Things I’ve learned in law school, part 1 of…well, a lot

Some things I’ve learned in a week or so in law school:

  • We (the whole culture, not just lawyers) badly need to figure out a laptop etiquette. One of my professors is strongly anti-laptop, but won’t quite ban them, and another outright bans them. The inconsistency is irritating, and I think it is regressive and damaging, but you know what? It is hard to blame them. Laptops are useful tools that we’ll be using for the rest of our lives, and there are times (like when your prof uses ‘Procrustean’ multiple times) where wireless is a very useful classroom tool. But the downside is pretty big: students IM each other answers to questions (something basically impossible to prevent, short of turning off the network) and they surf the web (even during interactive discussions with really quite excellent lecturers who you’re paying ~$125/hour to hear), both of which are pretty destructive to ‘actual learning’. And it is difficult to hold a conversation with someone when a monitor is between you and them- it is pretty demoralizing as a speaker, in any context, to sit and look at an audience of laptop monitors instead of faces. I think tablets will eventually solve that last problem, but the others will still be there, and we haven’t figured out what the etiquette about them is.
  • Fear is a wonderful motivator. I thought tests were bad as an undergrad, but in law school in the US (for those who don’t know) the instruction is ‘Socratic’, which is to say that the professor can ask anyone any question about prior reading at any time, and they expect an answer. So maybe less ‘socratic’ and more ‘interrogation’. It does make just about everyone do the reading every night, which I guess is good, but it also crushes the life out of anyone who learns for the sake of learning. There just isn’t time for that wishy-washy stuff. (In my section, where you’re expected to volunteer to answer questions, no one does- everyone just sits and waits to be called on.)
  • I read an opinion by Clarence Thomas yesterday… and I liked it. That was the tremor in the force you may have felt. I’m clearly going to feel an ongoing tension between strict constructionism, textualism, and more activist constructions. A lot of this stems from my practical experience in software. Clearly defined procedures and standards help everyone, and the legal system doesn’t have them. In terms of code compilation (sort of a strained analogy, but bear with me): At what point in the compilation process is it most efficient to check for and fix bugs? Arguably, the US legal system (for a long list of historical reasons) chooses the least efficient step in the legislature->real world process to check for and fix bugs. We often make judges interpret the law, and even in some cases make new law. It is a lot like making your QA or UI people fix problems, not just identify them. (An alternate analogy is that it is like making your compiler not just spit out errors, but also making it fix them, having to guess your intent from the code you’ve written.) That said, the other option is for the legislature to write gigantic, sprawling, human-unreadable law- which may be just as bad a problem if not worse. (Please don’t jump on me in comments for the sweeping generalizations I’ve just made… I know they’re generalizations, on both the law and code side. Constructive comments, or honest questions, totally welcome thought, while I flesh out this analogy of code-checking and testing.)
  • Relatedly, I realize that the questions I’m asking in class make me sound like the worst kind of troglodyte conservative. (This morning I asked about cost-benefit analysis in a law which was trying to prevent people from drowning- ‘but the law says only boats with more than 50 people in them have to be seaworthy!’) Maybe I’ll be the founder of the politically liberal school of strict constructionists.  :)
  • As the son of a doctor, I’ve been raised on the idea that we’re in an over-litigious society, where people too often refuse to take responsibility for their own actions. While I still think that is to a great extent true, it is hard to read any substantial amount of product liability law cases before realizing that increased litigiousness has done a great deal for our society. Had a case today where a woman had stones in her bean soup, and then another where a woman had tacks in her blueberry pie. And then you realize the two cases were against the same restaurant- and in fact they had gone to dinner together! Threatening to sue the hell out of people has made a lot of irresponsible organizations more responsible, and in the process saved a lot of lives and a lot of pain. That is very easy to forget when we live in the safe, coddled society which that litigation has created. Is the current balance correct? Almost definitely not. But it would be very easy to swing the pendulum too far in the other direction as well. (Beware, I may come out of this advocating liability for software.)
  • It turns out that just like there are beautiful or elegant hacks, so there are also beautiful and elegant rulings. I just got the privilege of reading my first one (MacPherson v. Buick) and the feeling was distinctly similar to the feeling of hearing about a great hack- if you understand the context, you can appreciate all the work and twists and turns that go into each of them, and just sit in awe at the beauty of it for a little while. Then you try to figure out how to do it yourself :) Pirsig’s Quality is everywhere, if you know how to look for it, it turns out.
  • Lawyers proudly have their own language- a lot like English, but not quite. (Geeks are no better, of course, but our language can be safely ignored by most people.) Of course, every profession does, because you have to balance the tension between higher efficiency in information transmission and incomprehensibility to the rest of the world. My sense so far is that the legal language is tradition-bound and crufty, and kept with unreasonably tenacity. But I’m not sure how one really changes such things- any linguists care to point me at good resources on the evolution of professional language, and how to kick-start fixing it? :)
  • If you’ve met bitter lawyers, bitterness is to be expected :) The entire legal educational process is designed to break you. This course is pass-fail, it is with a very nice prof, and it is still one of the most brutal educational experiences I’ve ever had. I am terrified of A-F grading in a class with a non-forgiving prof.
  • On the first day of orientation, they tell you all about how the legal profession is very, very team-oriented and sociable, and that you’ll have to learn how to work with others. TAfter orientation, they grade you on nothing but individual achievements under incredibly bizarre circumstances, with all preparation under strict instructions not to copy even case outlines from each other, and then they hire you based on nothing but those grades. So no surprise that despite all the talk about it being a sociable field, it is full of psychopaths :) Not that I see an easy way to grade group work in this context- but it seems like something every law school should be pushing for and experimenting with. I wonder if change-tracking in collaboratively written documents could be one way to tackle that.
  • I potentially have a lot to learn, even about blogging, now that I’m (apparently) a blawger. (I’m not kidding, that is what the blogging lawyers call themselves.) Three Years of Hell (a just-graduated Columbia student) blogs about blogging as a first-year- look forward to his second entry on it.

