by Professor Corinne Cooper
What I know is what it is like to be a first-year law professor. After watching the process for many years, in many different places, I’ve observed that law school involves three circles: the education that takes place within you, the education you share with your peers, and the education you experience with the faculty. I present them here in reverse order of importance.
I. The Faculty
You will come to law school expecting the faculty to be the most important part of the education experience. We are not. At most, the law faculty will help you to create a useful structure within which self-teaching takes place. At worst, the faculty will get in the way of your learning. Your job is to keep your eye on the ball: you are in law school to learn to teach yourself the skills that you will need for the rest of your professional career. Do not assume that the faculty will teach you how to practice law. It is not our job, and we could not possibly anticipate the substantive knowledge or skills you will need during the next forty years (much of that law doesn’t even exist yet). What the faculty will do is teach you a language and a structure for your thinking, and some skills that you will apply, both in law school and after, largely on your own.
Given the intensity of the law school educational process, you may be tempted to spend inordinate energy focusing on your professors: what they wear, how they act, how much you hate them, whatever. But this is largely a waste of your time. Each of these people has something to offer you and you are there to figure out what that is.
I am not talking only about the obvious substantive subject matter that they convey; I am talking about their communication skills (or absence thereof), their logic (ditto), their linear or non-linear thinking. They are members of the tribe you seek to join, its High Priests in Charge of Initiation Rites. You are there to observe and absorb these rites. By definition, their quirks and rituals cannot be wholly irrelevant to your quest. But unless you become a professor, these relationships will not inform your future career. Observe them, learn from them, and do not let them get to you.
At most, one-third of what you learn in law school will be learned from your professors. (I go up and down on this number; it bottoms out at twenty percent). So don’t spend a lot of time getting into the cult of personality. You are there to learn what these people have to offer. Some will pass along the secrets of the Temple, and you will not even know it until years later. The law professor who influenced me most [5]taught Securities Law, which I have never practiced. My least effective professor [6] taught Contracts (which I teach), yet he has had a profound impact on my teaching, as I learned a great deal about bad technique from him. Subject matter does not count for all that much in this part of the learning process. I am best known as a teacher and scholar of the Uniform Commercial Code; I took that class pass-fail. I learned an enormous amount from [7] a professor I fought with constantly. He is now a colleague and friend, and was instrumental in beginning my teaching career.
Although the introduction that you get to substantive law in your classes is essential in the short run, what is really important is the introduction and indoctrination that you get in legal thinking. This critical analysis process will remain with you long after your grasp of the Rule Against Perpetuities has faded. You are learning to be a legal thinker, one who, in the long span of a career, will be largely self-taught.
A. The Socratic Method
The rigor and aggressiveness of the pedagogy is intimidating to some. Many modern teachers have fallen away from the rigid, Kingsfieldian[8] approach to the Socratic method, on the grounds that learning cannot take place in an atmosphere of abject fear. I agree with this conclusion, but only to a degree. First, I expect a great deal of my students, and I want them to expect a great deal from themselves. If I set the bar too low, how will they learn the great accomplishments of which they are capable? Some, surely, will experience failure in this environment, but everyone will achieve more than if the bar is set too low. Anyway, failure is a necessary part of the learning process for lawyers; losing is a regular part of professional life.
Second, I remember the words of Philip Levine [9], a poet and teacher. He was asked once [10]why he had been described by a student as “the cruelest teacher ever.” He replied, “I am the only person in the room paid to tell the truth.” I feel that way too, and so I do not hold back criticism of thinking that is shallow or lazy. This is not only for the benefit of the student, but also on behalf of the profession, and the clients who will be served by that future lawyer.
This is different from disagreeing with opinions — beware of teachers who try to convince you of the correctness of their personal opinions. Respect a teacher who is willing to challenge you intellectually in order to assure that real learning takes place.[11]
B. The Ugly Little Secret
There is one other thing that I hesitate to mention, but it is a fact of law school life. Your professors are not trained to be educators. We got here mostly by being good law students, not because we have any background in higher education theory. This is true of most of graduate school, but it is even worse for law professors, because very few of us go through the traditional doctoral level educational system [12]where one apprentices under a professor who may actually know something about education.
