I sit down today to write you a letter to read before you start law school. I know that you are filled with grand anticipation and a little dread. It's a natural reaction. I hope that I will be able to assuage some of your concern, and to help you get a good night's sleep. Please know, however, that after eighteen years (twenty-one if you count my years as a student) in law school, I still cannot sleep the night before fall classes start. When that edge of anticipation is gone, I suppose I'll know that it's time to retire.
I am hard pressed to know where to begin in my advice to you. My perspective on the process of legal education is skewed by the years I've spent immersed in it. Perhaps an outsider could explain the process better. Perhaps I no longer remember what it is like to be a first-year student. I may have very little of value to offer you.
But I cannot resist the temptation to pass along the insights that I have developed over the years, however out of touch with your experience they may prove to be. Think of me as an anthropologist,  reciting my findings on a tribe I've observed for many years, of which I was once a member, but whom I no longer fully live among.
What I know is what it is like to be a first-year law
After watching the process for many years, in many different places, I've
observed that law school involves three circles :
the education that takes place within you, the education you share with your peers, and the
education you experience with the faculty. I present them here in reverse order of importance.
Given the intensity of the law school educational process, you may be tempted to spend inordinate energy focusing on your professors: what they wear, how they act, how much you hate them, whatever. But this is largely a waste of your time. Each of these people has something to offer you and you are there to figure out what that is.
I am not talking only about the obvious substantive subject matter that they convey; I am talking about their communication skills (or absence thereof), their logic (ditto), their linear or non-linear thinking. They are members of the tribe you seek to join, its High Priests in Charge of Initiation Rites. You are there to observe and absorb these rites. By definition, their quirks and rituals cannot be wholly irrelevant to your quest. But unless you become a professor, these relationships will not inform your future career. Observe them, learn from them, and do not let them get to you.
At most, one-third of what you learn in law school will be learned from your professors. (I go up and down on this number; it bottoms out at twenty percent). So don't spend a lot of time getting into the cult of personality. You are there to learn what these people have to offer. Some will pass along the secrets of the Temple, and you will not even know it until years later. The law professor who influenced me most taught Securities Law, which I have never practiced. My least effective professor  taught Contracts (which I teach), yet he has had a profound impact on my teaching, as I learned a great deal about bad technique from him. Subject matter does not count for all that much in this part of the learning process. I am best known as a teacher and scholar of the Uniform Commercial Code; I took that class pass-fail. I learned an enormous amount from  a professor I fought with constantly. He is now a colleague and friend, and was instrumental in beginning my teaching career.
Although the introduction that you get to substantive law in your classes
is essential in the short run, what is really important is the introduction
and indoctrination that you get in legal thinking. This critical
analysis process will remain with you long after your grasp of the Rule
Against Perpetuities has faded. You are learning to be a legal thinker,
one who, in the long span of a career, will be largely self-taught.
Second, I remember the words of Philip Levine , a poet and teacher. He was asked once why he had been described by a student as "the cruelest teacher ever." He replied, "I am the only person in the room paid to tell the truth." I feel that way too, and so I do not hold back criticism of thinking that is shallow or lazy. This is not only for the benefit of the student, but also on behalf of the profession, and the clients who will be served by that future lawyer.
This is different from disagreeing with opinions -- beware
of teachers who try to convince you of the correctness of their personal
a teacher who is willing to challenge you intellectually in order to assure
that real learning takes place.
As a result, most elementary school teachers have a stronger background
in educational theory than do law professors. This means that our
techniques may seem counterproductive, awkward, or ineffective
at times . Nevertheless, this
system is oddly
effective at producing the product that the legal profession demands.
If you will, this initiation process is quite effective at delivering appropriate
members into the tribe. It rewards people who are good at teaching
themselves, since that is what most lawyers spend their careers doing.
It develops a thick-skinned debating style, which makes lawyers both successful
and disparaged in their professional lives. It makes being a lawyer
seem hard and magical, and this helps to inflate the value of the professional
knowledge, both inside and outside the system.
