Is Law School Non Partisan?

Law students are often inherently interested in controversial political issues, upcoming legislation, and elections. So how do those interests manifest themselves in a school setting? Well, the presidential election of 2008 is considered by many to be one of the most exciting and inspiring elections in our nation’s history, and I agree that it was. However, the most enlightening part for me was watching the swarms of Obama posters, buttons, cookies, and t-shirts floating around Penn Law school without a McCain supporter in sight. Did we really not have any, or were they just hiding out of fear? I sadly think it may be the latter.

Is President Obama Aborting his Campaign Promises?

The new hot topic surrounding the President's healthcare plan is a ban on federal insurance subsidies that will assist women in obtaining abortions. The New York Times reports that the ban has support from both Republicans and a large number of moderate Democrats, and both the House and Senate are waiting to hear the position of the Obama administration.

Obama has encouraged a fresh conversation on the abortion issue, and he has clearly established his support of reproductive rights. In the short time since becoming president, Obama has already struck down the Mexico City policy prohibiting U.S. money from funding international family-planning clinics promoting abortion. Also, he has nominated several pro-abortion advocates for high positions, including David Ogden as Deputy Attorney General and Elena Kagan as Solicitor General. However, the president has firmly promised to reach a middle ground with pro-life supporters, and he may just have to compromise on his healthcare plan to do it.

The Merits of Student Scholarship

Having just finished writing my student comment, I have had a lot of free time to ponder what’s next for my article—the product of five months of sustained effort. If it’s selected for publication, great…but it might not be, and I realize (and accept) that.

I ran a Google search on what students who have their work turned away do, and came across this link. The blog discussion is nearly three years old, but the points made are increasingly relevant and—surprisingly—not as frequently discussed as one would expect.

The question, as Professor Desai puts it, is whether student-written scholarship should “R.I.P. or Survive on SSRN.” Noting that rejected student pieces are rarely accepted for publication in other journals, Professor Desai explains that students can nevertheless post their rejected articles on SSRN—a scholarly research network which allows authors to upload their work for the public’s unfettered access. Of course, as he sees it, the arguments on whether students should (be able to?) do so cut both ways:

On one hand, the amount of information (some good and some perhaps not so good) would increase but I could see arguments about too much noise or information overload being raised. Then again, one already has to wade through volumes of information using search strings and the like so perhaps adding more narrow but hopefully well done pieces to that pool will allow scholars to focus on large implications of their research and use the increased access to notes as a way to more efficiently see what work has been done on a particular topic that is a footnote or small part of the scholar's work

I think Professor Desai makes some good points, and I can appreciate that there are information overload concerns associated with opening the "floodgates" to student comments on scholarly databases such as SSRN. On the other hand, such arguments seem to presuppose that student work—at least that of the “not so good” variety—contributes nothing to the discourse. I have several reactions to this.

First, I think even bad scholarship (whatever that means) could contribute something to legal academia. Even if it is only the research put forth by the authors that could be expanded upon, and improved.

Second, it seems that the same argument could also be made with respect to published pieces written by students and academics alike. Students, after all, are the ones who choose legal academia’s direction by determining what to publish as Journal editors, and there are 918 journals to publish in along with a corresponding pressure to publish…surely not every published work is a masterpiece. I’ve heard rumblings of a push for peer review, but any such movement is—for now, anyway—an unrealized ideal.

Finally, in light of my second point, I have to wonder why professors would not want to see what the next generation of lawyers is writing about. Given that we make the publication decisions on their work, shouldn’t they want to see what we care about? What inspires us? Moreover, couldn’t reading our scholarship forge a better classroom environment since professors would be attuned to our interests?

I hate to generalize, but far more of my professors than I would like have seemed very detached from their pupils, and utterly opposed to learning from us; this is unfortunate. Academic discourse, like the Socratic method, works best when there’s a two-way dialogue—that is, when the “floodgates” are open. Why is there such resistance?

A Gap to Be Bridged? You tell me...

I have this crazy theory that one key difference between the way doctors and lawyers think involves the way each assesses status conditions. I don't want to fully expound my idea at this time, because I think it will be more valuable to first test it by asking the following question:

If a condition is defined as "X," and an individual or entity would (seemingly) satisfy this condition without taking affirmative steps to avoid being classified as such, can they appropriately be defined as "X?"

I know this is kind of abstract, so I'll break it down into two more practical (medical) examples:

1. Assume arguendo the status of hypertension (i.e. continual high blood pressure) is defined by having a blood pressure in excess of 160/100 on four occasions during the course of a year. A patient so qualifies, and is put on an exercise/medical regime to lower said blood pressure. Subsequently, in the following year, there are no blood pressure readings in excess of the qualifying minimum for the status classification. Can this patient be said to be suffering from hypertension?

2. Assume, similarly, the status of Diabetes is defined by having a single blood glucose level in excess of 250 mg/dL within the past year. After being diagnosed as such, said patient takes insulin shots and controls his or her glucose level for several years, during which the patient's blood glucose level does not exceed the qualifying minimum for the status classification. Can this patient be said to be suffering from Diabetes?