27 thoughts on “Things I’ve learned in law school, part 1 of…well, a lot”

  1. In the Contracts and Civ Pro classes I just finished yesterday, laptops were banned and ‘strongly discouraged’, respectively. At the beginning of the semester, I described this as understandable but ‘regressive and damaging’, so I thought it was fair to revisit this, especially since Prof. Dorf blogged his own thoughts on the experience in our Civ Pro class. Some thoughts in response to his post and my own at the beginning of the semester:

  2. 14:24 <chris2> i guess i’ll call it bubblploppr 2.0 beta Powerpoint bullet numbering trivia, who’d have thought that. Things I’ve learned in law school, part 1 of… well, a lot, “Fear is a wonderful motivator.” Why do we keep on using C++?, true honesty: “I keep on using C++ because Amarok is written in it, which can’t be changed easily. And that’s about the only reason.

  3. Luis Villa is a hacker turned law student. His Things I’ve Learned in Law School, part 1 has an interesting metaphor, comparing making and revising the law to programming. Apart from the fact that people are even less predictable than electrons flowing through gates, I’ve long thought such a metaphor was appropriate.

  4. Some things I’ve learned in a week or so in law school: We (the whole culture, not just lawyers) badly need to figure out a laptop etiquette. One of my professors is strongly anti-laptop, but won’… Original post: Things I’ve learned in law school, part 1 of…well, a lot by Copyright 2006, at IceRocket blog search: etiquette instruction

  5. Something to consider is that one reason for the large role that judges play in establishing what the law is because they’re dealing with a very old code base that hasn’t necessarily scaled well…

  6. Oh, quite. Hasn’t scaled well, is very crufty, is very buggy, can’t possibly have built in error-handling… lots of levels the analogy could be taken to. I am curious to take the analogy more in depth one of these days.

