(Taken in its entirety from Gaming Emperor Law School, Section Three, Chapter 5, Day one of law school – The ringmaster cracks the whip! [Intimidation and the slide into confusion and self doubt begins], p. 85.)
Section Three, Chapter 5
Day one of law school – The ringmaster cracks the whip!
(Intimidation and the slide into confusion and self doubt begins.)
This section of the book seeks to make the point that intimidation, confusion, and self doubt on the part of the great majority of law students sets the stage for taking advantage. This chapter takes the reader to law school. It will show how these factors begin to take hold the first day of class, even the night before.
For most law students, the prospect of becoming a lawyer is weighty. The forbidding nature of law, law school, and law professors makes some measure of intimidation, confusion, and self doubt inevitable. Preceding chapters, I hope, are persuasive that conventional case briefing and case method instruction, core elements of the law school experience, do little to allay these factors. Rather, in failing to adequately inform and instruct, particularly where preparation for exams is concerned, they abet them.
Let us venture now into a law school classroom to experience in some measure a beginning law student’s exciting first day. It is a remarkably similar experience throughout Emperor Law School. Excepting introduction of computer technology,1 it is an experience largely unchanged from when your author entered law school over forty years ago. If a student is not yet intimidated, confused, and beginning to feel stirrings of self doubt, for most, inculcation of such impairing feelings will surely now commence.
As noted, first term classes in Emperor Law School tend to be large, even at smaller law schools. Therefore, a class of 50-100 is to be anticipated. The number of women will equal, sometimes slightly exceed the number of men.
The accrediting/oversight body of law schools, the American Bar Association (ABA), requires certain core courses. These are contracts, torts, and civil procedure in first year, and constitutional law and criminal law (or criminal procedure) in second year. First term students also normally take a one-hour credit legal writing/research course. Property law is sometimes required (depending upon state bar requirements), and I strongly recommend it. Evidence is also required, but normally taken in second year.2
We shall attend a torts class at Anyone-Of-Them Law School. Tort, you’ll recall, is an old English word meaning injury. Torts has to do with non-contractual injuries, usually involving the person – assault, battery, defamation, etc. –, for which civil damages can be sought. Students easily grasp the concept of harm or injury, and recourse for same at law. They can relate tort precepts to personal experience, possibly to future law practice.
Having its roots in actual cases in Olde England, torts provides a logical introduction to the venerable role of law in western culture, and its historical origins in so-called “common law.”
Common law, as noted, is established by holdings (decisions) in cases. Such holdings carry the weight of “precedent.” (A model, an example, justification.) Followed over time, they gain the weight and authority of statutory law. (See fn. 5.)
Nothing of this background, of course, is explained to entering law students.
Day one in torts
Imagine an amphitheater-style classroom. You enter with many of your new classmates just before the 9 a.m. start of class. All are nervous, excited, expectant, removing laptops from bookbags, along with a heavy 800-1,000 page torts casebook. Some, perhaps, place an old-fashioned note pad at the ready. Some few also take out a set of multi-colored highlighters. They have already begun to book brief!
In your author’s case, I can recall being impressed that my torts professor, a long-time, Connecticut railroad lawyer-turned-law-professor, was also the author of the casebook. It was at the time the leading tome in the field – [Fleming] James on Torts.
As noted previously, a difference from college is that students will already have been assigned one or two cases to be briefed for this first class. Another difference is seating charts, often with photos. Prior to class in most instances, students will have examined a chart of the classroom, to which names – their names! – have been assigned to a particular seat.
In the amphitheater setting, students find their way to assigned seats along unbroken, curved expanses of desktop (wood in older buildings, laminate in more recent construction), sweeping in ascending, widening tiers up the expanse of the room. Chairs and electrical/data outlets positioned along the sweep of desktop demarcate each student’s place. The seating chart was likely posted online. It is likely also posted at entrances to the room.
As some settle in, others review the first assigned case. Others converse with one or more of the bright, eager classmates they are just getting to know. There is a low hum of conversation, a palpable buzz of anticipation in the large room, which suddenly subsides. The professor has entered the room.
She strides briskly, matter-of-factly, to her position at a desk or podium in the center well of the room. Often this is a raised platform. All seats in the curved tiers of desktops face this center area.3 Behind the professor is likely a long black or whiteboard, and there is a powerpoint assembly.
The professor immediately sets a tone that this experience is going to be different from college, graduate school, or any previous academic venue. Having arranged her materials, she scans her copy of the seating chart. As noted, it often features photographs along with names. Without further ado, often nary a smile or hello, perhaps using a microphone assist, she introduces students to the much-anticipated “Socratic method,” that is the staple scenario in all law school movie scenes.4
She calls someone’s name.
“Mr. Calledon,” the professor intones ominously, having ascertained that the presumed Mr. Calledon is in his assigned seat, “Can you give us the facts of Scott versus Shepherd, famously or infamously known as the case of the flaming squib?”
And before the somewhat stunned Mr. Calledon can say anything, she interjects, looking intently at her prey, “First off, Mr. Calledon, can you tell us what a ‘squib’ might be?” This prompts nervous chuckles among the tens of rapt, onlooking classmates, who are relieved not to have been called on.
Law school is indeed going to be an interesting experience. Why, it’s just as depicted in such movies as Paper Chase and Legally Blonde! “Thank goodness I wasn’t called on!” is the universal sentiment in the room, as Mr. Calledon attempts a response on this first day en route to becoming a lawyer.
Mr. Calledon will normally remain seated. Here and there in some classrooms, mostly in southern and western states, rarely in a (politically correct) California or New England law school, students called upon must stand when responding.
