| | |
|
StifledCreativity 5 - 24 Mar 2010 - Main.AndrewCascini
|
| | This is a continuation of my frustration that I touched upon in Devin's post about Law School, reading, and orthodox thinking.
Background: For my brief I have to argue that the trial court should not have awarded summary judgment. At issue is whether a certain contract is enforceable. There is a very well defined three prong test for assessing "reasonableness" where the contract has to pass all three test (prong A, prong B, prong C). At the lower court, the court determined that the agreement at issue flunked part one (prong A) of the test but said B and C were reasonable. Thus, I need to argue that there are issues of material fact that should have precluded summary judgment (with prong A). But since it is reviewed de novo I need to argue all three prongs, in some form. Our instructors want us to frame all of A, B, and C in SJ terms whereas I'd like to frame only A in strict SJ terms. I'd like to frame B and C in stronger terms but, in the actual text argue in the alternative and state the SJ terms. | | | The problem with Moot Court is that the problems are written with specific cases and arguments in mind and any significant deviation from that is discouraged or not allowed. This is what stifles creativity.
-- JohnAlbanese - 23 Mar 2010 | |
>
> |
I do acknowledge many of these arguments, and I've certainly heard plenty of horror stories about the various moot court advisers blowing up student briefs because the students weren't arguing specifically what the adviser had intended his or her charges to argue. Frustration is perhaps warranted.
On the other hand, we're 1Ls and this is the first stab at writing any sort of document that can be submitted to a court. Personally, I'm not very confident in my brief-writing ability at the moment - I'm worried enough about arguing persuasively, writing clearly and precisely, and formatting my brief properly. I don't know if I could sweat operating without too much restraint at this point, and I would assume that many of us feel like we're in the same boat. I, at least, am grateful that we have a set of "training wheels" in the form of restrictions about what we can argue so we can focus for the first time on making that argument.
I remember back when I was in tenth grade and we were learning to write our first five paragraph essays. The brightest students (that's you, Matthew) complained that they felt stifled by the ultra-restrictive form and topic stipulations. They were right of course, but there were students in the back of the room who could barely write at all (that's me, in this analogy) who were thankful that they could learn a little more slowly, and by senior year we were all finally free to run as we pleased so the brightest kids still had their time to shine in the end.
My opinion? There's time to be Perry Mason tomorrow, but I need to attain Hamilton Burger status first.
However, I should add that maybe there's room in the year for both a slow start and an opportunity for creativity at the finish. I don't know about others but legal practice workshop has been my favorite class so far - maybe we need to be writing much more and start off with the highly restrained tasks earlier in the year so that we're able to fly high this late in our second semester.
-- AndrewCascini - 24 Mar 2010 | | | |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |