Having reviewed one-hundred-fifty or so Final Exam blue books over the past two weeks (not counting the first two weeks psyching myself up for the chore, and submitted them to the appropriate dean for further tallying (they have to be combined with the Midterm grade to reach the course grade) and publication, I’m ready to set forth a few conclusions.
Conclusion #1 is that law students can’t write. Oh, they can scribble, they can muse, they can meander, and jump to unsupported conclusions, but they cannot write.
Here’s the way it works. All semester long they read cases, they stare forward in class as a fellow student briefs a case orally at the front of the room and we have a few questions, such as “Who won?” which is sometimes a problem for a student who is tangled in reporting the minutia such the lower court ruled one way, the intermediate appellate court ruled the other way, and the Supreme Court has reversed. Few people I’ve ever met can keep their heads wrapped around that when all they really want to know is who was fighting who over what and who scored the knockout that we want to remember.
But we don’t ask students to write, except at exam time, when it is way too late. A friend who recently took the California Bar Exam took a writing course in preparation. It cost her $4,000.
That seems like a waste of money when, had she practiced legal writing from day one in law school, she could’ve spent the four grand on a holiday tour to anywhere in the world.
In class I point out that Constitutional Law, a daunting course for some students, isn’t really all that difficult. The trick is to read the cases until you can explain the point to your spouse or to a curious kid of moderate intelligence who is in the seventh grade of elementary school, or so, perhaps younger. To do this you have to translate the legal jargon, which has its purposes, into plain language. It doesn’t even have to be English. If your native language is Korean, you have to translate what in English is called “procedural due process” in to the Korean for “This means the right to be notified that you have the right to a hearing before an impartial judge, say your piece, call a witness, ask questions, and have the help of a lawyer. That shouldn’t be too hard to say in any language in the civilized world and a few other places beyond that.
One Korean student told me that she followed this advice and told her whole extended family about the meaning of democracy and the need to participate. She signed thirty relatives up as new voters. “Now they’ve all got jury summonses,” she told me.
This student liked the idea that it can be helpful to put Conlaw ideas into graphic images. It’s a lot easier to carry an image of Uncle Sam in a tug-of-war with the 50 states than it is to carry around a verbal definition of federalism for use on exams.
In reviewing the Blue Books in which the exam answers were written (students are given a number to keep them anonymous from the professor), I noticed that one student referred to “the audience for this law.” That had me stumped until I figured out what she meant (I guessed it was a ‘she’) by ‘audience’ was the intended target of the ordinance or the people in the affected class. I can’t complain since the student was following my advice to put Con Law into your own words, but I did feel that sometimes it’s better to describe what you’re talking about with a bit more precision, because otherwise you might stump the professor who is unused to viewing your mental furniture.
Here’s an example of the opening sentence of a paper that wasn’t so hot:
Under the 5th Amendment [which wasn’t in issue] which is applicable to the states under Due Process Clause of the 14th Amendment – we have an Equal Protection Clause which basically pertains to that similarly situated people should be treated similar.
I think that the student was trying to explain what the idea of “equal protection of law” is, as guaranteed against state violation by the 14th Amendment. The idea is that people should be treated equally by the law, especially when occupying similar situations. Thus all people are prohibited from speeding on the freeway for safety reasons, not just certain classes of people. That’s pretty simple to say, but it doesn’t look very learned, does it? There’s no fancy language, no subordinate dependent clauses, no legal mumbo jumbo, just the idea that what’s good for you is good for me and vice versa, and it isn’t we want to know why, which you can explain further, in plain English.
This student was responding to a question as to whether a California initiative that is coming up, Proposition 22, is constitutional in providing, if it passes, that “Only marriage between a man and a woman is recognized in California.”
The student can say yes or no, but has to justify the conclusion with support from the Constitution and the case law.
This student began by writing down certain rights which he said (another guess as to gender, as “it” doesn’t sound very nice, does it) were fundamental, such as the “right to vote, run for public office, be heard, and freely migrate interstate.” I guess all rights are fundamental when you’re deprived of one, including the right to view adult movies when you’re under seventeen. The student continues:
Since the marriage initiative does not pertain to any of the above-mentioned rights, it has to be viewed from the classification aspect.
That doesn’t tell me much. Not only is the student relying on a self-composed list of allegedly fundamental rights, without providing a case that says these are all fundamental, he is concluding that because marriage is not on his list, it must be (a) non-fundamental, and thus deserving of receiving little protection, apparently, and (b) I’m not being told what it means to “view from the classification aspect.”
