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.

Dom: When I was in law school and called on by the professor, I used to answer questions with “it depends.”

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.”

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.

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.

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.

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?

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.

Alan Gunn:
Almost anybody can get into a law school. Hardly anyone flunks out.

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.

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!

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.

Who knew this unassuming little post would end up being so cathartic.

Just let the therapy flow.

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!

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.

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)

CDU: 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.

Well for lawyers, the definition of comptency is derived from the ethical rules; i.e., it’s unethical to be incompetent.

JohnAnnArbor: 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.

Yeah, they even sue other lawyers for negligent representation! It’s crazy!

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.

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.

In my experience, they are not that kind to this sort of shennanigans.

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.

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.

Bruce Hayden: 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. 

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.

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.

Buddy Hinton: 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.

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.

JohnAnnArbor: 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.

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.

George: 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.

The Rosemary’s Baby imagery is masterful. Please post this every day.

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.

They get dissed the same way lawyers do, except less because: (i)there are less of them; and (ii) they tend to make less $$$.

Buddy Hinton: 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.

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.

Chem_geek:

CDU: 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).

Yep, unless one’s at the University of East Anglia…

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”.

LarryA:
What would physics look like if all of the Greek/Roman gods could add their own laws?

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….

PC: 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.

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?

You have not noticed that each revolution around the sun causes a day/night cycle.

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.