potential column for the paper

BY MLORELLI@LAW.HARVARD.EDU

(tell me if I should shorten this)

Thoughts on Arguments in Law School Classes There has always been something disquieting about the give and take between both students and teachers, and students and students in the law school classroom. For the most part, one observes two types of disagreement that pit one party against another in this environment. First, there is the example of differing views on how to apply a jurisprudential principle that the rival parties agree upon as the proper premise from which to obtain or discover the right legal outcome. Such a case is disagreement over whether the costs or benefits of injunctive relief given in a nuisance suit are larger where cost-benefit analysis is the agreed upon ground for resolving the legal question at hand. Second, there is the example of differing views on which jurisprudential principle should guide the very inquiry into whether a legal decision is just. To continue along the same lines as the prior example, such disagreement in judging the merits of the injunctive relief given in a nuisance case could be over whether cost-benefit or some rights-based analysis should guide the inquiry into the justice of the decision. As it concerns the purpose of this article, I will limit my discussion to the latter. A representative platform in which to engage in this discussion is a question in the law school classroom of Constitutional import, mainly because such questions serve as the battleground for multiple competing views of jurisprudential obligation. Examples of competing starting points abound: the text, policy concerns regarding the triumvirate (race, class and gender), notions of fundamental human rights, and natural law, just to name a few. A typical exchange between a typical liberal and a typical conservative in class may go something like this: Liberal: “The death penalty is unconstitutional because is satisfies the standard of being ‘cruel and unusual.'” Conservative: “But the framers obviously did not think so since they allowed and supported the death penalty.” Liberal: “But societal views of what is ‘cruel and unusual’ have changed, plus we know more about the bad effects of the death penalty now and its inability to deter murder, therefore we should declare the death penalty unconstitutional.” Conservative: “Who cares? If you want to incorporate those views into the Constitution use the amendment process, don’t change what the text obviously meant through judicial fiat.” Three observations about this hypothetical exchange. First, both the conservative and the liberal view presuppose differing sources of jurisprudential obligation, the former being the original meaning of the text and the latter being current understandings of what “cruel and unusual” mean to people today and certain policy perspectives. Second, as a matter of course, each of these views is likely derived from some higher ideal, the application of which to constitutional questions produces the aforementioned analytics as the means to obtain a just answer. For the conservative this may be a belief in order and the rule of law as fundamental to the establishment of a just political order and for the liberal, that the Constitution should be used as a means towards which notions of the good and human rights can be incorporated into our society. Third, it follows from these two prior observations that the exchange above is not really an argument. Rather, it is a case of asserting one’s conception of jurisprudential obligation in opposition to another, without providing a rational basis for choosing one or the other. To accomplish this, instead of simply reasserting the jurisprudential principle that one believes is binding over and over again, the response must confront the very source of disagreement in the first place: the higher ideal from which the principle being advocated derives. So, an exchange that does confront a competing view of jurisprudential obligation may proceed as follows:Liberal: “The death penalty is unconstitutional because is satisfies the standard of being ‘cruel and unusual.'” Conservative: “But the framers obviously did not think so since they allowed and supported the death penalty.” Liberal: “Even if that is the case, I see no reason for those few rich white men who believed in slavery to be the standard-bearers for what is ‘cruel and unusual’ when we clearly know, looking at what they did permit, that their understanding of that standard was wrong.” Conservative: “To accept such a principle is to eviscerate any notion of Constitutional order in this country. Unless the courts consistently obey the Constitution as the Framers understood it, our ability to safeguard any right or the common good is reduced to nothing.” And so on. Yet, to suggest that our classes should change to such dialogue – that I do believe will help us to gain a better understanding of the law and our personal legal philosophy – would be to challenge that for which the law school classroom is supposed to prepare us: the legal world at large. If preparing for and going into court (in appellate litigation especially) is exactly such a sophistic enterprise, consisting of the rattling off of various principles, all of which derive from competing notions of jurisprudential obligation in the hope that the judge will grab one or two and use them for making his decision, then, without a doubt, law school class discussion is preparing us for our future careers. It is now that I get back to my original point: the disquieting nature of discussion in the law school class. I suggest that something is problematic about this process by which some law school class discussions and contemporary legal decisions are made. Maybe, it is that it all seems to be a show that judges use as a vehicle for advocating there own pre-packaged legal philosophies; or maybe it is worse and represents a hesitance to confront those very organizing principles that underlie ones’ allegiance to one decision over another because of the consequent foisting of the student into a metaphysical and existential realm that the post-modern mind dares not enter for fear of finding nothing to hold on to.

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