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| | | CONFLICT version 3: | |
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< | I. Seams Illogical | >
> | Swimming in transcendental nonsense | | | | |
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< | Seams Illogical
We are often told that going to law school will not teach us how to be a lawyer. It will teach us how to think like. So, summer internships and associate positions are seen as a kind of residency: a chance to learn how to be a lawyer by doing (and seeing) what lawyers do. I am finding that there are ample opportunities for only certain kinds of residencies, and for other kinds, scarcity is the norm. | >
> | Felix Cohen’s assertion that “legal concepts are supernatural entities which do not have a verifiable existence except to the eyes of faith,” makes more sense than anything else I’ve read thus far in law school. That may be because much of what I have read makes no sense at all. Most legal doctrine doesn’t square with common sense, with my innate hunches, because, like Cohen says, the law is neither based in morality nor logic. | | | | |
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< | One of my passions is fashion. I think it is amazing how a person’s personality, behavior, and how they are perceived can change depending on what he or she is wearing. The creative and social intuitions that inspire fashion are interesting to me, but so are the legal and management aspects of creating a brand that people respect and that maintains longevity. One career aspiration that I have is to meld my love of fashion with my problem solving skills and put my law school degree to use by running a fashion company. In preparation for learning more about this legal arena, I have been researching different brands and companies that I like and inquiring about internships. | >
> | I’m not a saint, but I consider myself a ethically principled person. I don’t steal, I don’t cheat, I don’t hurt other people. I also think I am logical-a left-brained, sudoku-addicted finance major who actually liked studying for the LSAT logic games. I applied to law school to learn and ultimately enter a field grounded in logical decision-making and the pursuit of righteousness. Yet, so many classes have made me uneasy, in the sense that the doctrines being taught are grounded in neither. | | | | |
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< | Only two of the seven companies that I have contacted have legal internship programs, even though all of them have in-house legal departments. Initially, I was dismayed by this because it meant that I may have to forgo the possibility of having an internship at one of the fashion houses. Then I realized that there was a greater implication to this: lack of opportunities for legal training for would be in-house attorneys. An executive at one of the fashion houses told me, rather bluntly, that internships at their offices are design and finance focused and that they have never had a legal internship position or program and were not considering a change. | >
> | Good Samaritan Law is void of morality | | | | |
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< | In a day and age when more lawyers are running companies (eg, Kenneth Chenault—American Express; Gerald L. Storch—Toys “R” Us; John Chidsey—Burger King) I thought there would be more internship programs designed to train us in this capacity. Granted, I am interested in the niche area of the fashion industry, but I would gladly participate in in-house/general counsel training programs if more existed. The Association of Corporate Counsel only offers one internship program in partnership with Cardozo Law School. Generally, legal internships with corporations are rare and there seems to be a push to encourage lawyers to attend business school rather than opening positions in corporate legal departments. | >
> | Each course has taught me doctrines I completely disagree with on moral grounds, yet the decisions crafting these doctrines are rife with justifications for them; like Cohen says, they are only based in “the eyes of faith.” | | | | |
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< | I think there should be more training to enable lawyers to run companies. Two reasons come to mind. First, lawyers can maintain and monitor the ethical practice of a company. A lawyer can advise as to the direction and actions of a company against the backdrop of the relevant laws and guidelines that are in place and enforced by the government. With this oversight power, a lawyer can keep the company from engaging in endeavors that are illegal or likely to incite lawsuits because they are detrimental to society or cause some harm. With such an important role, it is disappointing that in-house legal departments are viewed as an overhead expense rather than an important asset that requires dedicated investment.
Increasingly, before major decisions are made, companies turn to their counsel for approval. It would be all the more beneficial to the company and to society, if such lawyers were trained on how to run a company. The questions that a general counsel usually addresses are varied and reflect a more general practice as opposed to specialization in a particular area. If there are internship programs that law students can participate in, they can gain exposure to these various fields and be well-rounded advisors. | >
> | Both civil law and criminal law excuse bystanders who fail to help someone in need.
