THE TOP SEVEN ARGUMENTS OF THE FIRST YEAR OF LAW SCHOOL, AND THEIR COUNTERARGUMENTS

By JULIE HILDEN


julhil@aol.com
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Friday, Jun. 21, 2002

Although the first year of law school is famously difficult, it can be much easier. There are only a few important legal arguments that are taught - and they are not anywhere near as complex as they are presented as being. Furthermore, the counterarguments that one can raise in response are pretty simple too.

So, in the interest of preventing unnecessary suffering, I will list what I think are the top seven arguments of law school. In addition, I will explain why they are both simpler and, at times, less persuasive, than they might seem, and what responses can be used to rebut them.

The Slippery Slope

It is unlikely that a One L will make it through his or her first day of classes without hearing the "slippery slope" argument. The argument claims that a given law will inexorably lead us to something extremely undesirable - something everyone would agree is a terrible evil. The argument is basically this (more familiar from comic books than the law): "There's no telling where this will stop!"

So, for example, suppose someone suggests that we should have a new law under which al Qaeda prisoners can sometimes be tortured or given truth serum - for example, if they are thought to have information about an imminent nuclear attack. Many will fear a "slippery slope" effect - under which we will suspend more and more rights of more and more prisoners, and adopt more and more barbaric practices, until in the end we become "just like al Qaeda."

The counterargument, though, is that not all slopes slip - and those that do slip, do not always slip with the same speed. Suspending some rights does not inexorably bring with it the suspension of all rights. To go back to our example, if we suspend some defendants' rights, or even use torture or truth serum to interrogate, that doesn't mean that overnight, we will become "just like al Qaeda" - as UCLA professor Eugene Volokh has recently pointed out.

In fact, there's very little chance we will ever become anything like al Qaeda, given that everything in our Constitutional system is completely different from what they believe in. Truth serum is not the thread that divides us.

Thus, the counterargument to "slippery slope" is simply this: "this slope doesn't slip." Of course, that doesn't necessarily mean that, in our example, we should use torture or truth serum on al Qaeda prisoners. It just means that if we do, we won't have to look ourselves in the mirror tomorrow and see Osama bin Laden staring back.

A similar argument holds that a given law will open the "floodgates" to something bad. For example, many commentators have argued that if we allow a broad definition of what is a "disability" under the Americans with Disabilities Act, we will invite many lawsuits from people with comparatively minor disabilities - such as bad eyesight. And in turn, that will increase courts' workload, as they are buried under a "flood" of lawsuits.

One good response to "floodgates" is to welcome the flood. Is an increase in lawsuits necessarily a bad thing? Arguably, the flood of suits will also be a flood of justice. People with bad vision can face discrimination, too - for instance, if they try to become fighter pilots. Perhaps employers should be required to pay for Lasik surgery to remedy the inequality.

Proving Too Much

A close relative of these two arguments is the argument that a given legal position "proves too much." This argument has always sounded strange to me: Isn't it a good thing to prove as much as you can? What it really means, though, is that the argument has consequences that the arguer can't live with.

For instance, suppose that I support a law against meat-eating because I believe in animal rights and, specifically, in preventing animals from experiencing pain and death. You might claim that my argument "proves too much" - for it would also imply that we should outlaw the eating of fish, animal products, and indeed, even outlaw breathing, which kills microscopic creatures.

One counterargument to "proving too much" is basically just reasonableness. In law, as in life, we don't always do everything that is consistent with our principles; we just do as much as we can.

Another counterargument is that the consequences that are supposedly proved actually don't really follow. Certainly there are, for instance, relevant distinctions between a microscopic bacterium and a huge cow - and distinctions that are relevant to the goal of preventing pain. One would have to think a cow experiences more pain than a bacterium - or a fish, for that matter - and an egg or glass of milk experiences no pain at all.

Perverse Incentives

Another frequently-heard law school argument holds that a given law will create "perverse incentives" or have ironic consequences.

This is obviously a good argument, in the context of the cafe standards: We don't want to save the environment at a huge cost to human safety. But the counterargument is this: We can just have a second regulation that tells carmakers the minimum amount of steel they can use, given a particular size of car, to ensure auto safety - or we can simply have a regulation that tells regulators to look at fatality statistics for given car designs directly, and veto those that are too dangerous because they create cars akin to tin cans.

As this example shows, many "perverse incentives" arguments can be addressed not by repealing the original law, but by adding a second law or regulation to correct the perverse incentives.

