March 17, 2004

Value, Objectivity, & Hierarchy? Try Time, Honesty, & Ideas Instead

by Chris Geidner

When we decided that our first De Novo symposium would be a discussion on legal education, I wondered how I could best contribute to a discussion about law school. As a current student, I don’t know the value of my legal education yet. (Or do I?) As a participant in the process, I certainly have no objectivity in evaluating what it does well—and not so well. (Or do I?) As a consumer who is beholden to the employees, I have little say about those whose salaries I help pay. (Or do I?)

Law school, it would seem from much I have been reading (not just here), is about the helplessness and victimhood of young lawyers and lawyers-to-be. Fortunately, this is just one part of the story. Law school, if you treat it well, is about empowering yourself and others not to be afraid of this boogeyman: The Law. Like all great tools, the law can be misused. That’s no reason to burn down the toolshed. It is, however, the reason to do more than classes in law school. So, to start off my time here at De Novo, some stories of what law school has done for (and to) me.

* * *

To this end, the most important part of law school, for me—what I can already see as the value of my legal education—is all that I have taken from and all the time I have given to the school and the law outside the classroom.

When I arrived in Columbus, I immediately went to work learning about the Student Bar Association and other student activities at the law school. I became involved with the public interest group, and later, the LGBT law students’ group. These were great opportunities to see the law outside of a casebook—to let me explore the parts of the law that brought me to law school. In the spring, I organized a panel exploring Lawrence v. Texas, which led to my helping our Law Journal organize and put on a tremendous symposium in November on the case and its ramifications for equality, privacy, and lesbian and gay rights.

Over the summer, I worked with three professors, researching in various areas and learning a tremendous amount about the law. This was a valuable time for me that allowed me to think about the law outside the rapid-moving, structured confines of a classroom. I moved with the professors through their research, sometimes taking little side-trips down paths that caught my interest—including one that led me to what became the topic of my just-finished student Note.

Having been willing to put much time and work into all the law school has to offer, I feel that I truly have gotten much more out of law school.

* * *

“There’s no such thing as objectivity. The best you can do is know that you’re not objective.”

Although he said it in terms of journalism, what my undergraduate journalism professor taught me is one of the more profound lessons I’ve taken from all my schooling. Objectivity is no good because it only involves hiding your eyes (or the eyes of those around you) from what you truly think.

This past Friday, the Ohio State chapter of the Christian Legal Society sued OSU because they believe they have a right—as a state-university-sponsored group—to exclude from membership and leadership positions those who engage in “homosexual conduct.” For the time being, the university has allowed the group to receive its funding like all other groups despite the group’s admitted noncompliance with the school’s nondiscrimination policy. The group, however, has claimed to have “reasonable apprehension” that they might lose their recognition in the future, so they want a federal judge to tell the university that there policy is unconstitutional.

Do I think they’re right? Hell no.

Those students, however, as well as those like me who oppose what they do, have learned what I see as an important lesson of law school: Objectivity, like in journalism, is an illusion in the law. As an advocate, the best thing to do is to be up-front about your position and to be willing to discuss the issue—regardless of the contentiousness of it—with those on all sides. Criticize all you’d like, but take your opponents’ words home with you and think about them. For those whose positions ask for and demand impartiality, it is essential that you have examined your own biases so that you can account for them in providing as objective a viewpoint or decision as is possible.

Despite complete disagreement on this important issue, I know that some of those with whom I most disagree are also among those who have most fully thought out the issue. I’d take honest bias over faux-objectivity almost any day.

* * *

I’ve never really been all that good with hierarchy. It’s silly. This makes the whole professor-student dynamic work “not so well” with me. One professor and I went back and forth at least once a week in class (and out of it) about every issue under the sun. From as early as high school, I can recall teachers who professed slight irritation at my “independence.” One particularly colorful story involved a high-school English teacher throwing a file cabinet drawer at my feet in the middle of class.

What’s my problem with this hierarchy (beyond the ignorance of youth, you mutter condescendingly)? Two things: ideas and accountability.

Ideas are what matter, and the best should rise to the top—no matter the source. A strict understanding of the professor-student dynamic inherently undervalues the students' contributions and overvalues the professor’s mastery. This is why I appreciate debating and discussing things with professors much more in the blogosphere, where links and other methods do appear to help raise the good ideas to the top in a way that I’ve not seen anywhere else.

