WOE UNTO YOU, LAWYERS!

If, for instance, a milk company goes to law to protest against a state statute
setting the price of milk, the past profits – or lack of profits – of the milk distributors,
the medical need of milk for slum children, the present financial shape of dairy
farmers, the personnel and liability of the government agency doing the
price-setting, all may be treated as just as important as the “due process clause” of
the Fourteenth Amendment, the “police power” of the state in question, or the
“affectation” or non-affectation of the milk industry with a “public interest.” If a
widow sues a railroad company because her husband was killed at a grade crossing,
the annual toll of grade crossing fatalities and the cost of eliminating such crossings
altogether and the well-known weakness of both judges and juries when confronted
with weeping widows may all come into the discussion along with the doctrines of
“contributory negligence,” “proximate cause,” and “the last clear chance.”
Not that the principles of Law are altogether neglected in these “advanced”
law school courses. The students, inevitably, still read and memorize and try to
“reconcile” the same old concepts and abstractions. But the tough meat of factual
problems is mixed into their educational diet. The cases become more than settings
for the sanctification of legal principles.
Now the results of this kind of teaching are strange and varied. In the first
place, the fledgling lawyers do not learn their principles nearly so well as their
predecessors used to learn them by the hornbook method nor as their contemporaries
learn them by the regular casebook method. The intrusion of factual issues and of
other considerations which touch The Law only remotely make the principles harder
to concentrate on and harder to remember. That is why they have to take cram
courses after they graduate from law school in order to pass their bar examinations.
The bar examination – and the cram courses – deal almost exclusively with The
Law.
Moreover, the attempt to tie together the real problems that lie behind all law
cases and the abstract principles on which decisions in law cases are said to be based
usually results in one of two things. For the less intellectually sturdy students, the
result will be utter confusion. They will neither understand the problems nor learn
the principles. But for the brighter boys, the result will likely be a realization that the
problems and the principles have very little in common. From that realization, it is
but a short step to a sort of unformulated contempt for The Law and its principles.
And if legal neophytes should ever begin to realize, en masse, that legal principles
are largely constructed of long words and irrelevant abstractions, it would be the
beginning of the end of the legal legend.
That is the way and the only way that the inflated mass of hokum known as
The Law might ever be exploded from the inside. But it is a possibility so remote
that it is ridiculous to contemplate. For the vast majority of legal apprentices in the
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