As a result, most elementary school teachers have a stronger background in educational theory than do law professors. This means that our techniques may seem counterproductive, awkward, or ineffective at times [13]. Nevertheless, this system is oddly effective at producing the product that the legal profession demands. If you will, this initiation process is quite effective at delivering appropriate members into the tribe. It rewards people who are good at teaching themselves, since that is what most lawyers spend their careers doing. It develops a thick-skinned debating style, which makes lawyers both successful and disparaged in their professional lives. It makes being a lawyer seem hard and magical, and this helps to inflate the value of the professional knowledge, both inside and outside the system.
II. The Students
Your most important educational experience in law school will be with other students. You will learn more from them than from your teachers. Relationships forged in law school are like those forged in war: what you share with these people is unlike any experience any of you have had before.
Members of your profession?your professors, but, more importantly, your classmates?are your colleagues, and will be with you for the rest of your career. This is the beginning of your entire professional life, and it will not end until the day that you retire. It is worth your while to spend some time thinking about your professional life and how you wish to be perceived.
This is the beginning of a life-long game, played throughout the profession, of “What Goes Around, Comes Around.” If you dislike or distrust someone in law school, it will be hard to forget that impression in later years. I do not think that students fully understand this. [14] Start off behaving in a manner that is consistent with the kind of lawyer you hope to be.
A. Learning
It is important to respect your colleagues for another reason: you will learn an enormous amount from them. I learned more from my peers in law school than I did from my professors, and that is not unusual.[15]
You learn from your classmates by listening to them in class, by observing their mistakes, by arguing points with them. This is not just in law school. The practice of law involves an enormous amount of this kind of give and take among lawyers, those on the same team and those across the table.
Students come to law school from different backgrounds and experiences and some have a better intuitive understanding of legal education. These different perspectives will help to broaden yours, and to sharpen your understanding of the analytic process that is taking place not only in your mind, but in the minds of your colleagues and professors. Eventually, this will give you insight into the thinking of your clients, your adversaries, the judge and jury. Effective persuasion requires that you have insight into and respect for other opinions and perspectives.[16]
In addition to providing insight, your classmates are a ready-made educational think tank. Gather people with whom you feel comfortable and begin to study and review your classes together. How much of this you can tolerate is a function of your stress level and your learning style, but I always encourage my students to spend some time working in groups.[17] Someone should be challenging your thinking besides your professors.
B. Competition
One of the hardest things to accept about law school is that everyone has been a good student, or a success of some kind, before arriving. If law school were pass-fail, or if there were no exams at all,[18] then a new ranking of those students would not have to take place, and everyone could leave law school with the same sense of accomplishment that they have when they get the acceptance letter.
The job market will not allow this, and so a hierarchy is created in law school. People who graduated near the top of their undergraduate classes may find themselves planted firmly in the middle, and that can be a painful experience. Everyone cannot be at the top of the class, but you can take advantage of the opportunities available to improve your chances in the job market.[19]
How you react to this competition is an important factor in how you will behave as a lawyer. Let it motivate you, and spur you on, as good athletic competition can. Do not let it scare or anger you. Each class develops its own sense of competition; some become very supportive communities and others are schools of sharks. It only takes one or two people to set the tone for the entire group.[20]
Cutthroat competition is not good for anyone, and it leads to behavior that degrades the profession and makes practice a nightmare. A cooperative attitude toward your peers can create a positive pattern for the future. It is easy to say, “I need this now, and later will be different.” But everything you are doing now is a part of your socialization process. Even if you don’t get caught up in the competition, you will need to address it when you observe it in others.
C. Cheating
In law school, there is a good deal of abstract talk about your professional responsibilities, but there are some real issues to be dealt with as well:
- Are you going to appear in court on time and well prepared? Certainly you will aspire to do so. Does this also apply to your classes now?
- You will never misrepresent facts before a judge. Should you fudge them with your professors now?
- You would never steal a client’s funds. Would you slip a book out of the library? Cheat on an exam?
