Law and the Horse

Posted on Categories Education & Law, Legal Practice, Legal Profession, PublicLeave a comment» on Law and the Horse

Horse and RiderIf you’ve spent much time around me, you know that I’ve got horse-crazy daughters.  My oldest is fourteen, and she’s just starting her tenth year of riding.  Her sisters joined in the fun a couple years after she started.  That has meant all sorts of things for our family, one of which is that I’ve spent an awful lot of time watching riding lessons.

It’s no surprise that spending that much time watching my daughters being taught a set of skills has led me to reflect on my own teaching.  There are, I’ve concluded, lots of connections, and so in this post I’m going to try to persuade you of two things:  The first is that learning to be a lawyer is in meaningful respects similar to learning a skill like how to ride a horse.  (Or, for that matter, figure skating.)  Both processes involve not merely the acquisition of information, but also a somewhat ineffable sense for how to engage in an activity.  The second is that those similarities can help provide some interesting perspectives on what we do in law schools.

I am breaking no new ground in making the first point.  Karl Llewellyn, for example, wrote of the value to lawyers and judges of “situation sense” and “horse sense” and of understanding that – and even more, understanding how – legal rules will often tell a tale that is incomplete or even wrong when applied to certain fact patterns.  This is a view of law as a craft.  Doing it well requires cultivating an often inarticulable sense of what sorts of responses are appropriate to which situations.  We might call it judgment.  Some of this is doctrinal knowledge, the content of the “law.”  But, Llewellyn admonished new law students, as memorialized in The Bramble Bush, “it does not make so very much difference whether you remember the specific rules.  Good, if you do.  But even if you do not, there remains a deposit, formless, curious—but one which informs your hunches in the future.”  Few of us remember much in the way of doctrinal specifics from our first semester in law school, but none of us could claim that we didn’t learn much.

Continue reading “Law and the Horse”

A First-Timer’s Reflections on Israel

Posted on Categories International Law & Diplomacy, Marquette Law School, PublicLeave a comment» on A First-Timer’s Reflections on Israel

IsraelI don’t have a handy quote to use as an epigram, but I’m sure that someone has previously, and pithily, expressed the idea that we travel as much to learn about ourselves as to learn about others.  It’s the original form of comparative analysis, a chance to experience other ways of living and doing and thereby to reflect upon our own.  The immediate effect is (often) the experience of novelty – at root the same thrill that accompanies exposure to a new idea, taste, or sound.  “Here is something I haven’t seen before!”  The lingering effect is that of evaluation, an effort to understand.  We humans like to categorize, and so the urge is to place this new experience within our existing mental boxes.  But the fit is not always perfect. When that happens we have to adjust the boxes, and thus our sense of the world. (Of course, there is a danger here, too. We might be so tempted to place things in our existing boxes that we overlook differences.)

Why the holding forth on travel? I will tell you. I had the opportunity to accompany Professor Andrea Schneider and the thirty-three students in her International Dispute Resolution class on their trip to Israel over Spring Break. It was an amazing trip. We encountered theory in the classroom, and the reality of conflict, borders, and displacement outside of it. The people who showed us these things, both the theoretical and the concrete, are themselves deeply immersed in the effort to achieve peace and mitigate the consequences of conflict. Even what might appear to have been the more conventionally touristy parts of the trip – typically involving some historically and/or religiously significant site –served to underscore just how layered and tangled the region’s issues are.

Continue reading “A First-Timer’s Reflections on Israel”

People Who Have Shaped the Teaching Careers of Our Faculty—Part 4

Posted on Categories Legal Education, Legal Practice, Marquette Law School, PublicLeave a comment» on People Who Have Shaped the Teaching Careers of Our Faculty—Part 4

The editors of the blog asked several law school faculty to write about the people who have been the most formative figures in their careers as legal educators. This fourth submission in the series is by Professor Chad M. Oldfather.

The path I took to law school was direct in the sense that I went right from college. But in more important senses it was as indirect as could be. Growing up as (what for the sake of simplicity we’ll call) a farm kid I knew no lawyers, and nothing of the world of business. “Work,” as I understood the term, implied getting dirt under one’s fingernails. My momma wasn’t gonna let me be no cowboy, but neither could the prospect of me being a doctor or lawyer or such have figured too prominently in her plans. The world of professionals was, to me, a great unknown, an uncharted land inhabited by a whole different sort of person.

All of which means simply that I’ve had a greater need for formative professional influences than the average bear. Like everyone else, I needed to learn how to be a lawyer in the sense of developing the necessary skills. But to a greater extent than most everyone else I also needed to recognize and then internalize the norms of professional interaction. Put differently, I knew there’d be unwritten rules. What I didn’t know was how they’d be different from the ones I grew up with.

I had the great good fortune to begin my career as a clerk to Judge Jane Roth. Continue reading “People Who Have Shaped the Teaching Careers of Our Faculty—Part 4”

Humility and Advocacy

Posted on Categories Legal Writing, PublicLeave a comment» on Humility and Advocacy

[Editor’s Note: This month faculty members share their favorite brief writing or oral argument tip. This is the fourth entry in the series.] My favorite advocacy tip applies to briefs and oral arguments alike. (Indeed, for my money it serves as a pretty good rule of thumb for life in general.) It is this: Your arguments are never as good as you think they are.

As a general matter, the phenomenon is a product of (or is at the very least related to) what psychologists call the confirmation bias. That’s our tendency to assimilate new information in such a way as to confirm our pre-existing beliefs. If I’m inclined to believe in the truth of Proposition X, then I will give relatively greater weight to new information that confirms that belief than to information that runs contrary to it.

Continue reading “Humility and Advocacy”

Standing up for the Rule of Law

Posted on Categories Federal Law & Legal System, Marquette Law School, UncategorizedLeave a comment» on Standing up for the Rule of Law

Charles_Swift_--_Guantanamo_August_2008Hamdan v. Rumsfeld, which concerned the President’s authority to employ military commissions without congressional authorization, is among the most noteworthy of cases to have been decided by the Supreme Court in the last few years.  Last month, Professor Stephen Vladeck, who was part of the team that represented Guantanamo detainee Salim Hamdan before the Supreme Court, was part of the law school’s Constitution Day observance.  On Wednesday, we have the good fortune to host Lieutenant Commander Charles Swift, who represented Hamdan from the beginning.

Swift’s presentation promises to be compelling in at least two respects.  The first is that Swift will provide a first-hand account of the legal issues surrounding the war on terror via the story of his advocacy for recognition of the rights of Guantanamo detainees.  The second concerns the personal cost to Swift of his representation.  According to media accounts, Swift understood that the expectation was that he would simply assist Hamdan in entering a guilty plea.  But, Swift explained to the Seattle Post-Intelligencer,  “I didn’t volunteer for this. I got nominated for it. When I got it, I just decided to do the best I could.”  That resulted in a trip to the Supreme Court, in Swift being denied a promotion, and in turn to the end of his military career.  As Swift explained to a Bloomberg reporter, “If you start thinking about your career over your duty, it’s time to get out.”

For more information, and to reserve your spot, go here.

Constitution Day

Posted on Categories Constitutional Interpretation, Federal Law & Legal System, Higher Education, Marquette Law School1 Comment on Constitution Day

imagesSome portions of the Constitution are the subject of frequent discussion. Concepts like “due process,” “equal protection,” “freedom of speech,” and the like are headline-grabbers. Phrases like “Commerce … among the several States” do not resonate quite as much with the general public, but are certainly familiar to lawyers.

A glance at the Constitution reveals that there is much more to the document, some of it mysterious. There is, for example, talk of “Emoluments,” “Letters of Marque and Reprisal,” and “Corruption of Blood.” Indeed, large portions of the Constitution make at best infrequent appearances in public discourse. There is, one might say, an Overlooked Constitution. Continue reading “Constitution Day”

How Lawyers Write

Posted on Categories Legal Scholarship, Legal Writing, Speakers at Marquette5 Comments on How Lawyers Write

This week’s faculty workshop presenter was our very own Professor Jessica Slavin, whose talk was entitled “Talking Back to IRAC: Legal Writing Beyond the Paradigm.” The project on which the talk was based has two components. First, Professor Slavin traced the history and questioned the utility of using IRAC and related formulas as vehicles for teaching legal writing. Second, she presented the results of her own empirical study of briefs submitted to the Wisconsin Supreme Court, which suggest that something other than strict adherence to IRAC characterizes the brief writing of at least one set of advocates.

To me, this is interesting and provocative stuff. I find the psychology of writing fascinating (put it together with the process of judging and I could maybe write a whole article about it). Having tried to teach a writing class once, I’ve experienced first hand just how difficult it is to articulate what makes for good writing. For me, at least, this is partly because I go about my own writing in a highly intuitive way. I don’t recall ever consistently thinking about IRAC when writing in a legal context, and I cannot articulate many of the rules of grammar (although I consciously violate some of the more ridiculous “rules,” such as the ones about split infinitives and prepositions at the end of sentences). Given all this, I share Professor Slavin’s sense that there’s something not quite right about a method of teaching writing that suggests that it is somehow a mechanical or rule-driven process. This is not (on my part, at least) to suggest that IRAC-like formulas are not useful, but rather that they are incomplete. Continue reading “How Lawyers Write”

War Stories

Posted on Categories Legal Education, Legal Scholarship, Speakers at Marquette2 Comments on War Stories

Yesterday, as part of our weekly faculty workshop series, we hosted Professor Julie Oseid of the University of St. Thomas. Her presentation was entitled “Show Me the Way: Mentoring Lawyers Through War Stories.” As the title suggests, her project is to consider, and to some extent justify, the use of war stories in legal education and more generally as a way to integrate new lawyers into the profession. Despite the fact that she was going head-to-head with Bud Selig, roughly twenty of our colleagues showed up to hear Julie’s thought-provoking talk.

