,27 It is an honorable and hi!hly rewardin! e+ercise9 I can assure you thatit is ne'er fully $astered% and therefore% ne'er borin!. ,2D

A( A#tive Le"rnin,

In law school% we e+"ect you to teach yourself the $eanin! of infor$ation% and$ore i$"ortantly% its function% for use in situations you ha'en#t yet e+"erienced. ewill ask you =uestions that are not in the te+t% and =uestions that not answeredthere. e e+"ect you to be able to discuss the case% or the statute% or the article%and e+tract its $eanin! for a""lication in as yet untested circu$stances. e wantyou to distill the rele'ant le!al rule fro$ the readin! and be "re"ared to a""ly it tonew facts. e ask you to do this because this is e+actly what you will do as alawyer.

This re=uires a di/erent kind of learnin!. Instead of ust readin! and $e$ori in!%you need to start di!!in! for these rules of law and e+tractin! the$ fro$ the te+t.ut you can#t sto" there you need to take the ne+t ste" of a""lyin! the rules to newcircu$stances. It#s one thin! to !ure out what the holdin! of the case is9 it is =uite











another to a""ly that holdin! to a di/erent set of facts% and to deter$ine how thecase $i!ht co$e out. This distillationNa""lication "rocess is a $ore 'ibrant for$ oflearnin! that !oes beyond readin! and understandin! what you ha'e read andheard in class. 1cti'e learnin! takes considerably $ore e/ort than readin! andreiteration. ut since it is the act that will be e+"ected of youOin class% on the

e+a$% on the bar% and in "racticeOstart now. 4ou cannot read about this "rocessand e+"ect to learn it without "ractice% any $ore than you can read a book about$arathon runnin! and then !o run one. ,2G

The new kind of studyin! that you learn in law school is this acti'e kind. This iswhy I encoura!e you to study with friends in a !rou"% a discussion of the a""licablelaw and its i$"act on new situations is a $ore acti'e (and interestin!) learnin!e+"erience. The "eo"le with who$ you study will hel" you to co$e u" with new factsituations% and to test the rules that you ha'e learned a!ainst the$. They will catchyou when you ski" a necessary ste"% or $isinter"ret the i$"act of a fact% and youwill do the sa$e for the$.

This acti'e a""lication of the learned $aterial is not uni=ue to law9 it a""ears inso$e for$ in all !raduate education. ut it has% re!retfully% all but disa""eared fro$under!raduate education% in "art because it is so labor intensi'e. It is e+"ensi'e forcolle!es to teach like this% and so% o'er ti$e% $any of the$ ha'e !i'en it u" in fa'orof lar!e lectures and co$"uter !raded e+a$inations. If you were lucky enou!h toha'e a $ore classical under!raduate education% then the transition to law school$ay not be so hard for you.

( W$"t is Le,"% T$in.in,/

e do not do a 'ery !ood ob of e+"licitly teachin! le!al thinkin!. hat we do isi$$erse students in an en'iron$ent where the icono!ra"hy% lan!ua!e% reli!ion%history% and sociolo!y are all Hle!alH and let the$ learn by e+"osure and correction.

The s$art students ada"t to this culture in the way that a canny anthro"olo!ist canHbeco$eH 4ucatecan or alinese. In the be!innin!% you do not HlearnH so $uch asyou Habsorb.H ?o$e students will be!in "arrotin! the lan!ua!e =uite early in the"rocess% and that $ay inti$idate you initially. >ther students take lon!er to !etthese lin!uistic $essa!es% and yet they too beco$e @uent. ?o$e "eo"le ne'er do$uch $ore than an ade=uate ob $outhin! the words and i$itatin! therituals. They ne'er truly internali e the thinkin! "rocess. ,30 They will be $ediocrelawyers% but "artici"ants in the ritual nonetheless% because the syste$ will attributethe a""ro"riate $eanin! to their !esture e'en if they do not the$sel'esco$"rehend its full i$"ort.

The lin!uistic issue is a si!ni cant one. 4ou are enterin! a lan!ua!e i$$ersion"ro!ra$. Ero$ the rst day "eo"le will s"eak to you in words you thou!ht youknew% but which in this conte+t $ay ha'e di/erent $eanin!s. 4our teachers will







constantly test your understandin! of this new lan!ua!e. ,3- That is one hu!e usti cation for class "artici"ation. Listen to the way your teachers s"eak% the waythe cases Hs"eakH% the way the statutes Hs"eak.H Listen to your collea!ues as they"ractice their new ton!ue and see if they are usin! the lan!ua!e "recisely. This iscritical. 1 true e+"ert ne'er uses a le!al ter$ of art casually% and that is one of her

attributes. This distin!uishes He+"ertH fro$ Hno'iceH in our tribe. ,32

This is not to su!!est that the ritual of le!al lin!uistics has left us with a "erfectlan!ua!e. Puite the o""osite is true. Like $any lan!ua!es% it has beco$e wei!htedby a con'ention that ad$ires $ystery $ore than clarity .,33 I had a friend in $yrst year class% an 8n!lish $a or% who dro""ed out after a few weeks% declarin! thathis lo'e of 8n!lish would not "er$it hi$ to stand by "assi'ely and obser'e thetreat$ent it recei'ed in law school. e ha'e s"eciali ed $eanin!s that are ani$"ortant "art of the learnin! "rocess. I ho"e that you can learn the$ withoutbeco$in! $ired in that u!ly lan!ua!e% Hle!alese.H ?o$e lawyers write and s"eak in$eanin!less "latitudes% and endlessly dis!uise the true i$"ort of their s"eech. 4oucan be both an e+"ert le!al s"eaker and a "lain s"eaker. eor!e >rwell described itthis way

