Now that it’s exam season, and I’m facing the prospect of reading 100 Intro to IP exam answers, I confront again the great puzzle: What is it about the Law that is so difficult for people to “get”? I think I have the answer to that. The Law is hard — uniquely hard, I’m tempted to say — because you demonstrate your expertise not so much by displaying what you know, but by displaying what you don’t know.
Let me explain — and to you law students out there, if you get this, you’re in good shape, so pay attention. We call it “issue-spotting” — finding the questions that you can’t answer. Here’s a simple example, one that might appear on an IP exam (but which has precise analogues throughout the entire law school curriculum).
“John writes some poems. He sets those poems to music, using the music that Johnny Greenwood wrote for the film “There Wll be Blood” (without authorization from Greenwood, or whomever owns the copyright). Jane hears the songs and reproduces them (on a CD, say) without John’s permission. Question: Does John have a cause of action for copyright infringement against Jane?”
Now, here’s the (relatively) easy part. If you know any copyright law at all, I’d expect a paragraph like the following:
To have a copyright infringement claim, John must show that the songs he composed are protected by copyright. Sec 103 of the Copyright Act says that “protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.” John’s songs clearly “employ[ed] preexisting material in which copyright subsists” — Greenwood’s music. Therefore, it follows that protection for John’s songs “does not extend to any part of the work in which such material has been used unlawfully.”
So far so good — that’s a good start, the sort of thing I would expect from pretty much anyone who has studied any copyright law. All I’ve done is to find and quote the statutory provision relevant to the problem.
Now comes the part that separates the OK answers from the really good answers:
Because John used pre-existing material (Greenwood’s music) unlawfully (by reproducing the music in his work without permission of the copyright holder), he has no copyright in “any part of the work” in which Greenwood’s music was used. What does that mean? In what “part(s)” of John’s work did he use Greenwood’s music? The “correct” answer is: I’m not sure. One could argue that Greenwood’s music was used unlawfully throughout John’s songs, and that he has no copyright protection at all for his work (and therefore no cause of action against Jane). On the other hand, one could argue that he only used Greenwood’s copyrighted work in the “music part” of his songs, and not in the “lyrics part,” and that he therefore has copyright protection for the lyrics (and a cause of action against Jane for reproducing the lyrics).
So the right answer is: “I don’t know” — not just “I don’t know,” but “I don’t know because I have reached this point in the application of the law to these facts where I can see an argument on both sides.” As it always is, on lawschool exams. Spotting the issue. This is what distinguishes good lawyers from not-so-good lawyers — not the ability to give the right answer (Yes or No), but the ability to identify very precisely what it is he/she doesn’t know. In the real world, the good lawyer will now go out and research the law under section 103 to see if this scenario has come up before and been interpreted by the courts, and what they’ve held. Chances are, when she’s done this, there will be additional questions/issues that are generated — as one issue gets resolved, another one emerges. That’s the nature of legal questions — law, as I’ve explained elsewhere, is a fractal system, meaning that an infinite number of such sub-questions can be contained within the finite space of a single question.
I’m convinced that this is what many students find inscrutable about the law — on an anthropology exam, or a history exam, or a biophysics exam, you’re trying to show how much you know about the subject matter (and therefore to hide the questions the answer to which you don’t know). In law, it’s the opposite — instead of running away from the things you don’t understand, you actually have to highlight them, because that’s where the action is, and that’s how you demonstrate that you really understand the subject matter at hand. It’s very strange, and very counter-intuitive, but it is something that all good lawyers have to know how to do.
ArthurKirkland says:
Part of it is identifying the uncertain factor(s).
Part of it is forecasting which uncertain factor(s) would control a resolution.
And part of it forecasting a resolution.
At least, that has been my experience.
Quote
December 17, 2009, 1:10 pmMikhail Koulikov says:
Except, by the point you are in grad school, there are — or should be — no exams. And to think of it, the ‘good lawyer’ answer really is not too different in spirit from a lit review in any decent humanities or social science paper.
Quote
December 17, 2009, 1:16 pma.b. says:
I’m convinced that this is what many students find inscrutable about the law — on an anthropology exam, or a history exam, or a biophysics exam, you’re trying to show how much you know about the subject matter (and therefore to hide the questions the answer to which you don’t know)
Have you ever taken (or passed?) an anthropology or history exam? Certainly in Anthro 101 or whatever you are just belting out answers, but by the time you get to upper division classes, and certainly by graduate school you are supposed to be dealing with matters of interpretation for which there are no clear answers, and how you deal with them is going to be the main thing the grader is interested in. Lots of good undergrads find grad school difficult for just this reason, and if you think of law school as a sort of grad school lite the problem is pretty much the same
Actually, I have a Ph.D. in anthropology — really! So, you might be right and I might be wrong, but it’s not because I’ve never taken an anthropology exam. DGP
Quote
December 17, 2009, 1:22 pmCDU says:
IANAL, but I am an academic and this strikes me as similar to the difference between undergraduate education and grad school. Undergrads are expected to consume knowledge from the professor, the textbook, and other sources, then regurgitate on exams and in papers. Graduate students, on the other hand, are expected to become producers of knowledge. This begins with identifying what isn’t known, where the holes and flaws in our current understanding are. Of course, then they’re expected to help fill the holes and fix the flaws, but even after they do that, they’re still expected to go back and identify all the holes and flaws in their own work (this is basically what the “future work” section in any scientific paper is).
Quote
December 17, 2009, 1:23 pmCJColucci says:
I once saw an evidence exam based on arguably hearsay testimony by the defendants’ transactional lawyer. (An amusing 9th Cir. case called McClellan was the basis) Because the lawyer’s testimony was being offered in connection with an “advice of counsel” defense, there was obviously no attorney-client privilege issue. Do you penalize someone who doesn’t mention the privilege issue at all because it’s obviously a non-issue? Give extra credit to someone who explains why there is no privilege issue? How do you test whether someone missed a non-issue or recognized it as one?
Quote
December 17, 2009, 1:32 pmChris Travers says:
Reading your example, it seems to me that there are many facts missing which could clarify the situation one way or another.