To an extent, my question is (and my examples are) philosophical; more importantly, however, I think the answers obtained here will highlight an interesting disparity between the way the legal mind operates vis-a-vis the doctor's mind. Maybe there's a gap to be bridged that extends beyond adopting a "Medical Based Approach" to legal education?

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UPDATE (6:35 PM): Responding to my initial post, a commenter asked for more information:

The real question is this. Who is paying me? Viable arguments can be made on both sides. It would really benefit this conversation to know where you are going with this. Better yet, a more detailed abstract explanation will not be as distracting.

I wanted to see some more responses before fully articulating my hunch, but now's as good a time as any--particularly since many commenters have highlighted the very point I was trying to drive at. Let me work through the two practical examples I use (to expand on the more general proposition).

Although the definitions for "diabetes" and "hypertension" differ from the descriptions I provided, I believe that almost every physician would describe the patient in example #1 to be suffering from "hypertension" and the patient in example #2 to be a diabetic if these were the correct clinical definitions. Lawyers, on the other hand, would (I think) use the approach Nima and our commenter employed--namely that the "real question is . . . [w]ho is paying me . . . ." because "[v]iable arguments can be made on both sides."

It's an interesting divergence in views, and I think it's fair to (as a commenter did) characterize this latter type of analysis as "rote application of rule to fact." That's really kind of the point--the mechanical way in which we are trained to apply law to fact, and argue both sides affects the way we analyze a problem as compared to physicians.

More succinctly, I would posit that doctors make determinations as to status based on the totality of the circumstances and background, while attorneys are often blinded away from doing so in pursuit of a (perhaps erroneous) perception of an even-handed argument. So, whether an individual does not--strictly speaking--meet the criterion for a particular ailment would not prevent physicians from characterizing the individual as such where they would meet the definition if not for their actions. But it may well prevent attorneys from reaching the same conclusion.

Op-Ed: What are We Studying?

At the start of law school, my criminal law professor challenged the class to not only learn the law, but to question the law. We were to embrace this opportunity to ponder what the law should be; not merely accept what the law is. This, he explained, was an essential component of our legal education.

I was reluctant at first to accept this challenge. Who was I to question legal precedent? I wanted to learn the law, apply the law, and, ultimately, secure a job. To hell with this intellectual component of legal education!

I somewhat digress from this article’s main point, but I believe the digression is necessary to frame my argument. I am a young white male. I grew up in a small, relatively affluent, Connecticut suburb. This undoubtedly caused much of my initial indifference, as I was largely shielded from many of this nation’s unfortunate realities. But, living in a diverse city, working at the United States Attorney’s Office, and, of course, studying the law has offered me a new and welcome perspective. The indifference which once figured so prominently in my legal education has become a lost remnant of a different life.

And it's a good thing that it did, because studying criminal procedure inevitably leads one to question whether the laws are “fair.” Are they merely a means of maintaining the status quo and protecting the politically/economically elite? I don’t consider myself a conspiracy theorist. I surely don’t believe that any explicit agenda exists within the criminal justice system to apply disproportionately burdensome laws on the lower class and minority population. However, implicit within this system is a policy that disproportionately incarcerates these individuals.

The more I study criminal procedure, the louder I want to yell at our Supreme Court Justices. I don’t know if I’m angry, I suppose I am. But, more than anything, I’m confused. Throughout my (albeit limited) legal education, I’ve had enormous respect and admiration for the Court. No matter whether I agreed or disagreed with the holding, I remained envious of the Justice’s ability to interpret the law. And now, I just want to know what happened. Why is it that I suddenly wish to correct the Court on its application of criminal procedure?

What is it I disagree with, you ask? No, I won’t bore you with the overly analyzed crack/powder cocaine disparity. But what about “reasonable suspicion?” Such a vague concept may, at least implicitly, encourage profiling and ultimately perpetuate this system that incarcerates lower class and minority individuals at a truly startling, if not sickening, rate. Specifically, I’d like to discuss Illinois v. Wardlow, 528 U.S. 119 (2000). The Court held, per Justice Rehnquist, that unprovoked fleeing from police presence in “high-crime” areas was sufficient to establish reasonable suspicion (for a Terry stop).

What is a “high-crime” area? The first image for most would be the classic low-income, “ghetto” neighborhoods in major cities. But would Wall Street classify as a “high-crime” area? For some odd reason, I don’t believe Bernie Madoff would have been stopped a year ago if he fled from the presence of police. What about Yale’s campus? I’m sure the percentage of student’s engaged in criminal conduct would compare to that of South East, D.C. or Harlem, New York. Granted, Yale students (likely) wouldn’t be committing violent crimes, but the type of crime has no bearing on whether “reasonable suspicion” exists.

It is cases like Wardlow that force me to throw up my hands and wonder what exactly it is that we're studying.