The Law You Study: End of the Fantasy

A. Order in the Court

If you go into a law library, you'll find sets of books devoted to the laws that are passed by legislators, and other sets of books that contain the decisions of judges around the country. Scholars write about those laws and decisions, and other scholars collect all of the important laws and decisions into volumes that are dedicated to explaining every aspect of the law. The whole thing is very organized.


By taking certain steps, you can find out what the law is on any subject. Special books and computer programs help you find what you are looking for, if it exists. And when there's nothing precisely "on point," certain techniques can help you figure out what a judge is most likely to say if the case should arise in the future. There are always gray areas, but at least you can get a feel for why people disagree.

When you apply what you've learned in the library, you find that the formal procedures for prosecuting or defending a lawsuit based on your research are just as organized. The rules tell you when you may take any particular step and what you must include in your effort to accomplish your goal.

B. The Other Half of the Story

Unfortunately, not all of us have the luxury of being legal scholars or having cautious, well-thought-out law practices. Many lawyers are out in the storm, rocking and reeling from the more miserable aspects of our legal system. And that does not begin to describe what happens to the clients.

In practice, the case decisions you find in your legal research often contradict one another. Judges invent reasons to ignore what they're supposed to do, so that they can do what they want. And cagey adversaries quickly learn how to manipulate the rules so as to reduce the grand, smooth machinery of procedure to a clunky wreck that usually operates in ragged fits and starts.

Is This Substance?

In law school, you struggle to understand the law you're being taught. And then, when you do understand it, you can hardly believe it half the time. The law, in its infinite wisdom, gives Jim Bakker 45 years in prison for being a religious crook; and nails a former U.S. Olympic diver with a 17-year sentence for killing two people while driving drunk, after he kindly drops his not-guilty defense to make it easier for his victims' families to collect from his insurance company; but you can murder the mayor of a major city and be out in less than five years. And I strongly suspected that many of my law school classmates would have found it more suspicious for me to have been arrested for shoplifting when I was 15 than they would if I went on to become a big-time corporate lawyer who would screw innocent stockholders out of millions.

A jury might give you $31 million just for getting fired. The jury can award $125 million to Pinto drivers whose gas tanks explode, and perhaps that's appropriate. But it's troubling that the jury doesn't get to consider the question of what a $125 million payout would do to Ford's ability to produce cars and employ people. And it's really troubling that no jury will even be called when you're looking for someone who'll pay one-thousandth as much to help your sweet wife put her life back together if she gets slashed and raped.

As a law student, you learn not to worry too much about those kinds of cases. First of all, they're too dramatic, and that's bad for anyone who considers him/herself a professional. Professionals are paid to control their emotions and understand the reasoning behind a situation. For the lawyers, there's usually either a bit of logic that explains it all or else there's no logic and you can stand back with everyone else and shake your head at the crazy judge and jury who made such oddball decisions. Either way, the phrase that fits is, "What can I say?"

A Shortage of Logic

Once I mastered the art of professional cool, the things that I found more disturbing than the emotionally extreme cases, as a law student, were the rules that controlled the more mundane ones - that is, the cases that many ordinary people experience every day.

In contract law, for example, I couldn't understand why a guy had to go through a lawsuit to enforce a minor contract, when he was the good guy all along, doing everything that the contract required him to do. And then, I could not under-stand why the courts wouldn't award attorneys' fees to him if he did bother to sue, and won. It seemed to me that nobody with any sense would ever hire an attorney for any contract that was worth less than literally thousands of dollars - and even then, it seemed that the plaintiff would have to write off their own time investment in the case as a total waste.

It appeared that the only option, if your complaint doesn't involve a huge amount, is to master your nerves, summon your hardest face, and go into small claims court. It's a hassle. Weeks may pass before your day in court. When the day arrives, you have to sit there and wait your turn while others get up and argue in front of the judge. Your adversary may be experienced in manipulating small claims court to his/her advantage. And if you're not a tough person, you may not present your case very well, and you may lose anyway. To put it bluntly, small claims court is often a failure.

After trying small claims court once or twice, you're not apt to fool with it for anything less than hundreds of dollars. But what good is that? You don't go paying that kind of cash every day. Most people's typical expenses are under $100 each. For such "petty" complaints, it seemed to me, as a law student, that the courts had a simple message: Get lost.

In short, I found contract law frustrating. Not for its careful rules in their narrow theoretical world, but for the real-life implications that seemed so much more important to ordinary people. In contrast to the quiet precision, I found in the law library, the real working of the legal world was like a free-for-all brawl.

I don't mean to overstate. Even in the worst cases, the law does not operate in total chaos. If you file your complaint in the courthouse, you'll eventually wind up in court, whereas if you file your complaint in the men's toilet, no court date will be set. But I didn't have to be a fortune teller to see a serious problem of missed connections, between what the library promised and what the courthouse delivered.

I had a different kind of problem with criminal law. I learned that New York State recognized one form of first-degree murder, three forms of second-degree murder, three forms of first-degree manslaughter, three forms of second-degree manslaughter, and one form of criminally negligent homicide, for a total of 11 different ways to characterize the fact that someone was recklessly or intentionally killed.

I understood the differences among those classes of homicide, and I realized that the degree of the crime would determine the maximum possible penalty. But New York had no death penalty, and judges did not usually sentence criminals to maximum prison terms, because the prisons were too crowded. The lines got even fuzzier when I tried to explain to myself exactly why the courts would give a guy a break because he attempted, but failed, to kill someone.

Beyond that, God did not hand down those maximum sentences on Mount Sinai. I suspected that they would have been different if, for example, there had been a rash of murders during the month before the legislature voted those criminal penalties into law. And I didn't like the thought that all this was much too confusing for any would-be murderer to understand and reckon with, nor the fact that, as far as I could tell, no one had done a really serious cost-benefit analysis of the whole thing.

I grant that I might feel differently about it if I were the defendant. I would probably not care to spend needless extra years in prison if I were guilty of it. Then again, I'm not, I never will be, and if I were, my opinion wouldn't be the first one you'd want to listen to anyway.

As I learned, homicide was hardly the only spot of spaghetti complexity in the criminal law. There were eight different ways to commit larceny, and I still am not clear on the differences between them. If I take something from you, is that larceny by trespasser taking? I don't think so. I think it must be larceny by trick.