Adding more “I don’t know’s” to this:
Depending on the nature of John’s poems, setting them to someone else’s music might well fall under fair use protections thus providing clear case of action. In short we don’t know:
1) Whether the use of unauthorized music by itself in context was unlawful (merely having it unauthorized does not NECESSARILY make it unlawful even though it present a strong case that it is)
2) Whether copyright law would allow John to seek remedy for the lyrics even if Greenberg’s copyrights were violated for the music.
3) Whether Jane reproduced the lyrics separately from the music (for example, by printing them in a CD insert) which might allow for a cause of action for the poetry independent of the previous two questions.
For example, suppose the poem was a ballad written in support or opposition to Obamacare as a fundamentally political work and was not intended to be widely distributed. It might possibly fall within fair use boundaries. Suppose the poem was intended to satirize the movie the music was written for. It might also fall within fair use boundaries, as parodies are traditionally somewhat protected here.
It seems to my mind that we can’t get to an answer without answering three questions, each of which is well beyond the scope of the information provided.
Quote
December 17, 2009, 1:38 pmsome guy in ohio says:
What you describe rings true enough. I’m curious what makes you think it is different from the situation in other professional fields, though, at least at the graduate level. Medicine, mathematics, and engineering immediately come to mind. In medicine, a patient presents with some array of symptoms. What’s wrong with him? The answer is, I don’t know. Let’s run some tests, which may or may not give the answer. In mathematics and computer science (my own field) we run across the answer “I don’t know” as a matter of course in computability theory and the like — we even learn to quantify exactly how much we don’t know.
So I disagree that this is a fundamental distinction of the law, as you describe it. Plenty of people don’t “get” medicine or engineering either!
[Edit: I see other commenters raised similar points before me. The common thread is that this might just be a distinction between undergraduate education and graduate education of any rigor.]
Quote
December 17, 2009, 1:43 pmt.c.m. says:
This is an obnoxiously bad post. It is very self-congratulatory in a naive sort of way: “let me explain to you how hard and complicated the Law [which I do] is.” Naive, because as people have pointed out, most post-undergrad study involves dealing with complicated issues that have indeterminate answers. Two more reasons why this is strange: (1)most people do not consider issue spotting exams hard or complicated after the first semester of law school, i.e. after they have done a few of them. Is the author aware of the consensus that writing a law school exam is a fairly mechanical exercise (only made slightly interesting by applying an arbitrarily severe 3hr time constraint), and that the main problem facing professors is distinguishing between a pile of roughly similar answers? (2) the conflation of taking law school exams, i.e. issue-spotting, with “the law” and the practice of law. Practitioners do not lose sleep over ‘figuring out the relevant issue’ in their legal matter; the main skill employed is a sort of pragmatic problem solving .
Quote
December 17, 2009, 1:51 pmDom says:
When I was in law school and called on by the professor, I used to answer questions with “it depends.”
Quote
December 17, 2009, 2:07 pmCrunchy Frog says:
Pot, meet Kettle.
Quote
December 17, 2009, 2:14 pmChris Travers says:
Some guy in Ohio:
One of the fun things about computing is that a lot of things are based on the question of “can you know x given y?” Software engineers who don’t get that question write lousy software.
As they say, computers make it possible to make more mistakes faster than any other invention with the possible exception of guns and taquila. Being able to prove that automation is correct and that the computer can know the answer is extremely important.
Quote
December 17, 2009, 2:17 pmAultimer says:
Did you check Prof. Post’s resume? It suggests he did Ok in Anthro (PhD in the subject & taught it at Columbia).
I like the theory — it was difficult for me to figure out issue-spotting exams, but I don’t believe they’re universal. Civ pro, Tax and (in a different way) Con Law don’t swing that way.
Quote
December 17, 2009, 2:17 pmlgm says:
I’m a math professor. I’ve never been able to understand the aesthetic of law. What makes Learned Hand cool? In particular, I don’t believe that law, beyond the simplest cases, is an exercise in logic. (I thought it was demeaning of Judge Sotomayor to say so in her confirmation hearings.)
The case in the exam question is obviously ambiguous. There are “valid” arguments both ways. The role of lawyers and judges is not to be excited about the fact that the result is ambiguous, but to decide which of the “valid” conclusions to endorse and which to discard.
Quote
December 17, 2009, 2:25 pmBama 1L says:
I see just about everything I wanted to say has been said. This is not a unique feature of the law or law school. If they can’t deal with uncertainty, I suspect most of your students weren’t very good at anthropology, history, or biophysics, either.
I vigorously applaud a.b.‘s characterization of law school as “grad school lite.”
Quote
December 17, 2009, 2:25 pmPhatty says:
A good law school exam will contain issues with definite answers mixed in with issues that are arguable with no definite answer. Not only does this better represent the issues a practicing attorney would face in the real world (some issues have clear cut answers, others don’t), but it would also keep the students on their toes as they take the exam.
Quote
December 17, 2009, 2:27 pmHouston Lawyer says:
I always disliked the standard law school tests. Several of my professors had decided to use objective tests and I always did better in those classes.
I have worked with attorneys who are still issue spotters following law school. They are uniformly a pain in the ass, positing “what if” questions in areas where experienced practitioners lose no sleep. These guys don’t make partner.
Quote
December 17, 2009, 2:40 pmMike Rudolph says:
It’s too bad that issue-spotting exams don’t really train law students how to be lawyers. They just show how much information you can throw-up on the exam in 3 hours.
Quote
December 17, 2009, 2:43 pmLiberal Libertarian, PhD, JD says:
1. Why law schools don’t prepare good lawyers: “I’m sorry, your honor. While I have managed to spot the issue and have set it out in my brief, I cannot offer you a good reason, argued persuasively, as to why you should rule in favor of my client.”
2. Dr. Post may be a PhD in Anthro, but it still doesn’t explain why he didn’t recognize that good graduate school exams/papers/classes are not exercises in obfuscation.
Quote
December 17, 2009, 3:00 pmLiberal Libertarian, PhD, JD says:
1. Why law schools don’t prepare good lawyers: “I’m sorry, your honor. While I have managed to spot the issue and have set it out in my brief, I cannot offer you a good reason, argued persuasively, as to why you should rule in favor of my client.”