Classmates in such instances take to timing how long a student is kept standing. “31 minutes,” one student told me. “Two hours!,” trumped another. (It was a special 3-hour class.) The professor engages other students (not required to stand), but comes back to his foil for the various briefing aspects of the case.
Mr. Calledon defines a squib as “a firecracker.” Whereupon he may be interrupted and admonished to “Speak louder, please, Mr. Calledon!” “A rather large firecracker, yes?,” the professor perhaps corrects, again prompting nervous chuckles here and there.
“And who or what is a ‘larrikin,’” Mr. Calledon? “The case involves a larrikin, does it not?... Kindly tell the class who or what a larrikin might be.”
Mr. Calledon, hopefully, will be able to say, “A hoodlum, Ma’am. A boisterous, unruly person.”
“So I’m to be ma’am, Mr. Calledon?! Do I seem a ma’am to you? ... I suggest you not answer that!” Prompting snickers, laughter, and perhaps the first smile from the professor. “Perhaps you should address me as ‘Professor [X].’ Thank you. ... Please continue giving us the facts.”
Whereupon, partially reading from his initial, carefully prepared, often typed, page-long brief, Mr. Calledon proceeds to set forth the facts of the hoary case of Scott v. Shepherd (1773), 96 E.R. 525.
The hoary case of Scott v. Shepherd (1773), 96 E.R. 525
Cases assigned for the first day, first term of law school are typically lengthy and vintage. They are designed to offer an entertaining introduction to the study of law. The professor (and casebook author) wants to impress that the law has a long tradition and historical roots. Legal principles enunciated decades, even hundreds of years prior, yet have life in the present day.
Archaic language and twists and turns of old opinions also impresses that reading, briefing, understanding a case is not the same as reading a novel or historical tract. If the case was decided by a tribunal of judges, chief or majority opinions are often followed by dissenting and concurring opinions. (Once again, a concurring opinion agrees with the majority decision, but sets forth different reasoning.)
New 1Ls find that reading cases proceeds slowly. (There is no inkling of the very different focus and approach of the 2-4 line brief.) Sometimes, it is even torturous. It is not unusual at the outset to spend two hours reading and briefing a single, 10-15 page case. Also, a dictionary need be close at hand. (An ordinary dictionary will suffice.)
Scott v. Shepherd, (1773) 96 ER 525, a/k/a the “case of the flaming squib,” is a popular introduction to the law of torts, and the exercise of reading and (conventionally) briefing a case. Students will be impressed that they are reading a case decided well over two hundred years ago (in 1773). The reference “citation,” 96 ER 525, refers to “English Reports,” 96th volume, (beginning) page 525. English Reports is a 178 volume series, reporting cases of significance in English courts between 1220 and 1860.
Long before stenograph machines, typewriters, recording devices, and computers, in 1773, when Scott v. Shepherd was decided, someone sitting in the courtroom summarized and recorded by written hand what was deemed of significance, said and decided by the participants.
A report or summary of Scott v. Shepherd, including verbatim remarks, opinions, and reasoning set forth by the judge (in the instance of Scott, as we shall see, several judges), was later printed in 96 English Reports. Such records of decisions become precedents, to be used as guides in deciding subsequent cases involving similar facts and legal issues. “Stare decisis,” meaning to stand by decisions, is an important principle in law.5
In Scott a “larrikin” tossed a flaming squib, a large, lit firecracker, into a covered market, where it landed in the stall of one Yates. Yates immediately tossed the squib into the neighboring stall of one Ryal, who immediately tossed it from his stall, where it exploded in the face of plaintiff Scott, blinding him in one eye. As noted, “larrikin” is an old English expression meaning a mischievous or frolicsome youth, sort of a hoodlum.
Isn’t this delightful? As will be evident in the language of Scott, however, no matter how interesting the plot, reading cases is typically tedious.
The going in Scott quickly gets sticky. The case introduces the principle of novus actus interveniens. Say, what? It’s Latin (of course) for new act intervening. The issue before the court was whether, Shepherd’s initial act of tossing a lit squib into an active marketplace having been shown to be negligent (i.e., breaching a duty of care, which breach is the proximate cause of injury to another), the intervening acts of Yates and Ryal, in tossing the squib from their stalls, served to break the legal chain of causation, therefore liability, between the original actor, Shepherd, and the loss or damage caused to Scott.6
I shall refer the reader at this point to footnote 7, where, at considerable length, much of the verbatim language of Scott is presented. Read as much as you care to. The painstaking logic of the several opinions, including the dissent of Blackstone, J. (the selfsame William Blackstone who promoted the idea of lawyers needing more education, now become “J.” – judge), will provide a feel for the impressive thought devoted by judges in deciding cases. It will be understood why cases cannot be speed read, but must be parsed carefully to discern elements of a conventional brief.
Indeed, the reader should ponder the majesty of a system whereby such careful recognition is given to rights and liabilities of mere ordinary folk, such as Scott. In most other lands and cultures at the time Scott was being decided, mere citizens were routinely killed, maimed, and generally run roughshod over by kings, princes, potentates, and most anyone of higher rank. The reader should marvel at the close, patient, elegant, thoughtful intellectuality of the reasoning of jurists deciding cases in the eighteenth century.
It is precisely this sort of highly intellectual and masticating thinking in repose that law professors aspire to, and seek to inculcate (or discover!) in students. The reader would do well to admire the patient concern and thoughtfulness, respecting justice and the rights of citizens, inherent and implicit in a system of laws. Rule of and by law is a foundation of modern, democratic, civilized society. It is the (welcome!) substitute for rule by kings, dictators, brute force of arms, and cruel and outmoded custom. (E.g., respecting the latter, ad hoc hanging, stoning, tar and feathering.)
