March 15, 2004
Berman: It Depends
by Guest Contributor
Douglas Berman is an Associate Professor of Law at the Ohio State University Moritz College of Law, where his areas of concentration are criminal law and criminal sentencing, as well as intellectual property. – Ed.
Sometime during the first week of classes, a one-L will raise her hand in my Criminal Law course and ask a particularly thoughtful question, which allows me to explain that all good law school questions have one particularly thoughtful answer: "It depends." More good questions inevitably follow, and I inevitably start my answers, "Well, it depends on . . . ." Before too long, students will start prefacing questions with "I know the answer is 'it depends,' but . . . ." At this point, I've earned my paycheck. Though I like to believe I have a lot to teach my students, I feel my most important job is to help students appreciate that "it depends" is not just my mantra, but a credo for being an effective lawyer.
I fully ascribe to the (now cliche) view that a law school's goal is to teach students to "think like a lawyer." But for me this means not just teaching students to recognize, understand and respond effectively to legal issues and problems. Even more critical is helping smart and capable people appreciate all the complexities (and thus all the possibilities) that attend even seemingly simple legal concepts and questions.
Many law students often believe and perhaps hope that the law provides clear-cut, black-or-white answers. But astute and sophisticated lawyers understand that all serious legal issues have many dimensions and inevitably involve many shades of gray. (As I like to tell my students, Bill Gates would have long ago developed a computer program to put lawyers out of business if the law was just a technical trade in which formal rules always governed outcomes.) By helping students discover that there are rarely easy or certain answers to difficult legal questions, and then pushing students to think hard and dynamically about what good answers depend upon, I hope to broaden intellectual horizons and enable students to gain a sophisticated understanding and appreciation of all the forces at work and the interests at stake in important legal and social issues.
My fields of specialty -- criminal law in general, criminal sentencing in particular -- especially drive my philosophy. Sophisticated, responsible and balanced dialogue is often lacking in the social discourse about matters of crime and punishment; we see all too often from politicians and pundits an apparent ignorance of, or an unwillingness to struggle with, the many nuanced philosophical and practical issues that are inherent to the field of criminal justice. My hope is that, by helping students astutely look through (the often opaque) legal doctrines and policies to perceive all the factors on which hard questions depend, I better enable them to contribute effectively to public and private legal dialogues in ways that are clear, cogent, honest, and full of real meaning. And I particularly try to make sure that students appreciate, no matter what specific field they pursue, that this is one of their main obligations as lawyers.
Does law school in general, and my teaching in particular, achieve these goals? It depends.
March 15, 2004 12:07 AM
Reading this essay right after Howard's is interesting, because Howard absolutely convinced me by the end of his piece that there's too much talk of "thinking like a lawyer" at law school, and we need to focus more on "acting like a lawyer." And now I'm confused. :) Because here's a view on the other side that's just as compelling, but I guess the two don't really contradict. If I'm being represented by a lawyer, I want someone who thinks like a lawyer *and* acts like a lawyer. Someone who can write well and file all my papers, but also someone who can find what the real issues are hidden beneath the words I might be saying about whatever predicament I'm in, and appreciates the nuances and complications. But I think this piece helps to show why Howard's piece is important -- there's a temptation to focus on "thinking like a lawyer" because it's more interesting, it's more compelling, it's more *sophisticated* to think about the nuances of the law than about where to file the security agreement; I'm sure it's more fun to teach the philosophy of criminal law than to parse sections of the Model Penal Code. And so we end up with a bias toward theory, because it's more intellectually rigorous, more rewarding, more fun perhaps... and so maybe the practical side does get shafted. Maybe this is the ultimate conundrum in legal education? Learning about the law is fascinating -- but practicing law, not so much? I don't know. Just a thought.
While I concur that many legal answers depend on nuances of the question, the willingness to answer almost everything with "It depends" is the result of imprecise thinking, in my view.
The fact is, many legal answers in both day-to-day work and in theory have easy answers; if you stab your dealer because he shorted you on your crack (Jeremy, I'm looking your way here), you're guilty of assault with a deadly weapon and probably some bonus enhancements. It doesn't depend.
