Law School Shortcomings
My first-year experience was filled with reading case after case after case after case-many of which contradicted each other and/or were outdated. I understand that the process is designed to show you the historical underpinnings and ambiguity of the law, but I imagine the process could be done in a less confusing way.
However, that was forgivable- tradition is slow to yield and there are some valuable truths to be discovered in reading old cases.
It is, however, the total lack of focus on statutes that I feel was most misleading. I can count with one hand the number of actual statutes I think a professor mentioned in class. Theory, as least in a classroom setting, appears to be centered around the capricious opinions of judges.
In practice, however, I use statutes on a daily basis. The lawyer I work for will say, "Find the statute and see if this person has standing to sue," or "See what the statute has to say about this." He has a small and modest law library, most of which is taken up by the Annotated Mississippi Code. And yet for the most part, it's all a truly competent lawyer would ever need to try most garden-variety cases.
The "Annotated" part means it gives you lots of good stuff to start with- which is all that's needed to LexisNexis your way to some current caselaw on the matter.
Cases are important, but they are a secondary byproduct (for the most part) of statutes. Opinions are nothing more than interpretation of the law as it is written. If the legislature doesn't like the "interpretation," they simply change the wording of the law, based on past opinions. A good simplistic example is when the legislature changes the word "may" to "shall", after a court determines it's not necessary to do something based on the language.
This is not to say that statutes are "black-letter law." Novel situations cause discrepancies in the current law that have to be plugged by judicial interpretation. Eventually new laws are made, or old laws are challenged, and the process begins anew. Black-letter law could only exist 1) if no new circumstances or events arose, or 2) our finite minds could write laws to cover infinite possibilities. Sadly, neither is a realistic option.
I say all of this only because I wish that law school focused more on the statutes themselves. They serve as both the backbone and life-blood of the everyday workings of our legal system. Law school has a tendency to focus on the fancy yet relatively useless flesh of the thing a bit too much. To make matters worse, much of the skin focused on is either dead or dying.
However, that was forgivable- tradition is slow to yield and there are some valuable truths to be discovered in reading old cases.
It is, however, the total lack of focus on statutes that I feel was most misleading. I can count with one hand the number of actual statutes I think a professor mentioned in class. Theory, as least in a classroom setting, appears to be centered around the capricious opinions of judges.
In practice, however, I use statutes on a daily basis. The lawyer I work for will say, "Find the statute and see if this person has standing to sue," or "See what the statute has to say about this." He has a small and modest law library, most of which is taken up by the Annotated Mississippi Code. And yet for the most part, it's all a truly competent lawyer would ever need to try most garden-variety cases.
The "Annotated" part means it gives you lots of good stuff to start with- which is all that's needed to LexisNexis your way to some current caselaw on the matter.
Cases are important, but they are a secondary byproduct (for the most part) of statutes. Opinions are nothing more than interpretation of the law as it is written. If the legislature doesn't like the "interpretation," they simply change the wording of the law, based on past opinions. A good simplistic example is when the legislature changes the word "may" to "shall", after a court determines it's not necessary to do something based on the language.
This is not to say that statutes are "black-letter law." Novel situations cause discrepancies in the current law that have to be plugged by judicial interpretation. Eventually new laws are made, or old laws are challenged, and the process begins anew. Black-letter law could only exist 1) if no new circumstances or events arose, or 2) our finite minds could write laws to cover infinite possibilities. Sadly, neither is a realistic option.
I say all of this only because I wish that law school focused more on the statutes themselves. They serve as both the backbone and life-blood of the everyday workings of our legal system. Law school has a tendency to focus on the fancy yet relatively useless flesh of the thing a bit too much. To make matters worse, much of the skin focused on is either dead or dying.
posted by Yorick at 7:34 AM
6 Comments:
From the argumentative one:
Two things:
1) It is a big deal in this country that we're a common law system. Case law, precedent, stare decisis -- it does affect an issue more than a statute does. You can read a case on a specific area, and know what the law is - even if there's a statute you didn't read first. Either the case operates with the statute as the background; it quotes the statute; or it talks about the statute. You can't do it the other way around. You can't read a statute and KNOW what the state of the law is. The constitution - the foundation of our laws and Mommy of all Statutes - has been pretty much handed over to common law interpretations. We didn't memorize that puppy in law school, either.
2) Statutes are still the underpinnings of most FIRST YEAR law school classes. Perhaps it isn't spelled out for you - but most property law principles you learned are reflected in the state statutes; obviously criminal law is (if you had that in your first year); Contracts with the UCC, and so on.
Okay, I also have to say 3) In second and third year classes, now that you have your sea legs on (i.e., ability to read and understand case law), there are many more statute-based classes available to you.
Fine. 4) We did do a good bit of work with statutes in first year, but not in our core courses -- in both our writing class, and another 1st year lawyering class we took. When I went off to my first job after 1L, I felt more than capable of turning to the statutes and finding out what I needed to know.
I just wished we had focused on statutes more- that's all. I feel they prepared me to be a good law student, as opposed to a good lawyer.
Don't get me wrong- I respect and admire your opinions and I'm always glad to hear them.
I'm just trying to back away from the "No, I'm right" construct because I feel it's largely a futile exercise.
Either one of us could make beautiful and wonderful arguments for why "our" side is the correct one to be on, but does it really matter at all? I'd rather you disagree than have me waste all my time turning you into a think-puppet (which you're clearly too smart to become.)
Everyone in my damn law school is so argumentative it turns my stomach. I understand its uses in the courtroom, but I feel they need an off switch. People who constantly think they're the smartest person in the room quickly find out that's true- but only because everyone else has left.
In short: I respect your opinion, it gives me greater understanding of the situation, I appreciate the input, and I hope you continue posting- but I have no desire to change your viewpoint on anything, just as I believe you have no desire to change mine.
I'm not trying to change your mind. I see it differently than you do, and felt compelled to share how and why.
We have such different approaches and ways of thinking in so many different areas, I thinking pointing out -- not only to you, but to readers as well -- there is more than one way of looking at things, and more than one "truth" or "right" way of thinking/approaching most issues. The ones I comment on are ones I care about and/or have thought about.
Not to say you should have my view/approach - or that anyone should - just to say - look, here's another viewpoint.
Glad to hear it.
It's very refreshing to just stop at that point, isn't it?
For two humans beings to actually acknowledge that both can have valid yet differing opinions.
I say this as one who used to be the exact opposite- there was a time when I would argue just to argue- I felt the insatiable need to defend my opinions, either due to inconsideration for others or a latent sense of insecurity.
One last thing, and then I'll let it go-
I'll wager that my experiences and your experiences were roughly the same, from the sound of it. However, I perceived a lack of focus on statutes and yet you did not. Assuming the reality was the same (a big assumption) that means we saw different "truths" so to speak.
I think that by sharing your perspective, I and others are allowed to see a little bit more of the picture. Just like scientists find black holes by how the stars behave around them, we discover grand (or little) truths by how those around them react. Of course, the more stars (i.e. people) we have, the better our final analysis.
I'm not frustrated with you, Zuska- not at all. I'm frustrated with those ignorant souls who contend that their viewpoint is infallible, yet feel necessary to defend their viewpoint to the end of the earth. Truth is its own test; if it is valid, it can never be extinguished, and need not the belaboring tongues of donkeys to announce its arrival.
Refreshing, yet impossible ;)
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