Okay, so I live on Mars. Actually, I do. Mars, PA. Apparently, days last 36 hours here, too. Tuesday’s blog dealt with what I thought were the really vital issues about your first year of law school. Here’s another installment, on a couple of issues that will affect you and your attitude.
Q. I’ve been reading some articles that say law students don’t really get into theory or justice and are instead taught the practice of law (briefs, case writing, etc.) without a good base…is this true? To what extent is it true?
A. Stop asking two-part questions.
The true answer is that you get WAY TOO MUCH of the theory/justice in my book. I’m not the only one in the profession who thinks so, either. In a 2007 study, the Carnegie Foundation for the Advancement of Teaching concluded that law schools spend too much time with the Socratic Method and not enough time actually teaching the practice of law.
There’s another part of your question that I should address. “Without a good base” is an interesting assumption we have about law school. What do you think a “base” is? Your “base” is not the theory of Justice.
You learned the theory of Justice the first time you got busted for eating your brother’s Halloween candy. You have a base in Justice.
In law school, your “base” is the PRACTICE of law. What does assault look like? How enforceable is an agreement between two people? What would you do to enforce that agreement?
I taught environmental law to engineers who wanted a graduate degree in environmental science. Right off the bat, they had to create a memorandum supporting their client’s position on an environmental impact statement. They did it by reading regulations, federal register entries, and case law. NONE of them liked this assignment, mainly because NONE of them wanted to be a “f***ing attorney.” (This was the actual response to the assignment.) Fast forward 2 weeks: ALL of them understood the requirements of the National Environmental Policy Act and their obligations as future regulators under the statute. We did the same thing with every major environmental statute. Guess what? By the end of the semester they could function at a much higher level of professionalism and practical ability. They were the ones who got new jobs or promoted because they had DONE IT.
We learn by doing. Then we process what we’ve learned and do whatever brings us the greatest reward. The practice of distilling a series of cases into a basic understanding of the elements of negligence is essential to the current practice of legal education. Your basic understanding of Justice is inherent. Your first shot at understanding a contract is not going to be based on what you think makes a fair outcome. You already know that.
What you don’t know is the true nature of an understanding between two people, and whether or how that understanding can be enforced by someone entirely unrelated to the situation. That’s why you’re coming to law school.
So for your first year, throw any ideas about “learning” Theory or Justice. You already know that stuff. You’re in law school to learn how to fix problems between people, just like a mechanic goes to tech school to learn how to fix a car. Sorry to burst your bubble.
Q. What is the most beneficial of the courses I will have to take my first year?
A. Legal Writing. Hands down.
Why? We learn by doing.
We humans have evolved a system of learning that’s wildly experiential, and wildly, wonderfully chaotic. That’s why we don’t understand our parents’ restrictions on the stove until we touch the hot element or feel the heat of the flame. Hopefully, it only took you one shot to appreciate their great knowledge in the ways of the stove.
There is serious magic in owning a problem. An odd thing happens in your brain when you own it and then record your process towards solution. First, your subconscious takes a picture of it and goes looking for things that will help you solve it. Second, you begin to actively see and focus on things that will resolve the matter for you. Legal writing makes you do that for a legal problem.
Look for more on this topic, but in the meantime, trust me on this. When you write a principle down and apply it to a situation, you remember it. I remember the paper I wrote on Chanson de Roland, and why it is a truly awesome medieval epic because I did a long AP English research project on it.
When you don’t write something down or apply an important principle, you’re likely to forget it in as little as 37 seconds. Something about the brain’s ability to take a picture but ignore words. Weird. When you apply a principle, you remember it even better than when you wrote it down. Legal writing helps you apply a principle.
BTW, I rock as a legal writer. So I’ll give you some of my tips in a later post. They may not get you the best grade in Legal Writing, but judges will love you.
Leave a comment if you want resources on legal writing. I’ll make sure you get them in another post.