"Hydraulic" Pressure

Our next argument - the "hydraulic pressure" argument - relies on the simple principle of physics that says that water must go somewhere, so that if you push it out of one place, it will go somewhere else. Sometimes legal systems are like that too.

One of my earlier columns, on adult businesses on the Internet and in the real world, explains a "hydraulic" trade-off. There, I argued that increasing the laws governing real world adult Internet businesses will inexorably drive more adult businesses onto the Internet.

The businesses won't disappear; they will simply be displaced. Unless we are willing to institute a Taliban-like ban, society is going to have a certain number of adult businesses as a sexual outlet. The question is only where they will be.

Obviously, I believe the hydraulic pressure argument can work. I like the argument because it places what I think is a proper emphasis on the large-scale, systemic consequences of laws - not just a particular law's direct results.

There are certainly counterarguments (for instance, there can be ways to stop the displacement effect). However, I think the "hydraulic pressure" argument is one of the law's best, and least often raised.

While it is difficult, at times, to figure out the systemic effects of a given new rule - somewhat like building a boat at sea - doing so is crucial if the law is ever going to live up to our dreams for it. This is one argument that I'd like to see more of in the first year of law school.

Also ubiquitous in the One L year is the "cheapest cost-avoider" argument - which comes from the Law & Economics school of thought. This argument aims to place liability for a particular accident on the party that could have most cheaply avoided that accident.

For instance, suppose you go to a house and venture, against the host's instructions, into its dangerous attic - then fall right through the floor. Unfortunately, you have no health insurance - so who's going to pay the bill? Since you were the one who could cheaply (indeed, with just a little common sense) have avoided the accident, the cheapest cost avoider argument says that is you, not the host, who should pay your hospital bills. Next time, you won't be venturing into the dangerous attic so quickly.

One good counterargument to the "cheaper cost avoider" way of thinking, though, is that is all well and good when the choice is about which of two corporations, or which of two individuals, should be liable. But when the choice is between a corporation and an individual (or even a small business), we may want to look much more carefully at the ability to bear losses, and to take efficiency and cost-avoidance into account far less.

So suppose the floor through which the individual falls is, instead, the under-construction floor of his workplace - a floor that was sealed off, though that didn't stop the individual, who was desperate for a cigarette break anywhere he could find it. Should the insuranceless individual pay his own huge hospital bills, as the "cheapest cost avoider" theory would have it?

Perhaps not. Perhaps the employer should pay the hospital bills, even if the individual was the one who could most cheaply have avoided the accident. After all, if the employer doesn't foot the bill, an employee's life may be devastated, with terrible consequences for his innocent family members as well.

Redistribution of Wealth Should Be Done Through the Tax System

A final, familiar law school argument says that redistribution of wealth should be done through the tax system, not through particular laws.

Those who make this argument point out that redistributing wealth through particular cases - by, for example, favoring a destitute tenant over a wealthy landlord - is always somewhat random and unfair to parties in other cases. One judge or jury will be inclined to redistribute, and another will not.

But there is a good counterargument: sometimes redistribution through particular cases is the only way to redistribute wealth at all. In theory, it would be great to reform the whole tax system. In practice, it isn't going to happen; the rich will get richer (consider the recent movement to repeal the so-called "death tax" to allow the wealthy to inherit even more).

Seven Shallow Arguments Show the Need For Greater Depth in Law School

I do not mean to suggest that these seven basic arguments are worthless. To the contrary, law students should learn them, and learn them well. But they are usually presented, to One Ls' confusion, as more difficult than there. And importantly, even when they have been mastered, they are not enough.

These seven arguments are, at their heart, shallow. And too often, they are raised without attention to the strong counterarguments that can be made against them, or the fact that they may not apply in a particular situation. They are also often raised without any kind of empirical inquiry as to whether they may be accurate in the real world. They can easily become not arguments, but merely labels for arguments.

We deserve a legal profession with more depth, fewer labels, and more consideration not only of the rules, but of the reasons behind them. With three years of study to spend, law students deserves to know not just the basic arguments and counterarguments, but also the reasons they may not apply in the real world, and how they can be changed or modified if that is indeed the case. The arguments should be used to spur discussions about the law's future, not as a trump card to end the possibility of change.


Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir The Bad Daughter. She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99. Her novel Three is forthcoming in French translation from Actes Sud.

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