2. Dr. Post may be a PhD in Anthro, but it still doesn’t explain why he didn’t recognize that good graduate school exams/papers/classes are not exercises in obfuscation.
Quote
December 17, 2009, 3:02 pmLarryA says:
From a non-lawyer view study of the law is hard because of its source.
Hard sciences (physics, math) study rule sets finalized at the moment of creation. The rules are complex, but whoever or whatever wrote them kept them internally consistent and temporally constant. Hard science consists of efforts to understand the underlying order by observing the laws’ constant effects.
Soft sciences (sociology, history) study rule sets established over time as the hard science rules act upon people, and people react in response. The rules are incredibly complex, but still internally consistent. If they are not temporally constant at least they are the result of what went before. Soft science consists of efforts to understand the underlying order by observing the laws’ changing effects.
Law, however, was written on the fly by human beings, some of whom are brilliantly correct, some of whom are brilliantly wrong, and some of whom think they can mandate that pi equals 3.0. Study of the law thus consists of trying to bring order out of underlying, ever changing, chaos.
Quote
December 17, 2009, 3:04 pmPhatty says:
Gotta disagree with this. A good law school exam should force a student to present the best argument for both sides. In the real world, rather than giving the judge both arguments, the attorney simply presents the argument most favorable to his client. But the attorney should still be able to jump into the other attorney’s shoes and present the opposing argument just as well.
Quote
December 17, 2009, 3:08 pmBama 1L says:
Let’s cut him a break. I left “real academe” before the Ph.D. and there were plenty of wounds. If I’d broken it off later, I can’t imagine how bitter I’d be.
Quote
December 17, 2009, 3:19 pmPC says:
The question then becomes what is actually “brilliantly correct” and what is actually “brilliantly wrong”, which often depends on political point of view rather than logic.
Quote
December 17, 2009, 3:20 pmSeaDrive says:
I believe that mathematics is one of the worst backgrounds to try to take into law. In mathematics, one correct proof is final. In law, all possible arguments must be considered. (In math, you may want to learn all possible arguments, but that is for insight into the next problem, not for solution of the immediate one.)
Quote
December 17, 2009, 3:33 pmPubliusFL says:
Besides Phatty’s response to this, it’s worth noting that legal research and writing are covered in other courses. In a substantive course like contracts or real property, one needs to learn the basic rules and the issues that are likely to be important in that area of law. The skills of researching the case law, regs, and statutes, citing to your research, and crafting persuasive arguments are applicable to many areas of law. It makes sense that in a substantive course, the primary concern is testing a student’s grasp of that area of law specifically. The student’s more generally applicable skills of researching, writing, and argumentation will likely be reflected in their legal research and writing grade and their participation in other activities like moot court and law review.
Quote
December 17, 2009, 3:38 pmOrin Kerr says:
Mike Rudolph says:
I don’t understand this. A student who tries to “throw-up” as much information as he can is likely to receive poor grades.
Quote
December 17, 2009, 3:42 pmTactful says:
Prof. Post’s statement that “Law is hard” is separate from the statement that “Law examinations are hard.”
Taking the actual issue in hand, the thing that makes Law harder than some other disciplines — and I admit that the advanced mathematics of, say, astrophysics would defeat me — is that it is fundamentally normative, with no feedback from the natural world to tell you when you got it right. It applies equal measures of sociology and psychology, economics, politics, literature, and engineering. The craft of making good caselaw is akin to programming an elegant computer program; one must achieve a consistently acceptable outcome in the fewest steps necessary. The craft of drafting a good deal is akin to designing a spaceship; it has to weather even the least expected crisis.
Quote
December 17, 2009, 3:57 pmtheobromophile says:
A lot of the practise of science and R&D engineering is figuring out what one does not know, figuring out how to find it out, and then deciding whether or not it’s worth the time and money to get a definite answer. Even some undergraduate exams and projects are run that way — state your assumptions, explain why they matter, explain what other information you would like to have, explain your next steps, etc.
Quote
December 17, 2009, 4:06 pmDJR says:
As someone who achieved only a single grade below A– on any exam in Law School (and that was a B+), I’m glad I didn’t have you as a professor, because your post indicates that you are looking for material on an exam that was not covered in the cases studied.
I did not take IP, nor am I an IP lawyer, but my answer would have looked something like this:
John likely has a cause of action against Jane. Section [whatever] of the copyright act prohibits [whatever]. John is the author of the lyrics to the songs, though he used [whoever’s] music. [Isn’t there something about registering a copyright before you sue? I would insert that here]. Jane would defend against John’s suit by pointing to section 103, which says that you can’t copyright preexisting material. Jane would argue that the song as a whole consists of both music and lyrics, and that John’s use of preexisting material voids any copyright he might otherwise have in the lyrics. Moroever, Jane’s reproduction of John’s work was an audio reproduction, in which the music and lyrics are inseparable, unlike a listing of lyrics only or sheet music, each of which could be protected independently of the other. John would respond that although the music he used was not original, his lyrics were original and so they are protected against Jane’s reproduction even in an audio format. John has the stronger argument. As noted above, lyrics and music clearly are not inherently inseparable. Moreover, copyright Law was meant to encourage authors to create creative works, and voiding the copyright on an original set of lyrics, even when attached to someone else’s music, does not serve that purpose.
I would probably have a couple more things to say if I actually knew anything about copyright law, but I would mostly limit it to the things I know. I would never have thought to write on an exam: “Here’s an issue we never studied. I don’t know what the answer is; I suppose I would look it up if this were real life.”
There are lots of questions in the notes following cases in casebooks. So far as I know, I never raised an unanswerable question on an exam and my profs seemed to like my answers well enough.
Quote
December 17, 2009, 4:31 pmBuddy Hinton says:
Actually, I think Professor Post’s analysis here is fundamentally flawed and that the question can be definitively answered. here is how:
17 USC 301 says that any subject matter falling outside the subject matter scope of copyright as defined by (inter alia) 17 USC 103 is eligible for state / commonlaw copyright protection. To the extent John’s work is copyrightable within the meaning of 17 USC 103, he gets copyright protection against Jane under US copyright law.