Equally important, however, is accountability. In many ways, the antithesis of accountability is tenure. Now, don’t get me wrong, I am not saying I necessarily oppose tenure. Without it, academic freedom would be a thing of the past and all the law would suffer. With it, however, the importance of students is, once again, undervalued in relation to the importance of the professors’ ability to explore the law. Reputation among academics certainly provides some accountability for professors. That is not, however, any sort of accountability of professors for their teaching. Yet again, the importance of doing what's best for professors supercedes that which might be best for students.

The blogosphere—with the notable exception (to some extent) of anonymous blogs (by which I mean the truly anonymous, not just the “my-name’s-not-on-here-but-you-all-can-figure-it-out,” blogs)—again does this better than the law schools. Accountability is instantaneous—if anything a bit too much so. A post goes up, and (a link or two later) all of a sudden Professor Leiter’s got the National Review up in arms about intelligent design. (See also about a million other examples of the “accountability en masse” of the blogosphere.)

I've been lucky, however, to have found several professors who have been willing to let me push those boundaries and ignore those hierarchies (for the most part). And because of that, I have been challenged more. And thus, I have learned more.

* * *

What’s all this mean? I don’t really know. All I know is the lessons I’m taking with me. And, with one year and six weeks of law school remaining, the best test I can come up with is: Has it been worth it?

For me, the answer is simple: Without a doubt.

March 17, 2004 12:00 AM | TrackBack
Comments

I've nothing substantive to add, but I do think Chris has hit on a fantastic addition to legal citation norms. Rather than citing to multiple examples of the obvious or even laboring through a string cite in an article, we could simply use "See also about a million other examples...." Brilliant!

Posted by: Greg at March 17, 2004 09:29 AM

I used that citation form three times in my Note. Is that a problem? ;-)

Posted by: Chris Geidner at March 17, 2004 09:49 AM

Well, I prefer the slightly more professional "See supra why I already tole you so, fool."

Posted by: Nick Morgan at March 17, 2004 10:40 AM

Chris,

This was really interesting but I've yet to make the connections between your not-obviously inter-related point in my mind yet. I'm sure I'll get what the CLS has to do with Professional tenure and anonymous blogging around 2 pm tomorrow.

Posted by: Steve at March 17, 2004 01:28 PM

First and foremost, congrats on the new group blog!

If I may: Having now been out of law school long enough to have garnered a true flavor for the actual practice of law (I have worked as an independent contractor, a law firm attorney and in-house counsel), but not so long that I have forgotten my law school experience, I take the liberty of offering some thoughts on what law school does well, not so well and the differences between law school and the practice of law.

With regard to law school, I believe that it provides an excellent historical perspective of the law. However, that historical perspective is not particularly helpful in the “real” world. While interesting (if you will not be tested on it), it contributes little to one’s abilities and effectiveness as a practicing attorney. I assure you that the matters you will handle you will likely never have to cite Pierson v. Post. International Shoe is another story – especially with the proliferation of the Internet and online business!

While I certainly am not advocating the wholesale striking of history from law school classes, I believe that much more practical “real” world courses would prove infinitely more useful to those who will ultimately practice law. I believe it would make for more competent and effective attorneys. I compare it to medical school whereby every student must satisfactorily complete a qualified residency program before becoming a licensed physician.

Even if not in the form of a residency, in my opinion, the legal profession would benefit immensely from such practical, “hands on” type of classes. Thus, moot court-style classes should be required, contract negotiation classes should be required, etc. A moot court exercise for each required course would give students a flavor for how torts/contracts/trusts & estates, intellectual property law plays out in actual practice. Moreover, it would expose all students to this type of experience, not just those fortunate enough to make the moot court team.

