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. 

Legal Writing: Law School's Ugly Step Child?

Today was the first official day of classes. I only had one class, Legal Reasoning and Writing. The professor said it will be the most important class we will take this year because reasoning and writing are the skills that all successful lawyers must master in order to be successful. Torts, Contracts, and Property will come and go and the grades will only matter for acquiring that first job after school. But in 5 years, no one is going to care what you got in those courses, all they are going to want to know is if you can reason and write. This was not the first time I had heard a speech like this from a bitter legal writing professor. At Law Preview, the Legal Research and Writing professor (the chairman of the writing department at Fordham Law) gave a very similar lecture. 

I have definitely observed that the writing departments at most law schools seem to have a bit of a chip on their shoulder. Most law schools send implicit and sometimes rather explicit messages that legal writing is not all that important. I have heard at some T-14 schools, the legal writing class in the first year is not even for credit. I even heard that at some Ivies the job of teaching the legal writing class falls to a 3L. This attitude towards legal writing was definitely reflected in the Law Preview class which offered a Legal Research and Writing session on the last Saturday (after 5 straight 10 hour days), and it was optional. Half the students who paid for my Law Preview session did not even show up on the Saturday.  

I am somewhat confused by this because I do believe the legal writing professors to be correct: the ability to write is the most important skill a lawyer can possibly possess. I am very perplexed by the fact that legal writing  is so marginalized and de-emphasized in law school, especially in the all important first year. It also seems that the more prestigious the school, the less emphasized legal writing actually is. Very strange. 

If anyone has any idea or even a theory as to what exactly the law schools are thinking here, I would love to hear it because I have given it a lot of thought, and it just doesn't make any sense to me.