These issues are the most painful ones that your professors confront. It is excruciatingly difficult to watch students grapple with the demands of a professional career, under great stress, and often at a young age. Sometimes students fail to grasp the importance of their actions. A career can be cut short because a student does not realize that law schools are serious about expectations of professional conduct. I am not speaking only about violations of the honor code that result in expulsion; I am also talking about the breach of trust that follows a student beyond the classroom, limiting later professional opportunities. Your teachers will sign off on your integrity as you go to take the bar; they will be asked by employers for recommendations. Your classmates will be watching you and evaluating not only your intelligence, but your honesty and professionalism. If they see you operating at lower standards, they are not likely to forget this about you when you are a practicing attorney. If you cannot live by the rules now, when you are being scrutinized at every turn, what will prevent similar conduct when no one is watching?
I am not just worried you will feel pressure to cheat. The more difficult issue will be if you observe others violating the rules. The peer pressure to ignore these problems is enormous. You may worry that by turning in a member of your class, you will separate yourself from the group, appear self-righteous, or even self-interested.
But law is a self-regulating profession: this means that lawyers regulate and govern their own conduct, largely free of the intervention of others. If this system is going to work, lawyers have to police the profession, beginning in law school. The Model Rules of Professional Conduct, which govern the practice of law in most states, require an attorney to report the misconduct of others.[21] Failure to do so is a violation of the rules.[22]
Your law school has an honor code.[23] You need to read it and understand exactly what it requires of you, both in terms of your own conduct and you obligation to report conduct of others. If you violate this code, you may be dismissed from school, given a failing grade, or placed on probation. This will be a part of your permanent record, and may follow you into practice.
One issue that is becoming more problematic in law school is plagiarism.[24] Because fewer students are writing significant research papers in undergraduate school, you may have missed the opportunity to learn the correct rules for citation and use of other works. If so, you have missed a chance to make a mistake about this when it will have no repercussions. In law school, if you are caught by a professor plagiarizing the work of another, you certainly will be disciplined in some way and you may be dismissed from school.
Computers have made plagiarism easier, since you can now cut and paste at the click of a mouse button. But computers have also made plagiarism easier to catch, since almost any string of words can be searched in enormous databases. Most plagiarism, however, is caught by experienced teachers who know the body of work their students are citing so well that they easily recognize it when passed off by dishonest students. I’m amazed at how foolish and naive students can be about this.
Learn the appropriate rules of citation. Familiarize yourself with the rules for using quotations, but also the limits on using another person’s ideas and structure.[25]
III. Teaching Yourself Law
You may have spent most of your undergraduate career listening to lectures, taking notes, and reading assignments. Your job was to absorb the material and pass it back to the teacher in a recognizable form. Although you were probably required to write papers that involved your own creative thinking, I suspect that this was the exception and not the rule. If you participated in class discussions, it may have been by offering your opinion about a text or issue.
This is a passive form of learning. You take in the information, you memorize (or “learn”) it, and offer it back. This did not prepare you for law school.
In law school, we expect students to do active learning. You are required to read the text, attend the lecture, take notes, and reread them. But none of this passive activity prepares you for the examination, nor even for class.
More importantly, it will not prepare you for the practice of law. Ultimately, law is a self-teaching discipline. You are not primarily here to learn the substance of the law for future use; you are learning the skills of analysis and self-instruction for future use.[26] Someone will come to you with a question and you won’t know the answer. The law on this subject may not exist. So you learn in law school how to figure out the answers on your own (and with your colleagues) for the rest of your career.[27] It is an honorable and highly rewarding exercise; I can assure you that it is never fully mastered, and therefore, never boring. [28]
A. Active Learning
In law school, we expect you to teach yourself the meaning of information, and more importantly, its function, for use in situations you haven’t yet experienced. We will ask you questions that are not in the text, and questions that not answered there. We expect you to be able to discuss the case, or the statute, or the article, and extract its meaning for application in as-yet untested circumstances. We want you to distill the relevant legal rule from the reading and be prepared to apply it to new facts. We ask you to do this because this is exactly what you will do as a lawyer.
