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Law As a Foreign Language: Understanding Law School

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Law As a Foreign Language: Understanding Law School City University of New York Law Review Volume 1 Issue 1 Winter 1996 Law as a Foreign Language: Understanding Law School Ken Vinson Florida State University Follow this and additional works at: https://academicworks.cuny.edu/clr Part of the Law Commons Recommended Citation Ken Vinson, Law as a Foreign Language: Understanding Law School, 1 N.Y. City L. Rev. 5 (1996). Available at: 10.31641/clr010102 The CUNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact [email protected]. Law as a Foreign Language: Understanding Law School Acknowledgements Thanks go to Linda Griffiths for helping edit this work, ando t Tracy Adams for research assistance. Research for this article was supported by grants from the FSU College of Law. To the editors of The New York City Law Review, for their interest in this project, their editorial suggestions, and their willingness to include this article in this inaugural issue, I will be forever grateful. This article is available in City University of New York Law Review: https://academicworks.cuny.edu/clr/vol1/iss1/3 LAW AS A FOREIGN LANGUAGE: UNDERSTANDING LAW SCHOOL Ken Vinson t TABLE OF CoTENrs I. Cracking The Law School Code ....................... 7 A. Rite Of Passage .................................... 7 B. Formalism And Realism ........................... 12 C. Ambiguity In Language ........................... 14 II. Introduction To Legalism ............................. 18 A. So Many Words, So Few Answers .................. 18 B. Acquiring A Legal Mind ........................... 20 C. The Ideal And The Real .......................... 22 D. What Is A "Chicken"? ............................. 28 III. Pursuit Of Deathless Rules And Wily Foxes ............ 33 A. Chasing After The Law ............................ 33 B. Judge And Jury .................................... 39 C. Negligence Or Battery ............................ 43 D. Brooding Omnipresence In The Sky .............. 46 E. Never On Sunday ................................. 48 F. Due Process Of The Law .......................... 53 IV. Legal Science Spawns Casebook ....................... 54 A. Origins Of Casebook .............................. 54 B. Dissecting The Opinion ........................... 62 C. Plain And Fancy Hocus-Pocus ..................... 69 V. Legal Reasoning - And Other Dirty Stories .......... 74 A. The Unaccompanied Suitcase Case ................ 74 B. Analogical Reasoning ............................. 80 C. The Abortion Case ................................ 84 VI. Torts In A Devil's Nutshell ............................ 87 A. Modem Rise Of Negligence Doctrine ............. 87 B. Litigation Process In Tort Law .................... 94 C. Duty Or Proximate Cause ......................... 97 Copyright © Ken Vinson 1995 t Professor of Law, Florida State University College of Law, LL.B., 1959, Univer- sity of Texas; LL.M., 1964, Yale University. Thanks go to Linda Griffiths for helping edit this work, and to Tracy Adams for research assistance. Research for this article was supported by grants from the FSU College of Law. To the editors of The New York City Law Review, for their interest in this project, their editorial suggestions, and their willingness to include this article in this inaugural issue, I will be forever grateful. 6 NEW YORK CITY LAW REVIEW [Vol. 1:5 D. Devil's Nutshell ................................... 102 E. Tort Reform.... .......................... 108 VII. The Law In Translation ............................... 111 A. Pierson v. Post .................................... 111 B. Judge Livingston In Dissent ....................... 117 C. The Law In Action ................................ 121 VIII. Another Piece Of The Law In Translation ............ 122 A. Ghassemieh v. Schafer ............................ 122 B. Original And Translation .......................... 122 IX. The Law From The Marble Palace .................... 130 A. The Constitution And Original Understanding .... 130 B. A Living Constitution ............................. 139 C. Due Process Clause ............................... 145 D. Professors Of Legal Craftsmanship ................ 150 X . Conclusion ............................................ 