This learning format also ties into Chris’s comments about objectivity. It would force students to take one side of the dispute. And, by doing so, you are forced to consider your opponent’s position and likely arguments. That being said, a certain effort at objectivity remains vital in the practice of law. When clients seek your advice, you cannot simply give them the “best case” scenario (like summary judgment, reviewing all facts in the light most favorable to your client). You must make every effort at analyzing the facts objectively in order to properly advise your clients. This is frequently done in associate-to-partner style academic writing assignments. This remains important for a couple reasons. As indicated above, you must be able to give your client appropriate advice taking into account all of the weakness of his position. This helps you devise an appropriate and effective subjective strategy on your client’s behalf. Also, as a practicing lawyer, you will find yourself in the position of representing a client with whose case (or position) you may not personally agree. In order to represent that client appropriately, you must put aside subjective judgments [about the client] to analyze the matter for your client – for whose benefit you are working. Again, thereafter, you argue subjectively, putting forward your best case, distinguishing weaknesses in your case, and discounting your opponent’s stronger points. In short, a valiant attempt at objectivity is required to make subjective, winning arguments.

Objectivity, in some ways, is an illusion; however, it is a necessary illusion. If the law were cut-and-dry objective, our court rooms would not currently be jam-packed with litigants and cases – each party believing she is subjectively (or objectively) right. Thus, in the practice of law, both objectivity and subjectivity remain vitally important to being a good attorney. Objectively cannot be discarded.

Briefly, I agree with Chris that the more you put into law school, the more you will get from it. This point need not be belabored.

And, finally, on a more practical level, the thing that can be most disappointing practicing law is being constrained by clients’ and employers’ budgets. Often clients and companies are not willing to spend the money pursuing the “interesting” cases. The practice of law is governed by money – whether it is your billable hours, your corporate productivity, or the client’s purse strings. Thus, if there is one naďve expectation that I carried with me through and beyond law school, it was that the “close call” interesting cases and fact patterns encountered in law school would forever continue in the “real” world. Oftentimes, they do not. They exist, but you are not always able to pursue them for a number of valid reasons. However, when you do get to pursue such a case, it is rewarding.

Thus, one of the things I enjoy about the blogosphere is the ability to read about, think about and comment on many of the cases and national and global events with which I am not directly involved. It affords me – and, I think, other practitioners – the ability to exercise those theoretical, academic mental muscles.

Having read this, I am not sure it is on point. However, I hope someone finds it interesting.

Posted by: Fool at March 17, 2004 02:20 PM

I'll shed some perspective by discussing the English legal education system.

For those who want to litigate, you will follow the path of a barrister. There are no "litigation sections," rather you become a member of a chambers.

1) Get your undergrad degree, and seek week long mini-pupilages at chambers of interest (shadowing) during your undergrad. The degree need not be an LL.B.

2) If you didn't get a law degree, you must take a year long program to get you legally up to speed. This is a year long.

3) Enroll in a practical course (the first time most students learn about anything regarding writing, litigation, practice skills, etc.). This is 1 year, and is graded with lots of written and oral testing.

4) Get a pupilage with a Chambers (good luck). You will be working full time, making little, and don't know if you will join the chambers until a year is over. If they like you, you are invited to be a tenant and a full member of an Inns of Court and are a barrister. I won't even begin to discuss all of the dinners at the Inns you must attend in full wig and gear which test your ability to mingle and pass plates and drinks in the correct directions.

5) Many people to boost their chances of pupilages get LL.Ms or D.Phils. These pupilages are very competitive, and the litigation monopoly barristers have is slowly crumbling.

Don't want to litigate, well, steps 1 and 2 are the same but instead of mimi-pupilages, you get summer or vacation placements at a firm. These range from 1 to 4 weeks.

3) Enroll in a year long skills course (its called the LPC or Law School).

4) You get a 2-year training contract based on the placement if you performed well. Large firms will pay for your year long law school course.

5) Once the training contract ends, you are a fully licensed solicitor, and can work at any firm.

Things can be different, for example some contracts are signed before the Law School course, and many students get LL.Ms before starting their contracts. I have a friend who signed his contract two years ago as a second-year LL.B student (it is three years), is in an LL.M now, then the year long course, then will start.

Its different, but remember university-bound students enter university approximately 1-2 years ahead of American students.

Anyone interested in practicing in the UK or getting British LL.Ms, please email me. I am a US lawyer working an my LL.M at the London School of Economics.

P.S. Is it just me, or do you guys and gals think that Mr. Geidner is gunning to be the third Ohio State law student to clerk for the Supremes?

Posted by: Jared S. Gross at March 17, 2004 03:13 PM

Well, if Jeff Sutton is the current watermark, he's got some big shoes to fill. ;)

Posted by: Brian at March 17, 2004 08:45 PM
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