The Five-Minute Law School: Everything You Learn In Your First Year, More or Less
|By MICHAEL C. DORF|
|Wednesday, Aug. 03, 2005|
It's August, and for thousands of anxious college graduates - mostly twenty-somethings -- that means the beginning of their careers as law students and, if all goes well, eventually as lawyers.
In recent years, a cottage industry has developed in which faculty at prestigious law schools teach miniature summer versions of their regular courses to entering law students. The promotional literature for one such program is typical in promising to "teach you everything you need to know to succeed in law school before you begin classes."
This is hyperbole at best. There are undoubtedly many ways in which legal education could be improved, but extending its length is not obviously one of them. If anything, the great pedagogical challenge for law schools has been how to justify keeping students for three years, when they learn roughly eighty percent of what they're going to absorb in a single semester.
Still, it is not really surprising that students who have learned from popular fiction that law school will pit them against hyper-competitive peers in a zero-sum game of mastering the law's mysteries, would succumb to the temptation of the prep programs. But what about the thousands of students who did not shell out the big bucks to get an edge, however small? Are they doomed to get B's, and ultimately to land jobs at firms where partners drive Hondas rather than BMWs?
Hardly. If the prep programs can condense the first semester of law school into a week or a day, I can go them one better: I offer below the first year of law school in about five minutes. With thanks to Don Novello, who, as Father Guido Sarducci, created the five-minute university, I present the five-minute law school. (Disclaimer: Reading this column will not enable you to be admitted to the bar in any jurisdiction of the United States.)
Curriculum: What Law School Teaches You
Legal education has two main goals. First, it teaches the uninitiated "how to think like a lawyer." But as I argued in a seditious column for this site four years ago, there really is no such thing. Thinking like a lawyer simply means thinking logically and precisely.
Second, law schools teach, duh, law. In this column, I'll tackle the first-year curriculum. Maybe next year, I'll condense the upper-year courses.
Two questions dominate the contracts course. First, what makes a contract binding? Second, what happens if a party does not carry out his obligations under a contract? Let's consider these in turn.
A contract is formed when one party makes an offer and the other party accepts the offer, provided that each party actually agrees to give up something. Much of the conventional contracts course explores that proviso, called the doctrine of "consideration." There are numerous permutations, but they all boil down to the same thing: Promises by themselves are not contracts. A contract is formed by the exchange of promises or acts.
Here's another fact about contract law that many people do not know: In many circumstances, a contract need not be in writing to be enforceable, although of course, the existence of an oral contract will typically be more difficult to prove than if the contract were written down. And here's a stupid little trick to remember this idea: "Con" means "against" or "not." "Tract" means a written document. Thus "contract" means "not a written document." (Okay, not really.)
So much for contract formation. What happens when someone breaks a contract? Does he go to jail?
No. If you break (or, as you will learn to say, "breach") a contract, you have to pay the other party to the contract an amount of money equal to the economic value of what she would have gotten if you had carried out the contract. Here, again, there are all sorts of puzzling variations.
For example, what happens if performance of the contract actually would have made the other party to the contract worse off? Suppose that the Second Little Pig signs a contract with Builder for the latter to build him a house of wood, but due to a lumber shortage, Builder uses the less expensive material of bricks instead. If Pig sues Builder for breach, can Builder defend on the ground that Pig is actually better off because if Builder had complied with the contract terms, the Big Bad Wolf would have huffed and puffed and blown the wooden house down?
As you can imagine, this sort of situation arises all the time. Not (or as we might say as legal scholars, "Con").
The law of torts can be reduced to three principles. First, as used in the first-year law-school curriculum, a "tort" is not a pastry. If someone had pointed this important principle out to me before I started law school, I might not have gained those ten pounds in the first couple of weeks. "Tort" literally means "injury" or "wrong," and, as a technical matter, means the breach of a legal duty imposed by law (rather than voluntarily undertaken by contract). That's about a third of the course.
Second, in order for a plaintiff to win her torts case, she must prove not only that the defendant committed a legal wrong against her, but also that the wrong caused an injury to the plaintiff. As anybody who has ever read any science fiction knows, in some sense, almost every past event caused every subsequent event. If you go back in time millions of years and kill a butterfly, you unleash a chain of events culminating in your own disappearance in a puff of logic.
But the law does not traffic in such absurdities, so you can't sue for every past legal wrong that anybody committed. For example, suppose Joe is driving down a divided highway when his attention is drawn to the wreckage of an accident that occurred when Dave, who was driving drunk in the other direction, plowed his car into the guard rail. As a result, Joe takes his eyes off the road for a second, and when he looks back, it is too late for him to avoid rear-ending a car driven by Paul, who has also slowed his car to rubber-neck. Can Paul successfully sue Dave? (Most characters in law school examples have names beginning with the same letter as the name of the parties they become. Thus, "P" is for Paul and plaintiff, while "D" is for Dave and defendant. Amazingly, this phenomenon holds true in real life as well. Con!)
No, Paul cannot bring a successful claim against Dave. To be sure, absent Dave's wrongful drunk driving, Paul would have escaped injury, but the courts will say that the causal chain was too attenuated to hold Dave responsible. In torts jargon, we say that Dave's drunk driving was not the "proximate cause" of Paul's injury.
How close a relationship must there be between cause and effect for the former to count as the proximate cause of the latter? The law does not attempt to quantify the answer; it's a matter of judgment and common sense. That drives law students nuts. But if you remember that "proximate cause" is simply a fancy way of saying "use your common sense," you'll spend less time trying to reconcile all the nonsense written about proximate cause, which will leave you more time to sing the praises of your professors on your blog.
Speaking of time, the essentials of torts don't take much time to teach or learn. Accordingly, many torts professor fill most of their class time teaching something called "law and economics." As you would expect from the term, the discipline applies economic analysis to law. In practice, law and economics can yield some pretty odd conclusions. For example, if it would be cheaper for people who live downwind from a pig farm to purchase and wear gas masks, than for the pig farmer to prevent noxious fumes from escaping his farm, then, some law and economics scholars would say, the farmer should not be held liable for the tort of nuisance.
Quite apart from the merits of law and economics, however, you may wonder why economics, of all the disciplines that may usefully inform legal analysis, should be singled out for such glorious treatment, and why law and economics plays such a large role in the study of torts. Why not study law and economics, law and history, law and psychology, and law and video games in all your classes?
The short answer is that a great judge with a funny name famously applied cost-benefit analysis to a key concept in torts. The late Judge Learned Hand defined negligence as a defendant's failure to take precautions that were cheaper than the expected damage that would occur absent those precautions. Thus was born the "Hand formula," which is the third principle of tort law that you will need to know for your final exam. You should not confuse the Hand formula with the case of the hairy hand, which you may study in contracts.
Of all the first-semester subjects, students find civil procedure the most confusing. The course typically begins with a few days on such lofty concepts as fairness, but quickly devolves into the mechanics of the civil justice system.
In fact, nearly all of civil procedure can be understood as the law's reaction to the actions of lawyers. In an ideal world, lawsuits would be judged on the merits, with a minimum of procedural wrangling. In the actual world of litigation, lawyers seek procedural advantages that distort ideal justice.
For plaintiffs, the first rule of litigation is only to sue people and institutions with money--the more money, the better. Civil procedure does not govern the question of when, exactly, a "deep pocket" defendant is liable to a plaintiff. Substantive law governs that question. However, where the substantive law permits recovery from multiple defendants, plaintiffs typically seek to shape the litigation in such a way as to ensure the best odds against the wealthiest defendants. Needless to say, defendants resist these efforts.
Rules and doctrines governing the joinder of claims and parties, as well as those governing the preclusion of litigation, are complicated by the need to sort permissible from impermissible dispute packages.
Other rules and doctrines respond to other efforts to gain procedural advantages. Rules governing jurisdiction (what type of court has the power to hear a given case or to adjudicate the rights of given parties) and venue (consisting of statutory limits on the locale in which a suit may properly be filed) respond to the parties' efforts to gain what might be called the "home-court" advantage. Discovery rules attempt to ensure that each side has a fair chance to make its case, while discouraging parties from using discovery devices as a means of imposing pointless costs on their adversaries. And so on.
If you read the Federal Rules of Civil Procedure as an attempt to instantiate some ideal conception of justice, you will be utterly perplexed. However, if you read the rules as responding to the pressures of real lawyers and clients, you will find that they make considerable sense. (Which is not to say that you'll find them as interesting as a good, or even a mediocre, novel.)
The Second Semester
As I noted above, the law school learning curve is very steep, so we can cover the second semester even more quickly than the first. Law schools typically require three substantive courses in the second semester: Criminal Law, Property, and Constitutional Law. I'll summarize each in a paragraph or two.
The core concept of American criminal law is captured by the Latin phrase mens rea, which means roughly "guilty mind." Criminal liability typically only attaches to people who commit proscribed acts intentionally, or at least knowingly. If you shoot your criminal law professor in the head with the intention of killing him, and you succeed, you are guilty of murder. If you are cleaning your gun in class and it accidentally goes off and kills your criminal law professor, you may be guilty of negligent homicide, but not murder.
Property law is more of a hazing ritual than an actual subject. Typical property classes teach students the fine distinctions among different forms of ownership of land in medieval England, such as the "fee tail" and the "fee simple determinable," neither of which, alas, has anything to do with collecting a legal fee. Students forget these distinctions within a few seconds of completing their property law final exams, which is unfortunate, because then they have to learn them all over again for the bar exam. Only after successfully completing the bar exam, is it safe to forget the distinctions permanently.
In many constitutional law courses, the professor spends about half the semester setting forth the pros and cons of "judicial review," the power of American courts to declare laws unconstitutional. This is fun, to be sure, but not very important as a practical matter, because the issue has been settled since 1803: American courts have this power, and no one's taking it away from them anytime soon.
Most of the rest of constitutional law is a matter of name-calling. Conservatives denounce liberals for judicial activism on abortion, gay rights, and church-state separation, while liberals denounce conservatives for judicial activism on affirmative action, states' rights, and election law. Your job as an aspiring constitutional lawyer is to figure out where you stand on these issues, and then accuse those who disagree with you of being either judicial activists or hypocrites.
The Ten-Second Graduation Speech
Because this column only covers the first year of law school, you're not technically entitled to a graduation speech. But wanting to give you something inspirational to take with you into your legal studies, I thought I should end on an up note, so here goes.
As you embark on your journey from normal person to counselor at law, remember that you not only undertake an ethical obligation to the highest ideals of justice, you also join the ranks of one of the most hated professions in history. Congratulations, welcome, and good luck.