Expectations for SoapBox Law

First I’d like to thank you, faithful (and even the unfaithful) reader for reading SoapBox Law. What should you expect from it? Well, not much. You see if you come in with low expectations, perhaps you’ll be presently surprised, like when you check your fridge, knowing that it’s empty, but you still end up finding one of your favorite frozen meals hidden behind the ice cube maker. That’s me: you’re unexpected chicken pot pie.

I intend to make this forum an analytical playground of legal thought, peppered with a touch of autobiographical information about my impending legal education and employment. And while the transformation from revolutionary legal novice to seasoned attorney should be slow, the documentation of it will allow me and others to measure my progress. And while I sincerely hope you like this website, I vehemently encourage you to shackle this website with the ‘soft bigotry of low expectations.’ That gives you a better chance of being pleasantly surprised. Enjoy!

Thoughts on Thinking Like a Lawyer From a Soon to Be 1L

Definition of “Thinking Like a Lawyer”

“…the ability to analyze the interplay of law and fact.” - Professor Scott J. Burnham, University of Montana School of Law

Some things I’ve read regarding law school preparation states that a change of thinking is necessary in order to be a successful law student and lawyer. Broken down to its simplest form, this ‘change of thinking’ seems to mean in large part the idea of getting used to the so called Socratic method. Some have argued that there is no true secret to ‘thinking like a lawyer’, rather only two types of thinking exist both in and out of the legal world, namely “clear thinking and confusion.”

Proper Mindset

However in order to prepare my mind for the rigors of law school, I have looked at some on how to do so. Here are a couple of tips from the Law Nerds website.

Accept Ambiguity
There is an exception for every rule. This makes sense. The law is inherently flexible because of the inability to predict every possible situation. There are innumerable examples of this. Take a look at a recent story of a college professor who was fired for joining a group that advocates Nazism and white supremacy. Is that a violation of his First Amendment right to assembly? Certainly the Constitution is explicit about this right, but is a right as fundamental as the right to assembly absolute? If exceptions can be made where do you begin and end? A lawyer has to prepare him or herself to delve into these gray areas.

Avoid emotional attachment to a position
Since we are talking about Nazism, how do you feel about a Nazi group, after securing any requisite permits, that advocates white separatism in a Jewish neighborhood? Could you or I fight just as vigorously for their right to free speech as any historically underrepresented minority? Or how about Hollywood’s new ‘safe’ villain Big Business? Could you make an argument for their property rights in a small town that is trying to keep them from building on property already owned by the company? Perhaps these are they types of questions a law professor will ask while in the throws of the Socratic Method. A law student needs to be able to apply the law in different, evolving situations.

Legal Reasoning

Law Nerds defines analysis as “the simple act of proving each element of a rule to be true or false.”

Here is a very simple example:

Facts: At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.

Rules: In order to be convicted of Common Law Burglary, the following conditions must be met: One would have to break and enter into a residence at night with the intent of committing a felony.

Analysis: Common Law burglary is not satisfied because the action was committed at night.

Conclusion:

Granted this is a very simple example above, and I’m sure that there is quite a bit more to the ‘proper’ legal mind set. But hopefully understanding some of these basic principles before hand should serve me well in law school.

Thoughts on Thinking Like a Lawyer From a Soon to Be 1L

Thoughts on Thinking Like a Lawyer From a Soon to Be 1L
Definition of “Thinking Like a Lawyer”

“…the ability to analyze the interplay of law and fact.” - Professor Scott J. Burnham, University of Montana School of Law

Some things I’ve read regarding law school preparation states that a change of thinking is necessary in order to be a successful law student and lawyer. Broken down to its simplest form, this ‘change of thinking’ seems to mean in large part the idea of getting used to the so called Socratic method. Some have argued that there is no true secret to ‘thinking like a lawyer’, rather only two types of thinking exist both in and out of the legal world, namely “clear thinking and confusion.”

Proper Mindset

However in order to prepare my mind for the rigors of law school, I have looked at some on how to do so. Here are a couple of tips from the Law Nerds website.

Accept Ambiguity
There is an exception for every rule. This makes sense. The law is inherently flexible because of the inability to predict every possible situation. There are innumerable examples of this. Take a look at a recent story of a college professor who was fired for joining a group that advocates Nazism and white supremacy. Is that a violation of his First Amendment right to assembly? Certainly the Constitution is explicit about this right, but is a right as fundamental as the right to assembly absolute? If exceptions can be made where do you begin and end? A lawyer has to prepare him or herself to delve into these gray areas.