Now here is the key part:
to the extent John’s work falls outside the scope of 17 USC 103, he has recourse to commonlaw copyright and/or state copyright, because these forms of copyright are (by virtue of John’s work falling outside section 103) NOT pre-empted per 17 USC 301.
Really the only question is whether Jane’s jurisdiction has commonlaw or state copyright and whether the unauthorized intermingling with the music is somehow a problem under whatever commonlaw tradition Jane’s jurisdiction has.
This is the correct analysis.
Quote
December 17, 2009, 4:43 pmCheckEnclosed says:
Consider the following stereotyped situation:
A. Law school exams reward issue spotting and large law firms like to hire people who do well on law school exams. Once these people are in large law firms, they face further negative consequences from not showing that they spotted all of the issues (i.e., a partner who did really well on law school exams will point out the issues that they missed) and told that missing an issue is tantamount to malpractice. They try to write briefs that discuss all the issues and make all the arguments they can about those issues. If they lose a motion by missing an issue, bad things will happen. If they lose a motion by writing a rambling, unfocused brief that mentions every issue, no one will ever know.
B. Successful plaintiff’s PI lawyers did not go to fancy law schools or get top grades on law school exams. They choose cases because of a small number of really strong issues in their favor. Then they focus on those issues, making them easy to understand. Sometimes they lose some motions because they miss some issues, but unless they are summary judgment motions, they get to trial with a clear theme focusing on a small number of issues.
The point is that to be good at lawyering, you have to know what to leave out, and the difference between good arguments and bad ones, and not throw in bad ones on the ground that “Who knows, maybe the judge will go for it.” Overweaning emphasis on issue spotting and an overly risk averse approach stifle these positive tendencies.
Yes, there are legal writing and sometimes even clinical courses available in law school, though they are often pass/fail. But law students will take perhaps two or three of these in three years, and a score of courses with issue spotting exams.
Quote
December 17, 2009, 4:47 pmJohnAnnArbor says:
I think I have the answer to that. The Law is hard — uniquely hard, I’m tempted to say — because you demonstrate your expertise not so much by displaying what you know, but by displaying what you don’t know.
Breathtaking arrogance. This kind of arrogance explains lawyers (like John Edwards) who sue good doctors and use emotional, not scientific and medical, arguments. They think they’re SO smart that they just KNOW that bastard doctor deserves to pay! Even if she did everything by the book and all her colleagues agree except the highly-paid rent-an-opinion doctor paid highly to fly in and testify! Screw the doctor–SHE didn’t go to law school, after all, so what the hell does SHE know other than some book learnin’?
What the HELL do you think science and medicine are but trying to advance knowledge by figuring out what isn’t known, how to figure it out, then doing the studies to get the needed data to figure it out?!?
Quote
December 17, 2009, 4:47 pmAlan Gunn says:
Indeed. I used to teach law and economics now and then. Whenever law students disliked the implications of an economic theory, their response was always to say, in effect, “I’m not going to believe that unless you tell me a more-compelling story.” Never once did a student ask whether there were any data on point.
Physics is hard. Law is pathetically easy. My undergrad major was geophysics, and I worked until at least 11:00 about six nights a week. One thing I enjoyed about law school was being able to knock off at 5:00 p.m. every day. That is, all five days.
Quote
December 17, 2009, 5:04 pmSara says:
What is with the level of vitriol in these comments? Get a grip.
Whether you think law is easy or hard, understandable or not, it is arguably a unique endeavor and Dr. Post, it appears to me, tried to elucidate that issue.
Quote
December 17, 2009, 5:21 pmAlan Gunn says:
Well, I can’t speak for anyone else, but my personal level of vitriol has something to do with Professor Post’s astonishingly arrogant assumption that law, a profession practiced largely by people who weren’t good at anything else, is harder than most other subjects. Almost anybody can get into a law school. Hardly anyone flunks out. Yet lawyers, for the most part, think that they are uniquely qualified to run the world. Vitriol seems to me to be the right response.
Quote
December 17, 2009, 5:32 pmWhy Studying Law is So Hard: | Liberal Whoppers says:
[...] reading here: Why Studying Law is So Hard: Share this [...]
BC says:
I honestly do not understand why so many people insist on pretending that law is this nigh-impenetrable discipline because it requires students to identify ambiguities and argue facts on both sides of those ambiguities. Perhaps the guild mentality; I don’t know.
What I do know is that I came to the law after a ten-year career in software engineering, and nonetheless managed to adapt my thinking to this “uniquely hard” subject matter in about a week and a half. To my mind what made the study of law challenging was not getting to maybe, as Fischl and Paul put it, but rather retaining all the arcane if-I-ever-needed-to-know-this-in-practice-I’d-consult-a-hornbook minutiae that my professors seemed to relish tormenting students with.
Quote
December 17, 2009, 5:34 pmJay says:
JohnAnnArbor– Sounds like you’re totally unbiased yourself. I don’t think lawyers need to take any lectures from the medical profession about (1) arrogance, (2) relationship of educational requirements to the job (the AMA’s standards make the bar exam look pathetic as an artificial barrier to entry), or (3) ability to self-police. State bars are light years ahead of most state medical boards in identifying members of the profession who are problems and kicking them out. The rally-round-our-accused-colleague phenomenon you’re apparently so proud of is shameful.
Quote
December 17, 2009, 5:36 pmTweets that mention The Volokh Conspiracy » Blog Archive » Why Studying Law is So Hard: -- Topsy.com says:
[...] This post was mentioned on Twitter by R. Richards, Eugene Volokh. Eugene Volokh said: Why Studying Law is So Hard:: Now that it’s exam season, and I’m facing the prospect of reading 100 Intro to IP.. http://bit.ly/8nEF2K [...]
law student says:
Does John have a fair use defense which would make his use of the songs lawful and therefore give him a copyright on the use of the music with the lyrics combined? If that is the case then John has two claims of infringmenet, the use of the lyrics and the use of the music and lyrics together, the only thing he can’t say is infringed is the use of the song by itself. Is this correct? If not, why not?
Quote
December 17, 2009, 5:41 pmSara says:
Perhaps, the unique difficulty is approaching issues with dispassion.
Quote
December 17, 2009, 5:46 pmGeorge says:
The law is only “hard” because pretentious and arrogant ivory tower elitists who believe that they know better than the “common man” (that they hold in contempt) design certain aspects of the law with sinister intent.
