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This article is the type of tripe they teach us in law school that has no real world application. I get the point the author is trying to make: that you can di
by thathndude 5y ago
This article is the type of tripe they teach us in law school that has no real world application.
I get the point the author is trying to make: that you can distill argument down to its essence, and that you should.
What the argument fails to take into account (to name two) is:
1. We have “splits of authority.” One court says the law is Y and one court says the law is X. Now it’s roses are red in this jurisdiction and pink in another. The whole thing goes off the rails.
Argue your point as best you can and hope!
2. Many statutory schemes have become insanely complex so as to make distilling arguments to their essence nearly impossible. Additionally, each piece of complexity is another opportunity for courts to diverge in interpretation (see point 1).
To be sure, the classic common law claims —- murder, robbery, larceny, battery, etc — are amenable to this type of distillation, but that’s so little of what the practice of law is anymore.
Students get an education like described in the article, and then they come out woefully unprepared for the real world.
- esquivalience 5y agoThe article does address the two points you mention, and also addresses contractual arguments and examples. > Argue your point as best you can and hope! This sounds like a recipe for distress. Isn't the utility of the idea that whatever argument you face, whatever tort or contract or criminal allegation you are fighting for, your best will be better if you understand the logical premise of the argument and the way it is carried forward?
- alexslobodnik 5y agoWhat do you suggest the students learn in addition to or instead of this?
- dctoedt 5y ago> What do you suggest the students learn in addition to or instead of this? Two things: 1. Many people don't start from a premise of: "Let's find out what The Law requires of us and we'll proceed accordingly, out of a sense of duty, loyalty, and obedience." Instead, to a first approximation, their starting point is: "I don't give a [hoot] about The Law except pragmatically — I want to do X, so I want to know: (i) under The Law, what pain could others inflict on me if I were in fact to do X, and (ii) by what means could I prevent, or at least mitigate, such an outcome?" 2. Weather forecasting is the best analogy I've come up with to describe legal analysis: You have to make a best guess about how various "energy sources" — litigants; legislatures; courts; armed camps — will interact at a given place and time.