I am a teacher of the law. My students ask, all the time, “What are you looking for?”
We just finished the midterm exam. Their agitation about grades is becoming acute. They are insistent. If they only could look into my head, they imagine, then they would do well.
They rarely ask, “What would be good?” or “What would be correct?”
Taking their side, I try to allay their anxieties. On their behalf, I am compelled to object. I am aggrieved for them, not at them. To be sympathetic to them and support them, I would like to wean them from this hankering to inquire into what I want.
But I realize they are reflecting back at me our prevailing ethos that we have no standards, but to each our own opinions, and they all deserve the same status. That is why it is so disheartening. Corruption concerns us, but what passes for customary might more so. Law requires that judgment. We cannot respect every assertion, because some turn out not to be well-founded. We must be discerning, discriminating in the positive sense of that term.
The reason for my disquiet lies the core of rule of law. To practice law, or even to obey it, we have to share the sense that it is legitimate. That requires it be principled. If it is, to the contrary, simply what I declare it is, because I can impose a grade that will affect their employment opportunities, then we are lost. We may as will give up, me before them. Perhaps I am revealing a necessary naïveté, but I could not train people in law if I were convinced it was purely a cover for the exercise of political power.
The point applies in any discipline of study. For legal education, it is especially problematic to assume everything is subjective.
Suppose I told my students what I was looking for and what I wanted — in exactly those words. And they did their best to deliver that.
On occasion, I have joked with them: I wish for a new motorcycle. The jest is serious though. If I were to announce that the purchase of a Triumph Bonneville Twin would ensure an A, it would be apparent that was wrong. (Or while it should be obvious, I’m not always sure it is.)
It’s hardly less galling if I substituted my individual creed. It matters not whether I am a socialist or a libertarian. The project of legal reasoning is not a guessing game, as if to discover what is this person’s secret desire or to whom they gave a campaign contribution.
If it were so, we would have acquiesced to the notion there is nothing objective about law. I would be complicit as much as them in a farce. It’s all what I say, and, then in the next classroom or the following semester, it changes to what one of my peers prefers. That wouldn’t be recognized as law. Or it shouldn’t be.
Worse than that, the students are willing to play along. They are implying as much. They will allow me to abuse my authority. They seek their own benefit.
Yet I am skeptical that my students would be served well if I taught them to be subservient. I would be appalled if someone were to say, “As your teacher, I happen to believe fervently in [X or Y]. On your exams, I’d like you to repeat back to me my indoctrination of you into [X or Y]. The better you cater to me, the better your grade.”
All of us would reject, and regret, such sentiments if they were expressed openly. I don’t know that they are superior if they are hinted at, a covert invitation to be my fellow traveler.
If the roles were reversed, and they were the teachers and I were the student, I would be angry about the nonsense that take the guise of common sense. If someone came in, with a fancy title and the privilege to lecture from behind a podium, and informed me that rather than offer facts they intended to provide a collection of their idiosyncratic hypotheses, I would not return for additional instruction much less submit to a test of my conformity.
I am not unaware of the schools of thought that are much more critical about law. Thinkers accused decision-makers of bias, open and otherwise, and in turn they, the commentators, are alleged to be loyal to their own ideological commitments. Despite what my work has said explicitly, I have been identified as affiliated with such intellectual trends. These are important “interventions,” as professors like to call them, and I welcome the insights about how the world works. Underneath the surface of abstract, formal doctrines are real, messy human emotions, including those that are not noble, no doubt about it.
In court, there are areas in which trial judges exercise discretion, resulting in tolerable variation from courtroom to courtroom. And some Supreme Court Justices have a articulated a philosophy that becomes influential because they are the “swing vote.” The techniques for arguing to them nonetheless can be the subject of study in terms that are rational, fair, open, and unbiased. A trial lawyer or appellate lawyer does not approach the bench to announce, “I would like to make an argument I have designed for you, Your Honor, based on what you in particular are ‘looking for.’”
As much as I explain to my students that I am not trying to inculcate my version of law, but the actual law, I sense their frustration. They yearn for the comforts of certainty. I don’t blame them at all. If they ask a question, they demand an answer. For their purposes, it’s acceptable if it’s merely my personal response.
The truth is I am happy to show them better arguments and worse ones. I acknowledge that, law being a social enterprise (unlike, say, physics), there will be debates among experts (which, if you delve into it, also is the case with physics, even with giants such as Einstein). As much as I can, I am determined to present the range of arguments that are reasonable and specify the consensus. Once they graduate and start to play the game for tangible stakes, they will develop a strategy and a style — but at the foundation, they will still rely on a set of precedents and statutes. There is an agreed-upon set of moves that can be made; other options that are out of bounds. Nobody guarantees that even skillful maneuvers lead to victory.
Law students are taught a conventional format for essays: “IRAC,” which stands for Issue, Rule, Analysis, Conclusion. I recommend it for not only law but also life. Spot the issue, research the rule, apply it to the situation at hand, and then drive to closure. In the discussion, address the weaknesses of your position and the corresponding strengths of your opponent’s. There are worse formulas for life. The only disadvantage to this modus operandi is discouragement of risk.
So to those who study with me, who will become my colleagues if I am successful in what I do, I say this with confidence about your skills: my goal is for you to achieve an independence of mind that everything else in our culture conspires against. As an advocate in a diverse democracy governed by rules, you will be effective to the extent you are able to appeal to norms people would accept even if they are not the same as you.
My students are great, to a person. I am privileged to spend time with them. I worry for us about the reality into which we expel them. They need to be ready.