Many things in life depend on not having extremely unlikely events occur. Assuming that such factors are not present without evidence thereof is healthy and reasonable.
Oh, and a side note: It's my opinion that the practice of criminal law is way more interesting than the theory. I didn't find the same in other areas.
Were you able to spend more time in my ivory tower, you'd know that a conviction for stabbing your crack dealer could depend on whether you might somehow make out a claim of self-defense (e.g., if he waived a gun while shorting you). Also, of course, insanity and some other defenses are possibilities (or at least plausibilities).
Though such issues may rarely arise in day-to-day work (and even less often lead to a complete defense), I often worry that many defendants have been overpunished because defense counsel too quickly assume that a defendant's conviction only depends on the prosecutor showing up.
I agree that some easy legal questions can have easy answers, and perhaps you find the day-to-day work of criminal law mostly presents easy questions. But I find the hard questions --- e.g., why are we punishing crack more severely than cocaine when they are, in essense, the same drug --- to be the most engaging and often the most important as a matter of both theory and practice.
I wholeheartedly agree with Professor B's assessment of law as an imprecise art, and not a science. (Maybe he didn't say that, but that's what I draw from him). I also find interesting John Mayne's comment that "criminal law is way more interesting than the theory," while civil law is not.
In the specific context of the Professor's comments, and as a civil litigator myself, I find the very opposite to be true. Civil law is more nebulous and leaves much more room for legal creativity and in-depth analysis than criminal law, which many of my criminal practitioner friends describe as relatively "cut and dried" when it comes to legal issues. (This is not to say that criminal law IS in fact cut and dried; my friends merely speak in relative terms.) My experience is that lawyering creativity , and putting deep thought into legal issues arising out of any given case, are often rewarded in many areas of civil law.
I suspect this may have to do with the fact that many areas of civil law are still defined primarily at common law, whereas much of criminal law has been codified into statute.
I am neither a lawyer nor a law student--just an interested layman. While answering every question with "It depends" may make the practice of law more exciting for lawyers, it plays havoc with the poor citizens who are (1) trying to obey the law and (2) avoid civil suits. Almost every time I've called a lawyer for advice, I've gotten the "it depends" answer, which provides very little assistance to my goal of compliance. And it surely inteferes with the societal goal of "predictability." The Constitution is supposed to protect me from ex post facto laws, and it used to be that mens rea was required to convict me of a criminal offense. Now, "it depends" means that no one knows if I would be guilty of an offense until after a judge has ruled on appeal. (In fact, nowadays, a better predictor of what the law is is not what it says, but what Circuit judges will hear the appeal.) So, enjoy your profession, but be aware that it is no longer as socially useful as it once was.
I keep hearing how law school is supposed to teach you 'how to think like a lawyer' and I'm still waiting for one of my profs to do so. Maybe next year. I think the problem is the Socratic method. It is a very detached, navel gazing process. A Prof stands at the front of a classroom and asks supposedly weighty questions that he expects the students to pore over for enlightenment. In reality half the students have no idea what he's talking about and the other half are on IM. I suppose the Socratic method works if you enjoy introspection and theoretical puzzles, like most academics do. For myself I think its a complete waste.
When I was an undergrad I studied finance. One of my finance profs wanted to teach us to think like financial analysts. He'd give us an assignment, usually a case from Harvard Business School. We'd do the assignment, hand it in and discuss it in class. The critical difference is that besides just asking questions he'd answer them and explain why they were relevant. In the process of showing us how he arrived at his answer we understood what questions were important and began to start thinking like financial analysts. I learned a lot more about how to think in undergrad than I have so far in law school.
Another problem is that law schools don't test your thinking abilities. They test your memorization abilities. A typical law school essay exam is composed of multiple choice questions and an issue spotting exam. Identify the legal issues, define them and apply the principles to the factual situation. This is all basic memorization and application. The more law you know the more issues you will see. Some ppl will say that memorizing the law does not show you how to apply it. You're right of course. But I don't think that someone intelligent enough to get into a law school and memorize all of the law in a course wouldn't also absorb an idea of how it works.