Law School Discussion

Is This How Law School Works? (warning: long, pompous, 5 AM lightbulb thing)

When I arrived at the University of Chicago Law School, I was totally confused.  I spent most of my orientation in the bathroom, crying.  I was in denial.  Why had I returned to school?  All of these cases seemed so rough.  The people seemed so smart.  The uneaten bagels in the orientation line were so hard.  The plums?  So sweet and so cold.

But I survived, and you can, too!  Here are some of my initial thoughts about briefing and the legal process.

Briefing isn’t useful.  Most cases boil down into a new application of an existing rule, a rule of thumb that is especially true in Torts and Property.  For instance, the public trust doctrine holds that, in prior New Jersey cases, municipalities cannot restrict beach access.  But what about quasi-municipalities like a neighborhood association?  Or individual homeowners?  What about a surfing company – can they acquire title to the beach? 

Here is another example:

In order to adversely possess land, you must openly and notoriously possess it.  But what if your open and notorious intrusion onto someone else’s land is only fifteen inches, in which case the true owner can’t see its “open” element?  Or what if it’s mistaken?  If it’s the latter, then there is a majority rule (Connecticut Doctrine) and a minority rule (Maine Doctrine) that can be applied; one says that you need intent to adversely possess and the other is all like, “Whatever.”  Here’s where we slip into policy, which helps to differentiate between competing rules and doctrines.  Policy is the big fat word that describes all of the navel gazing we do.  It can be anything: deterrence and incentive arguments, substitution effects, the tragedy of the commons.  The point is that you argue for why one application of a rule is better than another from a policy standpoint.  Which makes more sense?

Let’s put some thoughts together.  We have a surfing company that says it adversely possesses a beach.   They entered it twenty years ago and nobody has brought suit; on their stretch of sand, they’ve written, “Property of the Big Ten Surfing Company.  Trespassers to be hazed on sight.”  Is it their beach?  No, if you apply the public trust doctrine.  What if they dwell there for the summer months?  That’s another case we read.  What if nobody comes anywhere near the beach?  In that case, can it be open and notorious?  Can you openly and notoriously possess a deserted beach?  That’s another case we read.  What about the acquisition doctrine?  Can we apply it here?  What if they bought title to the beach from a group of itinerant Indians?  Can Indians adversely possess land?

The questions multiply.  All of these questions are usually illustrated by another case.  Three of the aforementioned cases are taken from other cases, in which the court mulled over that rule and arrived at a new holding – say, that you CAN’T openly and notoriously possess a deserted island.  That’s it!  Most cases can be boiled down into that sentence, which is then applicable on the exam.

Stretching the common law, meeting claim elements, distinguishing and analogizing cases, and reasoning between doctrines are par for the judicial course.  The trick is to make up your own reasoning – this comes from you!  Can you distinguish the previous application of the rule from this one?  Can you make a policy argument?  Can you show how another rule might be more relevant?  Can you guess how the court will rule on any given hypothetical?

Once I understood that, law school became more fun than a barrel of monkeys.  I love it.  You know?  @#!* that.  I’m passionately in love with it.  Every night, I cling to my Torts book like it’s a teddy bear.  “Good night, moon.  Good night, stars.  Good night, Learned Hand,” I say, and before I know it I am slipping into sleep.

The uneaten bagels in the orientation line were so hard...

Those vile bagels, just sitting there, mocking me, as the damned anatomical bull looked on in tacit approval. The horror of it all!