  7. Luis, as someone who has been to lawschool and is now a practicing attorney in MA and RI, my advice for surviving law school is to avoid the hysteria and keep perspective. As exams approach and people start on their outlines, the tension will mount and people around you will start to look like they are going postal. Don’t get caught up in that, and you’ll be alright. Good luck and enjoy the opinions written by Learned Hand. ~Andrew

  8. Regarding your bugfixing comments, it seems to me that litigants are bug reporters, and judges are bug fixers. Sometimes the code is the common law (code drafted by judges); sometimes the code is statutes (drafted by legislatures or Congress); sometimes the code is the Constitution. Having compilation bugfixing in these circumstances is limited by the foresight of the drafters of the law, or, in the case of the common law, by the circumstances presented by the judge making the law in the first place.

  9. Welcome to the Continuum! or Passing the Torch…

    Say hello to Luis Villa, a 1L at Columbia law school. He’s another coder turned lawyer, and his musings on code and law strike a cord. If there’s any other Columbia Law School bloggers who would like to tie their……

  10. Clarence Thomas?! c’mon. I think i understand the attraction to
    strict constructionalism. It seems very reasonable and satisfies a
    desire for reasonable ground rules. But the analogy of code and
    interpretation is more than strained: Human language isn’t context
    free, it isn’t unambiguous, there is no spec (this dictionary only has
    partial ENGLISH99 compliance). There is no target architecture (well
    it changes, and no one knows when it does).

    How would you QA law? Enforce it among a restricted group until
    you’re happy with the outcome? This just points to the fact that
    judges might have to deal with questions of legislative intent instead
    of merely assuming that whatever the legislature’s intent, the words
    of the law completely contain it. What if the legislature expected
    the law to be applied with -fLiving-Constitution, or -fstrict, etc.

    Programming is fraught with pitfalls due to the fragile nature of
    code and interfaces, the difficulty of specifying actions with
    language, and the complexity of anticipating every eventuality.
    Anyone who has programmed, even unintentionally, has been bitten by
    something they didn’t think about, or a little gotcha they didn’t
    recognize. That doesn’t seem like the model one would want to impose
    on Justice (there are enough gotchas already).

    i could go on, but i’ve already hit my quota for talking out my ass.

    I do agree with the over-litigiousness idea: people complain about too
    much market or workplace safety regulation or whatever, but i think a
    lot of it is because they weren’t around to experience how things were
    before those regulations were around to protect people…in the bad
    old days. Or maybe they just really want to be able to exploit people
    again, like in the good old days.

    oops, re quota.

  11. What my school has been doing is installing cameras in the back of the classrooms and putting a monitor in the front, so the teachers can watch what students are doing on their laptops. If you’re playing games or on myspace or something, they will yell at you. They also usually don’t allow you to sit in the back rows as you can’t really see them on the cameras, which is kind of annoying as thats where the power outlets tend to be the most available.

  12. To make clear, I’m no lawyer anywhere, so I don’t actually know what I’m talking about. That said, in Sweden judges aren’t as important for making law as it seems in the US. And one way to accomplish that is by having every law being in essentially two parts: the actual law as decided by the representatives; and an official addendum or backgrounder explaining what the intention, the desired effect, is with the law. I vaguely remember hearing (though I may well be wrong) that legal problems with a law (all laws are looked over by a group of nominally independent lawyers) are also noted there.

    These addenda work as guidelines for the judges. They can normally not ignore it when interpreting the law; in effect, they work as an instant precedent (only add water!), and the only time a judge can directly contravene them is if it is “obviously” unconstitutional – a rare occurrence, since the lawyers that looked over the law at the time of making it would most likely have caught anything flagrant already. The exception is of course the highest courts, roughly equivalent to the US supreme court, except there’s more than one, for different kinds of cases (we have two parallel court systems as well as a few specialized courts). A typical addendum for a law that, if broken, can give you a punishment from a fine to up to two years in prison might be that a prison term is in reality only to be considered if the crime is at the very upper end of the severity scale or if there are serious other circumstances, for instance.