The one thing that law school has shown me is the depths of human depravity. Arrogant pieces of filth who think that they can somehow explain away why two different courts came to a different conclusion on the same issue, when the real explanation is as simple as “a different lawyer in a black robe wanted a different result.”
When the Holmes of the world polluted the law by dragging it away from the Blackstonian tradition they destroyed the foundations upon which ordered society is built. This is the only reason why the law is “hard” today. It is “hard” because sinister individuals want it to be so.
This is why I will find something better to do with my life as soon as I finish my J.D. I refuse to be part of a profession that is so impregnated with evil.
Quote
December 17, 2009, 5:48 pmtcmfan says:
tcm is spot on. anyone who has graded law school exams — esp at a top school where the students are all bright enough to spot the issue — knows that the main challenge of an exam is sorting out 100 near-identical exam answers and getting the grades to fit some normal distribution.
i can’t help but feel that the LSAT is a better measure of legal ability than any exam devised by a law prof.
Quote
December 17, 2009, 5:57 pmBuddy Hinton says:
Here is how to look at the difference between the recognition of uncertainty in law and the recognition of uncertainty in other learned disciplines.
John asks: What would happen to the seasons if days were a year long and years were a day long?
Scientist answers: Well, I can figure out what the annual patterns of incoming solar radiation would be like on the surface of the planet (basically the days would be similar at any given latitude, but seasons, as defined by their day lengths, would shift based upon longitude rather than latitude). However, I don’t know what effect this would have, if any, on ocean temperatures, ocean currents, the ozone layer, volcanic activity, the rate of atmospheric loss, and so forth. There is a lot of uncertainty to explore.
Lawyer answers: Are you saying:
(i) the Earth will spin about its axis once every (365.25*24) hours and that it will revolve around the sun every 24 hours (this is what the scientist seems to be assuming); or
(ii) the Earth will spin about its axis once every 24 hours and that it will revolve around the sun every 24 hours because years are now equal to what days have always been; or
(iii) the Earth will spin about its axis once every (365.25*24) hours and that it will revolve around the sun every (365.25*24) hours because days are now equal to what years have always been.
Your question seems equally susceptible to (at least) these three interpretations here. There is a lot of uncertainty to explore.
Quote
December 17, 2009, 5:59 pmGruest says:
Well, George, I hear there’s an opening at the loony bin...
Quote
December 17, 2009, 6:14 pmChem_geek says:
Yep, unless one’s at the University of East Anglia...
Quote
December 17, 2009, 6:16 pmBuddy Hinton says:
Or to put my previous post more concisely and expand on it
(i) philosophy deals with grand ontological uncertainties;
(ii) the law deals with mundane, or quotidian, ontological uncertainties; and
(iii) in other pursuits, the ontology is taken to be understood, or axiomatic, and what is probed is residual non-ontological uncertainties that remain even after a relevant ontology is agreed upon.
Quote
December 17, 2009, 6:19 pmChem_geek says:
Indeed. Being able to do that, one can then jump back into the original pair of shoes and modify the original argument so as to block those avenues of attack.
Quote
December 17, 2009, 6:23 pmGeorge says:
Yeah, because how dare I insult the legal profession. We should all be bowing instead. *rolls eyes*
Quote
December 17, 2009, 6:24 pmJohnAnnArbor says:
Interesting. So doctors never rally around a GOOD doctor who did the best possible job? In your mind, the day the lawsuit is filed, that doctor should go to hell, and never mind the facts. You see the mentality: persecute and destroy. And never mind pesky things like whether there’s any medical or scientific basis for saying that malpractice occurred.
I’m not in medicine, anyway. I’ve just watched, over the years, as people whose only skills are writing clever arguments destroy good doctors, engineers, real estate managers, etc., merely for money and without regard to fact. And the absolute contempt those lawyers show for their victims–those with productive skills, who actually contribute to society–is sick.
You do realize, in some states, that it’s nearly impossible for OB/GYNs to get insurance? That’s because doctors get sued if something bad happens–NO MATTER IF THEY COULD HAVE PREVENTED IT OR NOT. The science and medicine just don’t matter. And the bastards like John Edwards who file the lawsuits don’t give a damn, and they make sure that no juror with ANY scientific or engineering background makes it to the jury, because they’d see right through the BS. These lawyers just want their 33% cut of the big award for another five rooms on the mansion. Destroyed careers? Higher medical costs for everyone? They could not care less.
Then David Post, Esq., comes along and tells us just how hard being a lawyer is, and how we peons in other professions just don’t get it. Actually, we do get it, David, all too well.
Quote
December 17, 2009, 6:25 pmSeaDrive says:
Buddy Hinton: I take your point but....
The logician interprets this to mean there is one day per year, and we have no idea how long it is.
You have not noticed that each revolution around the sun causes a day/night cycle. To get the result you mean, the earth would have to counter-rotate almost one rotation (about its axis) per revolution (around the sun).
Quote
December 17, 2009, 6:27 pmBuddy Hinton says:
Still more:
What makes law so difficult is that other professions get very used to skipping over ontological uncertainties, or resolving them without a lot of debate. For example, is Pluto a planet or not?
Maybe it is and maybe it isn’t and maybe we want to tweak the ontological concept of “planet” to make it one because so many published textbooks say it is one. However, scientists aren’t studying / debating / spending a whole lot of intellectual effort fighting over the definition of planet. There will be a concensus decision eventually on where the line is drawn between “planets” and “not planets” and everybody will go with it, no astronomers will get too distracted from the real substance of their astronomy.
If you want to be a good lawyer, otoh, then you really have to CARE DEEPLY about things like where the line is drawn between “planet” or “not planet.” You need to care about issues like whether “planet” and “not planet” defines enough conceptual categories, or whether scientists should be talking in terms of “planet,” “junior planet” and “not planet.” You need to care about issues like whether the definition of planet should depend, at least in part, upon the mass of the star around which the putative “planet” revolves, or whether it is only the mass of the putative planet that matters and not its mass relative to the mass of its star. Scientists RESOLVE these kinds of questions. Laweyers DEBATE these kinds of questions. If you get too involved in a discipline that minimizes the importance of ontological debate, then it is hard to jump tracks and suddenly care about it (especially when the ontological debate is about something quotidian like who gets a royalty for Jane’s CD).