Members of your profession–your professors, but, more importantly, your
classmates–are your colleagues, and will be with you for the rest of your
career. This is the beginning of your entire professional life, and
it will not end until the day that you retire. It is worth your while
to spend some time thinking about your professional life and how you wish
to be perceived.
This is the beginning of a life-long game, played throughout the profession, of "What Goes Around, Comes Around." If you dislike or distrust someone in law school, it will be hard to forget that impression in later years. I do not think that students fully understand this.  Start off behaving in a manner that is consistent with the kind of lawyer you hope to be.
You learn from your classmates by listening to them in class, by observing their mistakes, by arguing points with them. This is not just in law school. The practice of law involves an enormous amount of this kind of give and take among lawyers, those on the same team and those across the table.
Students come to law school from different backgrounds and experiences and some have a better intuitive understanding of legal education. These different perspectives will help to broaden yours, and to sharpen your understanding of the analytic process that is taking place not only in your mind, but in the minds of your colleagues and professors. Eventually, this will give you insight into the thinking of your clients, your adversaries, the judge and jury. Effective persuasion requires that you have insight into and respect for other opinions and perspectives.
In addition to providing insight, your classmates are a ready-made educational
think tank. Gather people with whom you feel comfortable and begin
to study and review your classes together. How
much of this you can tolerate is a function of your stress level and your
learning style, but I always encourage my students to spend some time working
in groups. Someone should be challenging
your thinking besides your professors.
The job market will not allow this, and so a hierarchy is created in law school. People who graduated near the top of their undergraduate classes may find themselves planted firmly in the middle, and that can be a painful experience. Everyone cannot be at the top of the class, but you can take advantage of the opportunities available to improve your chances in the job market.
How you react to this competition is an important factor in how you will behave as a lawyer. Let it motivate you, and spur you on, as good athletic competition can. Do not let it scare or anger you. Each class develops its own sense of competition; some become very supportive communities and others are schools of sharks. It only takes one or two people to set the tone for the entire group.
Cutthroat competition is not good for anyone, and it leads to behavior
that degrades the profession and makes practice a nightmare. A cooperative
attitude toward your peers can create a positive pattern for the future.
It is easy to say, "I need this now, and later will be different."
But everything you are doing now is a part of your socialization process.
Even if you don't get caught up in the competition, you will need to address
it when you observe it in others.
* You will never misrepresent facts before a judge. Should you fudge them with your professors now?
* You would never steal a client's funds. Would you slip a book out of the library? Cheat on an exam?
These issues are the most painful ones that your professors confront. It is excruciatingly difficult to watch students grapple with the demands of a professional career, under great stress, and often at a young age. Sometimes students fail to grasp the importance of their actions. A career can be cut short because a student does not realize that law schools are serious about expectations of professional conduct. I am not speaking only about violations of the honor code that result in expulsion; I am also talking about the breach of trust that follows a student beyond the classroom, limiting later professional opportunities. Your teachers will sign off on your integrity as you go to take the bar; they will be asked by employers for recommendations. Your classmates will be watching you and evaluating not only your intelligence, but your honesty and professionalism. If they see you operating at lower standards, they are not likely to forget this about you when you are a practicing attorney. If you cannot live by the rules now, when you are being scrutinized at every turn, what will prevent similar conduct when no one is watching?
I am not just worried you will feel pressure to cheat. The more difficult issue will be if you observe others violating the rules. The peer pressure to ignore these problems is enormous. You may worry that by turning in a member of your class, you will separate yourself from the group, appear self-righteous, or even self-interested.
But law is a self-regulating profession: this means that lawyers regulate and govern their own conduct, largely free of the intervention of others. If this system is going to work, lawyers have to police the profession, beginning in law school. The Model Rules of Professional Conduct, which govern the practice of law in most states, require an attorney to report the misconduct of others. Failure to do so is a violation of the rules.
Your law school has an honor code.