>rthodo+y% of whate'er color% see$s to de$and a lifeless% i$itati'e style. . . . ,> neoften has the curious feelin! that one is not watchin! a li'e hu$an bein! but so$ekind of du$$y a feelin! which suddenly beco$es stron!er at $o$ents when theli!ht catches the s"eaker#s s"ectacles and turns the$ into blank discs which see$to ha'e no eyes behind the$. 1nd this is not alto!ether fanciful. 1 s"eaker whouses that kind of "hraseolo!y has !one so$e distance towards turnin! hi$self intoa $achine. The a""ro"riate noises are co$in! out of his laryn+% but his brain is notin'ol'ed as it would be if he were choosin! his words for hi$self. ,3

4our ob is ndin! a balance learn the $eanin! of each new word or ter$ and use itwith "recision% ,35 but do not $e$ori e endless "hrases and "arrot the$ back.,3A

C( W$"t is Le,"% An"%ysis/

6on#t be discoura!ed by the rote nature of the initial learnin!. hat you arelearnin! at rst is $ore like $athe$atics than hu$anities. It is like the catechis$.

4ou ha'e to !et the basic fra$ework correct before you can be!in to understandnuance. 4ou will s"end $ost of the rst se$ester% indeed the rst year% learnin! thecatechis$.

hat are we tryin! to acco$"lishF Like archeolo!ists% we a""roach a case like a di!%lookin! for clues about what ha""ened there. e e+"ect to see certain thin!s% and$ust see certain thin!s in order to $ake assu$"tions about the $eanin! of thete+t% The theory is so$ethin! like this















)"#ts Ru%es Con#%usion

e reco'er anundi/erentiated "ile ofbones% tools% @ora% and fauna.e do not know yet what willbe i$"ortant and whatuni$"ortant. ?o we start ourdetecti'e work. 1t this "oint%nothin! is irrele'ant.

e ha'e learned o'erti$e that certain artifactsor e'idence lead to as"eci c conclusion"ottery $eans a certainle'el of culturalso"histication. ritin!tells us so$ethin! else.

>nce we ha'e theele$ents that we ha'eco$e to associate with a"articular le'el or ty"e ofcultural de'elo"$ent% wesearch for those ele$ents.hen all are "resent wecan reach a conclusion.

The sa$e "rocess a""lies in law. 1 client will co$e in and tell the attorney a story%with facts that are rele'ant to the attorney u$bled with those that are only rele'antto the client% or rele'ant to a doctor or an accountant. The attorney will then "lowthrou!h the facts to deter$ine if they satisfy any of the a""licable le!al rules. If allthe ele$ents of the rule are satis ed% then the standard has been $et% and theclient is entitled to relief% or sub ect to action under that rule. If one of the ele$entsis not $et% then we cannot reach that conclusion. e $ay debate at len!th whatthe ele$ents of the rule are% or whether the ele$ents of the rule ha'e been$et. This is the "rocess of le!al analysis.

Eor e+a$"le% su""ose that the law "ro'ides that a "erson $ay le a bankru"tcy

only if his debts e+ceed the 'alue of his assets. ,37 ?u""ose further that yourclients% the ?tanleys% ha'e assets that% at fair $arket 'alue% e+ceed their debts. utif the assets are 'alued at li=uidation "rices% their debts e+ceed their assets. Theissue is 6o the ?tanleys =ualify for bankru"tcyF ,3D

Eacts <ules 1nalysis ;onclusion

The ?tanleys oweQ70%000. They do notown $uch% but thea""raised 'alue of their"ro"erty $ay be as$uch as Q-00%000.

They do not ha'e anyinco$e% and cannot "aytheir bills. They do not

1 debtor $ayle forbankru"tcyonly if itsdebts e+ceedthe 'alue ofits assets.

If a court nds that theH'alueH of the ?tanleys#assets e+ceeds theirdebts% the ?tanleys can#tle bankru"tcy. If a courtde nes H'alueH asli=uidation 'alue% ratherthan a""raised 'alue%they satisfy the rule.

The facts of thiscase su!!estthat the?tanleys ha'esatis ed the ruleand are entitledto lebankru"tcy.







want to sell theirassets. They#re u"set.

*ost courts a""ly this$eanin!.

ote that $any of the facts turned out to be irrele'ant. In this hy"othetical% the factthat the ?tanleys ha'e no inco$e is not rele'ant% because this "articular ruledoesn#t re=uire us to look at inco$e. ?i$ilarly% the fact that they are u"set does nota/ect the le!al outco$e% althou!h it $i!ht hel" the lawyer decide which alternati'eto reco$$end. Einally% althou!h the ?tanleys# reluctance to sell their assets $i!htbe rele'ant in deter$inin! whether bankru"tcy is a !ood o"tion for the$% it is notrele'ant to the a""lication of the rule. The rule has s"eci c ele$ents if they aresatis ed% it a""lies and the case is decided under it. If not% it doesn#t. This is the$athe$atics of le!al reasonin!.

I call it H$athe$aticsH because% in its si$"lest for$% le!al reasonin! is entirelyfor$ulaic and not "articularly discretionary. If a statute re=uires four ele$ents% you$ust con'ince the decision $aker that all four ele$ents are re"resented in thefacts of this case to !et relief under the rule. Three won#t do% two won#t do% onewon#t do. Identifyin! the ele$ents is the rst ob that you ha'e as a law student. It#snot "articularly easy% but you can !ure it out by readin! the statute or the case.

D( T$e 'RAC Met$o

8'eryone is !oin! to talk to you about I<1;% and that is another way of describin!the "rocess we ust went throu!h

' ssue ;an the ?tanleys le for bankru"tcy under the lawF

Rule 4ou can le bankru"tcy if your debts e+ceed the 'alue of your assets.

Analysis ecause of the facts of this case% the result de"ends u"on the $eanin!that the court a""lies to 'alue. *ost courts will consider li=uidation 'alue in$akin! this deter$ination.

Conclusion The court is likely to "er$it the$ to le bankru"tcy.

