Third Week Law Student v. Oliver Wendell Holmes

I have been so busy the last few days that it has been impossible to create a post. I am trying to stick to my schedule of staying 2 days ahead on all the reading, but it is turning out to be quite the undertaking. Last night, the Torts reading for next Monday included 8 cases that needed to be read and briefed. I got home from class at about 1:30. Factor in 30 minutes for dinner and 45 minutes to watch Sarah Palin totally renew my faith in politics, and I did not get done with my work until after midnight. 

So far, I would have to say that Contracts is the most challenging course. Not so much because the material is any more complicated than Torts or Civ Pro (in reality con law is actually quite simple and basic once you cut to the essence of the opinions), but because of the professor. He constantly challenges what we read in the case book. When I am reading the cases, I read them several times to gain a full understanding of the facts, the issue, the holding, and the reasoning. I then read over my brief a few times, commit the new law coming out of the case to memory, think about why it makes sense and is the correct resolution given the facts, and move on to the next one. 

This has been quite an effective strategy so far in Torts and Civ Pro. My strong ability to identify the issue in a case, and to fully understand the holding and the reasoning of the court, has served me well in those courses. I have already on several occasions been able to distinguish myself during class discussions through my mastery of these aspects of the opinion.

However, in contracts, the professor is constantly throwing a monkey wrench into my neat, orderly, and concise way of understanding the cases. I find the pattern has become quite familiar. After he has thoroughly traumatized a student, and ultimately managed to pull the court's holding and reasoning out of them, you can almost feel a collective sigh of relief in the classroom. Every student is thinking the same thing: "Finally! Now that we have identified the law, we understand it, we can probably (hopefully) apply it to different fact patterns, its time to move on. We've escaped this case!"  Not so fast...

The professor will then always come back with the question, "so, now that we understand it, tell me why the decision is incorrect?" Everyone's face just drops at this point. We've just spent the last 40 minutes working very hard to understand why and how this opinion became the law, and now we have to punch holes in the dam we just built. It has become the job of a third week law student to pick apart the legal reasoning of Benjamin Cardozo, Oliver Wendell Holmes, and all the other greatest legal minds in American history. Not an easy task to say the least. 

Last week I discussed how invigorating it was just to be able to get to the point where I could follow the reasoning of these legal giants. But now, it is my task to pick and prod at them, to critique THEIR reasoning and understanding of the law. It does not get any more difficult than that. I am finding it to be the most intellectually challenging exercise of my life. At times it physically hurts my head, but I suppose thinking about the material from this type of critical perspective will ultimately be of great assistance to me when trying to master it.      

Reflecting on the First Week of Classes

Many students complain about the LSAT. It is indeed one of the most difficult and most intellectually rigorous exams that most people will ever take. It seems cruel, unforgiving, and ultimately unnecessary. Most people think: "I can read... I can write... I certainly know how to argue... I know I can be a good lawyer regardless of what this stupid standardized test says!" Those thoughts ran through my head from time to time. As someone who received a very good score (but not elite), I found the test to be a very humbling experience; a real blow to my (what some would say) substantial ego. 

Unfortunately, after completing my first full week of classes; reading and briefing over 20 cases, and analyzing countless hypothetical scenarios, I am here to say that the LSAT does matter. The skills tested on the LSAT are exactly the skills you need to be successful in law school. Granted, I am a little rusty on the contents of the exam, but the one question type from the LSAT that immediately comes to mind is parallel reasoning. I found these questions to be particularly feverish and maddening when preparing for the test. The ability to answer those types of questions correctly, however, demonstrates the skill that is most important for being successful in law school. 

When judges read cases and make law, this is the skill they are using. They are looking at a very specific collection of facts and what they are doing is creating an abstract rule that can then be applied to a different set of circumstances. What lawyers do, when representing a client, is look into past case law and see if court precedent supports their clients case. It is very unusual that they would find a case that has exactly the same facts as theirs. So what they must do is examine similar cases for "parallel reasoning" that they can then apply to their client's case. Law students, on exams, are asked to demonstrate that exact skill as well. They are given hypothetical scenarios that are meant to spur thoughts of specific cases they have read in class that deal with the same legal issue. They are then asked to use parallel reasoning to apply the abstract rule from those cases to this new set of circumstances. 

LSAC is certainly much maligned. I don't think there is one law school applicant out there who didn't think LSAC was evil incarnate (at least at one time or another). But experience has now shown me that the council knows what its doing. If you can't do well on the LSAT, you can't do well in law school. I don't care how many high school or college speech and debate contests you won. 

No pressure though. 

Its all Greek to me! [John]

As the rumors have stated, Obama's speech on Thursday will have an ancient Greece backdrop (see above). After learning this, I opened my Civ Pro book began my homework by briefing a case with a Greek Plaintiff. The case was in regards to diversity jurisdiction and whether a law suit between citizen from a foreign state and a citizen of a foreign state with permanent U.S. residency can be enough to move the case into the Federal System. Anyway, what is even funnier is that I opened my Contracts book and my second brief was a case between two Greeks.

I am Greek, as most of you know, so these kinds of things are funny to me. After laughing for a few minutes about this coincidence, I asked myself are Greek's litigious? Unfortunately, I haven't been able to find statistics based on ethnicity but I think it would be reasonably to say that they are not more litigious than anyone else--this was just some crazy coincidence.

Anyway, sorry about the random tangent. However, I did want to share with you something trivial I learned today. In Contracts class, we discussed "consideration." Without going into the benefit/detriment test or the Bargained-for Exchange test, I did want to give you some parental advice.

Parental Advice:
A contract does not have sufficient consideration if the right that was suspended for a promise is not a legal right. Therefore, if your child is involved in illegal acts such as drugs, then technically if you promise them $1 million if they don't use drugs until they are 21, that promise is not a legally binding contract; this is because they didn't have a legal right to do drugs in the first place. So basically, your children will hate you for the rest of their life, but legally they will never be able to collect on your promise.

Reading the Cases

I am trying to stay 2 days ahead on reading (completing assignments due Wednesday on Monday, assignments for Thursday on Tuesday, etc). Much easier said than done. The cases are very interesting and it is by far the most intellectually stimulating work I have ever done. However, working the cases through is a very slow and tedious process. It's mostly because the judges are trying to take very specific facts and produce grand abstractions which can then be applied to different, yet comparable situations. This often produces results that are very difficult to wrap your mind around. Unfortunately, however, these abstractions are essentially what you must learn in law school. They are the tests and standards you must apply to the hypothetical fact patterns that appear on the exams. A student's ability to apply these "rules" to different circumstances is pretty much the sole determiner of his/her grades. 

The reading also comes slowly (and this just might be a pet peeve of mine) because a lot of the cases are very old, and some of the terminology is difficult to work around. At some points, when reading 19th Century cases, it feels very much like trying to get through Shakespeare (which I was never much good at).

The work is  hard, but it's fun and its exhilarating. There's no greater rush then reading a case, re-reading the case, doing your brief, and all of a sudden the light bulb goes off, and you actually understand what the hell this crusty, old judge is thinking and why he is thinking it. If there is anything more exciting than being able to get in to a Supreme Court justice's mind and actually follow their train of thought, I don't know what it is.  

This is indeed a very exciting time.