You need to read it and understand exactly what it requires of you, both
in terms of your own conduct and you obligation to report conduct of others.
If you violate this code, you may be dismissed from school, given a failing
grade, or placed on probation. This will be a part of your permanent
record, and may follow you into practice.
One issue that is becoming more problematic in law school is plagiarism. Because fewer students are writing significant research papers in undergraduate school, you may have missed the opportunity to learn the correct rules for citation and use of other works. If so, you have missed a chance to make a mistake about this when it will have no repercussions. In law school, if you are caught by a professor plagiarizing the work of another, you certainly will be disciplined in some way and you may be dismissed from school.
Computers have made plagiarism easier, since you can now cut and paste
at the click of a mouse button. But computers have also made plagiarism
easier to catch, since almost any string of words can be searched in enormous
databases. Most plagiarism, however, is caught by experienced teachers
who know the body of work their students are citing so well that they easily
recognize it when passed off by dishonest students. I'm amazed at
how foolish and naive students can be about this.
Learn the appropriate rules of citation. Familiarize yourself with the rules for using quotations, but also the limits on using another person's ideas and structure.
This is a passive form of learning. You take in the information, you memorize (or "learn") it, and offer it back. This did not prepare you for law school.
In law school, we expect students to do active learning. You are required to read the text, attend the lecture, take notes, and reread them. But none of this passive activity prepares you for the examination, nor even for class.
More importantly, it will not prepare you for the practice of law.
Ultimately, law is a self-teaching discipline. You are not primarily here
to learn the substance of the law for future use; you are learning the
skills of analysis and self-instruction for future use.
Someone will come to you with a question and you won't know the answer.
The law on this subject may not exist. So you learn in law school how to
figure out the answers on your own (and with your colleagues) for the rest
of your career. It is an honorable
and highly rewarding exercise; I can assure you that it is never
fully mastered, and therefore, never boring. 
This requires a different kind of learning. Instead of just reading and memorizing, you need to start digging for these rules of law and extracting them from the text. But you can't stop there: you need to take the next step of applying the rules to new circumstances. It's one thing to figure out what the holding of the case is; it is quite another to apply that holding to a different set of facts, and to determine how the case might come out. This distillation/application process is a more vibrant form of learning that goes beyond reading and understanding what you have read and heard in class. Active learning takes considerably more effort than reading and reiteration. But since it is the act that will be expected of you—in class, on the exam, on the bar, and in practice—start now. You cannot read about this process and expect to learn it without practice, any more than you can read a book about marathon running and then go run one.
The new kind of studying that you learn in law school is this active kind. This is why I encourage you to study with friends: in a group, a discussion of the applicable law and its impact on new situations is a more active (and interesting) learning experience. The people with whom you study will help you to come up with new fact situations, and to test the rules that you have learned against them. They will catch you when you skip a necessary step, or misinterpret the impact of a fact, and you will do the same for them.
This active application of the learned material is not unique to law;
it appears in some form in all graduate education. But it has, regretfully,
all but disappeared from undergraduate education, in part because it is
so labor-intensive. It is expensive for colleges to teach like this, and
so, over time, many of them have given it up in favor of large lectures
and computer-graded examinations. If you were lucky enough to have a more
classical undergraduate education, then the transition to law school may
not be so hard for you.
The linguistic issue is a significant one. You are entering a language immersion program. From the first day people will speak to you in words you thought you knew, but which in this context may have different meanings. Your teachers will constantly test your understanding of this new language. That is one huge justification for class participation. Listen to the way your teachers speak, the way the cases "speak", the way the statutes "speak." Listen to your colleagues as they practice their new tongue and see if they are using the language precisely. This is critical. A true expert never uses a legal term of art casually, and that is one of her attributes. This distinguishes "expert" from "novice" in our tribe.
