Small Section 3 Tidbit

Another point that came up about Section 3 recently, one which a  peep suggested I mention on the blawg, so I will.  (From what I understand this isn’t all that common, but I can’t believe it’s confined to our section.)  Section 3 classes openly discuss argumentative strategies.  Instead of “learning to think like a lawyer” by osmosis, we’re openly drilled in arguments and counter-arguments – we discuss their limits and ramifications. 

As an example, one of our profs, Gary Peller, who teaches Bargain, Exchange, and Liability, quite overtly offers the following “three level view”: 

• The first level is “the rule,” i.e., straight up black letter law/the holding of the case (which is generally at least somewhat malleable of course). 
• The second level is “the rationale” for the rule, i.e., the various kinds of arguments you can marshal to push that black letter law one way or another, to expand or limit the holding, (econ, social policy, administrative issues, institutional competence, etc.).<>
• The third level is the deeper “world view” that each legal philosophy rests on, plus critiques of that philosophy.  An example would be the Classical Legal Thought/Lochner-era courts holding that pro-labor statutes violated “freedom to contract” as grounded in the basic view that the common law existed to act as a shield against the state by preserving the freedom and liberty of the individual.  (Think about how this arises from the history of common law in England and ties into the politics of the early 1900s/the threat of communism/fascism.)  We could also say that in this view, judges were thought to enforce neutral, baseline, background rules which are just the natural rules of the game.  Free and competent individuals can engage within this field.  The critique of this view would be a kind of Coasian analysis that there is no possibility of “neutrality” – that one interest or right will always be chosen or privileged over another.  By ruling that pro-labor statutes were unconstitutional, the courts were privileging ownership interests over labor interests, defining the “neutral baseline” in a way that favored a certain class.  It follows that common law rules are really policy judgments, or an exercise of state power (i.e, regulation) favoring a particular type of economic theory.  Thus the public/private act/omission distinction vanishes in a puff of smoke.  Check out Miller v. Schoene, 276 U.S. 272 (1928).

Peller normally takes us through each level for every case/point of law we encounter.  Some discussions move faster than others, but there’s not a lot of ball hiding.  At times we practice applying those level two arguments (The court is the correct body to make this decision/This decision should be left to the legislature) in specific cases.  I’m not sure how much of this kind of overt analysis/discussion takes place in other sections/schools.    

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As an aside, I’m hoping we get some other 3 peeps blawging about 3.  My take on what’s going on is just a single (and probably odd) perspective.