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Monday, May 28, 2012

Law as Plinko

My last moments in the classroom this past semester were spent engaging in what is likely a familiar exercise for most law professors -- trying to inspire students and leave them with some parting words of wisdom, encouragement, and motivation.  I look forward to these moments, and hope that my last-minute ramblings help bring together the general themes of the course and, more broadly, replenish their passion for the law to the extent that specific and more immediate parts of their experience -- such as Socratic conversations, lengthy readings, and concerns about the final examination -- have them questioning why they are in law school and are incurring debt in the process.  To quote Michael Scott, I might as well tell my students on the last day of classes to "get as much done as you can... because, afterward, I'm going to have you all in tears."

This semester, I discussed what I attempted to accomplish in the course and apologized to the extent that I fell short of their expectations.  I revealed to them what led me to study the law, and why I am continually fulfilled and humbled by my pursuit to understand the law and the law's role in society.  In my constitutional law course, I read to my students Neal Katyal's comments after Hamdan, celebrating the rule of law and how it distinguishes us from other political communities.  I also asked my students whether anyone has seen The Godfather.  Predictably, all hands were raised. When I asked what the first line of the movie is, no hands went up.  The first line is, "I believe in America."  I explained candidly why I believe in America, and it is specifically because of the structure of the Constitution that they just (hopefully) learned about and also because they will be active participants in that structure, seeking to improve the law and society.

I also, in a rather light portion of my semester-ending remarks, share my fun theory of the law -- that the law is like Plinko.  Yes, Plinko. An explanation follows:

Plinko, as shown here, is a game on the long-running CBS game show, "The Price is Right," in which contestants place chips flat at the top of a large vertical board -- once the contestant lets go of the chip, it moves down through a series of pegs and ultimately lands at the bottom, in one of several spaces labeled with different dollar amounts.  The contestant wins the amount of money assigned to the space where the chip lands.  Part of the fun is seeing how the chip winds its way through the pegs and, of course, where the chip's journey comes to an end -- the winnings range from $0 to hundreds and even thousands of dollars. 

It seems to me that the law is similar -- the facts of a case are like the chips, and the pegs are established cases that the facts must work through, and the space is the result that the court eventually hands down (e.g., granting or denying a motion, reversing or affirming a decision).  What, I believe, we do in law school is also related -- we attempt to ensure that students understand the pegs (the applicable precedents), how they have evolved or shifted over time, and the critical facts and context that help explain where the pegs are.  In general, in a Socratic exercise and on the final examination, students entertain a modified or new fact pattern, and analyze how those facts may "fit" in the existing framework.  We give students random fact patterns because it is unlikely that, in practice, they will receive a factual problem that is identical in all respects to an established case.  They must have a substantive foundation -- an understanding of the precedents -- and the skills -- how to research, write, and argue -- in order to properly assess how the new facts may work their way through the relevant cases and to then be able to advocate, on behalf of their client, for how those facts should work their way through the prior cases.  This is why I refer to cases as guideposts -- they literally are the pegs that set the general bounds within which certain issues will be examined and resolved. 

Further, students, equipped with an understanding of the law and the tools to analyze and advocate, can argue for why the guideposts should and must change.  Here is where they can become agents for broad social change -- by removing and reconstructing the guideposts that previously constrained and dictated how certain issues would be reviewed.  Again, in order to do this, students need the substantive foundation in the law and the skills with which to dissect cases and propose new legal principles.  The study of legal doctrine and professional skills may seem tedious, slow, and boring at times, but is critically necessary if students are to one day be effective representatives of their clients' interests and/or instruments of robust changes in the law and society.

This rather informal way of looking at the law as Plinko seems consistent with Holmes's theory of law as prediction.  When a contestant puts that chip down on the board, one does not know where it will land; at best, one can develop some sense as to where it may land given certain data points.  Similarly, armed with a set of facts, an attorney can offer only his or her prediction as to how a certain judge will apply certain guideposts, and what the outcome will be. 

Law as Plinko also may help one appreciate the different aspects of the legal process.  Whereas the top pegs may be akin to standards for the sufficiency of a complaint and jurisdictional issues, later pegs may be akin to guideposts governing whether the facts should survive a motion for summary judgment, and the final pegs akin to the standards on the merits of a legal issue.  This theory also emphasizes framework and process, where students focus on result (e.g., who "won" and who "lost").

It doesn't leave them in tears, but students seem nonetheless to enjoy this admittedly nutty way of viewing the law. 

Posted by Dawinder "Dave" S. Sidhu on May 28, 2012 at 11:57 AM in Games, Legal Theory, Teaching Law, Television | Permalink

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