We shall see that a system of law is, at base, a highly intricate method of conflict resolution by means other than force. Appreciating this will be key in understanding how a common denominator perspective can be applied to all legal problem solving, including, most pertinent to this book, the problem posed by a hypothetical-type law essay exercise.
A digression to explore whether law professors consciously “hide the ball”
It should be noted that the professor on day one typically does not stop to discuss or explain the historical process whereby cases came to be recorded and reported, the citation system, even the meaning of “citation,” although the words “cited” and “citation” may be heard. Nor at any point during term, although the expression will be encountered in cases and possibly mentioned in class, is, for example, stare decisis likely to be explained. At best, a professor might note, “It’s a binding legal precedent.”
For that matter, many frequently used and encountered words are never precisely, adequately explained in Emperor Law School. For example, (conventional) case briefs call for a statement of “issue(s).” Professors constantly speak of this or that “issue.” Students understand that on exams they are charged with “spotting” or identifying issues. However, at no point will a professor stop and precisely define what an “issue” is.8 (See following segment.)
Whether professors merely forget that at one time they themselves did not know the meaning of “tort” or “issue,” or, as students suspect, professors seek to “hide the ball,” thereby actively seeking to deceive or harm students, or, at the very least, seek to gain or maintain an advantage over students, is not settled.
Your author’s view, after many, many years, is that the answer is a combination of the two. As one progresses in legal studies, then in the practice of law, bit by bit concepts never encountered before entering law school – tort, stare decisis, res ipsa loquitor, demurrer, etc. – form into a vast, multi-layered, kalaidoscopic body of background knowledge, that informs understanding and navigation in legal thinking and practice.
(Should you wonder what is meant by, for example, “demurrer,” as your author did when first encountering the word in a case, look it up. I leave it undefined to provide a sense of the bewilderment of entering law students, as they haltingly attempt to not only brief their first cases, but, simultaneously, learn a new language.)
On the one hand, I think law professors forget how much background knowledge they had to acquire in order to provide a proper context for understanding what is encountered in a case and discussed in class. Moreover, lacking significant experience in the actual practice of law in many instances, particularly litigation (meaning preparation of a case for a possible courtroom trial), they are not so attuned to the importance of precise meaning as practicing lawyers. (Although they deem themselves very sharp, precise thinkers, indeed.)
On the other hand, knowing the arcane language of the law provides professors with an immediate advantage over a highly intelligent, aggressive, confident audience – entering law students.
All teachers covet the respect of pupils. Few willingly concede advantage. Doubtless, there is a feeling on the first day that a potentially unruly group of (typically) arrogant, would-be lawyers must be brought to heel. A professor must impress students with not just the majesty of the law and the profession into which they seek entry, but also, very immediately, the respect due a professor and law school.9 Therefore, why not exploit the easy advantage of not making all readily apparent and comprehensible?
If professors “hide the ball,” it is probably often not so much an act of calculated (and malicious) commission, as of convenient omission.
Should law students be given more orientation at the outset, perhaps a primer in legal lingo (jargon), such that cases seem less foreign and forbidding? I certainly think so. The ebb of confidence and enthusiasm that results from confusion, uncertainty, and intimidation will translate into diminished performance, not just in class, but more importantly on exams. That seems not to be a concern in Emperor Law School.
Additional perspective: a digression into the onionlike nature of the lawyering process
Respecting the aforementioned word, “issue,” which professors and students bandy about with frequency, but which is never precisely defined, I provide a context to my students with two pointed definitions. First, an “issue” is, simply, a legal inquiry. For example, was service proper? (“Service” means giving notice of a legal process. E.g., a “summons and complaint” initiating a lawsuit.) Did such service establish jurisdiction? (I.e., legal authority over the case, individual, corporation, etc.) Was there a battery?; did a robbery occur?; was the contract breached?; was the corporation in violation of antitrust law (The Sherman Act)?; was venue (the court, location where the action was commenced) proper?; etc. All such inquiries are legal “issues.” (See, again, the expanded discussion in footnote 8.)
However, a distinction must be made between such overarching, larger issues – for example, was there a valid contract? –, and subordinate, included issues, which may be more the proper focus of attention, because they are closely contested. Indeed such sub issues (“real issues” in LEEWS parlance), where lawyers and the judge will focus their primary attention, are where a student should focus attention in class, and on an exam.
For example, within the larger issue of “was there a valid contract?,” the “real issue” may be “was there a proper offer?,” valid offer (and agreement, consideration, etc.) being necesssary, constituent components of a valid contract. Assuming the contract involved real estate, “was the statute of frauds violated?”
Obviously, this can get confusing. The distinction between larger issues and included, subordinate, but often more important “sub-issues” can only be understood once a student becomes grounded in the give and take of the litigation process, and how lawyers argue, and what they argue about in a courtroom.
Therefore, the distinction between issues and sub-issues (and sub-sub-issues!) must be introduced patiently. I introduce it as part of introducing how lawyers analyze issues, and it comes only in the second half of a day-long program.
Students perform exercises to cement understanding of issues and sub-issues. Then I instruct that a second definition of “issue” is something contested by competing lawyers, by competing parties in litigation.
Whether a legal proposition can be established can be an issue. (E.g., can battery be established? Can proper venue be established?) However, whether facts establish proof of an aspect of a legal proposition at issue can also be an issue (a sub-issue!). Indeed, the latter kind of issue is typically more important for purposes of analysis. The latter typically informs the meat of “real issues.” For example, do facts establish the requisite intent aspect of battery, assault, robbery, etc.? Do facts establish that one’s creditor client is “secured” or “unsecured” in a bankruptcy proceeding?
