Many people are unaware, or else it is fading fast from memory, that our American system of government, laws, and jurisprudence, are rooted in Christianity. Our concepts of justice, equality, liberty, honesty, sanctity of life, protection of property, etc., are based upon foundational Christian principles. In fact our system of laws and government are derived from the old English common law, which developed out of principles of natural law and the application of Christian beliefs. Without understanding these foundations and this history, the law can become distorted and used to promote vices instead of virtues.
The common law has its origins dating back to the Norman Conquest of England and William the Conqueror. Prior to this, some variation of Roman Civil Law was applied in much of Europe. As the Roman Empire collapsed, so did reliance on its laws, spurring new thoughts and developments on what exactly was the nature of law. At the same time, Christian beliefs were also spreading throughout Europe out of what remained of Roman Civilization, and in England, a new system of laws began to develop that incorporated natural law principles originating from Christian theology.
Natural laws are those standards derived from nature and reason. They are objective moral truths revealed through rational thought and observation of the natural world and of human nature. Natural law includes such principles as the Ten Commandments, and the inalienable rights to life, liberty and property, as well as the right to defend oneself and one's property from harm by others. Indeed the origins of the idea of natural law are based upon early Christian theology. For example, Romans 1:20 states: "From the creation of the world His invisible attributes, that is, His eternal power and divine nature, have been clearly seen being understood through what He has made. As a result, people are without excuse." The Apostle Paul goes on to explain in Romans 2:13-15 that one is righteous not by hearing the law, but by obeying it, and that people who do not know the law, but by nature do what the law requires, show that the law is written on their hearts and consciences.
As Thomas Aquinas explained, God alone knows the eternal law by which he
created and governs the universe, and as he created human beings in His
image, as moral and rational beings, we are capable of recognizing
self-evident natural law, the reflection of God's eternal law. Aquinas believed that because all people are creations of God, and have the law written on our hearts, as the Apostle Paul noted, we are able to observe nature and employ reason to deduce laws and principles that apply universally to all.
Even Martin Luther King, Jr. affirmed that there are just and unjust laws, and that we are all subject to natural law.
It was through this process of observation and reasoning and the development of natural law that early tyranny was placed in check, establishing a key principle that no one is above the law except God, including the king. This occurred after King John was made to recognize the rights of the people and the nobles under the Magna Carta in 1215. The significance of the Magna Carta's influence on our legal system today is seldom thought of, yet its concepts are incorporated into the very core of our jurisprudence - no man is above the law, that all citizens are entitled to equal protection under the law. These ideas are an integral part of our Constitution, and originated with the Magna Carta and the belief that only God and the law are supreme over all human beings. In demonstrating the far reaching effects of this idea, Lord Mansfield noted in the famous Sommersett's Case in 1772, that anyone who came to England would be entitled to the protection of English law regardless of skin color. This showed that the ideas exemplified by the Magna Carta were still viewed as true, and that all were equal under the law, and no person, at east in England at the time, was above any other in relation to the law.
After the Magna Carta, Henry de Bracton published his treatise, De Legibus et Consuetudinibus Angliae ("The Laws and Customs of England") in 1235 that would begin an ingenious organization of the laws that would later earn him the title of Father of the Common Law. Bracton studied Roman Civil Law as well as Canon Law to organize and synthesize the various rules and decrees into legal "statements" or categories. He introduced the use of cases in presenting the law which eventually developed into the doctrine we still use today known as stare decisis, the idea that the law should apply by analogy so that cases with similar facts should lead to similar decisions.
After this, during the late 1500's - early 1600's, Lord Coke followed what Lord Bracton began and established that the law of nature is part of the law of England and is immutable, no doubt drawing from Romans 1:20. He reasoned that nature's law was was just as applicable to England as any judicial or municipal law because it existed before even Moses wrote it down, Moses being the first reporter of the law. This set the stage for the development of the idea of judicial review. Lord Coke determined that if Parliament, or any municipality, enacted any law contrary to Nature's law, the judiciary has an obligation to declare such law void. This concept of judicial review took root strongly in America through Chief Justice John Marshall in the famous Marbury v. Madison case.
Even Justice Joseph Story reaffirmed that these concepts of equality under the law, stare decisis, and judicial review, arising from Natural law and incorporated into the common law, were rooted in Christianity, and served as the basis for our American jurisprudence. Revolutionaries, such as Thomas Paine, made passionate arguments based upon the Bible and its principles as authority for seeking independence, carefully pointing out through Scripture, and quoting it heavily, that God did not create kings, but that all people were created equal at the beginning of creation. Biblical principles were also reflected in the very words of the Declaration of Independence.
