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.

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Israel Reflections 2015: Day Three (almost done)–Dinner at the Baraks’

israelA highlight of our trip every year is the time we get to spend with Justice Aharon Barak and his wife Judge Elika Barak.  Justice Barak is the former President of the Israeli Supreme Court, hailed as the father of Israel’s constitutional revolution and even cited by Justice Elena Kagan as one of her judicial heroes.  Judge Barak was the former deputy chief of the Labor Court.  It is a truly special evening.

Student Dejan Adzic recounts:

One of the most valuable and interesting experiences of the Israel 2015 trip was a group dinner at the home of former Justice Barak and his wife. The Barak’s were terrific hosts and their hospitality was remarkable and far exceeded my expectations. In addition to the great food, I was really surprised by how pleasant and approachable Justice Barak really is. He went above and beyond in his attempts to answer everybody’s questions and to give each student an opportunity to engage him in a conversation. He spoke tirelessly for nearly two hours with forty students asking thought provoking questions about Israel’s judicial system, the Constitution, labor and immigration issues, as well as the unavoidable security concerns and the two state solution. Justice Barak even found time to speak to the guests about the fruits in his garden, letting students take mandarins as edible souvenirs from the memorable dinner.

One of the most interesting topics of discussion was Justice Barak’s discussion on the U.S. Constitution and the originalist interpretation of the document. Justice Barak criticized the originalist approach when applied to a rigid constitutional framework that makes amendments difficult to accomplish. He believes that an originalist approach coupled with a rigid constitutional framework hinders the concept of constitutionalism. Another issue that is prevalent in Israel, but overshadowed by more pressing security concerns, are immigration and employment law issues that Israel faces. Israel has approximately 50,000 illegal immigrants working within its borders. These immigrants could easily be nationalized because most of them have been living in Israel for many years and their nationalization would benefit the country and eliminate the immigration problem. However, largely due to more pressing security concerns and other political issues in the Middle East, this employment and immigration problems are usually not at the focal point of Israeli politics.  As Justice Barak noted, “It’s a tough neighborhood.”

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Welcome to Our April Blogger

flowersOur April guest blogger with be 3L Elizabeth Oestreich.  Elizabeth is from Fond du Lac and is interested in labor and employment law, family law, and general civil litigation, although she has heard that law school interests do not necessarily determine career paths. Many thanks to our previous guest, 1L Jessica Lothman.

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