In sum, issues in cases to be briefed are overall (larger) legal inquiries. However, both legal and factual matters that are contested in the course of determining overall issues are also issues. Indeed, for purposes of analysis, they are the more important issues, as they will bring the professor’s facts into play.
If the foregoing gives you a sense of layers of an onion being revealed, then welcome to what is required to comprehend the lawyering process. There are indeed multiple layers of understanding to be uncovered.
Unfortunately (fortunately for those who become privy to this layering), law professors never adequately explain this layering. They don’t come close. Professors simply throw out concepts relating to this or that aspect of the lawyering process. Students flounder, as they attempt to connect the many dots, to piece together, even become aware of the confusing layers.
The lawyering process remains a kalaidoscope. It seems to be assumed – by professors, deans, students themselves – that those who have the presumed Right Stuff, an innate aptitude for the law, will figure this kalaidoscope out, sufficient to distinguish themselves on exams. This is a patently false assumption. It is but a fig leaf for inadequate instruction.
This may be called “hiding the ball,” as students suspect and grumble, not without a certain amount of anger. However, it is really just a failure to properly instruct. It is a failure born of an instructional approach that never adequately bridges the chasm between academe and actual law practice.
Back to Scott v. Shepherd – conventional brief
Confronted with such unfamiliar words and phrases as “squib,” “larrikin,” “novus actus intervenien,” “vis impressa,” “per quod,” “trespass vi et armis,” etc. (See Scott opinion, fn. 7.), a law student feels excited to be ushered into the sanctum of legalese. However, daunted as well.
As noted, the typical new law student will likely spend two hours and more mulling over Scott, guided (also comforted) by the requirements of completing her brief. She’ll probably end up with something approximating the following, the heart of which – issue, rule, holding – can be found online by searching “Scott v. Shepherd.”10
Procedure: Appeal to Court of King’s Bench from jury verdict at Summer Assizes at Bridgewater, awarding plaintiff, Scott, 100 pounds damages in a suit for trespass and assault.
(Note. “Assizes” were outlying circuit courts. Judges from the “royal courts,” who would otherwise hear cases at Westminster, traveled to and presided at assizes at various times. Similarly, American judges at the time [along with lawyers] traveled a regional circuit, holding court at appointed times in various locations.)
Facts: Defendant, Shepherd, tossed a lighted squib or firecracker into a crowded covered market. The squib landed in the stall of one Yates, who immediately threw it into the stall of one Ryal, who immediately threw it out of his own stall, whereupon it exploded in the face of plaintiff, Scott, blinding him in one eye.
Issue: Whether an action of trespass and assault against defendant is maintainable. In particular, whether injury to plaintiff, Scott, arose from force of the original act of defendant, Shepherd, or from a new force by an intervening third party.
Rule (of law): If an act is unlawful, trespass will lie for the consequences of it. Intermediate acts will not purge the original tort. He who does the first wrong is answerable for all consequential damages.
Holding: Judgment of lower court affirmed. An action of trespass is maintainable in the present case, where the “natural and probable consequences” of defendant’s act were to injure someone, despite the circumstance of intervening actors. Injury to plaintiff was the result of the direct and immediate unlawful act of defendant. (Nares, J., concurring; Blackstone, J., dissenting.)
Rationale (reasoning): One is responsible for the normal, natural consequences of one’s action, no matter that there be intervening acts, so long as those intervening acts do not consequentially alter, add to, or meaningfully attenuate the original action, which original action does not require an injurious intent (malum animus).
A problem for Mr. Calledon
The problem for Mr. Calledon is that the professor won’t be limited by the strictures of briefing requirements in posing her questions. She’ll draw from all aspects of the case. It has been noted that one of the judges in Scott is the selfsame Blackstone of the seminal Blackstone’s Commentaries on English Law. This was one of the first important legal books, and a book suggested by Abraham Lincoln as something an aspirant lawyer should read.11
The professor may pose a question such as the following:
“In his dissenting opinion, Mr. Calledon, Judge Blackstone opines that:
‘I take the settled distinction to be that, where the injury is immediate,
an action of trespass will lie; where it is only consequential, it must be
an action on the Case.’”
“What do you suppose is meant by ‘an action on the Case,’ Mr. Calledon?”
This information will not be in Mr. Calledon’s brief. It is something only the closest reading and comprehension of Scott would bring immediately to mind. So Mr. Calledon must now scramble to find Judge Blackstone’s opinion in order to attempt a response.
Too late! The professor, impatient, now opens the discussion to the class, all of whom also now hastily scramble to parse Judge Blackstone’s opinion, lest they be called upon.
The professor as ringmaster in charge
The professor has at this moment, mere minutes into the first term, secured her superior status. She is the ringmaster of the circus. Smartiepants lawyer aspirants, despite a lifetime of academic success and stellar LSAT scores, each so full of him or herself, are but clowns and dancing bears, responding to the crack of the professor’s whip. They’ve been told their entire lives they have the “gift of gab,” “You should be a lawyer.” However, they are now but helpless, speechless babes.
It’s as if the professor impresses upon the class, “You may read and brief assigned cases. You may examine and think about them for hours. (As law students indeed do.) However, I, the professor, am needed to help you truly decipher and understand their meaning.”
Henceforth, students brief with this moment and the following lesson firmly implanted: I may be called upon, and I shall surely falter. The professor can lift me up; she can put me down. I do not know what the professor knows. I must attend well, .... at her feet!
How can any professor resist the temptation of such power?!
The chastened and intimidated go forth, focused on the wrong objective
Following an hour of being intellectually whipsawed, a room full of former confident, top students slinks out cowed, determined to apply themselves with yet greater determination. The only certainty is that cases assigned for the next day must be examined much more closely. There is the possibility of being called upon, and the likelihood of being made to feel and appear stupid.