This is not to suggest that the ritual of legal linguistics has left us with a perfect language. Quite the opposite is true. Like many languages, it has become weighted by a convention that admires mystery more than clarity. I had a friend in my first-year class, an English major, who dropped out after a few weeks, declaring that his love of English would not permit him to stand by passively and observe the treatment it received in law school. We have specialized meanings that are an important part of the learning process. I hope that you can learn them without becoming mired in that ugly language, "legalese." Some lawyers write and speak in meaningless platitudes, and endlessly disguise the true import of their speech. You can be both an expert legal speaker and a plain speaker. George Orwell described it this way:
What are we trying to accomplish? Like archeologists, we approach a
case like a dig, looking for clues about what happened there. We expect
to see certain things, and must see certain things in order to make assumptions
about the meaning of the text, The theory is something like this:
|We recover an undifferentiated pile of bones, tools, flora, and fauna. We do not know yet what will be important and what unimportant. So we start our detective work. At this point, nothing is irrelevant.|| We have learned over time that certain artifacts or evidence
lead to a specific conclusion: pottery means a certain level of cultural
sophistication. Writing tells us something else.
||Once we have the elements that we have come to associate with a particular level or type of cultural development, we search for those elements. When all are present we can reach a conclusion.|
For example, suppose that the
that a person may file a bankruptcy only if his debts exceed the value
of his assets. Suppose further that your
clients, the Stanleys, have assets that, at fair market value, exceed their
debts. But if the assets are valued at liquidation prices, their debts
exceed their assets. The issue is: Do the Stanleys qualify for bankruptcy?
|The Stanleys owe $70,000. They do not own much, but the appraised value of their property may be as much as $100,000. They do not have any income, and cannot pay their bills. They do not want to sell their assets. They're upset.||A debtor may file for bankruptcy only if its debts exceed the value of its assets.||If a court finds that the "value" of the Stanleys' assets exceeds their debts, the Stanleys can't file bankruptcy. If a court defines "value" as liquidation value, rather than appraised value, they satisfy the rule. Most courts apply this meaning.||The facts of this case suggest that the Stanleys have satisfied the rule and are entitled to file bankruptcy.|
Note that many of the facts turned out to be irrelevant. In this hypothetical, the fact that the Stanleys have no income is not relevant, because this particular rule doesn't require us to look at income. Similarly, the fact that they are upset does not affect the legal outcome, although it might help the lawyer decide which alternative to recommend. Finally, although the Stanleys' reluctance to sell their assets might be relevant in determining whether bankruptcy is a good option for them, it is not relevant to the application of the rule. The rule has specific elements: if they are satisfied, it applies and the case is decided under it. If not, it doesn't. This is the mathematics of legal reasoning.
I call it "mathematics" because, in its simplest form, legal reasoning
is entirely formulaic and not particularly discretionary. If a statute
requires four elements, you must convince the decision maker that all four
elements are represented in the facts of this case to get relief under
the rule. Three won't do, two won't do, one won't do. Identifying the elements
is the first job that you have as a law student. It's not particularly
easy, but you can figure it out by reading the statute or the case.
Everyone is going to talk to you about IRAC, and that is another way of describing the process we just went through:
Issue: Can the Stanleys file for bankruptcy under the law?
Rule: You can file bankruptcy if your debts exceed the value of your assets.
Analysis: Because of the facts of this case, the result depends upon the meaning that the court applies to value. Most courts will consider liquidation value in making this determination.
Conclusion: The court is likely to permit them to file bankruptcy.
Legal analysis is simply the application of this rule to these
facts. This is most of what first-year law students do. Lawyers
do this, but they also have another job, and that is convincing the decision
maker that the facts of this case fit the rule.
That job is entirely fact-specific. In other words, the answer depends
on what happened in this case. This
also frustrates first-year law students. If cases are completely fact-specific,
why are your teachers expecting you to extract something fixed and knowable
from reading them? Why don't we all just roll the dice and go home?
What we want you to understand is that you cannot win application
of the rule if you do not identify facts that satisfy all its elements.