This requires a different kind of learning. Instead of just reading and memorizing, you need to start digging for these rules of law and extracting them from the text. But you can’t stop there: you need to take the next step of applying the rules to new circumstances. It’s one thing to figure out what the holding of the case is; it is quite another to apply that holding to a different set of facts, and to determine how the case might come out. This distillation/application process is a more vibrant form of learning that goes beyond reading and understanding what you have read and heard in class. Active learning takes considerably more effort than reading and reiteration. But since it is the act that will be expected of you?in class, on the exam, on the bar, and in practice?start now. You cannot read about this process and expect to learn it without practice, any more than you can read a book about marathon running and then go run one.[29]
The new kind of studying that you learn in law school is this active kind. This is why I encourage you to study with friends: in a group, a discussion of the applicable law and its impact on new situations is a more active (and interesting) learning experience. The people with whom you study will help you to come up with new fact situations, and to test the rules that you have learned against them. They will catch you when you skip a necessary step, or misinterpret the impact of a fact, and you will do the same for them.
This active application of the learned material is not unique to law; it appears in some form in all graduate education. But it has, regretfully, all but disappeared from undergraduate education, in part because it is so labor-intensive. It is expensive for colleges to teach like this, and so, over time, many of them have given it up in favor of large lectures and computer-graded examinations. If you were lucky enough to have a more classical undergraduate education, then the transition to law school may not be so hard for you.
B. What is Legal Thinking?
We do not do a very good job of explicitly teaching legal thinking. What we do is immerse students in an environment where the iconography, language, religion, history, and sociology are all “legal” and let them learn by exposure and correction. The smart students adapt to this culture in the way that a canny anthropologist can “become” Yucatecan or Balinese. In the beginning, you do not “learn” so much as you “absorb.” Some students will begin parroting the language quite early in the process, and that may intimidate you initially. Other students take longer to get these linguistic messages, and yet they too become fluent. Some people never do much more than an adequate job mouthing the words and imitating the rituals. They never truly internalize the thinking process.[30] They will be mediocre lawyers, but participants in the ritual nonetheless, because the system will attribute the appropriate meaning to their gesture even if they do not themselves comprehend its full import.
The linguistic issue is a significant one. You are entering a language immersion program. From the first day people will speak to you in words you thought you knew, but which in this context may have different meanings. Your teachers will constantly test your understanding of this new language.[31] That is one huge justification for class participation. Listen to the way your teachers speak, the way the cases “speak”, the way the statutes “speak.” Listen to your colleagues as they practice their new tongue and see if they are using the language precisely. This is critical. A true expert never uses a legal term of art casually, and that is one of her attributes. This distinguishes “expert” from “novice” in our tribe.[32]
This is not to suggest that the ritual of legal linguistics has left us with a perfect language. Quite the opposite is true. Like many languages, it has become weighted by a convention that admires mystery more than clarity.[33] I had a friend in my first-year class, an English major, who dropped out after a few weeks, declaring that his love of English would not permit him to stand by passively and observe the treatment it received in law school. We have specialized meanings that are an important part of the learning process. I hope that you can learn them without becoming mired in that ugly language, “legalese.” Some lawyers write and speak in meaningless platitudes, and endlessly disguise the true import of their speech. You can be both an expert legal speaker and a plain speaker. George Orwell described it this way:
Orthodoxy, of whatever color, seems to demand a lifeless, imitative style. . . . [O]ne often has the curious feeling that one is not watching a live human being but some kind of dummy: a feeling which suddenly becomes stronger at moments when the light catches the speaker’s spectacles and turns them into blank discs which seem to have no eyes behind them. And this is not altogether fanciful. A speaker who uses that kind of phraseology has gone some distance towards turning himself into a machine. The appropriate noises are coming out of his larynx, but his brain is not involved as it would be if he were choosing his words for himself.[34]
Your job is finding a balance: learn the meaning of each new word or term and use it with precision,[35] but do not memorize endless phrases and parrot them back.[36]
C. What is Legal Analysis?
Don’t be discouraged by the rote nature of the initial learning. What you are learning at first is more like mathematics than humanities. It is like the catechism. You have to get the basic framework correct before you can begin to understand nuance. You will spend most of the first semester, indeed the first year, learning the catechism.
What are we trying to accomplish? Like archeologists, we approach a case like a dig, looking for clues about what happened there. We expect to see certain things, and must see certain things in order to make assumptions about the meaning of the text, The theory is something like this:
Facts
We recover an undifferentiated pile of bones, tools, flora, and fauna. We do not know yet what will be important and what unimportant. So we start our detective work. At this point, nothing is irrelevant.