Confidence has significantly eroded in a mere hour. It will be further eroded in two or three more hours in contracts, property, and that most arcane, dry, and confusing of required subjects – civil procedure. (The how, where, when, etc. of bringing civil [non criminal] cases to court. More the theoretical basics, of course, than the practical 1-2-3.)
Mind and emotion is now riveted on class the next day, and the need to prepare therefor. That such preparation is not necessarily consonant with preparation for all-important final exams, that such preparation may even be at cross purposes to preparing for final exams, is not known, not considered, not to be believed. (E.g., if suggested in a flimsy LEEWS flyer.)
Seeds of confusion, self doubt, mediocrity, and boredom sown
Seeds of confusion, leading to self doubt and across-the-board mediocre exam perfomance, have now been sown. Also seeds of boredom.
No question, but initial exposure to turgid legalese and impressive mastication of precedent and law/fact interaction inspires an exciting sense of being admitted to the mysterious inner sanctum of the law. However, the lengthy inaugural cases, in particular, with their unfamiliar language and cadences, also inspire self doubt in the brightest of law students. Is it actually possible that one can come to a posture of easily deciphering cases, so as to join the professor in her various tangents?
As soon as the professor veers from the catechism of the brief, class discussion becomes something of a blur. Copious notes must be taken in the hope of discovering clarity later.
Students will now attempt to resist a feeling, a sense that very early on begins to hover ominously. They will be assiduous in this resistance, for to give in to this feeling strongly suggests they are missing something. However, after a few weeks of plowing through cases, only to find occasional clarity in the ensuing discussion of those cases, the feeling, the sense becomes insistent. Is it possible that law school is ... boring?!
No, no, of course not! The fault lies with the student. He simply isn’t getting it. There are insights he is missing. He needs to study harder.
However, with no framework provided for understanding the utility of cases for lawyers, indeed no mention of the words “lawyer” and “attorney,” reading and briefing is unbearably tedious.
Law school is boring!
The benefit of such misdirection and erosion of confidence, such boredom, may now be reaped by those savvy enough to heed the guidance of one who has been there, experienced the confusion and resulting mediocrity, and, as is the case for so many following an unsatisfactory law school experience, nevertheless discovered that he is very capable of lawyerly thought after all.
As noted, your author’s credentials upon entering Yale Law School put me squarely within, indeed, somewhat above the intellectual orbit of classmates (including Hillary Clinton!), no fewer than nine of whom eventually clerked on the United States Supreme Court(!!). However, I was precisely the confused, self doubting, quickly bored student posited.
Top-ranked Yale Law School was, as are all other law schools for most, a chore. No question about it. Apart from non-schoolwork-related political discussions, Yale Law was for the most part boring and tedious. I felt I wasn’t “getting it,” and I wasn’t.
Some information that would have made a big difference
Imagine, had I known the following as I began law school. Imagine, if any entering law student knew the following:
1) Whether one knows the unfamiliar words and Latin phrases matters scarcely a whit. You won’t use them on all-important final exams. (Qualify that. I instruct proper use of a number of Latin phrases – supra, infra, inter alia, arguendo, sua sponte, etc. Properly employed, they’re useful. They also add a lawyerly flair to the response.)
2) Whether one stumbles and mumbles in class, or earns a “Good point!” from the professor, matters scarcely a whit.
3) One will never, ever revisit, precisely, the facts of Scott v. Shepherd, or any other case. Therefore, time spent memorizing those facts lest one be called upon in class is largely busywork. (If necessary, revisit preceding chapter on 2-4 line case briefing. If one focuses properly on legal precepts and their use [as tools!], sufficient familiarity with facts occurs as a byproduct.)
4) Learning how to think and analyze “as a lawyer” is key in impressing on exams. However, without more assistance than briefing cases and attending to class discussion provides, one will not acquire this skill.
5) This skill can be acquired, and with not much difficulty, if instructed properly.
6) The final exam counts for everything!
7) Once skill at analysis is acquired, once the nature of the law essay exam writing game is understood – you have a system for dissecting confusing essay fact patterns to reveal issues; you know how to present analysis in concise paragraphs that impress; you know how to organize information in preparation for exams –, given the confusion and ineptitude of even the smartest of classmates, you could skip going to class the entire term if you wanted, and still write a better exam than most (!!). However, why not go to class to get a read on the professor’s preferences and pet peeves? Why not be amused by the floundering of classmates? Why not find some enjoyment in the experience you are paying so much for the privilege of?
One would be very much in the driver’s seat. One would be very much in the enviable position of taking advantage and gaming Emperor Law School.
* * * *
1. Internet and computers in law classrooms: Despite significant expenditure to make wireless internet accessible in law classrooms, students in more and more law school classrooms will leave their laptops idle in bookbags. Increasingly, law professors are banning computers from classrooms as distractions. At a minimum, many block internet access.
From personal experience, your author can attest that a forest of varying computer styles and colors, each emitting its own particular glow, is highly distracting. More disconcerting is students having their faces hunkered before a computer screen, rather than looking at the instructor. Of course, many students are surfing the internet, checking and sending e-mail, playing solitaire, and doing all manner of things other than attending to the lecture. Could they be bored? Back
2. Common law, statutory law: American torts, contracts, and property law derive largely from English “common law.” Common law is law originating in judicial decisions rendered under English jurisprudence. This law is now heavily supplemented by and infused with “statutory law” – law enacted by legislative bodies, such as municipalities, state legislatures, the United States Congress. Statutory law may incorporate, modify, or contradict and nullify common law precepts. As noted previously, the Uniform Commercial Code (UCC), for example, derives from efforts to codify (make systematic sense of) and harmonize numerous settled, common law contractual principles.
