Thursday, August 23, 2012
What's on our minds
Law-review editors' return to student status, with the beginning of the 3L year, means a period of refreshed appreciation. We appreciate the time and space to think over ideas, both as they are expressed in the classroom and as they appear in our inboxes, in batches of articles. We appreciate the concerns of corporations, who were for many of us on a few occasions over the summer simply called "the client." And we appreciate the frameworks of legal thinking, which we understand anew can matter a good deal in the conduct of actual work with actual people and money involved.
Most of all, however, we are appreciating freshly the fact that all our conceptual learning in school is one side of a very large coin. (I choose the metaphor purposely, because money is very much on our minds too -- especially since so many of our classmates, and many of us, do not know what the market for entry-level legal jobs will offer us.)
The other side of the coin of law? FACTS. And all around us this election season matters of fact are predominating. From Niall Ferguson's flailing self-destruction and well-deserved humiliation, to the remarkable scientific ignorance of Todd Akin, to the many slippery campaign assertions about the future of Medicare, we are being reminded that integrity and commitment to facts are by no means universally shared values.
Our summers were often spent double-checking things, being scrupulous with facts, and perhaps even reviewing boxes of documents to identify the facts that would faithfully tell just the right story. We know how much work is involved in getting things exactly right.
At the start of this school year, my heightened attention to FACT as the medium of legal work heightens two appreciations in particular.
The first, again, is appreciation for the jury. We are inclined, in textbook mode, to forget that the jury is there ready to weigh and decide among competing factual concerns. But as 3L year begins, I find myself often again reminded that there is a finder of fact, and that the casebook only records determinations made without the benefit of that entity's efforts. For example, in my exciting White Collar Crime class just underway, we began with the Hilton Hotels case, in which an employee violated explicit instructions and got his hotel involved in an antitrust violation. Should the hotel be criminally liable? For me, after my summer, the answer is clearly It Depends. The jury should decide whether those instructions were given with a wink and a nudge, or whether he was truly going rogue despite the hotel's good-faith effort to follow the law. But that's not how the law in this area works, as a matter of doctrine: the jury instruction seemed to create strict liability, and in the federal courts that seems to be where the matter stands. I reassure myself (if that's the right word) with the fact that if the company had done all it could, surely the jury would nullify the instruction.
The second thing we appreciate freshly, as we read article submissions, is hard empirical work. Careful methods of handling fact, guided by legal judgment, impress us more than anything else. I wonder if professors are aware that we admire this as much as we do. I am noticing that many of the articles with good factual stories to tell bury them in Sections IV and V, and fail to emphasize them in the cover letters.
So here is the advice of the moment: if you have done fresh empirical research, we are your prime audience. Law-review editors are strongly appreciating, at this time of year, how hard it is to marshal and master raw facts into a coherent story. We believe in the persuasiveness of organized and methodologically sound approaches to such data. Tell us, up front, when you have done something arduous like this: we know how important it is.
Of course, it doesn't hurt if you are breaking radically new conceptual ground and shifting the paradigm of all legal thinking in a certain area. But come on: EVERYONE is doing that these days. That's easy.
Give us the good stuff: clear mastery of a data set, lucid storytelling, and clean, suggestive facts from the outer world. We know it's out there. And we are eager for the fruits of your hard work harvesting it, empirically.
I am enjoying the start of twenty-seventh grade (my last one!) this week; I hope the beginning of classes is treating all of you well also.
Posted by Jim von der Heydt on August 23, 2012 at 07:46 AM | Permalink
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