Le!al analysis is si$"ly the a""lication of this rule to these facts. This is $ost ofwhat rst year law students do. Lawyers do this% but they also ha'e another ob%and that is con'incin! the decision $aker that the facts of this case t the rule.,3G That ob is entirely fact s"eci c. In other words% the answer de"ends on whatha""ened in this case. , 0 This also frustrates rst year law students. If cases areco$"letely fact s"eci c% why are your teachers e+"ectin! you to e+tract so$ethin!+ed and knowable fro$ readin! the$F hy don#t we all ust roll the dice and !o







cases. If your facts $eet the standards set forth in the rule% it a""lies. If they don#t%it doesn#t.

?o% althou!h you $i!ht by back!round or sy$"athy want to discuss why the?tanleys are u"set% or how they !ot into this situation% or whether they are bein!

reasonable under the circu$stances when refusin! to sell assets% your "rofessors$ay discoura!e (and e'en dis"ara!e) this kind of discussion. one of thisdiscussion is rele'ant to the issue at hand. The =uestions $ay ha'e social% or e'en$oral% i$"ortance. ut the don#t hel" us to sol'e the "roble$ at hand 6oes therule a""ly in this caseF

?o$eti$es% we !et into discussions about the a""licability of the rule that s=uarelyin'ol'e these kinds of social and $oral issues. In contracts class% for e+a$"le% wetalk about the ri!ht of a wo$an to contract for the sale of her unborn child. The rulein that case is that the courts won#t enforce contracts that are antithetical to H"ublic"olicy.H In analy in! what H"ublic "olicyH $eans% $any 'ery "ersonal% $oral issues

are rele'ant to the discussion. ut often they are not. hy is this relentlessclea'in! to the rule so i$"ortantF ecause% as I $entioned% we want "redictabilityin law. 1s a de$ocratic society% we ha'e co$e to belie'e that the rule of law $ustbe a""lied in the sa$e way for e'eryone% and ri!id a""lication of le!al rules is oneof the ways that we "retend that this occurs in the le!al syste$. >f course% therules are ne'er a""lied Hin the sa$e wayH for e'eryone9 in "articular% "eo"le withbetter lawyers tend to !et better results. , 5

e also "ri e consistent a""lication of the rules because it $akes future results"redictable. e can "lan transactions and beha'ior because we know what the rulesare. It is 'ery disru"ti'e and e+"ensi'e to o"erate in a society where the rules areuncertain. , A Think about the a""lication of laws in so$e forei!n countries that donot ha'e the rule of law. In the Bnited ?tates le!al syste$% we belie'e that if youare !oin! the s"eed li$it% you will not !et a ticket% and if you e+ceed the s"eedli$it% you will !et a ticket. This hel"s us "lan how to beha'e. ( e won#t discuss yetthe issue of enforce$ent and its e/ect on "redictabilityR)

ecause your "rofessors are tryin! to ha$$er this "rocess into your brain% and thei$"ortance of I<1;% and the conco$itant 'alue of "redictability% it $ay see$ thatthe rst se$ester is "ainfully re"etiti'e% e'en anti intellectual. ut you are learnin!lots of thin!s at the sa$e ti$e the lan!ua!e of law% the substanti'e law (le!alrules) in $any di/erent areas% and how to be a !ood anthro"olo!ist andarchaeolo!ist. ?o I a$ sure that you will not be bored. 4ou $ay so$eti$es !etfrustrated% howe'er. 6o not be afraid to "ull back and ask yourself% H hat a$ Isu""osed to learn hereF 1nalytical skillsF ?ubstanti'e lawF SocabularyFH This $ayhel" you to di$inish% to so$e de!ree% your frustration. If you#'e lost si!ht of the"ur"ose% !o see your "rofessor and talk about it.


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'0( T$e N"ture of L"& "s " Profession

It see$s a""ro"riate to "oint out now so$ethin! about law that you $ay not ha'e

noticed before. 1lthou!h there is so$ethin! forward lookin! about tryin! to

ascertain how a $atter will be decided in the future% law is essentially the study ofhistory. 8'en when you are ar!uin! a "recedent settin! case% you will lar!ely bolsteryour "osition by lookin! to the "ast. In e'ery le!al =uestion% we are askin!essentially the sa$e =uestion H:ow do we !et to this "oint fro$ where we were"re'iouslyFH

4ou $ay be te$"ted to ar!ue for bold chan!es in the way that decisions are $ade. Iencoura!e you to do so. ut you $ust couch your ar!u$ents% e'en the $ost"recedent shatterin!% in the least re'olutionary way. 4our "rofessors% and ulti$ately%the ud!es before who$ you ar!ue% will be $ost inclined to $ake the necessarylea"s of faith if they see an ar!u$ent that leads% like ste""in! stones% throu!h the

historical "recedents to the ne+t lo!ical ste". 8'en dra$atic shifts in le!al thinkin!O Brown v. Board of Education % the randeis brief% the doctrine of unconscionabilityO were clothed in the lan!ua!e and the ar!u$entation of history.

?o$eti$es this historical "ers"ecti'e is frustratin!. 4ou $ay ar!ue to your"rofessors% HThat is not fairRH in res"onse to so$e "ercei'ed in ustice. The le!alar!u$ent with which to ob ect to an ar!uably wron! result is not that it was not fair%but that it did not follow the a""licable rules correctly. >nly rarely will the court be"ersuaded by s"eci c facts that the a""licable rule is leadin! to an ina""ro"riateresult% and as lawyers we tend to dis"ara!e these $o$ents. In res"onse% lawyerssay% H:ard cases $ake bad law%H $eanin! that cases decided on the basis ofe$otion are not reliable as sources of future results. hy don#t we want ud!esdecidin! on their own what#s HfairHF ecause it leads to a 'ery "ersonal% andun"redictable kind of law% and one that is $ore sub ect to whi$. , 7 That is why

ustice is "ortrayed as blind% and thus indi/erent to the "ersonal biases that $i!htotherwise sway her.