Rules
We have learned over time that certain artifacts or evidence lead to a specific conclusion: pottery means a certain level of cultural sophistication. Writing tells us something else.
Conclusion
Once we have the elements that we have come to associate with a particular level or type of cultural development, we search for those elements. When all are present we can reach a conclusion.
We recover an undifferentiated pile of bones, tools, flora, and fauna. We do not know yet what will be important and what unimportant. So we start our detective work. At this point, nothing is irrelevant. We have learned over time that certain artifacts or evidence lead to a specific conclusion: pottery means a certain level of cultural sophistication. Writing tells us something else.
Once we have the elements that we have come to associate with a particular level or type of cultural development, we search for those elements. When all are present we can reach a conclusion.
The same process applies in law. A client will come in and tell the attorney a story, with facts that are relevant to the attorney jumbled with those that are only relevant to the client, or relevant to a doctor or an accountant. The attorney will then plow through the facts to determine if they satisfy any of the applicable legal rules. If all the elements of the rule are satisfied, then the standard has been met, and the client is entitled to relief, or subject to action under that rule. If one of the elements is not met, then we cannot reach that conclusion. We may debate at length what the elements of the rule are, or whether the elements of the rule have been met. This is the process of legal analysis.
For example, suppose that the law provides that a person may file a bankruptcy only if his debts exceed the value of his assets.[37] Suppose further that your clients, the Stanleys, have assets that, at fair market value, exceed their debts. But if the assets are valued at liquidation prices, their debts exceed their assets. The issue is: Do the Stanleys qualify for bankruptcy?[38]
| Facts | Rules | Analysis | Conclusion |
| The Stanleys owe $70,000. They do not own much, but the appraised value of their property may be as much as $100,000. They do not have any income, and cannot pay their bills. They do not want to sell their assets. They’re upset. | A debtor may file for bankruptcy only if its debts exceed the value of its assets. | If a court finds that the “value” of the Stanleys’ assets exceeds their debts, the Stanleys can’t file bankruptcy. If a court defines “value” as liquidation value, rather than appraised value, they satisfy the rule. Most courts apply this meaning. | The facts of this case suggest that the Stanleys have satisfied the rule and are entitled to file bankruptcy. |
The Stanleys owe $70,000. They do not own much, but the appraised value of their property may be as much as $100,000. They do not have any income, and cannot pay their bills. They do not want to sell their assets. They’re upset. A debtor may file for bankruptcy only if its debts exceed the value of its assets. If a court finds that the “value” of the Stanleys’ assets exceeds their debts, the Stanleys can’t file bankruptcy. If a court defines “value” as liquidation value, rather than appraised value, they satisfy the rule. Most courts apply this meaning. The facts of this case suggest that the Stanleys have satisfied the rule and are entitled to file bankruptcy.
Note that many of the facts turned out to be irrelevant. In this hypothetical, the fact that the Stanleys have no income is not relevant, because this particular rule doesn’t require us to look at income. Similarly, the fact that they are upset does not affect the legal outcome, although it might help the lawyer decide which alternative to recommend. Finally, although the Stanleys’ reluctance to sell their assets might be relevant in determining whether bankruptcy is a good option for them, it is not relevant to the application of the rule. The rule has specific elements: if they are satisfied, it applies and the case is decided under it. If not, it doesn’t. This is the mathematics of legal reasoning.
I call it “mathematics” because, in its simplest form, legal reasoning is entirely formulaic and not particularly discretionary. If a statute requires four elements, you must convince the decision maker that all four elements are represented in the facts of this case to get relief under the rule. Three won’t do, two won’t do, one won’t do. Identifying the elements is the first job that you have as a law student. It’s not particularly easy, but you can figure it out by reading the statute or the case.
D. The IRAC Method
Everyone is going to talk to you about IRAC, and that is another way of describing the process we just went through:
Issue: Can the Stanleys file for bankruptcy under the law?
Rule: You can file bankruptcy if your debts exceed the value of your assets.
Analysis: Because of the facts of this case, the result depends upon the meaning that the court applies to value. Most courts will consider liquidation value in making this determination.
Conclusion: The court is likely to permit them to file bankruptcy.
