Tuesday, November 27, 2007
Context
As a law professor, I try as much as possible to see multiple viewpoints. I believe that my responsibilities as a teacher charged with training advocates requires me to offer them a range of acceptable positions taken by lawyers in actual practice and to ensure they will be effective for any client who retains them. Students benefit from the challenge of articulating arguments with which they may disagree.
There is a specific process of acculturating new members of the profession to legal culture, especially in the first year curriculum, however, which I believe requires our self-consciousness about what is happening. It is the method by which, typically through Socratic method, we ask students to analyze cases by distinguishing those facts that are legally relevant from those that are not legally relevant. This is a very important skill, crucial to everything else that a lawyer is expected to do. It is a deliberate process. It becomes an unnoticed phenomenon. The same sharpening of focus occurs in medical school with the training of new doctors.
Yet it is troubling, because it tends to strip away much of the context that may well have been very relevant to the parties as well as the rest of society, not only motivating them but also explaining the situation: issues of authority, power, race, gender, class, history, personal relationships, and so on. These other facets of the cases we study may be much more important than the aspects that determined the outcome in official terms, at least to all of the participants in a matter other than the judge and the lawyers. Hence the familiar complaint made by even sophisticated lay observers, namely that disputes have been resolved for “technical” reasons. Lawyers tend to be unsympathetic to this lament, for virtually everything they do appears, in particular to those who do not benefit from the ruling, to be “technical” – arguably, that is the whole point of introducing lawyers to a matter, to have them address what is “technical” and thus beyond the skill of those lacking professional expertise.
Matters are more complex than that, too. There is no simple distinction between what is legally relevant and what is not legally relevant. Facts do not come ready-made in the world, stamped as relevant and irrelevant. An integral part of distinguishing precedent is the difficult task of drawing the line; it is contested and dynamic. The controlling law changes over time. In the infamous case of Dred Scott v. Sandford, the Supreme Court made a decision about jurisdiction that essentially turned on the race of the litigant. In its holding, it ruled that African Americans were not citizens. Since then, the case has been repudiated; it is clear that the race of the parties is not legally relevant much less dispositive. In the more recent case of Burger King v. Rudzewicz, the Supreme Court mentioned in a footnote that the relative wealth of the litigants was not legally relevant in determining whether personal jurisdiction was exercised properly. For almost all individual litigants facing corporate adversaries, relative wealth will be highly influential in decisions about where to sue or preferences on where to be sued.
So in my approach, I try both to ensure students are competent by conventional criteria in the mode of thinking that is expected of lawyers and that they are able to challenge that mode of thinking where and when appropriate. The best lawyers not only follow the law; they change it.
