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WilliamKingFirstPaper 1 - 27 Feb 2009 - Main.WilliamKing
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Leff, Lawyering and Law School
-- By WilliamKing - 27 Feb 2009
Intro
In his conclusion of Swindling and Selling, Arthur Leff uses his research to describe how lawyers think and what lawyers do. Lawyering, according to Leff, involves thinking about the underlining social phenomenon of the world, as well as anticipating the future. If Leff’s assertions are true, then there is a divide between what lawyers do and what law school students are learning. The methodology of teaching the law solely through the reading of judicial opinions does not effectively reach Leff’s scope of lawyering. One way to remedy this divide is to incorporate social science into the legal curriculum.
How Do Lawyers Think?
According to Leff, lawyers, unlike economist who ignore the microreality of transaction by reasoning in the absence of transaction cost, find importance within transaction cost. Leff states that it is the “actual behavior of actual people in actual transactions that is of particular interest” for lawyers. It is essential for a lawyer to examine the underlining social forces at work between the engaged parties. Lawyers need to be equipped with the knowledge of why person A committed act X and furthermore what influences acts Z and W had on A, prior to the commencing of X. By understanding these causes and effects that create human action, a lawyer will be in legitimate position to both counsel and advocate.
Leff believes that a lawyer must focus his attention on actually social phenomenon and closely examine human behavior. Implicit in this theory is the necessity for a lawyer to relate to anyone seeking his guidance. A lawyer examines his client’s problem, from the restraints and privileges that the law and social dynamics have allowed. When a lawyer pays close attention to the actual phenomenon taking place in his client’s world, he is able to understand the structures and processes that are at work. Consequently, a lawyer uses this information to advocate for his client in the most efficient and logical manner.
What Do Lawyers Do?
Leff states that it is a lawyer’s job to “consider alternative future social snapshots and then attempt to encourage or prevent their actualization by facilitating or retarding particular human action.” Leff extends lawyering beyond that of a mere professionalism into the realm of social instrumentation. The lawyer, who can anticipate the future, can simultaneously use his knowledge of the law and of human interaction to help shape the future. Lawyers therefore, can influence their society in ways that the legislature cannot. Unlike a politician who is at all times susceptible to influence and pressure from constituents, a lawyer has the opportunity to think and act freely. Of course, Lawyers are constrained by alliances and relationships. Yet, lawyers have the power (though at times limited) to choose where and for whom they work.
Assuming Leff’s proposition that lawyers attempt to encourage or prevent the actualization of an anticipated future, there arises a question of why they act in this way.
An optimist would say that lawyers analyze future social occurrences because they desire to prepare for and remedy problems that may occur. Nevertheless, a cynic would take a different approach and say that the lawyer who can anticipate and influence the future has the power to benefit at the expense of others. No matter how one chooses to answer this question, it is the nature of lawyering and not the reason behind lawyering that Leff addresses. Lawyers, regardless of morality, use their knowledge of human interaction and social phenomenon to cause other humans to act in a certain way.
Leff and the Law School Curriculum
If the ability to think about the social and human interactions is essential for lawyers, then there is a difference between what is learned in the law school classroom and what is learned after taking the bar. The process of learning the law by solely reading judicial opinion’s does not offer students the full scope of the “transaction cost” of each case. The claims brought and decisions given on a particular case are influenced by underlining social factors, many of which are not evident by simply knowing the holding. A more effective law school curriculum is one that teaches its students how to analyze the social, economic and psychological influences that shape and constrains a person’s ability to have justice. The reading of judicial opinions is an important part of teaching students about the procedure and vocabulary of lawyers, but these opinions would be more effective if supplemented with social science.
By incorporating other disciplines into the law school curriculum, students will be better equipped to consider the “alternative future snapshots” that Leff reasons lawyers work to encourage or prevent. If a student focuses not only on the law, but also on how the law influences human action, the student acquires a more general knowledge of how the world works. Congressional intent on behalf of lawmakers is crucial into the formulation of statutes and laws. These Congressmen are influenced by the social dynamics of the world in which they exist. Law students, by studying these social dynamics, will be able to anticipate how and why a law was formed. This allows the student to begin to theorize how to use his knowledge to facilitate human action.
Conclusion
Andrew Leff’s characterization of the nature of lawyers perpetuates the notion that lawyers, in order to implement change, must have an immense awareness of the past and present. The knowledge that is essential to a lawyer, consist of more than knowing and learning the law. Consequently, a law school student should be exposed to more than judicial opinions. If the law school curriculum also consists of social science, the law school student will develop an understanding of human interaction that will be crucial to his serving as an advocate.
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