    Anyway, that’s one way to deal with it – write a motivation and backgrounder that functions as instant precedent at the time of makign the law itself. That avoids overly detailed, incomprehensible law (not that it seems to help…) without having too much actual power over interpretation left to the courts.

  13. “hard to read any substantial amount of product liability law cases before realizing that increased litigiousness has done a great deal for our society” : try reading the one about the woman who received 1 million $ after burning her mouth on hot coffee ;-)

    Sure responsibility for ones actions can be “good”, anyhow it’s human nature : one does something bad, one gets ones ass kicked. However when it gets to the point that severe punishment is handed out for small acts of violation, or even accidents, I believe it has a notable effect on society – it makes people scared, and scared people aren’t the nicest people. Overdoing things in this respect is, I believe, a factor in the alienation we see in many societies today, more than you may think… probably not as much as favouring punishment over rehabilitation though ;)

    I do realise that you are not advocating this, but I’m just using the occasion to mention a point of view that fewer and fewer would even consider.

  14. […] We wrestled a lot with the notion of language at stopbadware- how to define badness beyond a porn-like ‘know it when I see it‘. Ed__ said it well in one of the comments to my post about law school- there is no ENGLISH99, and it is all downhill from there. :) [For any non-coders reading this, ‘C99′ is the standard that tells coders exactly what the ‘C’ language means. No ambiguity, no penumbras, no emanations. Those kinds of things drive coders (all engineers, really) out of their minds. To see an example of what coders have done to give english slightly more reliability, see the RFC on language for RFCs, which specifies what words like ‘MUST’, ‘SHOULD’, etc., mean in a technical context.] Tangentially, the slipperiness of language here at law school has made it clear that this will be more fertile ground for the politicized teaching that I keep hearing a lot about but never seriously saw at Duke. Should be interesting, especially as my own political views have gotten more defined and slightly less mainstream (on either side) since I left Duke. […]

  15. Hi,

    I am actually going in just opposite direction — from lawyer I would love to be a professional geek (aka system/network admin). Concerning the woman with McDonald’s coffee, I would suggest everybody this book
    borrow it somewhere in the Library, it is well written and interesting.

    You would learn that for example McDonalds’ for years ignored industry standards (there is apparently pretty sharp distinction between temperature of coffee which when spilled is just unpleasant and when it is actually dangerous for your health), that there were hundreds of other cases, where McDonalds’ settled out of the court, with NDA attached, and that actually the lady has third-degree burns all over her lower parts (because of the first item in my list). Of course, these things are not told you by Jay Leno, who is sometimes recklessly ignoring anything which doesn’t make his story funny (I know, it is his job, but on the other hand, there should be some professional responsibility, IMHO). And so no. Crows are not what they seem to be!


  16. […] [Cross-posted from First Movers; comments off here but on over there.] In the Contracts and Civ Pro classes I just finished yesterday, laptops were banned and ’strongly discouraged’, respectively. At the beginning of the semester, I described this as understandable but ‘regressive and damaging’, so I thought it was fair to revisit this, especially since Prof. Dorf blogged his own thoughts on the experience in our Civ Pro class. Some thoughts in response to his post and my own at the beginning of the semester: […]

  17. […] I’ve decided to take Orrick up on that offer, and I’m very excited that the non-profit I’m going to work with is Mozilla. I’ll be working with Moz’s general counsel, Harvey Anderson, on a variety of issues; some of them of broad interest (which I’ll discuss more here once appropriate) but some (hopefully) of the nitty-gritty unpleasant type that all lawyers are expected to handle, and which I’d like to get some experience doing. Hopefully it’ll leave me some time on the side to write and publish a bit, and maybe even read some fiction for fun, which I’ve done damnably little of since August 2006. […]

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