Legal analysis is simply the application of this rule to these facts. This is most of what first-year law students do. Lawyers do this, but they also have another job, and that is convincing the decision maker that the facts of this case fit the rule.[39] That job is entirely fact-specific. In other words, the answer depends on what happened in this case.[40] This also frustrates first-year law students. If cases are completely fact-specific, why are your teachers expecting you to extract something fixed and knowable from reading them? Why don’t we all just roll the dice and go home?
E. Legal Analysis and Precedent
The difference between rolling the dice and legal analysis is the difference between prediction and detection, or the difference between what might happen in the future based upon things we cannot know, and what is likely to happen in the future based upon what we know about the past.
When you ask your teachers, “What would happen in this case if . . .” and change the facts in some way, you are asking the teacher to predict what a decision maker might think about these new facts. Teachers can’t guess that much better than you can, and so we may answer, “It depends!” and make you furious. You are asking the teacher to predict what an unidentified future decision maker, subject to influences and whims that we know nothing about, is going to decide based upon an imagined set of facts.[41] We may respond that your guess is as good as ours.
But if you ask the teacher, “Would these new facts also arguably meet the requirements of this statute?” then you are asking about the elements of the rule, and that is a question we are prepared to answer. We may walk you back through the relevant rule of law and ask you if each of its requirements, in turn, has been satisfied. At the end of this exercise, we will have illustrated again what the rule requires and the necessity of identifying facts to fulfill each requirement[42].
What we want you to understand is that you cannot win application of the rule if you do not identify facts that satisfy all its elements. But you may not win even if you do. Another way to say this is that you can easily make a bad argument (for example, when you make an incomplete one, or inaccurately identify the elements of the rule) but it’s not so easy to make a winning one. All we want you to do at this juncture is to identify clearly and accurately the elements of the rule, and go through the process of applying them to the facts. Until you get into practice, you won’t know whether your argument is a winning one. You will only learn in law school if it is a plausible one.
F. The Importance of the Rule of Law
Why do we care so much about the application of the rule to the facts? Because law is a relatively simplistic (and therefore relatively predictable) process. Identification of the rule isn’t often very difficult[43] or interesting.[44] There is nothing particularly compelling about this part of legal reasoning. What is interesting is the analysis, where you debate the applicability of the rule, and its meaning, in specific cases. If your facts meet the standards set forth in the rule, it applies. If they don’t, it doesn’t.
So, although you might by background or sympathy want to discuss why the Stanleys are upset, or how they got into this situation, or whether they are being reasonable under the circumstances when refusing to sell assets, your professors may discourage (and even disparage) this kind of discussion. None of this discussion is relevant to the issue at hand. The questions may have social, or even moral, importance. But the don’t help us to solve the problem at hand: Does the rule apply in this case?
Sometimes, we get into discussions about the applicability of the rule that squarely involve these kinds of social and moral issues. In contracts class, for example, we talk about the right of a woman to contract for the sale of her unborn child. The rule in that case is that the courts won’t enforce contracts that are antithetical to “public policy.” In analyzing what “public policy” means, many very personal, moral issues are relevant to the discussion. But often they are not. Why is this relentless cleaving to the rule so important? Because, as I mentioned, we want predictability in law. As a democratic society, we have come to believe that the rule of law must be applied in the same way for everyone, and rigid application of legal rules is one of the ways that we pretend that this occurs in the legal system. Of course, the rules are never applied “in the same way” for everyone; in particular, people with better lawyers tend to get better results.[45]
We also prize consistent application of the rules because it makes future results predictable. We can plan transactions and behavior because we know what the rules are. It is very disruptive and expensive to operate in a society where the rules are uncertain.[46] Think about the application of laws in some foreign countries that do not have the rule of law. In the United States legal system, we believe that if you are going the speed limit, you will not get a ticket, and if you exceed the speed limit, you will get a ticket. This helps us plan how to behave. (We won’t discuss yet the issue of enforcement and its effect on predictability!)