0( Your Profession"% Life e,ins No&

I usually wait until Thanks!i'in! to !i'e this s"eech to $y rst year students. ut it

will ser'e you well now. 1lthou!h we% your teachers% will be "ressin! you to yourli$it% we also ho"e that you beco$e healthy% well rounded% fully functionin!"rofessionals. &art of that trainin! is learnin! early on to kee" a balance betweenyour work and your life. I do not like to $ention this too early in the se$ester%because student attention s"ans ha'e only ust be!un to e+"and% and you will bea$a ed by the end of the rst se$ester how $uch work you can do and how lon! asee$in!ly dusty in=uiry can hold your attention. , D







?o e'en as I will e+hort $y students to H orkR orkRH $ore than they e'er ha'ebefore% I also re$ind the$ that this is the be!innin! of the delicate balancin! actthey will "erfor$ for the rest of their "rofessional li'es. 6e'elo"in! !ood habits is a"art of your "rofessional trainin!. ?o% in no "articular order% "lease try to or!ani e

your life so that-. 4ou eat re!ularly and healthily.2. 4ou slee" re!ular hours% includin! an occasional na" if necessary (not in class% ifyou can hel" it). 3. 4ou e+ercise re!ularly.. 4ou take ti$e away fro$ your work for brain cleansin! acti'ities like s"orts and$o'ies.5. 4ou do not kill all your brain cells by usin! alcohol as a $ethod to relie'e stress.A. 4ou re$e$ber that the "eo"le in your life% fa$ily and friends% are $ore i$"ortantthan law school.

0'( T$e Cour",e to )"#e t$e Stru,,%e A$e"

4ou cannot !et into law school without ha'in! "ro'en that you ha'e a !ood$easure of intelli!ence and dri'e. 8'eryone around you will ha'e !one throu!h thesa$e "rocess to !et there. ow the !a$e be!ins a!ain% de$andin! e'en $ore ofyour intellect% your sta$ina% your dedication. I ha'e e'ery faith that you ha'e theca"acity to succeed. hat ha""ens now is u" to you.

rite if you need $e , G

o to &rofessor ;oo"er#s :o$e &a!eo to the Teachin! and Learnin! Law &a!e

ENDNOTES

;f. <.*. <illke% Letters to a 4oun! &oet% *.6. :orton trans. ( orton -G3 ).Return to text

U ;o"yri!ht -GGG ;orinne ;oo"er. 1ll ri!hts reser'ed9 re"roduction with "er$issionand attribution only. &rofessor of Law% Bni'ersity of *issouriOCansas ;ity ?chool of Law. This article was ins"ired by $y niece% Jennifer 1nne <a$o% Tulane Law ?chool;lass of -GGG. atchin! her !o throu!h the rst year of law school $ade $e abetter and $ore co$"assionate teacher of rst year students. ?he $ade $e watch



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$y "rofession with a $ore analytical eye% and this article is the result. It waswritten with the su""ort of the B*C; Law Eoundation. I a$ !rateful for the!uidance "ro'ided by &rofessors arbara lesner Eines% ancy Le'it% Laura .6ooley% *ark Loewenstein% Lynn Lo&ucki% and for the indefati!able research ofLawrence *acLachlan% ?enior <esearch Librarian% B*C; ?chool of Law.

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-. ?ee% e.!.% 1le+ de Toc=ue'ille% ;orres"ondence and ;on'ersations of 1le+ de Toc=ue'ille with assau illia$ ?enior -D3 -D5G (-GAD)9 1le+ de Toc=ue'ille% Toc=ue'ille#s 1$erica The reat Puotations (-GD3).

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2. I recall a dinner at $y sister#s house where $y niece% about to start law school%sou!ht counsel fro$ two !uestsKone who had ust nished the rst year% and onewho had ust !raduatedKbut ne'er asked $e at all. I assu$e she trusted $ore thead'ice of those who had $ore recently shared her "ers"ecti'e. This is consistentwith $y e+"erience of students !enerally. If asked% I will tell a student e+actly whatis e+"ected in $y class% or on $y e+a$. 4et $any students "ersist in belie'in!that "rofessors intentionally Hhide the ball.H It is not unco$$on to ha'e a student

treat "eer ad'ice as $ore reliable. It is "ossible% and e'en likely% that studentsobser'e thin!s in class to which the teacher is obli'ious. ut it is unlikely that astudent has !reater insi!ht into that teacher#s !oals and intentions than the teachercan "ro'ide. If this were true% law school would be a terrible waste of $oney andti$e.

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3. ;f. *ar!aret *ead% ;o$in! of 1!e in ?a$oa at iii (-G73). In the -G2Dintroduction to this work% Eran oa describes anthro"olo!y in a $anner "eculiarlya""ro"riate for our discussion of law school,1 syste$atic descri"tion of hu$an acti'ities !i'es us 'ery little insi!ht into the

$ental attitudes of the indi'idual. :is thou!ht and actions a""ear $erely ase+"ressions of ri!idly de ned cultural for$s. e learn little about his rationalthinkin!% about his friendshi"s and con@icts with his fellow$en. The "ersonal sideof the life of the indi'idual is al$ost eli$inated in the syste$atic "resentation of the


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cultural life of the "eo"le. The "icture is standardi ed% like a collection of laws thattell us how we should beha'e% and not how we beha'e9 like rules set down de nin!the style of art% but not in the way in which the artist elaborates his ideas of beautylike a list of in'entions% and not the way in which the indi'idual o'erco$es technicaldiMculties that "resent the$sel'es.

Id. at G. I#$ not tryin! to "redict how you will e+"erience law school. I can onlyho"e to ca"ture for you the Hri!idly de ned cultural for$sH that will !o'ern your"rofessional life for the ne+t three years% and beyond.

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. There is a fourth di$ension% the real world of law. 1s law school "roceeds% and"erha"s e'en worse% after you !raduate% the distance between what you learn inlaw school and what you are e+"ected to do in the real world of law "ractice willbeco$e another "owerful factor in your education. That doesn#t $ake law schoolirrele'ant% but it distin!uishes law school fro$ an a""renticeshi"% what the study oflaw used to be. ?ee% e.!.% Erances Cahn Ve$ans W Sictor . <osenblu$% The *akin!of a &ublic &rofession -35 50 (-GD-).

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5. :ere I $ust "ay ho$a!e to &rofessor Junius :o/$an of the Bni'ersity of 1ri ona;olle!e of Law.

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A. ?orry% this one shall re$ain na$elessR

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7. This tiny tribute is to &rofessor 6an 6obbs of the Bni'ersity of 1ri ona ;olle!eof Law. :e still re$e$bers the day I u"braided hi$ after class for his bad $anners.I also re$e$ber students who ha'e usti ably done this to $e.

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D. ?ee The &a"er ;hase (Twentieth ;entury Eo+ -G73)% in which John :ouse$anfree es fore'er the i$a!e of law "rofessors as cold% ri!id% ruthlessly lo!ical% andulti$ately brutal creatures.

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G. ?ee &hili" Le'ine% H hat ork Is%H for a fa'orite "oe$ of $ine.

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-0. Inter'iew with &hili" Le'ine% Eresh 1ir% ( ational &ublic <adio roadcast%o'e$ber -3% -GGA).

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--. *ost students think that student e'aluations ha'e no i$"act on a teacher#scareer. *y obser'ation is otherwise. *ost schools take teachin! =uite seriously%althou!h !ood teachin! alone cannot sustain a career. ut it is diMcult to kee" a

ob% or $o'e u" the ladder% without solid teachin! e'aluations. 8'en when a school

does not reward !ood teachin!% no ad$inistrator likes the hassle of dealin! withstudents who are irate% or classes that are e$"ty because of "oor teachin!.

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-2. This is chan!in!% but not so ra"idly as you $i!ht su""ose. ?e'eral law schools



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-7. 6on#t waste ti$e on "eo"le who are only interested in showin! o/% or aretakin! your ener!y and infor$ation and o/erin! nothin! in return.Return to text

-D. If I had $y druthers% there would not be any !rades in law school. The rankin!that occurs after the rst se$ester chan!es the dyna$ic of the classroo$si!ni cantly% and not for the better. ?tudents who ha'e been !raded and rankedfeel di/erently about the$sel'es and others. That innocent rst se$ester when noone really knows how anyone will do is the $ost o"en and sincere ti$e in lawschool. rades ser'e two "ur"oses that are i$"ortant to students they !i'e you an

idea how well you are learnin! the $aterial% and they hel" you to !et obs bydistin!uishin! you fro$ your "eers. rades only ser'e one "ur"ose that isi$"ortant to $e they $oti'ate students to study. ?o$e students need that$oti'ation% and I wouldn#t want to teach those "eo"le without that stick% but I#d bedeli!hted to teach a classroo$ full of students who are $oti'ated by the desire tolearn without !rades. 1lso% $ost "rofessors do not care if the students we areteachin! ha'e !otten !ood !rades. e care if the students are sincerely tryin! tolearn. *y $ost rewardin! teachin! e+"eriences ha'e been with students whosework i$"ro'ed dra$atically with !reat e/ort on both our "arts. 1fter all% e'en a$ediocre "rofessor can teach s$art "eo"le.Return to text

-G It is too early to think about law ournals or re'iews% but do take ad'anta!e ofdi/erent o""ortunities to learn% and to show your stu/. Eor so$e "eo"le this is lawre'iew% or a""ellate ad'ocacy. Eor others it is student !o'ern$ent% or work withinthe Law ?tudent 6i'ision of the 1 1. ?o$e students do "ublic ser'ice work% andor!ani e "ro ects for other students. <e$e$ber that all of these acti'ities% e'enlaw re'iew% are ad uncts to the $ain !a$e% which is class.Return to text

20. I once tau!ht a rst year class that included a 'ery char$in! wo$an who didwork for the "oor. ?he was !reat fun% and e'eryone lo'ed her% but she also had astron! co$$unitarian 'alue syste$ that she co$$unicated to the entire !rou".









1lthou!h she left law school after the rst year to return to her work with the "oor%her attitude continued to a/ect the $e$bers of that class% who were unusuallysu""orti'e of one other.Return to text

2-. ?ee *odel <ules of &rofessional ;onduct <ule D.3(a)(-GG3)9 see also% *odel<ules of &rofessional ;onduct &rea$ble ,-0 (-GG3).Return to text

22. ?ee *odel <ules of &rofessional ;onduct <ule D. (a)(-GG3).Return to text

23. ?ee% e.!.% B*C; ?chool of Law% :onor ;ode% Return to text

2 . 1lthou!h $y e+"erience is "ersonal and narrow% I ha'e in addition noted analar$in! increase in the nu$ber of a"olo!ies bein! written in law re'iews. ?ee%e.!.% ?cott C. Eriedrich% Eor$ of 1"olo!y% 5D B*C; L. <e'. 3rd unnu$bered "a!e(-GG0).Return to text

25. Julie *. ;heslik% &la!iaris$ &olicy and uidelines ritin! to 1'oid &la!iaris$(-GG0) (un"ublished "la!iaris$ "olicy% Bni'ersity of *issouri Cansas ;ity Law?chool) (on le with author) citin! In ?earch of &la!iaris$ &olicy% -A . Cy. L. <e'.50- (-GDG)9 Louis ?irico% Jr.% &ri$er on &la!iaris$ (-GDD)9 and <al"h 6. *awdsley%Le!al 1s"ects of &la!iaris$ ( ational >r!ani ation on Le!al &roble$s of 8ducation-GD5).This is one area where the rules in law school di/ers substantially fro$ thosein "ractice. ?o$e "ractitioners feel "erfectly free to steal liberally fro$ otherlawyers# "leadin!s% docu$ents% briefs% or disco'ery. Indeed% so$e "eo"le "racticelaw "ri$arily throu!h the use of the for$ docu$ent and the co"y $achine. They




