Thursday, May 10, 2012
Judge J. Harvie Wilkinson (4th Circuit) has written a well-reviewed book, Cosmic Constitutional Theory, which urges judges to abandon employing the big ideological legal theories as guidestars and instead favor judicial restraint and case-by-case decision making.
The argument leads me to think about the typical cases that students read in law school. A significant number of law school cases deal with major policy decisions and major shifts in the legal landscape. Yet, in the day-to-day practice of law, lawyers typically deal with cases where the law is settled and the issue is about applying the law to the facts. Are the facts in this case close enough to the facts in a prior case so that we can use that case as precedent? Are the facts so different that we can distinguish that case? Is the legal rule ambiguous when applied to this set of facts?
Given the nature of day-to-day law, are we misleading students about the practice of law?
To be sure, students need exposure to cosmic theory. However, they also need to learn more about handling noncosmic cases.