Quote
December 17, 2009, 6:35 pmBuddy Hinton says:
yes, I did. that is why I said that days would be the same as they are now at any latitude. However, what “season” you were in would depend on longitude. When it is summer in the USA it would be winter in eastern China, autumn in Australia and spring in France. By summer in the US I mean that the day lengths would be those the USA current experiences in summer. By winter in Eastern China, I mean the day lengths that Eastern China currently has in winter under the present system.
Quote
December 17, 2009, 6:38 pmLarryA says:
No matter which is which, the result is laws written from several opposing viewpoints and philosophical backgrounds.
What would physics look like if all of the Greek/Roman gods could add their own laws?
Quote
December 17, 2009, 7:25 pmVague in vogue? says:
It seems like it would be terribly confusing — imagine, if you will, the possibility that something could be and not be at the same time, or that there are many worlds....
Quote
December 17, 2009, 7:38 pmCDU says:
Actually, they seem to have done a decent job of doing this in their scientific papers. It’s when they’re acting as advocates or activists rather than scientists that uncertainty and flaws tend to get swept under the rug. For instance, the paper that came out of the “hide the decline” thing discusses the decline in late 20th century tree-ring proxies. It’s the graphic that gets released to the popular press where it’s really “hidden”.
Quote
December 17, 2009, 7:39 pmCDU says:
This may be true to a certain extent in the hard sciences, but sometimes it seems like the social sciences spend more time debating ontology and epistemology rather than actually studying their nominal topic. So I don’t think this sort of thing is really unique to the law.
Quote
December 17, 2009, 7:42 pmBuddy Hinton says:
They get dissed the same way lawyers do, except less because: (i)there are less of them; and (ii) they tend to make less $$$.
Quote
December 17, 2009, 8:11 pmLaura Victoria says:
In my experience, the hardest part of the practice of law (as opposed to the wonderful experience I had at law school) is the fact that real litigation practice made you subservient to moron judges whose application of the law to the facts is the mathematical equivalent to 1+1=3.
Quote
December 17, 2009, 8:30 pmBama 1L says:
The Rosemary’s Baby imagery is masterful. Please post this every day.
Quote
December 17, 2009, 9:16 pmBruce Hayden says:
The problem isn’t rallying around the good doctors, but rather, hiding the screw ups of the bad ones. So, we are constantly finding the bad ones popping up in other states, after they have screwed up in other ones. There are some, of course, in any profession who are incompetent. But what sets medicine apart is the apparent inability to discipline them.
A couple of years ago, I saw the yearly total of doctors investigated and then thrown out of practice in Colorado, and was amazed to find that the Bar there investigates and disbars as many lawyers a month as the medical board does a year.
Keep in mind that competence is likely on a bell curve, like so much else. What this says to me is that the doctors are protecting the incompetent tail of the distribution, to a level not found in most other professions.
Quote
December 17, 2009, 9:18 pmBruce Hayden says:
Except that not that much falls outside copyright laws any more. Copyright is automatic in original expression (excluding works of the Federal government) embodied in a tangible medium, at least since we joined the Berne Convention some 20 years ago. So, no, I don’t see much, if any, relevance to section 103. Rather, I see it more as a question about who has what (federal) copyrights, and who is infringing what. Sure, you can bring in Fair Use, but getting side tracked by extraneous conjecture, such as whether it was a parody of President Obama, doesn’t really help you in the real world, and shouldn’t in law school.
That said, my worst class in LS was contracts. It wasn’t that I didn’t understand the subject matter, or couldn’t issue spot. Because I did, and could. Rather the prof gave 3 points for each vaguely relevant case cite — one for the name, one for the court, and I think maybe one for the date. The guy who Am Jured the year before admitted that he had a photographic memory, and was able to get all of the cites correctly. The problem for me (besides not being able to memorize that well) was that many judges would just trash a brief where the case cites were so vaguely relevant to the issues at hand.
Quote
December 17, 2009, 9:32 pmBuddy Hinton says:
No, Bruce. Section 301 says that anything that falls outside of section 103 is fair game for state copyright law. Professor Post correctly points out that John’s derivative work may (or may not) fall outside the terms of section 103. The point Professor Post missed is that to the extent (partially or perhaps wholly) that John’s derivative work does indeed fall outside of section 103, section 301 makes it fair game for state (c) claims, which is potentially a huge boon to John against Jane.
Now, this obviously isn’t the result the drafters of sections 103 and 301 intended. Nevertheless, it is the way they drafted the statutory sections. The real question is: what would Professor Post’s 3L graders do about some smart aleck that outsmarted Professor Post here. In my experience, they are not that kind to this sort of shennanigans. What Professor Post might make of all that will probably remain an open question.
Quote
December 17, 2009, 9:39 pmCDU says:
Are these really comparable? The number of doctors who loose their licenses is probably a measure of competence. The number of lawyers who are disbarred is primarily a measure of ethics. I have no trouble believing that the average doctor is more competent than the average lawyer is ethical.
Quote
December 17, 2009, 9:39 pmBruce Hayden says:
I think that law school is hard for many, esp. 1L, because lawyers think differently from real people, and learning how to do that is not really that natural. Part of it is the issue spotting. Part of it is a certain type and level of paranoia. And, maybe part of it is being able to construct arguments for what you are trying to prove from weird human products in the guise of case law.
It really is quite hard in many cases to determine what the law actually is. You have constitutions, laws, treaties, rules, and then any number of conflicting court cases trying to interpret things with different fact patterns. And maybe the problem is partly that the law really isn’t usually black and white, but rather, a myriad number of shades of gray. And then you are supposed to pick the best shade of gray for your facts.
Yes, it is a very artificial environment. But, since lawyers tend to write our laws, and predominate in legislatures, esp. at the federal level, the rest of the population is not going to be able to ignore our artificial constructs, esp. when the consequences of doing so can be jail or bankruptcy.
