January 27, 2006

Leaving the Politics Out of Law

by PG

Considering how many policy-oriented classes (economics of welfare, gender, antitrust, law, regulation...) I took in desperate avoidance of having to deal with regression analysis, my undergraduate economics education paradoxically didn't strike me as very politicized. This may be partly because I attended a politically moderate university and even compared to most of my other professors, the econ faculty was relatively conservative. So this article's description of the undergraduate economic education as more political than that of the graduate students made me wonder just how completely politics must be erased from the latter's education. It also started me thinking about whether law can or should be taught the way graduate-level economics reportedly is.

The younger generation has tried to shun prescriptions that seek to cure the economy's ills. Instead, they cast economics as a scientific inquiry, using mathematical models, for example, to explore the economy without becoming advocates for one solution or another.
Certainly there is a fair amount of empirical work to do in law; my Federal Courts professor complained this week that he didn't know of any research on a particular question he wanted answered. But I don't know whether we really have much room for a non-advocate take on the law. I'm writing my Note (well, theoretically I'm writing my Note) about how to delineate markets in the entertainment industry, for the purpose of deciding when a firm -- Ticketmaster, for example -- can be deemed market dominant. From what I understand, I'm supposed to take a position and argue for a specific resolution to the problem, but I don't know that I yet have a decided opinion on how such a determination should be made for the issue that interests me. Perhaps it's just hardwired into legal education that we must be taught advocacy above exploration.

January 27, 2006 06:40 PM | TrackBack
Comments

" we must be taught advocacy above exploration."

A thorough lawyer in preparing his case should explore in order to anticipate and prepare for arguments of her advocate on the other side. What if that exploration identifies a serious weakness in the position our thorough lawyer advocates but which may not as yet have been raised by her opponent? This may raise ethical issues. But our thorough lawyer advocate may not be obliged to disclose this serious weakness and may, because of the advocacy role, keep her fingers crossed that her opponent will miss it. Or should we expect our thorough lawyer to tell her client that his case is very weak and to consider dropping it?

I remember back in the late 1970s I appealed a zoning decision in my neighborhood. My case was very strong under the caselaw and statutes in Massachusetts. On the other side was the number one or two (in size) law firm in Boston representing a major educational institution. The lawyer assigned to the case found it difficult to deny the validity of my appeal. Despite this he said, in substance: "You never know what can happen at a trial." That is the advocacy system, especially when deep pockets may be involved.

Postscript: Just before the trial, the zoning decision was withdrawn.

Posted by: Shag from Brookline at January 28, 2006 06:45 AM
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