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. 

We are all in it together...

I wanted to take some time and reflect on the law school community. Many of us have heard the horror stories about the cut-throat environment that is seen throughout law schools nationwide. We have heard of those competitive students who actually hide books or even rip pages out so that others in their section cannot use them.

Even though this cut throat environment has dissipated almost completely in U.S. law schools, I was told that a few of these types linger in every 1L class. Fortunately, I have not experienced one of these people yet. Everyone as CUA is so nice and helpful...its kinda funny how different my experience has been compared to all the horror stories I have been told. In fact, I am very grateful for such a community-type environment where everyone is willing to help--it makes the day just a little be easier.

You Don't Scare Me

My contracts professor has built up quite a reputation these first 3 weeks of classes. After the near murder of the poor student last Tuesday, I see a lot of my classmates having trouble coming to grips with his rather in-your-face style of socratic method. Before class today, I overheard two girls sitting in the row behind me talking about how they were having trouble sleeping the night before contracts class because they were thinking about the seating chart and when he might get to their names. During today's discussion, he questioned (very politely I might add) another student who immediately went catatonic. After a full three minutes of awkward silence she told him that she had done the reading and prepared, but she was too nervous to function. 

I don't know why this is exactly (perhaps its just my personality), but my experience in the classroom seems to be dramatically different from most other students. I find the professor to be both amusing and challenging. I am one of the few people relaxed enough in class to recognize his incredibly dry sense of humor and get a chuckle out of his jokes. I volunteer every class because I desperately want to interact with him. I want him to know that I understand what he is saying, and I want him to challenge me (maybe I also want to let him know that he doesn't scare me). He has taken the liberty of referring to me as "Gene" instead of "Eugene" during class. Considering that I have never exchanged a word with him outside of the giant lecture hall, I suppose this might mean I have made an impression. Who knows though... maybe not. Maybe its just totally random. They do say law school is just a giant mind-f**k. I think there may be some truth to that. 

Pardon the language =).   

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.