Langdell’s Curse and Transactional Lawyers

langdell_portrait_vinton_03-150x150In a prior post, I criticized law schools’ heavy reliance on the case-method as a way to prepare lawyers for practice. As I argued in that post, the case method, which primarily teaches students the law through an analysis of the legal reasoning in appellate cases while ignoring most of the factual context for those cases, leads law students to think more like judges and judicial clerks than practicing lawyers.

Still, being able to think like a judge is helpful to some degree to a litigator, for it enables her to place herself in the shoes of her potential audience — the judge – to identify her strongest (and weakest) arguments. Moreover, learning the law through the case method, even absent much of the factual context giving rise to the case, gives students some exposure to what a lawsuit is, who the different parties to a lawsuit are, and how to read and understand the procedural posture of a case. It also helps students to develop legal reasoning skills in the context of a legal problem arising due to existing facts and circumstances. The procedural and evidentiary aspects of litigation are further explored and reinforced through courses on civil procedure and evidence, which are mandatory at many law schools. 

But thinking like a judge is nearly irrelevant to a transactional attorney.

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Respecting Student Experience

wallsOne of my favorite Christmas gifts this year was a copy of Jeannette Walls’ amazing memoir, The Glass Castle. In it, she describes growing up with her three siblings in a household characterized by chaos and poverty on the one hand, and love and a sense of wonderment on the other.

Jeannette and her siblings live in a series of cars, tents, or leaky-roofed houses without heat. They forage for food in farmers’ fields and trash cans, wear cast-off clothing, and bathe so infrequently as to attract the scorn of schoolmates. Their unstructured life and economic deprivation are partly a product of their father Rex’s alcoholism, and partly a result of their mother’s free-spiritedness, which often bordered on mental illness. The parents held jobs for periods of time, but usually quit or were fired because they did not like the infringement of a work schedule on their freedom or did not see eye-to-eye with their bosses on some point. Despite these physical hardships, the Walls family is full of love and mutual affection, and Jeannette’s account of her family is surprisingly gentle and forgiving.

As a Family Law teacher who addresses issues such as child maltreatment, parental rights and child protection, I am fascinated by first person accounts of family life, and Walls’ account is full of nuance and insight. There is one scene however, that haunts me as a teacher. 

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One Class: Deconstructed

eckstein hallIn a previous post, I took an op ed piece that I authored and provided a “deconstruction” of the text that explained the thought process behind the piece’s organization and argument.  In today’s post, I propose to take one class period from my Constitutional Law course and to deconstruct the class in a similar fashion.  Readers of this blog may find my thought process surprising, appalling, or some combination thereof.

The class period in question deals with the constitutional doctrine of standing in the federal courts.  Because federal courts only possess the power to hear cases described in Article III of the Constitution, standing doctrine has been developed by the Supreme Court to differentiate “cases” and “controversies” from disputes that are merely hypothetical, or that request an advisory opinion, or that are better left to family or political decision makers.  The case in the textbook that provides an entry way into a discussion of standing doctrine is Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000).

In that case, the plaintiff was a member of an environmental group who wanted to sue a polluter who had dumped mercury into a South Carolina river.  Congress had passed the Clean Water Act, which creates a cause of action in federal court for any person “adversely affected” by a violation of the statute.  The issue was whether the plaintiff in this case, who alleged that he no longer swam in the river or picnicked along its shore due to a fear of contamination, had suffered a sufficient “injury in fact” to have standing to sue.

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