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Thinking Like a Lawyer, Thinking Like a Legal System

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Thinking Like a Lawyer, Thinking Like a Legal System THINKING LIKE A LAWYER, THINKING LIKE A LEGAL SYSTEM Richard Clay Stuart A dissertation submitted to the !aculty of the Uni#ersity of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor o! Philosophy in the Department of Anthropology. Chapel Hill +,-. Appro#ed by: Carole L. Crumley Robert E. Daniels James L. Peacock Christopher T* Nelson Donald T* Hornstein c +,-. � Richard Clay Stuart ALL RIGHTS RESERVED ii Abstract RICHARD CLAY STUART/ Thinking Like A Lawyer, Thinking Like A Le'al System (Under the direction o! Carole L. Crumley and Robert E. Daniels) The le'al system is the product of lawyers. Lawyers are the product of a specific educational system. Therefore, to understand the le'al system, we must %rst explore ho3 lawyers are trained and conditioned to think. What does it ean to “Think Like a Lawyer?” This dissertation makes use of autoethnography to explore the e6$erience and effects of la3 school. It recreates the daily ritual of la3 students and la3 professors. It e6$lores the Socratic nature of le'al education. Finally, it links these processes to comple6 systems in general and the practice of la3 in particular* This dissertation concludes that lawyers and the le'al system are the product of a specific, initiation- like ritual process that occurs during and within the specific sociocultural context of la3 school. iii :or Mad Dog i# Acknowledgments First, thanks go to my $arents, Dick and Susan Stuart, for all of their support down through the years. I could ne#er ha#e done any of this without your help. Thanks are also due to my many friends from la3 school who ha#e stood by me o#er the years with advice and friendship* Ed Ergenzinger, Jen Karrmann Granai, Ale6 MacClenahan, Eric Trosch, Elizabeth Trosch, Emma Lloyd, Rachel Goldstein Zetouni, Nathan Zaleski, and Jacob Wellman. I 3ould also like to thank Joe Wiltberger for his constant friendship and feedback through grad school, Me' Kassabaum and my cousin, Lauren Pierce, for letting me crash in their apartments that first year, Will Meyer for unstintingly sharing information re'arding the graduate program, Jamie Clark for dissertation advice, and Kristina Kilgro#e for $roviding the LATE> template that 3as necessary to format this dissertation. Thanks are, of course, owed to my dissertation committee. I 3ould especially like to single out Carole Crumley and Bob Daniels. It 3as Carole who inspired me to major in anthropology during undergrad, wrote my recommendation to la3 school, generously answered my questions about anthropology while I 3as practicing la3, and then coached me back into UNC’s graduate program. Bob has been a 3onderful mentor, friend, and coach through the dissertation process. Finally, thank you to y 3onderful wife and best friend, Carol, and our two beautiful children, Chloe and Ethan, who understood and cheered me on through countless nights and weekends as I wrote my dissertation. # Table Of Contents 1 BOHICA******************* ******************** *******1 2 Autoethnography******************** ******************** **4 3 our First Case: Capron $% &an Noorden******************* ********* 10 4 Discussion: Capron $% &an Noorden******************* ************ 12 * Reading Capron Like A Lawyer******************* ************** 21 - Exploring Legal Anthropology******************* *************** 24 0 Law Students******************** ******************** **** 32 2 Socratic Education******************** ******************** * 38 3 Legal Research And Writing******************* **************** 44 10 Thinking Like a Lawyer******************** ****************** 48 11 Leaving Law School******************* ******************** *-( 12 our Second Case: Buck $% Bell******************** ************** 62 13 Discussion: Buck $% Bell******************** ******************-* 14 our Third Case: Marbury $% Madison******************* ********** -0 15 Discussion: Marbury $% Madison******************** ************* 3( 16 our !ourth Case: 6orematsu $% United States******************* ****** 93 vi 17 Discussion: 6orematsu $% United States******************* ********** 11* 18 A Fictional Court Day******************** ******************* 113 19 Lawyering As Relationships******************** **************** 125 20 Cold 4ar Litigation******************* ******************** * 135 21 Mindful Networks******************* ******************** ** 138 22 A Hypothetical Hospital Stay******************* **************** 144 23 Heterarchy******************* ******************** ****** 149 24 Thinking Like A Legal System******************* *************** 157 25 A Theoretical Analysis of Law School******************* *********** 162 26 Conclusion******************* ******************** ****** 166 References******************* ******************** ******** 168 vii Chapter 1 BOHICA The room 3as freezin' cold, or at least it felt that 3ay* It 3as hard to tell since my nerves were playing tricks on me. :or literally months, I had been dreading this day, dreading this exam. I 3as