151 1996] LAW AS A FOREIGN LANGUAGE Law As A Foreign Language: Understanding Law School The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longingfor certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logicalform lies a judg- ment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.' It might help if you were to compare the process of learning law. .. [to] learning a language. One must of course know the rules of grammar and the meanings of terms, but to know those things is not to know how to speak the language; that knowledge comes only with use. The real difficulties and pleasures lie not in knowing the rules of French or law, but in knowing how the language, how to make sense of it, how to use it to serve your to speak 2 purposes in life. What do you think the law is, that's all it is, language.... Every profession ... protects itself with a language of its own .... Language confronted by language turning language itself into theory till it's not about what it's about it's only about itself turned into a mere plaything.' I. CRACKING THE LAW SCHOOL CODE A. Rite Of Passage This article undertakes, in only a single injection, to implant in readers new to legal culture a viewpoint otherwise acquired by months of painful law school inoculations. I'm talking about an appreciation of why the maxims and rules fluttering around legal haunts so stubbornly refuse to stand still long enough for begin- ning law students to take aim and fire. Of course this article's stab at describing the elusive nature of the legalist beast doesn't a legal education make. Yet what follows gives novices a leg up on ridding themselves of unlawyerly illusions about captive rules stored away in little black boxes that law teachers, for the price of tuition, will unlock. 1 Oliver Wendell Holmes, The Path of the Law, 10 HARv. L. REV. 457, 465-66 (1897). 2 James B. White, Talk to Entering Students, Occasional Papers, The Law School, The University of Chicago 2-4 (1977) (on file with author). 3 WiLLIAM GADDIS, A FROLIC OF His OwN 284-85 (Poseidon Press, New York 1994). NEW YORK CITY LAW REVIEW [Vol. 1:5 This short course in the wily ways of legal language teaches that legal study is in the main something quite different from the cartoon showing the professor pouring true rules straight into the student's vacant brain. The legal mind, in other words, is notewor- thy not as a warehouse for storing legal principles; rather it's a mind uniquely equipped to do language exercises in a setting in which rules are mere background music. Learning how to do (not memorize) what legal people do with language means putting aside little black boxes stuffed with principled gospel. Learning to do law requires - and here's the hard part - shifting the mind's eye to see legal training as a foreign language lab, and to view lawy- ering as mainly management of a grab bag of alien-sounding formu- las and doctrines. This lay-to-legal shift in perspective is what law school's harrowing first year is all about, a year for loosening up untutored minds for implantation of legalist seeds. Law school business is mainly, then, the cultivation of a legalist point of view. Law schools, in their snail-like way so frustrating to beginners obsessed with bagging big fat rules, eventually coax students into shucking off the unsophisticated notion that the vaunted rule of law is to be taken at face value. This weeding out from first-year minds of the simplistic, blackletter view of things legal, to make room for the legalist's more flexible mind-set, is painful. This is so whether the blackletter weeding is done by the slow poison of law school's first year, or by the somewhat quicker fix of "Law As A Foreign Language." First-year students, because of the way they were brought up, very reluctantly give up the idea that law study is mostly informa- tion-gathering. Yet, to undergo the transformation necessary to de- veloping a legal mind, a first-year law student must adjust to a legal regime dedicated to taking legal concepts apart and, in ways akin to the novelist's art, putting them back together in altered form. This is a legal regime in which the judges' maxims have lost their luster as stone-tablet depositories of structured official truth. In the wordy new world that freshly-hatched lawyers enter, the coded insiderjargon is verbal clay with which to mold, willy-nilly, foreign- sounding motions, arguments, briefs, contracts, pleadings, statutes, jury instructions, constitutions, corporate charters, wills, treaties, ordinances, deeds, and appellate opinions. Even the worldliest of newcomers to legaldom is shocked to discover that much law talk, which at first seems to convey weighty messages, proves to be alarmingly empty of meaning. Words in the legal realm, in other words, sometimes add up to no more than 1996] LAW AS A FOREIGNLANGUAGE ritualistic noises merely demonstrating good will, or concealing thought, or (sorry to say) avoiding the necessity of thinking. It's no wonder that legal innocents
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