Constitutional law is statutory in that it derives from the United States Consitution and its amendments, and judicial interpretations thereof. However, the Constitution embodies principles of “natural law” (supposed universal, God-given legal precepts, such as the right to individual freedom, ... also ownership of property!), and also common law. Likewise, criminal law and evidence, while largely statutory, embody common law principles.
The numerous strictly statutory law subjects, such as tax, bankruptcy, antitrust, corporations, commercial paper, environmental law, wills and estates, etc., are normally upper level, elective courses. Back
3. As previously noted, his, her, he, she pronouns will be used interchangeably, but not together, so as not to disturb the flow of text. Back
4. Socratic method: So-called, because it originated with, at least was popularized by Socrates, the ancient Greek philosopher, educator, and imbiber of the poisonous juice of the hemlock. Socratic method purports to instruct by means of a series of questions, answers to which lead to enlightenment. Responding to deft and calculated questions, followed by yet more questions, the pupil’s own answers lead to insights and knowledge. In the instance of law school, the idea is to bring students to knowledge of law (a secondary aim), and, more important, an understanding of, appreciation of, and inculcation of “lawyerlike thinking,” being a lawyer’s mindset and approach to analysis. This is to be accomplished by closely examining the logic and interaction of law and facts, set forth in judicial decisions in actual legal cases, usually lawsuits. (I.e., case method instruction.)
The overwhelming evidence, derived from your author’s personal experience of law school, his observations of countless thousands of law students over a period in excess of 30 years, results on law exams both in Emperor Law School and on near 50 state bar exams, complaints of those in the legal profession who must train law school graduates from even YHS to “think as lawyers,” is that Socratic case method instruction throughout Emperor Law School fails miserably in its aim.
Who “gets it” in law school: Those few who seem to “get it,” who demonstrate lawyerlike characteristics of thought and application on first term exams, are rewarded with the few solid “A” grades. They are hailed, prematurely, as “geniuses of the law.” However, I submit they “had it” prior to entering law school. They acquired something approaching the balanced, unemotional, nitpicking, analytic mindset of the practicing attorney elsewhere.
In this regard it may be noted that, although LSAT score and college GPA are poor predictors of success on law school exams, students with backgrounds in mathematics, hard science, philosophy, and Talmudic study typically fare better than those with backgrounds in English, history, political science, and other liberal disciplines. Those in the latter group are often “better writers” than those in the former group. “Good writer” is often, mistakenly, thought to be an important predictor of law exam success. However, “good writers” are also often unaccustomed to the close, analytic thinking, and concise expression thereof, that are hallmarks of the competent practicing attorney.
Those in the former group have been trained in precisely this pattern of thought and expression. Skill at close, balanced, nitpicking thinking, and concise expression thereof, are critical to law school exam success. Back
5. Stare decisis, deriving from the Latin, stare decisis et non quieta movere, may be better understood following the next chapter. It means “to stand by decisions and not disturb the undisturbed.” It signifies that courts should generally abide by precedents and not disturb settled matters.
“Lower” or “inferior” courts are required to follow (are “bound by”) decisions of “higher” or “superior” courts under the doctrine of stare decisis. For example, all American courts are bound by decisions of the United States Supreme Court. Courts are merely guided, but not bound by their own prior decisions, and decisions of “lateral” (similar rank) or “inferior” (lower ranked) courts. Back
6. The foregoing, 6-line sentence, necessarily containing numerous modifying clauses, is rather typical in the law. Each clause must be borne in mind, if the thought – in this instance, the issue of Scott – is to be understood. I shall attempt not to introduce too many such sentences. However, the (lawyerly) habit of convoluted sentences, containing multiple qualifiers – e.g., “whereupon the party of the first part, being desirous of ..., then the party of the second part ..., etc. –, is hard to break. Back
“This case is one of those wherein the line drawn by the law between actions on the case and actions of trespass is very nice and delicate. Trespass is an injury accompanied with force, for which an action of trespass vi et armis lies against the person from whom it is received. The question here is whether the injury received by the plaintiff arises from the force of the original act of the defendant, or from a new force by a third person. I agree with JUDGE BLACKSTONE [Yes, that selfsame Blackstone! He has by now been appointed a judge, and indeed is a judge in this case!] as to the principles he has laid down, but not in his application of those principles to the present case. The real question certainly does not turn on the lawfulness or unlawfulness of the original act; for actions of trespass will lie for legal acts when they become trespasses by accident, as in the cases cited of cutting thorns, lopping of a tree, shooting at a mark, defending oneself by a stick which strikes another behind, etc. They may also not lie for the consequences even of illegal acts, as that of casting a log in the highway, etc. But the true question is whether the injury is the direct and immediate act of the defendant; and I am of opinion that in this case it is. The throwing the squib was an act unlawful and tending to affright the bystanders. So far, mischief was originally intended; not any particular mischief, but mischief indiscriminate and wanton. Whatever mischief, therefore, follows he is the author of it; egreditur personam, as the phrase is in criminal cases. And though criminal cases are no rule for civil ones, yet in trespass I think that there is an analogy. Everyone who does an unlawful act is considered as the doer of all that follows; if done with a deliberate intent, the consequence may amount to murder; if incautiously, to manslaughter. . . . So, too, in 1 VENT 295 . . . a person breaking a horse in Lincoln’s Inn Fields hurt a man; held, that trespass lay: and, 2 LEV 172 . . . that it need not be laid scienter. I look on all that was done subsequent to the original throwing as a continuation of the first force and first act which will continue until the squib was spent by bursting. I think that any innocent person removing the danger from himself to another is justifiable; the blame lights on the first thrower. The new direction and new force flow out of the first force, and are not a new trespass.”
