Thinking like a lawyer

Sometimes legal reasoning is to reasoning as military music is to music. Why should law schools perform common-sense-ectomies on their students?

Look, some of my best friends are lawyers. My sister is a lawyer (albeit in recovery). I try not to make more than my share of lawyer jokes. (What do you call five hundred lawyers standing up to their chins in water?*)

But things keep reinforcing the sense I had as a college senior, contemplating the choice between law school and public policy school, that law schools had developed a surgical procedure for excising their students’ common sense and common decency and replacing them with weird jurisprudential substitutes.

Take my good friend Eugene Volokh, for whose personal decency and good sense (not to mention massive intellect and skill at Scrabble &#8212 in what is, after all, his second language&#8212) I have enormous regard. A court rules that jail detainees (that is to say, people who have been arrested but not convicted, and are therefore, in legal theory, still innocent) and jail prisoners (serving terms for misdemeanors) can’t be made to sleep on mattresses on the floor. Eugene raises the question whether the deprivation of a bedframe ought to be considered, all by itself, cruel and unusual punishment.

Having slept for years on a futon on the floor, I take his conceptual point. But sleeping on the floor of a jail is likely to be less salubrious; I don’t know why Eugene should be so confident that a jail that fails to provides bedframes will nonetheless provide “adequate other bedding”, and of course if the courts tried to define the “adequacy of bedding” rather than creating a bright-line rule about having a bed they would subject themselves to ridicule as meddling in details that ought to be the province of administrators rather than judges. Moreover, since no one plans a jail without beds, having prisoners sleeping on the floor implies a very considerable degree of overcrowding; a typical jail is designed to be able to hold 50% more beds than its theoretical rated capacity.

Still, all of that seems to me like perfectly reasonable fodder for legal-academic discourse. What made me think I had fallen through the Looking-Glass was a throw-away introductory clause:

Even accepting the Court’s holdings that the Cruel and Unusual Punishment Clause applies to conditions of confinement …

Shall we parse that for a moment? Eugene is in doubt as to whether the Eight Amendment applies to “conditions of confinement.” If it doesn’t, then although a court may not sentence a misdemeanant to be, for example, starved to death, he would have no Constitutional avenue of complaint if he were confined in jail and not fed, or fed a diet inadequate to sustain life, because prison diet is a “condition of confinement” rather than a sentence of the court. (As Eugene notes, the courts have already held that detainees have no cause of action under the Eighth Amendment because, since they haven’t been sentenced, they aren’t legally being “punished,” but merely held pending trial. Since whatever happens to them &#8212 lack of medical care, beatings, rape &#8212 isn’t “punishment” at all, a fortiori it can’t be “cruel and unusual punishment.” They are protected only by the Due Process Clause, whose extension from literal “process” concerns to embrace “substantive due process” is held to be an outrage by the originalists.)

To a non-lawyer, it seems obvious that a ban on maltreatment that protects the guilty ought also to embrace the innocent, and that the state may not do, or allow to be done, to prisoners under its control what a judge could not lawfully order to be done as part of a sentence. Getting past such common-sense reasoning is a large part of what is meant by “learning to think like a lawyer.”

The rule of law is a great accomplishment; if you doubt me, ask the Colombians or the Zimbabweans or the Chinese. Even a set of laws that fails to track correct moral intuitions is better than none, if it is enforced with reasonable honesty and consistency. But, as Socrates pointed out to the sophist (i.e., law professor) Gorgias, the good and the true are logically prior to the apparently good and the plausible, and an education that tries to deliberately un-teach that crucial lesson is not a morally sound education. Since our political class is largely drawn from the ranks of law-school graduates, that’s a matter of more than merely professional concern.

* A water shortage, of course.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: