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How Studying Law Can Be the End of the Fantasy

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When you finally understand what you're studying in law school, you sometimes can't help rebelling against it.

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 is 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.

It is possible to characterize the situation less charitably than one did a moment ago. In practice, the case decisions you find in your legal research often contradict one another. Judges invent reasons to ignore what they are 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.

This Is Substance?

In law school, you struggle to understand the law you are 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.

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 (although it'll never satisfy the victims), 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

For instance, drug companies can't afford to defend them-selves all the time, and instead simply stop developing new vaccines and birth control methods. As Time noted, "The U.S. is the only country other than Iran in which the birth-control clock has been set backward." A lot of businesses and civic activities that could improve our lives don't even operate anymore because they can't get insurance.

And by what logic? Peter Huber sketched it out in his excellent book Liability: "Accidents are socially costly, these legal experts pointed out, and the law should encourage accident prevention by the most economical means. So liability began to fall on the ones who could prevent accidents at the lowest cost, namely, those who provide goods and services."

The next step was to hold manufacturers "strictly liable" to consumers for accidents caused by a "defect in manufacture" of their product. And then, courts began to condemn entire productions, not for a manufacturing defect in one item, but for a design defect in them all.

Before long, juries across the country were busy redesigning lawn mowers, electrical switches, and products of every other description. By the late 1970s, the technical and economic questions were triggering titanic courtroom struggles. But these struggles remained mere parodies of the actual process of real-world design. The original design of a car, drug, or appliance takes years. A jury typically has a few days, seldom more than a few weeks, to re-design it.

The legal experts easily assumed that the doers, the makers, and the providers of this world would willingly be pursued at every turn by a hound-like legal profession. But in response to the question of who would be building and fixing, treating, immunizing, and curing while the lawyers were busy assessing the fines, the answer, with growing frequency, was no one at all. Innovation was suppressed, and the consumer ended up worse off than he would have been had the legal system been slower to rush to his rescue.

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