Quote
December 17, 2009, 9:41 pmBuddy Hinton says:
Upon review, this sentence makes it look like I have taken a class by Professor Post. I want to clarify that I have not. I was referring here to law school exam graders in general, who, I believe, don’t get you if you go too deep. But not Professor Post’s graders specifically. For all I know, the man grades his own exams personally.
I apologize for any confusion I may have caused on this point with my previous post. I also want to say that I greatly admire Professor Post’s writing in the Cyberlaw casebook, which I read and re-read often.
Quote
December 17, 2009, 10:03 pmJohnAnnArbor says:
So, we are constantly finding the bad ones popping up in other states, after they have screwed up in other ones.
Do you know what happens to a hospital that doesn’t give a doctor a recommendation, or warns other hospitals off a bad doctor?
That’s right–they get sued.
No matter what you do in this society, a lawyer will try to stick it to you if there’s a buck in it for them.
Quote
December 17, 2009, 10:33 pmCVMe says:
John: Here’s the thing about lawyers and ethics: We have to tell on each other because not telling is itself an ethical violation. That doesn’t mean we’re constantly bringing ethics charges against one another, but if you’re aware of conduct that raises serious doubts about another’s fitness to practice, you have to report them. Imagine if doctors were subject to that.
Now, you say “hospitals get sued.” True enough, but all the medical profession has to do is implement a similar ethical provision, and the hospital/doctor would have the defense, “I had to tell the truth or I would be subject to discipline.” That would be a pretty good defense.
Quote
December 17, 2009, 11:18 pmBama 1L says:
Well for lawyers, the definition of comptency is derived from the ethical rules; i.e., it’s unethical to be incompetent.
Yeah, they even sue other lawyers for negligent representation! It’s crazy!
Quote
December 17, 2009, 11:19 pmJP says:
Isn’t the point of this post that law is not hard? When he says the law is uniquely hard, i think he means that the law is uniquely hard to get. In other words it is learning what it is ‘to get’ that is the hard part.
What you need ‘to get’ is that there are no answers and that the more uncertainty there is better your answer. In the law, unlike other disciplines, you never ‘solve’ the hard cases that you are faced with (until the judge makes a ruling)
Quote
December 17, 2009, 11:30 pmCVMe says:
Separately, I think the difficulty people have been trying to put a finger on is that at least in our common law system, law has an adversarial basis. This means that every question has two sides, and the point is for each side to come up with the best reasons that their side is right because if they convince a judge of it, they win something their client wants. So asking a lawyer, “what if days lasted a year and years lasted a day?” is meaningless — the answer is: It depends on who wants to know and why you’re asking. It might be very important to someone with a one year lease, for instance, or to someone who purchased a guaranteed “all-day sucker.”
Quote
December 17, 2009, 11:32 pmJP Martin says:
I found engineering school much harder than law school.
As long as you can accept the “flexibility” of legal analysis. And, you do not get tripped up by the absence of unambiguous answers/results, law school can be a cake-walk. For me, law school was generally an enjoyable experience except for the frustration of time constraints. (The reading load was a burden because I worked full-time through LS).
In other words, engineering school made my brain hurt, law school made my eyes hurt, and law school exams made my fingers hurt.
Quote
December 18, 2009, 12:12 amJohnAnnArbor says:
That doesn’t mean we’re constantly bringing ethics charges against one another, but if you’re aware of conduct that raises serious doubts about another’s fitness to practice, you have to report them.
Yep. Unfortunately, that’s pretty much garbage, or John Edwards and similar trial lawyers hounding doctors out of business on specious medical grounds wouldn’t find work. All you care about is what a lawyer did ethical by his CLIENT. If the scientific/medical truth gets a knife in the back in the process, so be it! He served his client well, and destroyed a doctors’s career. Mission accomplished!
Quote
December 18, 2009, 12:40 amCheckEnclosed says:
Yowza!
Who knew this unassuming little post would end up being so cathartic.
Just let the therapy flow.
Quote
December 18, 2009, 12:56 amJay says:
JohnAnnArbor–
I doubt any of the people discussing this think that are no problems with the tort system. But it’s a little hard to have a discussion with someone who apparently thinks that doctors should never be liable for anything. If you were as much of an expert as you think you are, you would know that it is, actually, really hard to win med mal claims today, post tort-reform. Courts routinely throw out large jury verdicts, and statutes arbitrarily limit recoveries regardless of the facts in a particular case.
I’m also a bit fascinated by the attitude your comments seem to display towards patients, who are apparently totally irrelevant to the all-important issue of “a doctor’s career.”
Finally, I’m all for “scientific/medical truth,” but the ultimate question of when someone should be liable to someone else is a matter of policy, not science. Science and medicine no more dictate your view that doctors are eternally blameless than they do the converse, and pretending they do is just a cheap way of avoiding the real debate. Obviously, the policy debate must be informed by scientific and medical evidence, but I don’t understand how pure science is going to answer the question whether a doctor should be held liable for something that happens to a patient–it’s just going to tell you what physically happened, not whether it was wise or unwise to do or not do something in a particular instance, and certainly not where it’s wise to draw the line between tortious and innocent conduct.
Quote
December 18, 2009, 1:11 amDC Criminal Lawyer says:
If you are a university student currently charged with or under investigation for a crime it is important that you obtain a criminal defense attorney that can help navigate between the legal system and the disciplinary system at your school.
If you are attending a Washington DC college or university, you are well on your way to a promising future. It is imperative that you maintain a spotless criminal record. A criminal conviction can have serious consequences on your future plans. Notwithstanding the legal ramifications that are attached to a criminal conviction, your school may impose its own sanctions such as suspension or expulsion, which could prevent you from reaching your goals.
Quote
December 18, 2009, 4:12 amBolarinwa says:
I believe most of the post grossly missed the point the professor was trying to enunciate. All he was getting at is the fact that ‘Law School is hard’ for those who are careless/ untutored. In other words, studying law could be easy if one takes a painstaking steps to observe the underlying legal principles behind each case and put yourself in place of an inquisitor.. Simple ! Thanks Prof..
Quote
December 18, 2009, 9:05 amXanthippas says:
This is a good explanation. It’s one thing to say “discuss all sides of the question” but it gets closer to the heart of the matter to say “Tell me what you can’t figure out based on what I’ve told you.” That’s advice I didn’t get in my 1L year, but like most law students I figured it out pretty quickly.
