Law school is working! I mean that in the sense of a personal reflection on reasons why I came to law school. I’ve cornered several professors with questions about leverage: how can I use a legal education to shift political will and inform policy choices? Apparently there is an answer somewhere on the other side of the 1L curriculum, I’ll keep you posted.
I’ve long suspected that beyond the wall of policies and institutions that corral us there sit a few powerhouse personalities with law degrees making important decisions. As it turns out, there’s actually only one person behind everything: Judge Posner of the 7th Circuit US Court of Appeals. OK, no professor told me that directly and I might be oversimplifying. But his opinions and articles span several decades and cross disciplines in ways that typically engage scholarship in its response to him after he’s made the first move of presenting his worldview rather than the other way around. More relevantly for now, his opinions also span all my 1L classes.
Imposing liability for nonrescue
Let me give you an example from my torts casebook, Farnsworth and Grady, Torts: Cases and Questions (2d ed. Aspen Publishers 2009), re: a VT statute that requires a bystander to help a person in distress if it can be done with no risk to the bystander.
Posner compares VT to communist states abroad for contradicting the traditional no-duty-to-rescue approach, noting “the predominance of fascist and communist states among the early adopters of liability for nonrescue… a form of conscription for social service which would seem congenial to a state that already regards it’s citizens’ time as public rather than private property. It may not be accidental that the first… [US] state to impose liability for nonrescue is Vermont which has the third highest tax rate…”
Balancing Posner, a critique by Bender follows: “We forget that we are talking about human death or grave physical harms and their reverberating consequences when we equate the consequences with such things as one person’s momentary freedom not to act. People are decontextualized for the analysis yet no one really lives an acontextual life.”
How to make arguments and influence decisions
I don’t know which of these arguments gets you going, but I’m definitely the type whose heart leaps at the second. Back in undergrad days I ranted on all kinds of activist causes, from veganism to workers rights to self-determination of minority groups. I wrote songs like Ache with these lyrics: “Rich folk making money to use to make more money/Then they’ve got more money to use to make more money/But you can only spend so much/Whole countries can’t buy what you can buy/You could save lives but you save money.” I made lots of noise but didn’t feel as effective as I still hope to be.
Now I’m learning about personalities like Posner and Bender and Holmes and Cohen. I’m learning about how decisions are made, based on what, by whom. I’m learning to make arguments that ring less like rants and more like sound analysis. It’s working! What do you hope a legal education can do for you?