For me, the topic ties in with some of the other discussions taking place on this blog, and elsewhere, concerning just how it is that we should go about the business of creating lawyers. I’m with Dean Strang in believing that technical proficiency is a necessary but hardly sufficient condition to being a good lawyer. Reflectiveness, judgment, and (this one is vastly underrated, in my view) creativity all have a role to play, along with some number of less tangible qualities.

Stories can help us pass along some of that information. Continue reading “War Stories”

Faculty Workshop on Criminal Procedure in Russia

Posted on Categories Criminal Law & Process, Speakers at Marquette3 Comments on Faculty Workshop on Criminal Procedure in Russia

Yesterday, our colleague Professor Olga Semukhina of the Marquette Department of Social and Cultural Sciences gave a presentation entitled Criminal Procedure in Modern Russia: The Path of Reforms as part of our faculty workshop series. She outlined the structure of the Russian Criminal Procedure Code (adopted in 2002), explained how the criminal process works, and offered her sense of the system’s shortcomings. Not surprisingly, the system looks very different from that in the United States. The Russian system has Continental roots, and consistent with that is considerably less adversarial than our own. Indeed, defense lawyers play an almost entirely reactive role. The defense has no ability to gather evidence, and until trial (which is the only adversarial component of the system) is limited to lodging objections to the work of the criminal investigator (a lawyer who is in theory an independent investigator, but whose physical location amongst the police and prosecutors tends to generate an affinity for the state). Plea bargaining is non-existent. Every case goes to trial, and 99 percent of those result in convictions.

For me, the presentation underscored the value of the comparative perspective. It is easy to conflate familiarity with necessity, and exposure to the workings of another system has the tendency to dislodge some of our assumptions about the way the world works. Another example: in Russia, a crime victim’s claim for restitution is part of the same case as the criminal prosecution, and the victim has a right to appeal the verdict in the criminal portion of the appeal. It’s an intriguing process to someone, like me, who is interested in the boundaries between the civil and criminal processes.

Judicial Process Course Materials

Posted on Categories Legal Education2 Comments on Judicial Process Course Materials

Despite my best intentions, I’m about to break the promise I made in my last post (and what better way to celebrate an election than by breaking a pre-election promise?).  I thought about whether I could do another Malcolm Gladwell post, based on his latest piece, but haven’t quite been able to find an angle on that that I like.  And so, it’s back to the judicial processI’ve posted a “tentative draft” of my course materials on SSRN.  As I note in the abstract, these materials are a work in progress, and are surely incomplete in many important respects.  I welcome all feedback concerning how they might be improved.

Cross posted at PrawfsBlawg.

The Judicial Process, Defined

Posted on Categories Judges & Judicial Process, Legal Education2 Comments on The Judicial Process, Defined

Last week I bemoaned the fact that those of us who do work in the judicial process area have no organizational home of our own. My aim in this post is to talk a little bit more about what I’ve got in mind when I talk about the judicial process as a field of learning. Probably the best way to do so is to describe the seminar I’m teaching this semester, “Judging and the Judicial Process,” which provides a pretty good first cut.

Our focus, as I put it in the course description, is “on courts as institutions and on judges as the primary actors within those institutions.” We started with what one might call the “standard” model of judging, which calls for judge-umpires to apply determinate law via formalist analysis. Then we pretty much blew it up, considering the work of the legal realists, public law theorists, political scientists, cognitive scientists, and so on. Continue reading “The Judicial Process, Defined”

The Judicial Process, um, Movement(?)

Posted on Categories Legal ScholarshipLeave a comment» on The Judicial Process, um, Movement(?)

One of the things that seems critical to establishing oneself as a scholar is becoming a part of a broader community of scholars.  Six-plus years into my academic career, I feel only partially successful in this regard.  Here’s why: When people ask me what I write about, I usually say “the judicial process.”  It’s an accurate answer.  Nearly all of my scholarship has to do with judging, including the processes of appellate review, the functions of judicial opinions, and a concept I’ve called “judicial inactivism.”  I find it all fascinating and important, and expect it will keep me busy for the rest of my career.

But as I scan the schedule for the upcoming American Association of Law Schools annual meeting, I feel as though I lack a home.  It’s not that there isn’t plenty of stuff written dealing with the judicial process. Nearly every day Larry Solum brings my attention to at least one article that falls into the judicial process category. But the authors seem to have primary allegiances elsewhere – they are Civ Pro people, or Con Law people, or Empirical Legal Studies people, or what have you.  Nor is there a recognized Judicial Process component of the curriculum.  (I’m in the early stages of trying to change that.  More on that in a subsequent post.)

This strikes me as odd.  And so I wonder: Should there be a judicial process community in some formal sense?  After all, if I may understate the matter somewhat, courts and judges play a central role in this enterprise of ours.  Given the constant chatter about judicial activism and the various threats to judicial independence and the explosion in the amount of empirical work being done on courts and the kerfuffles over unpublished opinions and on and on, oughtn’t those of us who write about judging and courts at the very least get together from time to time to talk about what we’re up to?  Am I alone in this?  If someone were to throw such a party, would anyone come?

Cross posted at PrawfsBlawg.