But let’s not go offering too much free advice, okay? There’s a lot of lawyers and not nearly as many jobs right now, and we could stand to keep the numbers down for a few more years!
Quote
December 18, 2009, 10:32 amXanthippas says:
Oh and DC Crim...get your own blog.
Quote
December 18, 2009, 10:33 amrjs says:
Actually, it’s difficult to get into a good law school and difficult to flunk out of a good school. It’s easy to get into a bad law school and it’s easy to flunk out of a bad law school. I oughta know as I went to one of each. BTW, “good” means highly ranked, and “bad” means the opposite.
Quote
December 18, 2009, 10:49 amstash says:
I just want to put a word in for issue-spotting and its value in at least some areas of practice. First of all, one need only look at the phenomenon of plaintiffs regularly “pleading themselves out of court.” This takes place when the lawyer drafting the complaint does not notice an issue. Other examples are the frequent appellate cases where it has been found that a potentially winning issue has been waived by failure to raise it in the trial court, or in a post-trial motion, or in the opening brief. Some of the time this is the bad judgment of picking the wrong argument to go with, and in others it is a mere grasping at straws after the case is already lost, but often it is lawyers who simply did not spot the issue until it was too late.
With all due respect, saying that issue-spotting is not important to practicing law is like saying diagnosis is not important to practicing medicine. What are you doing when a client comes for advice, except spotting issues? What are you doing when drafting a contract, except spotting potential issues? Somebody thought up that disclaiming warranties, or limiting liability might be a good idea. Each business transaction may have its own issues and pitfalls, and a decent lawyer will be trying to spot those. Very frequently, I see cases that are the direct result of issues that could have been easily avoided in drafting.
In litigation, if you do not spot all the issues, you might not do the discovery, or get a needed expert witness, or plead a good affirmative defense, or a statutory cause of action. You cannot even advise your client whether a settlement offer is reasonable without being confident you know the issues.
Furthermore “issue-spotting” is really simply the obverse of “marshalling the facts” which is perhaps the most important activity in contested litigation. Unlike law school hypotheticals, in real cases most the facts are irrelevant and if you haven’t spotted an issue, something may turn out to be very relevant that you dismissed, or a fact may turn up in your opponent’s motion for summary judgment for which you prepared no rebuttal.
Perhaps there are areas of the law where issue-spotting is not relevant, or relatively routine–but not in my practice.
Quote
December 18, 2009, 10:55 amMaryanna says:
I am a public defender, not an employment lawyer or any kind of a civil litigator. But, I seem to remember that you need a plaintiff in these kinds of employment suits. Isn’t it the doctor who hires the lawyer for the purpose of suing the hospital for wrongful non-hiring or whatever? Or are lawyers just randomly suing hospitals for not giving recommendations to doctors who formerly had privileges? If they are filing such lawsuits, which courts are allowing them to proceed?
Quote
December 18, 2009, 1:22 pmJohn Edwards' Haircut says:
Maryanna,
Don’t be naive. Clients don’t bring actions– lawyers do! As is clearly obvious to ThoseWhoSeetheTruthfromAnnArbor(tm), lawyers are not even truly human. Instead, we are a symbiotic parasite that landed on this planet shortly before Holmes was born to undo everything Blackstone had so cleverly described. Our existence is manifested by taking over human hosts and filing lawsuits against all the good people in society so we can pay for haircuts and yachts. Unbeknownst to the general public, all money recovered in these suits goes to our luxury and sartorial expenses, not any alleged clients (the 100% contingency fee).
It is only those RuffiansfromAnnArbor(tm) who might expose our dastardly plan. They are aware that there is no such thing as, for example, medical malpractice. Doctors always do the right thing, and if something bad happens, it’s always the patients’ fault– so they need to learn the immutable law of the universe– suck it. Those studies that show that less than 5% of medical malpractice is ever acted upon, or that a small percentage of doctors is responsible for many malpractice claims (yet never suffer any sanctions)? Mere lies and propoganda from us.
Haircuts for us– bupkes for you.
Quote
December 18, 2009, 3:44 pmFC says:
I’d wager that physicians screw up less than lawyers do, for two reasons.
1. MDs are smarter and more educated. (4 years med school plus at least 3 years postgrad.)
2. There is less uncertainty in medicine. Any fool can find the liver. Only a very great fool can find a right to substantive due process.
Quote
December 19, 2009, 4:36 amDougD says:
I think Mr. Post summed up the nature of law exams perfectly. But I also found that what he describes is what made them easier, not harder than my other exams. While many of my fellow law students devoted themselves to days on endless days of rote memorization of myriad facts and citations, I tried to focus on the underlying principles that enabled me to “spot the issues” and proceed from there to determine what additional facts would be needed to argue the issues both for and against. 25 years later, this still applies in my practice. I do not attempt to answer a client’s every question on the spot with certitude. Instead, I hope to be able to identify the issues and provide some preliminary assessment both pro and con with follow-up questions for additional facts and most likely some research. I am always wary of the lawyer who gives pat answers on the spot rather than acknowledging there are almost always at least two perspectives to every situation (or else we would not have litigation!).
Quote
December 19, 2009, 1:08 pmTim says:
Thus far, my favorite moment in any class was responding this way to the prof (in a class of 600) and distinguishing an unclear point into two points, each with opposing and clear answers. It began with, “it depends.”
Quote
December 20, 2009, 5:55 pmMikee says:
There is a post somewhat above this one in which Richard Feynman is quoted on how science is done, empahsizing that good science presents both all evidence supporting one’s argument, and also all evidence against ones argument.
So no, it is not counter-intuitive to those based in the scientific method that “instead of running away from the things you don’t understand, you actually have to highlight them, because that’s where the action is, and that’s how you demonstrate that you really understand the subject matter at hand.”
In fact, that is where any PhD candidate in any scientific subject starts his research.
What annoys some in science, well, me, anyway, is that when a lawyer finds a point where the law allows multiple choices, despite the evidence that only one conclusion is correct, many others can be argued ad nauseum to the client’s advantage.
Quote
December 21, 2009, 12:18 pm