TGIF

The weekend is finally here (although the work never stops). This week has been particularly grueling since we had classes last Sunday. After my first semester, I have learned to appreciate these weekends early in the semester when you can actually relax and take Friday and Saturday night off. That unfortunately will change in about a month. Much less case reading for me this semester. Property is the only class where I am extensively reading cases for every class. Lots of theory-based stuff and essays for Leg/Reg and to a lesser extent Crim Law (which still has some case reading, but not exclusively). My Lawyering and Written/Oral Advocacy classes are overlapping somewhat right now in their content. Whereas last semester I was learning how to think like a lawyer, this semester I am more so learning how to actually be a lawyer. Enjoy the weekend.  

P.S.  23-13 Steelers (although I will be rooting hard for God's team). 

P.P.S. Congratulations, Michael Steele. You have an unenviable task. Let's get to work!  

Beating Bad Precedent

Well, the one very useful thing about reading a million cases in law school is that you definitely learn how to construct your own legal arguments. One of the more useful learning experiences is seeing how judges justify their decisions in cases that reverse precedent. I mention this because John said in his last post that he was writing a memo for a position that seemed to run contrary to the case law. From what I have seen so far, there are two ways to handle a situation like that. First, you distinguish the hell out of your case from the "bad cases". Sometimes this can be very difficult, and in case reading you can see brilliant judges straining to distinguish their case from "bad" precedent. "Well in that case, the defendant threw a tomato at the comedian, but in this case defendant threw a banana." Not overly persuasive is it? However, I have read cases where judges have made distinctions that are not much less ridiculous. The other way to do it is to embrace the bad cases and somehow construct an argument that makes it seem like your position is completely consistent with these cases. This is obviously extremely difficult to do. The great Benjamin Cardozo routinely employed this strategy in his decisions. Although, as my contracts teacher would say last semester, all Cardozo opinions should come with a disclaimer: DO NOT TRY THIS AT HOME. 

I don't know about John, but I find it more interesting and a more worth while learning experience to argue for positions that appear to run contrary to all the case precedent.  I like having the odds stacked against me. I don't know... maybe I'm just a masochist.