February 28, 2013

BARELY LEGAL: What Law School Won’t Teach You

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On my first day of law school, I sat speechless among a class of timid 1Ls as our torts professor stormed in, scratched his name on the chalkboard, and picked out his first victim asking: “Ms. Carrizales, what is the procedural posture of the case?”

Surprised?  You shouldn’t be.  This scenario has been exploited to produce dozens of books and movies on the horrors of law school.  We enter law school expecting our teachers to employ the Socratic method, to ask us about the facts of the case and to scold us if we are unprepared.

And then the surprise came: One day in a Civil Procedure course, a fellow student, after answering the standard questions about the facts of a case, thought he was done when the professor hit him with this doozy: “Do you think the result the Court reached is just?”

Wait, what?!?  The question seemed so easy, and yet the look on that student’s face said everything: He had no clue where to even start answering that question.  And in the face of a heavy push for law schools to only explore a “practical” education, the scariest thought hit me: I may never know how to answer that question.

The irony of law school is that so many legal standards are based on the idea of fairness and justice, and yet, at no point do we receive instruction on those principles.  So when do professors expect law students to learn what is fair and just?  Do they believe every human (or at least every law student) naturally knows what justice is?  If that is the case, why do the same professors reject the idea of natural law, or that other laws can be known naturally?

Maybe we learn about justice as little children.  After all, at a young age we do learn that it is bad to steal Suzie’s toys, that we should keep our hands and feet to ourselves, and that there are certain consequences to violating the rules established by our parents and teachers, namely timeout.  These rules can easily be classified as elementary lessons on the various precepts of Justice, for example, “It is not just to take what is not yours,” or, “It is not just to injure another person.” But how can we apply these basic principles to complex legal or moral questions, including which parent should retain custody of the child?  When should a minor be tried as an adult? Should a minor be subject to life imprisonment or the death penalty?  Should anyone be subject to the death penalty?

Maybe as we mature, society teaches us a more sophisticated view of justice.  However, is this a lesson that every person, or every lawyer, is guaranteed to learn?  We can argue that our society has enacted laws that teach every citizen what is just or unjust.  For example, discriminating in the workplace against someone based on that person’s race is against the law, and therefore unjust.  But how do we fill in the gaps that the laws do not reach?  Certainly most legal issues that are dealt with by the Supreme Court fall into an ambiguous space where no law or legal doctrine seems to clearly apply.  How do we determine what is fair or just in those instances?  And even if we can say that the law codifies what is fair and just, why are we not taught these basic principles this in law school?

I have yet to have a professor instruct me on what the law says justice is.  Instead, I am taught that I should follow the law, not because the law is just, but because it is the law. Thus, it would seem that the law transcends issues of fairness and justice.  This makes sense because the law can ban something that is just, while it can proscribe something that is unjust.  But if this is true, why do professors insist on asking us whether we believe something is just?

As law students, we need to read the Melian Dialogue and realize that mankind has been struggling with the issue of justice since the time of the ancient Greeks.  We need to read Plato’s Republic and the various works of Aristotle to see how some of the greatest philosophers that ever lived defined the term justice.  And finally, before we can determine whether the application of the death penalty in a particular case is just, we need to be able to decide on our own whether Socrates’ forced suicide by the Athenian government was just.

Simply put: If the future lawyers are not instructed on justice, I am afraid that the legal community will soon be ill-equipped to answer the tough questions that continue to confront it.

Chad Mizelle is a third year law student at the Law School. Feedback may be sent to opinion@cornellsun.com. Barely Legal appears alternate Thursdays this semester.

Original Author: Chris Mizelle