Because your professors are trying to hammer this process into your brain, and the importance of IRAC, and the concomitant value of predictability, it may seem that the first semester is painfully repetitive, even anti-intellectual. But you are learning lots of things at the same time: the language of law, the substantive law (legal rules) in many different areas, and how to be a good anthropologist and archaeologist. So I am sure that you will not be bored. You may sometimes get frustrated, however. Do not be afraid to pull back and ask yourself, “What am I supposed to learn here? Analytical skills? Substantive law? Vocabulary?” This may help you to diminish, to some degree, your frustration. If you’ve lost sight of the purpose, go see your professor and talk about it.
IV. The Nature of Law as a Profession
It seems appropriate to point out now something about law that you may not have noticed before. Although there is something forward-looking about trying to ascertain how a matter will be decided in the future, law is essentially the study of history. Even when you are arguing a precedent-setting case, you will largely bolster your position by looking to the past. In every legal question, we are asking essentially the same question: “How do we get to this point from where we were previously?”
You may be tempted to argue for bold changes in the way that decisions are made. I encourage you to do so. But you must couch your arguments, even the most precedent-shattering, in the least revolutionary way. Your professors, and ultimately, the judges before whom you argue, will be most inclined to make the necessary leaps of faith if they see an argument that leads, like stepping stones, through the historical precedents to the next logical step. Even dramatic shifts in legal thinking? Brown v. Board of Education, the Brandeis brief, the doctrine of unconscionability ? were clothed in the language and the argumentation of history.
Sometimes this historical perspective is frustrating. You may argue to your professors, “That is not fair!” in response to some perceived injustice. The legal argument with which to object to an arguably wrong result is not that it was not fair, but that it did not follow the applicable rules correctly. Only rarely will the court be persuaded by specific facts that the applicable rule is leading to an inappropriate result, and as lawyers we tend to disparage these moments. In response, lawyers say, “Hard cases make bad law,” meaning that cases decided on the basis of emotion are not reliable as sources of future results. Why don’t we want judges deciding on their own what’s “fair”? Because it leads to a very personal, and unpredictable kind of law, and one that is more subject to whim.[47] That is why justice is portrayed as blind, and thus indifferent to the personal biases that might otherwise sway her.
V. Your Professional Life Begins Now
I usually wait until Thanksgiving to give this speech to my first-year students. But it will serve you well now. Although we, your teachers, will be pressing you to your limit, we also hope that you become healthy, well-rounded, fully functioning professionals. Part of that training is learning early on to keep a balance between your work and your life. I do not like to mention this too early in the semester, because student attention spans have only just begun to expand, and you will be amazed by the end of the first semester how much work you can do and how long a seemingly dusty inquiry can hold your attention.[48]
So even as I will exhort my students to “Work! Work!” more than they ever have before, I also remind them that this is the beginning of the delicate balancing act they will perform for the rest of their professional lives. Developing good habits is a part of your professional training. So, in no particular order, please try to organize your life so that:
- You eat regularly and healthily.
- You sleep regular hours, including an occasional nap if necessary (not in class, if you can help it).
- You exercise regularly.
- You take time away from your work for brain-cleansing activities like sports and movies.
- You do not kill all your brain cells by using alcohol as a method to relieve stress.
- You remember that the people in your life, family and friends, are more important than law school.
VI. The Courage to Face the Struggle Ahead
You cannot get into law school without having proven that you have a good measure of intelligence and drive. Everyone around you will have gone through the same process to get there. Now the game begins again, demanding even more of your intellect, your stamina, your dedication. I have every faith that you have the capacity to succeed. What happens now is up to you.
PROFESSOR COOPER
Professor Cooper received her B.A. in 1975 and her J.D. in 1978, both from the University of Arizona. During law school, she was Note Editor of the Arizona Law Review, a member of the National Moot Court Team, and the winner of the Jenckes Advocacy Competition. She was named to the Order of the Coif, Phi Beta Kappa, and Phi Kappa Phi. In 1978, she was named the Outstanding Graduate of the University of Arizona School of Law. She also attended the MBA rogram at the University of Pennsylvania Wharton School of Business.
Professor Cooper practiced law in the Phoenix firm Streich, Lang, Weeks & Cardon, doing banking litigation until 1982, when she joined the faculty. She has taught Contracts, Commercial Transactions, Sales, Secured Transactions, Banking Law, Negotiation, and Lawyering Skills. In 2000, she left teaching to pursue a career as a communication consultant and was named a professor emerita.