I suspect (that is, the student is forcing me to guess, but there’s only so much assuming or guessing that I’m willing to do, otherwise it’s me who is answering the exam question, not the student) that the student means this new law classifies only heterosexual couples as capable of marrying legally, but not gays. What is this, an Age classification? Religious? No, it is a Gender classification, or Sexual Orientation classification. It seems to me that the student should say this in plain English instead of making me supply the answer to the question of what he means.
After setting forth a bunch of stuff about what standard of review the Supreme Court might use to review such a classification, rational basis, intermediate, or strict scrutiny, for which some credit is given, now we need to address the exam question, state the reasons why you think this Prop. 22 should be deemed constitutional or not. This should be easy because a San Francisco judge recently ruled on the question and it received a lot of publicity in San Francisco and the nation this semester.
The student then lists two classes or categories that have been held to require strict scrutiny to combat racism and other naughty “-isms,” such as ethnic origin. But the student failed to cite a case by name or description of some facts, such as that since Brown v. Board (1954) (a famous case we heard mentioned a lot in class), there have been many cases requiring strict scrutiny when racism was thought to be behind a law or practice of government. The student, however, continues:
All other categories of people, the courts would utilize RBT review. [I know that means Rational Basis Test, which is ok.]
Therefore, is the [Prop 22] rationally related to a legitimate state interest. Since the fact pattern does not provide what the state interest is; one could only guess.
Personally, I don’t see any legitimate state interest to deny same sex marriages, economical, or otherwise, although politically it may be a “suicide” of political proponents.
Thus, I think that [Prop 22] is unconstitutional as a matter of U.S. Constitutional Law.
And that’s all this student wrote in answer to the question. Now it happens that I’m a very forgiving grader and don’t like to fail anyone. But this answer is about as close to a failing answer as you can get without failing. The student gets that equal protection is the ballpark, scrutiny level is the section, and legitimate state interest the row, which is pretty good when you come to think of it, but the student could’ve mentioned the recent case of Lawrence v. Texas (2003), in which the Supreme Court held that a Texas law was unconstitutional where it discriminated against gays, because gays were people worthy of respect and entitled to equal protection of the law just like anyone else. No longer is it open season on gays because they’re gay. Lawrence did that for gays, recently, and there’s been a ton of publicity over this, so you might think that a student wanting a better grade might just think to write down the name or principle of the case, like the others who did get a better grade.
It would also probably help if the student wrote short English sentences, instead of the long, run-on kind that weaves in a bunch of thoughts into one sentence that isn’t big enough to hold them all.
Do I care what the student’s political analysis is? No. This is not a political science class. I want to see some law discussed, not whether advocating for or against gay rights is political suicide in some jurisdictions. I want to know what position the Supreme Court might take on our exam question considering the holding of Lawrence and other equal protection of law cases. This student doesn’t do that. This student does one good thing in stating “...I don’t see any legitimate state interest to deny same sex marriages, economical or otherwise...”
This is pretty much the big issue here, whether the State has any legitimate interest in telling you who you may marry or not. If the state says that you, as an adult, may not marry a child, you can be sure that the lawyers for the state would come up with loads of arguments as to why this was bad for children’s health, right? But the states seems to be having some difficulty coming up with non-religious reasons as to why two people can’t marry if they choose to do so. States cite “tradition,” but we know that’s not always a good reason because we’ve had so many bad traditions, such as slavery and Jim Crow. “Procreation” is often cited, as in marriage is for people who want to procreate and perpetuate the human race. These are worthy goals of traditional marriage, of course, but what about older folks who marry, or remain married, long after the possibility of bearing children as passed. Are they no longer to be allowed to marry because their procreating days are behind them? So you may see that the main reason for denying gays the right to marry one another (they could marry straights if they wanted, but why would a gay want to marry a straight, or vice versa?) is because some people don’t like gays. Well, some people didn’t like blacks or Chinese, either, but we’ve had to lay down some of our old prejudices after seeing them for what they were, didn’t we?
This student fails to state what the Constitutional Law is on which s/he relies to say Prop. 22 is unconstitutional. S/he says “therefore,” and “thus,” but never says “because.” Nor is there much in the way of stating reasons, except for the one “I don’t see any legitimate state interest...” We don’t know if this is because there are none or the student is ignorant of the ones typically claimed. In short, the student has cut to the chase too soon and given a conclusion without identifying, much less stepping on, the stepping stones. This is like running from first to third base on a baseball diamond without even going near second. The fans will boo. The Bar Examiner (the real umpire) will make short work of such conduct, and the student will be sent back to learn to write law.