But you may not win even if you do. Another way to say this is that you
can easily make a bad argument (for example, when you make an incomplete
one, or inaccurately identify the elements of the rule) but it's not so
easy to make a winning one. All we want you to do at this juncture
is to identify clearly and accurately the elements of the rule, and go
through the process of applying them to the facts. Until you get into practice,
you won't know whether your argument is a winning one. You will only learn
in law school if it is a plausible one.
So, although you might by background or sympathy want to discuss why the Stanleys are upset, or how they got into this situation, or whether they are being reasonable under the circumstances when refusing to sell assets, your professors may discourage (and even disparage) this kind of discussion. None of this discussion is relevant to the issue at hand. The questions may have social, or even moral, importance. But the don't help us to solve the problem at hand: Does the rule apply in this case?
Sometimes, we get into discussions about the applicability of the rule that squarely involve these kinds of social and moral issues. In contracts class, for example, we talk about the right of a woman to contract for the sale of her unborn child. The rule in that case is that the courts won't enforce contracts that are antithetical to "public policy." In analyzing what "public policy" means, many very personal, moral issues are relevant to the discussion. But often they are not. Why is this relentless cleaving to the rule so important? Because, as I mentioned, we want predictability in law. As a democratic society, we have come to believe that the rule of law must be applied in the same way for everyone, and rigid application of legal rules is one of the ways that we pretend that this occurs in the legal system. Of course, the rules are never applied "in the same way" for everyone; in particular, people with better lawyers tend to get better results.
We also prize consistent application of the rules because it makes future results predictable. We can plan transactions and behavior because we know what the rules are. It is very disruptive and expensive to operate in a society where the rules are uncertain. Think about the application of laws in some foreign countries that do not have the rule of law. In the United States legal system, we believe that if you are going the speed limit, you will not get a ticket, and if you exceed the speed limit, you will get a ticket. This helps us plan how to behave. (We won't discuss yet the issue of enforcement and its effect on predictability!)
Because your professors are trying to hammer this process into your
brain, and the importance of IRAC, and the concomitant value of predictability,
it may seem that the first semester is painfully repetitive, even anti-intellectual.
But you are learning lots of things at the same time: the language of law,
the substantive law (legal rules) in many different areas, and how to be
a good anthropologist and archaeologist. So I am sure that you will not
be bored. You may sometimes get frustrated, however. Do not be afraid
to pull back and ask yourself, "What am I supposed to learn here? Analytical
skills? Substantive law? Vocabulary?" This may help you to diminish, to
some degree, your frustration. If you've lost sight of the purpose, go
see your professor and talk about it.
You may be tempted to argue for bold changes in the way that decisions are made. I encourage you to do so. But you must couch your arguments, even the most precedent-shattering, in the least revolutionary way. Your professors, and ultimately, the judges before whom you argue, will be most inclined to make the necessary leaps of faith if they see an argument that leads, like stepping stones, through the historical precedents to the next logical step. Even dramatic shifts in legal thinking— Brown v. Board of Education, the Brandeis brief, the doctrine of unconscionability — were clothed in the language and the argumentation of history.
Sometimes this historical perspective is frustrating. You may argue
to your professors, "That is not fair!" in response to some perceived injustice.
The legal argument with which to object to an arguably wrong result is
not that it was not fair, but that it did not follow the applicable rules
correctly. Only rarely will the court be persuaded by specific facts that
the applicable rule is leading to an inappropriate result, and as lawyers
we tend to disparage these moments. In response, lawyers say, "Hard cases
make bad law," meaning that cases decided on the basis of emotion are not
reliable as sources of future results. Why don't we want judges deciding
on their own what's "fair"? Because it leads to a very personal, and unpredictable
kind of law, and one that is more subject to whim.
is why justice is portrayed as blind, and thus indifferent to the personal
biases that might otherwise sway her.
Write if you need me
*Cf. R.M. Rillke, Letters to a Young Poet, M.D. Horton
trans. (Norton 1934).
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© Copyright 1999 Corinne Cooper. All rights reserved; reproduction with permission and attribution only. Professor of Law, University of Missouri—Kansas City School of Law. This article was inspired by my niece, Jennifer Anne Ramo, Tulane Law School Class of 1999. Watching her go through the first year of law school made me a better and more compassionate teacher of first-year students. She made me watch my profession with a more analytical eye, and this article is the result. It was written with the support of the UMKC Law Foundation. I am grateful for the guidance provided by Professors Barbara Glesner Fines, Nancy Levit, Laura G. Dooley, Mark Loewenstein, Lynn LoPucki, and for the indefatigable research of Lawrence MacLachlan, Senior Research Librarian, UMKC School of Law.
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1. See, e.g., Alex de Tocqueville, Correspondence and Conversations of Alex de Tocqueville with Nassau William Senior 1834-1859 (1968); Alex de Tocqueville, Tocqueville's America: The Great Quotations (1983).
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2. I recall a dinner at my sister's house where my niece, about to start
law school, sought counsel from two guests–one who had just finished
the first year, and one who had just graduated–but never asked me at all.
I assume she trusted more the advice of those who had more recently shared
her perspective. This is consistent with my experience of students
generally. If asked, I will tell a student exactly what is
expected in my class, or on my exam. Yet many students
persist in believing that professors intentionally "hide the ball."
It is not uncommon to have a student treat peer advice as more
reliable. It is possible, and even likely, that students observe
things in class to which the teacher is oblivious. But it is unlikely
that a student has greater insight into that teacher's goals and intentions
than the teacher can provide. If this were true, law school would
be a terrible waste of money and time.
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3. Cf. Margaret Mead, Coming of Age in Samoa at iii (1973).
In the 1928 introduction to this work, Franz Boaz describes anthropology
in a manner peculiarly appropriate for our discussion of law school:
[A] systematic description of human activities gives us very little insight into the mental attitudes of the individual. His thought and actions appear merely as expressions of rigidly defined cultural forms. We learn little about his rational thinking, about his friendships and conflicts with his fellowmen. The personal side of the life of the individual is almost eliminated in the systematic presentation of the cultural life of the people. The picture is standardized, like a collection of laws that tell us how we should behave, and not how we behave; like rules set down defining the style of art, but not in the way in which the artist elaborates his ideas of beauty like a list of inventions, and not the way in which the individual overcomes technical difficulties that present themselves.
Id. at 9. I'm not trying to predict how you will experience law school. I can only hope to capture for you the "rigidly defined cultural forms" that will govern your professional life for the next three years, and beyond.
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4. There is a fourth dimension, the real world of law. As law school proceeds, and perhaps even worse, after you graduate, the distance between what you learn in law school and what you are expected to do in the real world of law practice will become another powerful factor in your education. That doesn't make law school irrelevant, but it distinguishes law school from an apprenticeship, what the study of law used to be. See, e.g., Frances Kahn Zemans & Victor G. Rosenblum, The Making of a Public Profession 135-50 (1981).
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7. This tiny tribute is to Professor Dan Dobbs of the University of Arizona College of Law. He still remembers the day I upbraided him after class for his bad manners. I also remember students who have justifiably done this to me.
8. See The Paper Chase (Twentieth Century Fox 1973), in which John Houseman freezes forever the image of law professors as cold, rigid, ruthlessly logical, and ultimately brutal creatures.
9. See Philip Levine, "What Work Is," for a favorite poem of mine.
10. Interview with Philip Levine, Fresh Air, (National Public Radio Broadcast, November 13, 1996).
11. Most students think that student evaluations have no impact on a teacher's career. My observation is otherwise. Most schools take teaching quite seriously, although good teaching alone cannot sustain a career. But it is difficult to keep a job, or move up the ladder, without solid teaching evaluations. Even when a school does not reward good teaching, no administrator likes the hassle of dealing with students who are irate, or classes that are empty because of poor teaching.
12. This is changing, but not so rapidly as you might suppose. Several law schools have LL.M. programs in legal education, and professors who come out of these programs have a much better grounding in educational theory.