scared. The subject 3as civil procedure, what lay-people might describe as the rules of the 'ame for non-criminal lawsuits. It establishes the protocols for suing and defending someone, the proper court in which to file lawsuits, who can be a party to the lawsuit, and so forth. But the operation of those rules in the real 3ord, meant #ery little to us. Civil procedure, or “CivPro” as its known inside the building, 3as the weed-out course at Wake :orest Uni#ersity School of La3, and today 3as the final. Just about the first thin' you realize in la3 school is that e#erything is different in la3 school. In high school and colle'e, students get lots of opportunities to score $oints and %6 mistakes. Messing up an assignment typically is not !atal. Home3ork assignments, papers, quizzes, midterms, miscellaneous assignments: these things come at you in a blizzard, providing plenty of chances for improving your grade and figuring out ho3 to test better for a gi#en professor* In la3 school, you usually only get one bite at the apple: the final exa * That 3as it. Your grade on the final is your grade !or the course, and since first year, or “1L9 in la3 school speak, also serves as the weed-out year in la3 school, it is no exaggeration to say that your entire future as a lawyer quite literally rests on just a handful o! exams. Thus my concern, and looking around the large courtroom that doubled as the la3 school’s auditorium, it 3as obvious that I 3as not alone. The room crackled with tension. We were all trying our best, but for the first time in our li#es, we found ourselves surrounded by people just as smart and hard-3orking as ourselves. "$ to no3, our best had al3ays been enough to propel us to the top of our classes, but today, against this group of similarly talented individuals, we had to grapple with the !act that our best might not e#en be enough to pass. :or students who ha#e only their academic track record to point to, that is a terrifying realization. Nor 3as it unrealistic. Back then, Wake required that e#ery 1L class be held to an B- a#erage. We had all done the math, and it 3as brutal. Our reality 3as that for e#ery point abo#e B- a3arded to one person by the professor, points 3ould ha#e to be taken from someone else. The arrangement 3as a classic zero-sum 'ame. There 3ould be winners and losers, and the only 3ay to succeed 3as by taking fro one of your classmates. Some of us 3ould go home triumphant, secure in the knowledge that they had what it took to survi#e la3 school and become an attorney* Cthers 3ould be getting academic probation for Christmas, along with the promise that if they !ailed to outperform their classmates during the spring semester, they 3ould be going home fore#er* The room hushed then as our CivPro instructor, Professor Geor'e Walker, entered the courtroom and strode commandingly down to the front. Reaching the bottom, he turned and swept the room with his eyes, surveying us while wearing the wry smile on his !ace that I had come to kno3 so well. Fe3 professors ha#e nicknames at Wake, but Professor Walker does. His nickname is Mad Dog, a moniker he obviously takes pride in and e#en fosters to some extent. C! all the teachers in la3 school, Professor Walker’s class 3as the one I—along with probably many of my classmates—feared the most since he routinely dismantled students with his questions, but not in a cruel 3ay, just relentless. The routine 3as al3ays the same. If Walker called your name, you were required to stand at your desk and #erbally fence with him o#er the content and meaning of the assignment, though fencing !ails to capture the essence of this exchange since he 3as a past master of the material and we were mostly clueless. Class after class, week after week, we marched into CivPro, praying that Walker 3ould call on some other person. )aradoxically, Professor Walker 3as also one of my !a#orite professors. Witty as hell and a natural comedian, Mad Dog managed to generate both terror and humor during each class—a quality 3orth its weight in gold under the crushing stress of 1L classes. I 3ould later take one electi#e with him, and by graduation regretted that I had not taken more, but that seemed unimaginable during y first semester in his CivPro class, which had, quite simply, been brutal for me. And no3, classes were o#er* It 3as time to see if I had learned anything. I closed my notebook and 3aited. So did others until the room quieted on its own. A blackboard stood to the side, and after capturing our attention, Mad Dog 3alked o#er to the device and chalked onto its surface a single 3ord: BOHICA. + My mind instantly be'an rifling through all the cases we had co#ered during the past semester* ?C; HICA? I could feel sweat 'athering. Was it a le'al principle? The name of a lawsuit? What? I had no idea. We were only one 3ord in and I 3as already clueless. “Please God,9 I prayed. 7(on’t let this be the exam.9 “In years past,9 Professor Walker be'an, “men injured during 3ar and recuperating in a hospital 3ould ha#e their injuries treated by medical staf!* Much like e#erything else in the military, their medications 3ould be administered on a schedule.
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