The second big error that students make in Constitutional Law is in failing to recognize that in deciding whether a law, either existing or proposed, is constitutional, that the legal decision has nothing to do with their sense of personal morality.
Let’s suppose that you are a devoutly religious person, that your church doctrine teaches and preaches that abortion is immoral, bad, and should be illegal. This is wonderful. It is part of the tug-of-war that makes the study or practice of Constitutional Law interesting and contentious.
One student told me that s/he was Catholic. I don’t want to know this. I don’t care. I am better off not knowing. One of the exam questions concerned the legal subject of abortion, whether a pharmacist had to dispense an abortion producing pill to an apparently single young woman customer who asked for one. There’s a bill before Congress that if enacted and signed into law by the president will require employers to allow a reasonable accommodation to the employees of pharmacies who have certain religious views so that they don’t have to sell this pill if it violates their conscience.
This is the stuff that Constitutional Law is made of, conflicts of conscience, particularly those mixed in with religion. We want to protect religious sensibilities, but we also want to protect young women, don’t we? Maybe we don’t, but someone is going to have to decide and we give this job to a certain committee of nine people.
Students holding anti-abortion views are afraid to say that a law upholding a woman’s right to abortion on demand is constitutional because the student thinks the law is immoral.
That’s not the question. Before Roe v.Wade (1973) there was no constitutional right to an abortion. Now there is. This is a legal fact. You may not like this fact, and are free to agitate against it. But if asked on a law exam whether this is a fact, you have to say, yes, it is a fact, like it or not.
Before the U.S. Civil War (1861-1865) and the Emancipation Proclamation, slavery was legal and constitutional in the United States. Sad but true. So if asked on a law exam in 1850 whether it was legal to own a slave in the U.S. as a matter of Constitutional Law, you would have to say yes, even if you think slavery is immoral, bad, and should be outlawed immediately.
The legal fact is what you are asked to discuss, not whether you like it or not.
Students frequently waste blue book space by inserting comments indicating their moral, social, or political views on the issues of the day, when the question asks only for the current state of the law. We’re training lawyers, not clergy. Clergy can write homilies for the congregation. When you go to a lawyer and ask whether a ban on same-sex marriage is likely to be deemed constitutional or not, you want that lawyer to tell you that Lawrence is the big case and here’s what it tells us about that. You don’t want the lawyer to tell you whether he’s Catholic or for or against abortion. That’s not the lawyer’s job. The lawyer’s job is to tell you what the law is, or may become, not his or her personal views. We call that “singing in the shower” when the lawyer does that. At current rates, that’s an expensive song that you don’t need to hear. You may not like the tune.
Do you get it?
Write law. Use real sentences in the English language. State what the law is and then give legal, not personal or moral reasons why the law should change. You can predict change, for moral reasons, but it’s a good idea to say why based on legal reasons, such as that slavery ended a long time ago, and so did Jim Crow, but the abortion right is still the law and the Supreme Court has a string of cases upholding it despite great pressure to eliminate the right. As to the constitutionality of same sex marriage, it is difficult, under current law, to see how any competent discussion by a lawyer, or a Con Law student could fail to include a reference to Lawrence.
I could go on, but this enough.
My advice to law students? Start blogging to each other on cases and doctrine, or emailing each other about the cases you are studying, to get into the practice of writing about law. When you see that the town council has proposed an ordinance
“making it unlawful” for any speaker harassing or discriminating against another person on the basis of race, religion, color, ancestry, age, sex, sexual orientation, gender identity, disability, weight, height, or place of birth in any San Francisco city government forum,
[an actual resolution, and exam question], this is the time to clip that article and to start emailing your team mate [I assign students to work-study teams] or friend so that you get used to analyzing Con Law topics and writing about them. That way you’ll be ready for your course exams, the Bar Exam, and advising clients regardless whether you like the law in question or not.
Look at it this way, you may like to drive fast, but if someone asks you the speed limit, what are you going to tell them? 55 mph? Or 120 mph because that’s how fast you’d like to drive?
One is personal preference, and the other is a question of law. So please spare the reader from your personal predilections, because we really don’t give a damn.
Oh, yes, and don't forget to watch out for those red-herrings, you know, the facts that don't count, such as what color the car is that you want to drive at 120 mph. So what if it's a Ferrari instead of a Toyota. Guess what...