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would ne'er think to cite the docu$ent fro$ which they ha'e cribbed. I don#tcondone these "ractices% and I belie'e that there are le!al li$its to the$% but I knowthat they e+ist. Law school is di/erent. The writin! done in law school isscholarshi"% $eant to "reser'e and "ublici e ori!inal thinkin! about law. Inacade$ia% "la!iaris$ is a career endin! error. ?o in law school% this "ractice will be

'iewed as a 'ery serious trans!ression.Return to text

2A. There are two reasons why the substanti'e law you learn in law school isn#t allthat i$"ortant. Eirst% you#ll for!et $ost of it% or wind u" "racticin! in a co$"letelydi/erent eld. ?econd% the law chan!es all the ti$e% so by the ti$e you !raduate%$uch of what you#'e learned won#t be =uite the sa$e. >f course% the basic outlines

of the sub ect $atter% and critical characteristics will re$ain. ut $ost of what youare learnin! in law school is to brin! about and react to chan!es in the law.Return to text

27. 8+"ertise ust $eans that the =uestions you can#t answer !et harder. 8'en as aconsultant% I don#t $ake 'ery $uch $oney !i'in! "eo"le the answers that I alreadyknow. I earn $y fee when I work throu!h a diMcult "roble$% usin! the thin!s I know

and the "roble$ sol'in! skills I#'e de'elo"ed. e wouldn#t need so $any lawyers ifthe solutions to $ost "roble$s could be looked u". (This is e'en truer as lay "eo"le!ain access to co$"uter databases.)Return to text

2D. The cockiness of $ost lawyers $ay be one result of their darin! to face thelaw#s relentless newness% rather than any "ossession of the deli'ered wisdo$.

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2G. 4ou know% I tell $y students this >S8< and >S8< and they ha'e the hardestti$e belie'in! itR I rail a!ainst study aids% those crutches that built a $illion dollar











(-GDG).Return to text

33 ;loakin! si$"le acts in the aura $a!ic is another indication of e+"ertise. Thee+"ert wishes to clothe her actions in $ystery% lest they be de'alued for theirsi$"licity. ?ee !enerally illia$ <. ishin W ;hristo"her 6. ?tone% Law% Lan!ua!eand 8thics 1n Introduction to Law and Le!al *ethod 0 -- (-G72). hat lawyersand e+"erts should be doin! is un$askin! illusion in the search for clarity. Thisdoesn#t always ha""en. Lawyers $ay try intentionally to obscure $eanin! to $aketheir task see$ $ore diMcult. 1lthou!h this isn#t necessary% and can be dan!erous%$ore than one client has looked at a brilliantly written% clear% and s"are le!aldocu$ent and e+clai$ed% H hy was this so e+"ensi'eF I could ha'e written itRH

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3 eor!e >rwell% H?hootin! an 8le"hant9 &olitics and the 8n!lish Lan!ua!eH in>rwell <eader Eiction% 8ssays% and <e"orta!e by eor!e >rwell 3A2 A3 (-GA2). :ewas s"eakin! of "olitics% but the i$"act in law is the sa$e.Return to text

35 >f course% this assu$es a sin!le% +ed $eanin! for words. In contract law% youwill learn that this is a $yth% "er"etrated in "art by lawyers des"erate to $ake theuncertain certain. ?ee Eri!ali$ent I$"ortin! ;o. '. . .?. Int#l. ?ales ;or".% -G0 E.?u"". --A (?.6. .4. -GA0). :ol$es said% H1 word is not a crystal% trans"arent andunchan!ed% it is the skin of a li'in! thou!ht.H Towne '. 8isner% 2 5 B.?. -D% 25(-G-D). This is true9 it ar!ues a!ainst the "ossibility of "erfect "recision. It does notdeny the "ossibility of utter confusion. 4our ob is to seek the for$er and a'oid the

latter. Too $any lawyers assu$e the o""ositeRReturn to text

3A I ha'e obser'ed a stran!e "heno$enon in e+a$inations% where a student











clearly does not understand the conce"ts underlyin! the ter$inolo!y. They read like8n!lish translations of electronic e=ui"$ent $anuals ori!inally written in Ja"anese.

The words are there (they $i!ht e'en be the rele'ant words) but the conte+t clearlyre'eals a confusion that a "erson @uent in their usa!e would ne'er ha'e.Return to text

37 1 collea!ue who teaches bankru"tcy law ob ected to this e+a$"le% ar!uin!strenuously that it did not accurately re"resent the law. I know. I#$ usin! it as asi$"le e+a$"le. This isn#t an article on bankru"tcy law. This is another thin! thatyou will learn about "rofessors we so adore "recision that we can al$ost ne'er$ake si$"le state$ents. e can#t rela+ until all the a""ro"riate =uali ers ha'ebeen added.

