Friday, March 16, 2012

Counter-Intuition in the Legal Academy (and Life)

Posted by Jeff Lipshaw

Larry Kramer, Stanford's dean, was in Boston yesterday, and we had lunch.  (Full disclosure:  I am an unabashed Larry Kramer fan.)   I've previously lauded the efforts of Larry and the Stanford faculty to reform the second and third year curriculum, primarily to provide more interdisciplinary and joint degree opportunities as between the law school and other arms of the university, like the business school, med school, engineering school, and so on.   Larry reported that the program was moving ahead nicely, but that students were still tending to select more traditional classes, presumably in reaction to the contracting job market over the last couple years, and on the theory that a more traditional transcript would be more attractive to employers in a tight market.

We agree this was a natural flight to safety, but that the more appropriate reaction, perhaps counter-intuitive, would be to double-down on the interdisciplinary opportunities.   In our conversation, I suggested to Larry the following as an illustration of his point.

A free-lance reporter called me the other day wanting to understand a contract lawsuit recently filed by the operator of the Park City ski resort in Utah.  In a nutshell, the operator as lesseee had a fifty year lease, and apparently the right to renew it for another fifty years.  I don't have the underlying contract, only the complaint, but it's clear the party were negotiating amended terms of a renewal, and in the process, the operator created some ambiguity over whether it had exercised the renewal option precisely and literally according to the terms of the agreement.  It also appears that the lessor said something in the negotiations to the effect that the lessee hadn't properly renewed, and was subject to being evicted.  Nevertheless, the lessor has not yet sought to terminate the lease or the occupancy, and is still collecting rent.  Moreover, the case is a declaratory judgment action filed by the lessee, seeking a determination that it indeed renewed the lease.

Now I think this may well be a lovely case for demonstrating the interplay of express and implied conditions as a matter of doctrine, but it seems to me a perfect example of how little you know if all you know is contract doctrine or even litigation strategy.   In the past, I've used the metaphor of a ricocheting bullet for the unintended consequences of a hardball action, particularly the filing of a lawsuit.  Deciding to escalate, and to escalate publicly, invokes not just legal doctrine (i.e., a prediction how a third party decision maker might rule), and not just trial strategy (i.e., how do we put ourselves in the best position to win the litigation), but business strategy, public policy, public relations, psychology, finance theory, and other disciplines, all mediated by a well-grounded view of human nature.

I don't think a law student gets more "practice-ready" or more attractive to an employer by taking more old-style doctrinal classes that do things like focus solely on the kernel of legal doctrine that may lie at the heart of a problem.  I can think of a bunch of metaphorical terms for this reaction to change, crisis and uncertainty:  bunker mentality, cocooning, circling the wagons, etc.  Of course, I'm already in hot water with the contract professors union for suggesting that the universe as we have come to know it will not end with a reduction from six credit hours of contract law doctrine in the first year.  That too strikes me as circling the wagons.

Flights to safety and control are the typically intuitive (and, in my view, wrong) reaction to change and uncertainty (e.g., banning laptops or cutting off wireless access as the means by which teachers seek to control the attention of students in a classroom).   We already know or what we've previously done feels safe and controlled.  Being interdisciplinary is, by definition, unsafe and uncontrolled, by virtue of the fact that there are no intra-disciplinary authorities to tell you that what you are doing is okay.  (If there's an interdisciplinary authority, then the interdiscipline has really become its own discipline.)  But is the intuitive flight to safety and control the right one?

[Cross-posted at Legal Profession Blog.]

http://lawprofessors.typepad.com/legalwhiteboard/2012/03/counter-intuition-in-the-legal-academy-and-life.html

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