13. I cannot tell you the number of times that I have seen faculties
at different law schools make decisions about pedagogy in the absence of,
and even in spite of, research on the relevant issue. We aren't stupid.
It's just that most of us have not studied, and thus do not rely upon scientific
method. We are trained as lawyers, and we rely upon the "relevant
evidence." Our own experience is considered the best evidence, and
scientific research be damned!
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14. I had a research assistant early in my career who cheated on his hours. He is a lawyer now. I still do not trust him, and I would not send a client to him.
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19 It is too early to think about law journals or reviews, but do take advantage of different opportunities to learn, and to show your stuff. For some people this is law review, or appellate advocacy. For others it is student government, or work within the Law Student Division of the ABA. Some students do public service work, and organize projects for other students. Remember that all of these activities, even law review, are adjuncts to the main game, which is class.
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23. See, e.g., UMKC School of Law, Honor Code,
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24. Although my experience is personal and narrow, I have
in addition noted an alarming increase in the number of apologies being
written in law reviews. See, e.g., Scott K. Friedrich, Form of Apology,
58 UMKC L. Rev. 3rd unnumbered page (1990).
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41 I don't even want to get into what members of the
school of legal thinking called Critical Legal Studies have to say about
that unidentified, future, biased, deceptive, conniving decision maker.
When you are older, and can handle it with maturity, I will give you Duncan
Kennedy, The Legal Education and the Reproduction of Hierarchy: A Polemic
Against the System (1983) known in my profession (and not without justification)
as The Little Red Book. In the meantime, see Robert L. Hayman, Jr. and
Nancy Levit, Jurisprudence: Contemporary Readings, Problems, and Narratives
213-216 (1995) for an uncharacteristically clear explanation of Critical
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43 Sometimes a bad statute can make this challenging, or even
hilarious, as when the Missouri Legislature accidentally outlawed consensual
sex! But usually, once you have experience, reading a statute or case and
figuring out the rule isn't all that difficult. Of course, I don't
teach Constitutional Law.
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45 This is a relevant point for you to think about in law school
even if it makes rule identification and analysis seem less important
and results seem less predictable. After all, if good lawyers win, what
difference does it make if they learn the rules? There are two answers:
first, good lawyers know the rules and apply them well. They may have other
skills in addition to this that they might or might not have learned in
law school, but at a minimum they have this. Second, the more that you
practice this process, and the better that you get at it in law school,
the better you will be once you get into practice. This is the only skill
that lawyers need that I can guarantee you will be taught in school. You
may say to yourself that the people who get straight A's in law school
won't necessarily become the best or most successful lawyers (and these
are not necessarily the same ones) and you would be right. But the best
lawyers will certainly be excellent legal thinkers, and I think that the
successful ones will at least be more persuasive in all ways, including
their analyses, than their opponents. For the other skills that good
lawyers need that they (largely) do not learn in law school, see Zemans
& Rosenblum, supra note 4, at Ch. 6; see generally Section of the Legal
Education and Admissions to the Bar, American Bar Association, Legal Education
and Professional Development: Report of the Task Force on Law Schools and
the Law Profession: Narrowing the Gap (1992) [known as the MacCrate Report.]
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46 This is one of the reasons that businesses decry the litigation
explosion. If you have to litigate every issue anyway, even if the rule
is clear, then you have lost the value of predictability. Litigation can
also have other economic effect, for example, by discouraging innovation.
See, e.g., James Gleick, Fast Forward: Legal Eagles, Times Sunday Magazine,
Sept. 14, 1997, at 48, 50 (arguing that litigation has discouraged the
development of new technologies in the single-engine aircraft industry).
The lack of a clear legal rule can have other impact as well, clogging
the courts, or encouraging (or failing to discourage) costly behavior.
See, e.g., discussion of the Montana speed limit, supra
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47 See note 44 supra and the discussion
of Montana v. Stanko, 974 P.2d 1132 (Mt. S.Ct 1998).
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