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3D Interestin!ly% another of the "rofessors who read this article decided that I hadstated the issue wron!ly% and that the issue was% H hat de nition of 'alue a""liesFH

That is ust as true a state$ent of the issue as the one in the te+t. It is also one ofthe !reat frustrations of law students. There is ne'er ust one issue% or one way ofdescribin! it. >ur analysis is dee"ly a/ected by the way in which we "ose the initial

=uestions. Eor "racticin! lawyers% that is what $akes le!al analysis interestin!.?u""ose I call so$ethin! a tort that has ne'er been considered a tort before (say%the sale of ci!arettes.) *y analysis is circu$scribed by $y fra$in! of the issue inthis way. I could be wron! (that is% I could lose) or I $i!ht ust be fra$in! the issuein a new way% and the analysis that follows $ay be "ersuasi'e or not. ?ee%e.!.% Sullivan v. O'Connor, 2GA .8.2d -D33 (*ass. -G73)% where an unusual set offacts led a lawyer to include and win a contract clai$ a!ainst a doctor% while losin!the ne!li!ence clai$. ?ee also the discussion of this case in <ichard 6an i!% The;a"ability &roble$ -5 3 (-G7D).Return to text

G >r% in the business conte+t% "redictin! what a future decision $aker $i!ht dowith these facts% and structurin! the transaction to t within the known le!al"ara$eters.Return to text











0. 1lthou!h you are likely to learn $ost of your rst year sub ects usin! the case

$ethod (that is% learnin! substanti'e law by readin! s"eci c cases that focus onthat to"ic)% it is not the only% or e'en the $ost e/ecti'e way to learn law. >neauthor critici ed it this way HThe casebook $ethod of teachin! is% in fact% ane+ercise in futility. It is the students the$sel'es who are e+"ected to build u" a"icture of law fro$ the few !enerally disconnected scra"s a'ailable to the$ andwith 'irtually no tools. ?tudents are left to !uess what the editors# 'iew of the law israther than !ettin! to what the law is all about. Instead of lookin! at the reasonin!of a case in the li!ht of the de'elo"ed conce"tual thou!ht that "receded it% and ofits "lace in a structured web of reasoned "rinci"le they are "ro'ided in the rst"lace with a sin!le instance that usti es itself only by reference to "articularfeatures% lea'in! $uch to be understood.... The students study% as it were% thestatus of a !rain of sand by walkin! around inside the !rain and without reference tothe rest of the beach% the surf% and the sky.H 1lan atson% Introduction to Law for?econd 4ear Law ?tudentsF A J. Le!al 8duc. 30% 3A (-GGA) (e$"hasis in theori!inal.) ?o$e authors ha'e be!un to de'elo" teachin! $aterials and books thate$"hasi e sources in addition to cases for "resentin! substanti'e infor$ation. ?ee%e.!.% ?tewart *acaulay% et. all% ;ontracts Law in 1ction (-st ed. -GG2). - think thatthe case $ethod is useful in its "lace% but it !rossly o'erstates the actual i$"act ofthe a""ellate "rocess in the full sco"e of the le!al syste$. 1fter all% not e'ery le!alissue in'ol'es a dis"ute (as when a lawyer !i'es a client ad'ice about what astatute $eans)% not e'ery dis"ute reaches liti!ation% only a tiny "ercenta!e of cases

that are led actually !o to trial% and an e'en s$aller "ercenta!e are a""ealed. ?oreadin! cases to nd out about the le!al syste$ is indeed lookin! throu!h a$icrosco"e when we $i!ht better consult a $a". ut this letter is about what is%and not what ou!ht to be ....Return to text

- I don#t e'en want to !et into what $e$bers of the school of le!al thinkin!called ;ritical Le!al ?tudies ha'e to say about that unidenti ed% future% biased%dece"ti'e% conni'in! decision $aker. hen you are older% and can handle it with$aturity% I will !i'e you 6uncan Cennedy% The Le!al 8ducation and the <e"roductionof :ierarchy 1 &ole$ic 1!ainst the ?yste$ (-GD3) known in $y "rofession (and notwithout usti cation) as The Little <ed ook. In the $eanti$e% see <obert L.:ay$an% Jr. and ancy Le'it% Juris"rudence ;onte$"orary <eadin!s% &roble$s% andarrati'es 2-3 2-A (-GG5) for an uncharacteristically clear e+"lanation of ;ritical





Le!al ?tudies.Return to text

2 This is sort of silly% but I like to think of a le!al rule like a hun!ry hydra. If youdon#t throw $eat to each of the heads% the one left unsatis ed will eat youRReturn to text

3 ?o$eti$es a bad statute can $ake this challen!in!% or e'en hilarious% as whenthe *issouri Le!islature accidentally outlawed consensual se+R ut usually% once

you ha'e e+"erience% readin! a statute or case and !urin! out the rule isn#t all thatdiMcult. >f course% I don#t teach ;onstitutional Law.Return to text

The clearer the rule% the easier the decision will be. ut the rule will also bein@e+ible% and fail to co'er cases that% in retros"ect% we think ou!ht to fall within itssco"e. ?o% for e+a$"le% a s"eed li$it of 35 $iles an hour is clear% and it is easy to

a""ly. ut if the dri'er is dri'in! badly e'en at 35 $iles an hour% we $i!ht want a$ore !eneral rule that says% for e+a$"le% the dri'er $ust dri'e safely and"rudently. *ontana recently confronted this issue% ha'in! done away with itsdayti$e s"eed li$it in fa'or of a rule that re=uired dri'ers to dri'e a Hreasonableand "ro"erH s"eed. *ont. ;ode 1nn. Y A- D 303 (-GG5). >ne would e+"ect that sucha rule would result either in fewer tickets or $ore contested cases. >ne authorsu!!ested that such a rule is self enforcin!% since there aren#t enou!h hi!hway"atrol cars to "olice such a bi! state H*ontana is a hu!e state with a s"arse"o"ulation and a tiny ta+ base. e ha'e a lot $ore road than we do citi ens and wecan#t a/ord $any hi!hway "atrol oMcers. The #reasonable and "rudent# rule is $orea re@ection of actual conditions than an in'itation to e+cess. ?tatistically% no $atterhow you dri'e% there#s not !oin! to be a state e$"loyee around to kee" an eye onyou. If you don#t dri'e in a reasonable and "rudent $anner% you end u" in aditch.H Otto Halgren, Big Sky, Big Flap, Big eal, !"e San Franci#co C"ronicle 6ec.-D% -GG5 at 123. >Mcers enforcin! the law disa!reed HThe "roble$ withXreasonable and "rudent%# troo"ers ar!ue% is that there aren#t three fu ier words inB.?. lawbooks.H Steve $ope%, & erica'# Fa#t $ane % Ti$e >ctober -2% -GG7 at .