for example, in Pope v. Statehttp://scholar.google.com/scholar_case?case=571071934417681053&hl=en&as_sdt=2&as_vis=1&oi=scholarr, a woman took a mother and child into her house, and witnessed the mother beat her newborn to death without interfering. She was acquitted of all criminal charges. The court based its reasoning on the fact that Pope did not fall neatly into one of its four categories of people responsible for another party. This legal rule is clearly one, in line with Cohen’s proposition, that isn’t based on logic or morality. It seems highly logical, and undoubtedly moral, for someone to assist an innocent baby from being battered, whether by taking the child, restraining the mother, or, to avoid harm to self, calling the police. | | | | |
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< | My second reason for wanting more internship and training opportunities for lawyers who want to run companies is tied to my love for fashion. Beyond the legal considerations that counsel for a fashion company has to weigh, there is a focus on the company’s bottom line. In-house attorneys have to understand the implications of the companies’ business strategy, in order to protect the companies interests and sell clothes. What better way to learn about a brand, its aesthetic, target consumer, and growth and development than by interning in their offices? | >
> | Courts base the “no duty to rescue” idea on the basis that sometimes, a person may endanger him or herself by attempting to save another. Under this rationale, the rule concededly makes sense in some situations; it seems ludicrous to hold a person liable for not jumping in front of a bullet or moving car for another, regardless of their relationship to that person. However, should that same person be free from duty while watching a child drown in a pool as they leisurely stroll past? The court fashions a “one-size-fits-all” rule, while different scenarios demand a case-by-case analysis. The jurisprudence of good samaritan law is abhorrent in that it places paramount importance on judicial administration, while being completely divorced from morality. | | | | |
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< | Mickey Drexler is the merchandiser praised for making the clothing store The Gap into an apparel behemoth whose t-shirts and jeans can be found in practically every home in the US. After Drexler left The Gap, the company had a series of failed management teams and struggled to regain profitability. One of the major criticisms of Drexler’s successors is that they did not understand the brand or merchandising. Thus, the company was no longer satisfying its clientele and no longer making clothes that people wanted to buy. | >
> | Many civil law doctrines have no rational basis | | | | |
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< | For many understanding design, fit, fabric choice and trends is not intuitive. An attorney who has had exposure to the design and merchandising aspects of a company can be a trusted savant in making decisions relating to these aspects, which affect the company’s profitability. Internships in in-house legal departments would allow exposure to the production side of the company, leading to the crafting of business strategies that advance the companies interest in selling apparel. It is unfortunate that not many opportunities for such internships exist. | >
> | In civil proceedings there are also doctrines devoid of ethical or logical considerations. The modern conception of personal jurisdiction is one of these “supernatural entities,” based on nothing but judge discretion. In Goodyear v. Brownhttp://scholar.google.com/scholar_case?case=6139328910784593631&hl=en&as_sdt=2&as_vis=1&oi=scholarr, for example, two boys were killed in an automobile accident in Paris. Their parents, citizens of North Carolina, were not allowed to file suit there based on the ephemeral notion of “minimum contacts.” Goodyear, a multi-billion dollar corporation, has the means and financial ability to send lawyers anywhere to try a case; a trial in North Carolina would hardly burden the company. Meanwhile, these parents, reeling from the death of their sons, cannot bring suit where they live. Other jurisdiction cases mandate that a case can be tried where the injury occurred. Just because the boys were killed in Paris, can’t the injury have occurred in their home state to a degree? Is that not where their family and friends mourn their death? In shaping the legal concept of personal jurisdiction, the court has drawn strict lines which make sense only in certain cases. | | | | |
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< | Companies may not have the budgetary freedoms of big law firms when it comes to recruiting and training, but they can at least open their doors and provide unpaid internships that can serve as invaluable training for law students. It is very disconcerting that certain areas of the practice of law are so absent from the training field. Going into law school, I knew that there would be less funding and pay because of the state of the economy. But, I did not realize that certain opportunities for training would not exist. While I am in law school, I will think like a lawyer, but there is no guarantee that I will practice how to be one. | | | \ No newline at end of file | |
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> | Good samaritan law and personal jurisdiction are just two of the doctrines which, applied in some scenarios, are not only unjust, but reprehensible. In class Eben brought up efficient breach, and how it ignores promise-keeping, a socially valuable trait. The takings clause, which mandates a government need only to compensate a victim when there is a full diminution in value is yet another example. According to current takings law, reducing the value of a home from $1 million to $100 does not require compensation under the fifth amendment; the property must be rendered entirely useless. This rule makes no sense considering basic supply-and-demand market economics, nor is it ethical. Moreover, it leaves the court as ultimate arbiters of the value of property, when certainly market valuation is out of their area of expertise, and, in itself, an assessment rife with mere preponderance.
Don't Start Believin'
Aristotle said “the law is reason free from passion.” The amoral character of legal principles showcases the truth of this statement. Most, if not all, doctrines I have learned in law school consist of rules that are too rigid. Granted, they do make judicial proceedings easier and faster. However, they fail to recognize people and situations on an individual basis. The social outcomes of decisions are not considered, and instead these decisions are based on transient principles. We need to stop being the “eyes of faith” that pay homage to these rules. Without our faith, these concepts will lose relevance, and hopefully morality will find its way into the law.
If legal concepts continue to be so removed from ethical and reasonable considerations, the law will definitely continue to be a weak form of social control. With the law in its current formalistic state, maybe that is not such a bad thing.
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