A Higher Reason

I was frantically reviewing my notes before a lecture began the other day when a friend sitting next to me laughed.
“Why not just do the readings and then study the store outlines a few weeks before the exam?” he asked. “You might learn this stuff better doing all the work, but it’s not going to make that much of a difference on the exam.”
I sat back and thought about it for a minute. He may be right, I concluded.
Later that class, I looked over and saw him instant-messaging someone about how boring class was.
Between bets on his online poker game (he had pocket Kings) he whispers, “Hey man, I’m just in it for the sheepskin.” Later, he adds, “How well you do in law school has almost nothing to do with how well you do as a lawyer.”
Again, I had to pause. I wondered if he had the right perspective.
My friend’s remarks remind me of a conversation I had at Rock Bottom last semester with several other friends. They informed me quite unapologetically that yes, silly, there were only in it for the money.
These experiences caused me to reflect on the real reasons I am in law school. I really can’t fault with anyone who sees these three years as simply a series of obstacles one must overcome to get a first job. As one dean explained to me recently, law school is in some ways just a trade school that gives students the necessary tools to succeed in a specific, if elite, workforce.
As for grades, it’s probably true that a person with average intelligence can squeak by with a transcript full mediocre grades simply by using study aids and a crash course at the end of each semester. Besides, after that first job, isn’t it all about your onsite performance and what connections you make? Aren’t the connections the most important thing even now?
After considering these questions, I’ve concluded there is something inherently worthwhile in getting good grades beyond our first job. There is something in studying for more than just the exam. In other words, there is more to law school than getting the sheepskin. A lofty and ephemeral ideal, I know, but bear with me.
Rather than being simply a means to an end, law school may have an end in itself. In the long run, our law school experiences should increase our appreciation for the struggles our society faces rather than just increasing the number of tools in our toolboxes to litigate cases. Instead of simply preparing for an exam, our class preparation and discussions should be reforming the way we think and how we view the world.
For example, how differently do we see current events now that we are beginning to grasp their legal implications? How differently do we act in public now that we better understand tortious liability? How about when we sign a contract? When we purchase real estate? Does our increased understanding tend to make us more ethical or simply more strategic in our transactions? These are small things, but I imagine they only get bigger the more we learn.
The additional skills that come from pondering the greater meanings in our courses may not translate directly into higher salaries or better jobs. But they may translate into us being better people.
After all, doesn’t our passion and interest for law reflect what our passion and interest in practice will be?
One question I have asked myself is, “If I were assured my dream job upon graduation regardless of my transcript, would it affect my current efforts?” If I’m not still willing to work hard when my dream is secured, I may need to change my motivations.
The early 20th century writer Ezra Pound wrote, “Real education must ultimately be limited to men who insist on knowing. The rest is mere sheepherding.”
There is no doubt that grades are important. The first job is even more important. But if we were to walk away from these three years never to practice law or implement our degrees, I hope we would still have gained something worth our efforts, something more than just a sheepskin.

A Correct Use of Judicial Powers

We hear a lot about judicial activism. We hear a lot about the over reach of the courts. The Supreme Court and lower courts are making law, people say. Ordinarily I tend to agree.

Right now, however, this is not the case. Right now, the courts are doing their job.

State courts have decided Ms. Schiavo's case. In an unprecedented abuse of legislative discretion, Congress moved the case to Federal Court. In an admirable use of judicial discretion, the Federal Court declined to overrule the state court decision.

Now, as two brothers in power struggle to find new ways to bend the law and increase their own power, a tragic story is coming to an end. The courts got it right this time. They abstained from going further than they had a right to go. Good for them.

The Right to be Left Alone

I am developing the impression that private law, indeed the goal of American law in general, is to unfetter the individual and allow him or her to pursue their own concept of right. All tort law, property law and contract law seem to point to this. The idea of "negative rights," i.e. the right to be left to one's own devices absent an infringement upon another seems to be at the heart of what law is all about.

Under the traditional corrective justice regime, Tort law seems to only involve itself when a person has "wronged" another, causing them damages. Hence, its only purpose is to rectify an imbalance between two parties where one has infringed upon the rights of another. Affirmative duties appear only when the bare needs of a social contract supersede individual rights, requiring a person to involve themselves in the affairs of others. Anytime Tort Law exceeds these bounds (punitive damages, statutory enforcement, wealth distribution), it seems to take on a functionalist goal which Tort law is incapable of dealing with.

The ultimate goal of contract law appears to enforce what the parties would have agreed to ex ante had they considered the position they find themselves in ex post. Hence the placing of burdens upon the least cost avoider, allowing damages to lay where they law absent bad faith, and enforcing contracts that leave a party worse off but assumed the risk. This seems to further the goal that people should only have limits placed on their freedoms where they have contracted to do so in furtherance of their own good.

Finally, property law in general appears to protect a persons right to the sanctity of their possessions. Only when there is a superseding societal need can the government "take" one's possessions.

Is this Freedom? Is American law about protecting the right of the individual to be left alone to pursue what he or she deems best? I like the idea that I should be left to find out what is best for me and don't have big brother deciding it for me. But is that where we are going?