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May 9, 2008

Your Blogger: Influencing the Law

One of the things that drives me nuts about academia (I practiced for 14 years before coming to teach) is the belief that "law" and "lawyering" are somehow beneath it. You see it in various ways - from a "why should I modernize my casebook to reflect the fact that Shelley's Case was abolished" to "I won't write things for judges and lawyers." My view is quite the opposite: I'm here to train lawyers, not law professors. Many in academia are on that side of the divide, but it's certainly a divide.

Sooo... I was happy when our book, Modern Statutory Interpretation, was just cited in a judicial opinion - the first. It's not on-line yet, but I think it will be here, and it's US v. e-Gold, by Judge Collyer. It's a small snippet, but it was quite gratifying: "see also Linda D. Jellum & David Charles Hricik, Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies 137 (2006) (stating that "[w]ords in a statute should generally be given their common, ordinary, and accepted meaning")."

I won't rant too much about that other issue -- the division -- since it probably belongs on another blog, but I can't resist: why is it that we teach future interests in property when the vast majority of lawyers won't use them, and there are certainly other topics that teach the same skill sets? Why are our civil procedure books laden with discussions about personal jurisdiction, and so little on summary judgment and discovery? Why do the tort books focus on the common law when so much of tort law has become influenced, if not controlled, by statutes?

Okay, I ranted.

May 9, 2008 in Current Affairs | Permalink


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Please rant away! I actually find that type of discussion -- what law professors are trying to do in their courses -- among the most interesting. For example, you mention future estates and that the same 'skill set' could be taught with some other subjects. Can you delineate what the skills are in that skill set? We covered future estates when I was in law school, but it was just a description of the black-letter law; I don't recall there being any 'skills' that were taught so it would be interesting to know what they were.

Posted by: Dave | May 9, 2008 3:46:01 PM

All great questions...but what are the answers? Thanks for posting.
Keahi Pelayo
RE/MAX 808 Realty

Posted by: Keahi Pelayo | May 12, 2008 9:29:35 PM

The belief -- not shared by me -- is that it instills close reading skills, and rigid analytical skills, among other things. I'm sure it does, but I don't know that learning an enormous amount of irrelevant substantive law this way is, um, efficient (not that law school has that as its purpose!)

I use intellectual property to teach the same skill set. I won't bore you with the details, but basically there's a process patents go through that allows me to teach the same skills, and to also convey something about IP, which, um, is sort of relevant to modern practice, unlike the Rule in Shelleys case and Fee Tails, for example.

Our Property book (co-author with Profs. Crump and Caudill) uses actual... statutes, and documents that could be used in this century (imagine that!) to teach lawyering skills as well as substantive law, rather than having them draft grants to comply with the King's Bench's desire as expressed in some case from 1807, that was overruled by statute in 1857...

See you got me started.

Posted by: David Hricik | May 14, 2008 4:58:07 AM

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