Then the concurring opinion (in part) of Nares, J:
“I am of opinion that trespass would well lie in the present case. The natural and probable consequence of the act done by the defendant was injury to somebody, and, therefore, the act was illegal at common law. The throwing of squibs has... been since made a nuisance. Being, therefore, unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate. YEAR BOOK 21 Hen 7... is express that malus animus is not necessary to constitute a trespass... The principle I go on is what is laid down in Reynolds v. Clark ... that if the act in the first instance be unlawful, trespass will lie. Wherever, therefore, an act is unlawful at first, trespass will lie for the consequences of it. So, in YEAR BOOK 12 Hen 4... trespass lay for stopping a sewer with earth so as to overflow the plaintiff’s land. In YEAR BOOK 26 Hen 8... for going on the plaintiff’s land to take the boughs off which had fallen thereon in lopping... I do not think it necessary, to maintain trespass, that the defendant should personally touch the plaintiff; if he does it by a mean it is sufficient... He is the person who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it until the explosion. No new power of doing mischief was communicated to it by Willis or Ryal. It is like the case of a mad ox turned loose in a crowd. The person who turns him loose is answerable in trespass for whatever mischief he may do. The intermediate acts of Willis and Ryal will not purge the original tort in the defendant. But he who does the first wrong is answerable for all the consequential damages...”
Finally, the dissent (in part) of Blackstone, J:
“I am of opinion that an action of trespass does not lie for the plaintiff against the defendant on this Case. I take the settled distinction to be that, where the injury is immediate, an action of trespass will lie; where it is only consequential, it must be an action on the Case. . . . The lawfulness or unlawfulness of the original act is not the criterion, although something of that sort is put into LORD RAYMOND’S mouth in Reynolds v. Clark . . ., where it can only mean that if the act then in question, of erecting a spout, had been in itself unlawful, trespass might have lain; but as it was a lawful act (on the defendant’s own ground) and the injury to the plaintiff only consequential, it must be an action on the case. But this cannot be the general rule, for it is held by the court in the same case that if I throw a log of timber into the highway (which is an unlawful act) and another man tumbles over it and is hurt, an action on the case only lies, it being a consequential damage; but if in throwing it I hit another man, he may bring trespass because it is an immediate wrong. Trespass may sometimes lie for the consequences of a lawful act. If in lopping my own trees a bough accidentally falls on my neighbour’s ground and I go thereon to fetch it, trespass lies. . . . But then the entry is of itself an immediate wrong. And case will sometimes lie for the consequence of an unlawful act. ...
The solid distinction is between direct or immediate injuries on the one hand and mediate or consequential on the other, and trespass never lay for the latter. If this be so, the only question will be whether the injury which the plaintiff suffered was immediate, or consequential only; and I hold it to be the latter. The original act was, as against Yates, a trespass; not as against Ryal or the plaintiff. The tortious act was complete when the squib lay at rest on Yates’s stall. He, or any bystander, had, I allow, a right to protect themselves by removing the squib, but should have taken care to do it in such a manner as not to endanger others. But the defendant, I think, is not answerable in an action of trespass and assault for the mischief done by the squib in the new motion impressed on it, and the new direction given it, by either Willis or Ryal, who both were free agents and acted on their own judgment. This distinguishes it from the cases put of turning loose a wild beast or a madman. They are only instruments in the hand of the first agent. Nor is it like diverting the course of an enraged ox, or of a stone thrown, or an arrow glancing against a tree; because there the original motion, the vis impressa, is continued, though diverted. Here the instrument of mischief was at rest until a new impetus and a new direction are given it, not once only, but by two successive rational agents. But it is said that the act is not complete, nor the squib at rest, until after it is spent or exploded. It certainly has a power of doing fresh mischief, and so has a stone that has been thrown against my windows and now lies still. Yet if any person gives that stone a new motion and does further mischief with it, trespass will not lie for that against the original thrower. No doubt but Yates may maintain trespass against the defendant. And, according to the doctrine contended for, so may Ryal and the plaintiff. Three actions for one single act! nay, it may be extended in infinitum. If a man tosses a football into the street and, after being kicked about by one hundred people, it at last breaks a tradesman’s windows, shall he have trespass against the man who first produced it? Surely only against the man who gave it that mischievous direction. ...
But I think that, in strictness of law, trespass would lie against Ryal, the immediate actor in this unhappy business. Both he and Willis have exceeded the bounds of self-defence and not used sufficient circumspection in removing the danger from themselves. The throwing it across the market-house instead of brushing it down, or throwing it out of the open sides into the street (if it was not meant to continue the sport, as it is called) was at least an unnecessary and incautious act. Not even menaces from others are sufficient to justify a trespass against a third person, much less a fear of danger to either his goods or his person; nothing but inevitable necessity. . .
And I admit that the defendant is answerable in trespass for all the direct and inevitable effects caused by his own immediate act.
But what is his own immediate act? The throwing the squib to Yates’s stall. Had Yates’s goods been burnt or his person injured, the defendant must have been responsible in trespass. But he is not responsible for the acts of other men. The subsequent throwing across the market-house by Willis is neither the act of the defendant nor the inevitable effect of it; much less the subsequent throwing by Ryal. . . . The same evidence that will maintain trespass may also frequently maintain case, but not a converse. Every action of trespass with a “per quod” includes an action on the case. I may bring trespass for the immediate injury and subjoin a “per quod” for the consequential damages; or may bring case for the consequential damages and pass over the immediate injury, as in Bourdon v. Alloway before cited. But if I bring trespass for an immediate injury and prove at most only a consequential damage, judgment must be for the defendant: Gates v. Bayley. It is said by LORD RAYMOND, and very justly, in Reynolds v. Clark:
“We must keep up the boundaries of actions, otherwise we shall introduce the utmost confusion.”