Avoid emotional attachment to a position
Since we are talking about Nazism, how do you feel about a Nazi group, after securing any requisite permits, that advocates white separatism in a Jewish neighborhood? Could you or I fight just as vigorously for their right to free speech as any historically underrepresented minority? Or how about Hollywood’s new ‘safe’ villain Big Business? Could you make an argument for their property rights in a small town that is trying to keep them from building on property already owned by the company? Perhaps these are they types of questions a law professor will ask while in the throws of the Socratic Method. A law student needs to be able to apply the law in different, evolving situations.

Legal Reasoning

Law Nerds defines analysis as “the simple act of proving each element of a rule to be true or false.”

Here is a very simple example:

Facts: At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.

Rules: In order to be convicted of Common Law Burglary, the following conditions must be met: One would have to break and enter into a residence at night with the intent of committing a felony.

Analysis: Common Law burglary is not satisfied because the action was committed at night.

Conclusion:

Granted this is a very simple example above, and I’m sure that there is quite a bit more to the ‘proper’ legal mind set. But hopefully understanding some of these basic principles before hand should serve me well in law school.

Inconsistent Rulings Do Not Make Judges ‘Centrist’

(This argument is precipitated from the comment section of this SoapBox Politics Article.)
First, "Centrist" is an arbitrary term and certainly doesn't apply to someone who only gets, God forbid, half of their opinions right. This term, and others like ‘judicial mainstream’ vary from legal generation to legal generation. (150 years ago Clarence Thomas would have been dead center, for example.)
I respect Judges who are consistent, and I think it is absolutely necessary to the rule of law for them to be so. That is why I like Ginsburg a great deal. I 'm not sure I've ever read an opinion of hers I've ever agreed with, but you know the Constitutional principles she believes in, even if it’s something as asinine as a "right to privacy" (For the origins of this so-called right, please read William O. Douglas’ opinion in Griswold v. Connecticut where he manufactures this right from the “penumbras” and “emanations” of the Bill of Rights.)
When you have inconsistent judges like Kennedy and O'Conner (and yes, sometimes even Rehnquist), confusion absolutely prevails. Look at Roper v. Simmons (and my commentary on the case) which over turned state laws that allowed juvenile death sentences. 15 years ago the Court said in Stanford v. Kentucky, unequivocally, that the states have a right to decide the issue of juvenile capital punishment laws themselves. The result; some states passed laws that rescinded that right, others passed laws endorsing it. (See this website for more info on juvenile death penalty laws.) However, this year, Kennedy wakes up on the international law and ‘evolving standards of decency’ side of the legal pendulum, sites no constitutional principle, gives no thought of Stare Decis and overturns the Court’s standard on seemingly a whim.

However, by endorsing centrism, at least how it is being used at SoapBox Politics, as long as Kennedy (or any judge like him) gets the next ruling ‘right’ it’ll make up for the previous bad rulings like Roper? I just can’t get behind that. Consistent judicial rulings are not overly dogmatic, but essential to good law making. How can any legislative body make Constitutional laws when the Constitution is being changed as often as a pair of underwear? That is like playing a game of Monopoly and only sometimes collecting $200 when you pass go. The other times you get nothing or maybe half of it or maybe a consensus is made periodically among the other players. At any rate, the split-the-baby, case-by-case, unprincipled method used by so-called centrist judges destroys the fabric of our Constitutional system. As legislative bodies pass laws dealing with medical marijuana or the Ten Commandments (two issues currently on the docket in the Supreme Court), these bodies will increasingly be left in the Constitutional dark, unable to know which laws are permissible to pass and which aren’t, which is just an incredible waste of time and money. Thus left unguided by an unprincipled court, state and federal Congresses will now throw anything they want on the wall with an increasingly greater chance presently unconstitutional laws will stick. We need strong judges who are sure what the Constitution was, is, and is going to be without tasting the political flavor of the week. Certainly, Justice Kennedy and the rest of his ilk do not stack up favorably to that standard.

Disclaimer

In the tragic event someone actually uses any of the legal advice and analysis that will be posted on this website, the following disclaimer will be necessary:

All of the opinions on this website are just that: opinions. They should not replace, supplement or even be read on the same day as real legal advice. If you need some, go to the bank, take out a second mortgage, and then go see a really good attorney. Seriously, you’ve come to the wrong place.