This chan!e in the law resulted in an increase in hi!hway deaths in *ontana%









althou!h raisin! the s"eed li$it to 75 has actually resulted in fewer deaths in so$enei!hborin! states. *ornin! 8dition ( ational &ublic <adio broadcast% ?e"t. -5%-GG7). ?ee also Ji$ <obbins% *ontana#s ?"eed Li$it of FFF (.).H. Overturned a# !oo*ague, !"e +ew ork !i e# 6ec. 25% -GGD at 1-A. 1lthou!h no statistics area'ailable on the increase in le!al challen!es to tickets% oMcers re"orted s"endin!

$ore ti$e ar!uin! with dri'ers and in court. Id. In -GGD% the *ontana ?u"re$e;ourt threw out the law as unconstitutionally 'a!ue. ?tate of *ontana '. ?tanko%G7 &.2d --32 (*t. ?.;t -GGD). HSa!ue laws o/end se'eral i$"ortant 'alues. Eirst%because we assu$e that $an is free to steer between lawful and unlawful conduct%we insist that laws !i'e the "erson of ordinary intelli!ence a reasonable o""ortunityto know what is "rohibited% so that he $ay act accordin!ly. Sa!ue laws $ay tra"the innocent by not "ro'idin! fair warnin!. ?econd% if arbitrary and discri$inatoryenforce$ent is to be "re'ented% laws $ust "ro'ide e+"licit standards for those whoa""ly the$. 1 'a!ue law i$"er$issibly dele!ates basic "olicy $atters to"olice$en% ud!es% and uries for resolution on an ad hoc and sub ecti'e basis% withthe attendant dan!ers of arbitrary and discri$inatory a""lication.H Id. at --3A. In-GGG% *ontana enacted a 75 $.".h. s"eed li$it. *ont. ;ode 1nn. Y A- D 303(-GGG). Interestin!ly enou!h% des"ite ?tanko% the new statute retains theHreasonable and "rudent s"eedH standard for cases below the stated li$itR Id. at( ).

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5 This is a rele'ant "oint for you to think about in law school e'en if it $akes ruleidenti cation and analysis see$ less i$"ortant and results see$ less "redictable.1fter all% if !ood lawyers win% what di/erence does it $ake if they learn the rulesF

There are two answers rst% !ood lawyers know the rules and a""ly the$ well. They $ay ha'e other skills in addition to this that they $i!ht or $i!ht not ha'elearned in law school% but at a $ini$u$ they ha'e this. ?econd% the $ore that you"ractice this "rocess% and the better that you !et at it in law school% the better youwill be once you !et into "ractice. This is the only skill that lawyers need that I can!uarantee you will be tau!ht in school. 4ou $ay say to yourself that the "eo"le who!et strai!ht 1#s in law school won#t necessarily beco$e the best or $ost successful

lawyers (and these are not necessarily the sa$e ones) and you would be ri!ht. utthe best lawyers will certainly be e+cellent le!al thinkers% and I think that thesuccessful ones will at least be $ore "ersuasi'e in all ways% includin! theiranalyses% than their o""onents. Eor the other skills that !ood lawyers need thatthey (lar!ely) do not learn in law school% see Ve$ans W <osenblu$% su"ra note % at;h. A9 see !enerally ?ection of the Le!al 8ducation and 1d$issions to the ar%1$erican ar 1ssociation% Le!al 8ducation and &rofessional 6e'elo"$ent <e"ort of the Task Eorce on Law ?chools and the Law &rofession arrowin! the a" (-GG2)





,known as the *ac;rate <e"ort.Return to text

A This is one of the reasons that businesses decry the liti!ation e+"losion. If youha'e to liti!ate e'ery issue anyway% e'en if the rule is clear% then you ha'e lost the'alue of "redictability. Liti!ation can also ha'e other econo$ic e/ect% for e+a$"le%by discoura!in! inno'ation. ?ee% e.!.% Ja$es leick% East Eorward Le!al 8a!les%

Ti$es ?unday *a!a ine% ?e"t. - % -GG7% at D% 50 (ar!uin! that liti!ation hasdiscoura!ed the de'elo"$ent of new technolo!ies in the sin!le en!ine aircraftindustry). The lack of a clear le!al rule can ha'e other i$"act as well% clo!!in! thecourts% or encoura!in! (or failin! to discoura!e) costly beha'ior. ?ee% e.!.%discussion of the *ontana s"eed li$it% su"ra note .Return to text

7 ?ee note su"ra and the discussion of (ontana v. Stanko % G7 &.2d --32 (*t.?.;t -GGD).Return to text

D I was in hi!h school when $y sister ca$e ho$e to li'e with us while studyin!for the bar e+a$. I was astonished that she could study all day lon!% and late intothe ni!ht% with only a rare break for food and water. :er concentration see$edal$ost unnatural to $e. ow I think about that and lau!h% often after sittin! at $yco$"uter workin! on a "roble$% obli'ious to ti$e and bodily function% untilso$ethin! ser'es to break $y concentration and I reali e that four hours ha'e"assed since I last took a break. Eor this reason% I try not to cook while workin!R

4our "owers of concentration will e+"and e+"onentially o'er the ne+t three years%e'en as your i$"ro'in! skills shorten the ti$e it takes to sol'e a "roble$.Return to text

G ?ince I wrote this ori!inally to $y niece% I really $eant this. Eor you% !entlereader% $y e $ail address is B;;2Zaol.co$. I don#t teach 'ia e $ail% but I would















be interested in hearin! your reaction to this letter% "articularly after you ha'e beenin school a little while.

letter to a young law student 09242012

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