As I, therefore, think no immediate injury passed from the defendant to the plaintiff (and without such immediate injury no action of trespass can be maintained) I am of opinion that in this action judgment ought to be for the defendant.” Back
8. LEEWS does. A LEEWS attribute, an attribute of this book, I hope, is to patiently, thoroughly build understanding. “Issue,” as the term in used in LEEWS instruction, has several definitions. Always, “issue” implies a question, something to be determined. In the sense of “issue spotting” on a law exam, issue means identification of a legal precept made relevant by facts and subject area of law being tested, and analysis of whether, upon given facts, that precept can be shown to be established. An example would be identifying battery, assault, and self defense as possibilities suggested by facts in a torts hypothetical. Likewise, subject matter or personal jurisdiction, also proper venue (place) in a civil procedure exercise.
Respecting analysis, LEEWS distinguishes “larger” issues – e.g., did a battery occur? – from lesser “sub issues” contained within the larger issue. For example, was the requisite intent, content, etc. aspect or element of battery satisfied?
Some issues deserve more attention on an exam – because their determination is problematic and interesting, OR, they are known to be of special interest to the professor giving the exam. Such issues may be thought of as “major,” therefore deserving of more time, versus “minor,” deserving of less time. Applying the important LEEWS concept of “conflict pairs” (explained in a subsequent chapter), issues always occur where competing parties of a conflict pair (their lawyers) will fight or contest in a courtroom.
Yes, it gets complex. Legal problem solving is complex. Small gaps in understanding – here and there, a word or precept glossed over, not explained – cumulate to large gaps in understanding. Large gaps in understanding cripple the ability of law students to master an exam format that requires confident application of multiple, complex skills. That is why highly intelligent, highly motivated law students have such difficulty with law essay exams.
Suffice that very patiently, adding necessary layers of understanding, LEEWS makes the complexity understandable, manageable. Hence, the significant advantage acquired. Back
9. Your author well remembers being made an example of in his first year, first term, in contracts class. The professor – I’ll call him “Professor X –, a very young man and a Yale Law graduate, was fresh off the most coveted of all post law school positions – a clerkship on the United States Supreme Court. [I recall his name, but won’t mention it. He is still a law professor, but at an upper midwestern school.] It was his first teaching assignment, and although probably but a few years older than we (most of us) newly minted college grads, he seemed of a loftier, remote, very adult plane.
I was seated toward the front, gabbing with nearby classmates, as was my wont, and I initially missed the telltale lowering of the noise level. I noticed students suddenly looking at me intently, and I turned to find that a question on the assigned case had been put to me by the professor. Having missed the question, I said, “I’m sorry. Would you repeat the question, sir?” Whereupon Professor X merely turned away and posed the question to a classmate.
Of course, I was called upon first thing next class, and I knew I would be. I recall Professor X’s somewhat provocative preface, uttered with pointed sarcasm, “Are you prepared today, Mr. Miller?” It being the late sixties, when all authority figures, especially pompous young ones were fair game, I looked my adversary straight in the eye, and very slowly, pointedly, said, adding my own (modest!) measure of knowing sarcasm, “As a matter of fact, I am, .... Sir!” Which challenging retort, as I recall, earned me pats on the back in the hall following class from several classmates, and a bit of rep. Score one for student victims!
I may further note, and this is one key to what is amiss and may be taken advantage of in Emperor Law School, that Professor X only managed to bring us to page 87 of an over 500 page text in an entire semester(!!). To this day, I feel a gap in my knowledge of contract law, owing to Professor X’s early teaching incompetence. Were it not for my review of contracts law some years later in preparation for the New York bar exam, I doubt I would know much more about the formation of a contract than that it requires, inter alia (among other things), an agreement, two or more persons, and consideration (a quid pro quo [something for something] for entering into an agreement). And the latter must be “more than a peppercorn.”
Doubtless, Professor X has greatly improved his teaching technique since his first year in academe. However, in general law professors are not hired based upon any proven track record as teachers. They are hired, particularly at top-tier law schools, and schools seeking to ascend the USNews rankings, based upon stellar academic performance in law school, normally followed by – witness Professor X – a prestigious judicial clerkship. Most important, they are hired (at top tier schools) based upon perceived potential for producing scholarly publications that will bring recognition and reknown to their law school. (If they manage this, of course – reknowned scholarly production, not teaching prowess –, they are immediately plucked, tapped, as it were, by yet higher-ranking law schools!) Back
10. Professors have condemned seeking case briefs online as “cheating.” However, in a pinch, pressed for time, why wouldn’t a law student make use of new technology? Lawyers surely do. However, the problem, as I hope has been made evident, is that the standard brief, whether produced from scratch by a student or culled online, is far from adequate respecting preparation for the exam that lies ahead. Back
11. William Blackstone, the reader will recall, made his mark as a professor at Oxford after an undistinguished career as a barrister. (English lawyer who appears in court.) He was subsequently appointed a judge. He is one of the giants in the legal field. His voluminous writings on the law are cited in cases to this day. In a sense, all law professors aspire to be the Blackstone of their time. (If not appointed to the Supreme Court, where they may become the Learned Hand, Oliver Wendell Homes, Felix Frankfurter, or Louis Brandeis – all distinguished Supreme Court justices – of their time.) Blackstone, we shall see, tellingly more an academic than lawyer, may well be regarded as the father of American law schools. Back