Understanding this long and rich history of Christianity's influence on our laws is important for numerous reasons. Our concept of justice ultimately arises from these Biblical principles. We should recognize that God ordained government to preserve order and to do justice. This means that our government, made up of our laws, should conform to natural immutable law so that justice may be done. We are called to be good citizens, "rendering unto Caesar what is Caesar's," praying for those in authority, and engaging in service and the political process so that we can call those in authority into account. Our engagement and understanding of our Biblical foundations allow us to ensure that justice continues to be done. When we cease to apply Biblical principles, or to even acknowledge their influence on our legal foundations, we lose the ability to apply objective truth to our society and justice ceases to be done. That is the importance of understanding our history and roots.
Wednesday, October 16, 2013
Saturday, August 17, 2013
The Changing Practice of Law
Recently the New Republic published an article titled "The Last Days of Big Law" by Noam Scheiber. In the article, Mr. Scheiber illustrates first the characteristics of the so-called golden age of the big law firm, followed by explaining what law associates went through upon joining the firm seeking to climb the ladder to become the next partner and land on easy street for the rest of their careers, and how current partners engaged in office politics to take credit for an associate's work, or to beat out other partners for increased rewards in a points based system of profit sharing. There were generous salaries, prestige, stability, and a benevolent paternalism. Above all, there was security. These big firms had cases flooding in, and the partners had the ability to accept cases they wanted and that would be lucrative for the firm. All others - well you may have had a case but not one worth taking. Associates did much of the actual work, striving to bring money into the firm in the hopes of landing a new partner position, rising up the chain to more money and less work.
Mr. Scheiber then proceeds to note a very sharp change brought on by the changing economy - he states that "Part of the reason the law-firm ecosystem has changed so dramatically in a single generation is greed." The change? The recession, changes in technology, increased competition; all of these had an impact on the legal profession. Clients no longer have the ability to pay whatever expenses are charged, they now have to watch costs and seek the best value. There is a sort of institutional disdain for cold calling and having to work to get clients. There is increased cutthroat office politics to get greater recognition, fighting to bring in more fees, and cutting anyone not meeting a quota. As a result, many new associates are being let go, and like many new law graduates, are having a hard time finding a job. This is all changing, and should change. Solo and small firms are growing, associations among attorneys and contract work are becoming more popular alternatives to the big firms, not to mention the rise of businesses like legal zoom and the limited practice officers and legal technicians.
In full disclosure, I have only been part of a big firm once in my life. Not a private law firm but a public one - a county prosecutor's office for a year as an intern. I have to admit I enjoyed the experience very much, and made some great friends. Had certain circumstances been a little different, I would have loved to have stayed on. Other than this experience, I have either been a solo practitioner, or had one other partner. Part of the reason I decided against joining a big firm, which I define as having at least 4 partners and around 6 associates minimum, is for the very reasons that Mr. Scheiber pointed out as characteristics of the golden age. I saw many instances where my father needed legal help and was turned away because his case would not bring in at least $1 million for the firm. Not that there wasn't some office politics at the prosecutor's office - indeed there was, but it was minor and of a completely different nature - but at big firms where there is more competition to reach that partner position, or to gain the most credit for bringing in the most fees, the office politics can be brutal and nasty. I have always felt this was unnecessary, and counter-productive to the real purpose of a law firm and in fact a business. Perhaps the most significant reason why I decided to go into solo practice was something that happened to me while in law school
During my first year in law school, several local attorneys volunteered to judge a client counseling competition. I thought this would be a great opportunity to test out how well I could help someone who came into my office. I remember a hypothetical client came into the classroom with me and a friend asking for help with an issue she had and perhaps for representation if she had a case. Our two assigned judges sat quietly in the back of the room. Her issue involved being cheated by a local business but the total damages and expenses involved made the case questionable at best. After we completed counseling her, she left and we awaited the judges critiques. My friend and I were shocked when the judges told us that they would have chased the potential client out of the office in about 5 minutes and that we wasted our 20 minutes with her. They told us that she had no case, and that we should have referred her to the Attorney General's office to let the consumer protection division handle the matter. In hindsight, they were probably right about this point, but what made the most impact was when they told us that we weren't getting into the legal profession to help people - this was a business and we needed to learn to think that way. This floored me since this was precisely the reason why I went to law school. I had aspirations of running for public office or otherwise using my legal education to help people. I certainly understood the need to make a living, but I wanted to do so in a way that helped people.
This mindset, this type of greed, if you will, is certainly not what the legal profession is about, and it is not what business should be about. In fact, God calls for us to not only engage in business, but to also do so in an ethical manner, and this includes the legal business. We are called to work in order to support ourselves and our families (2 Thessalonians 3:6-12; 1 Timothy 5:8), to take care of the poor (Ephesians 4:28), to support the church and its outreaches (1 Corinthians 16:1-3) and to provide a platform for sharing our faith. Because of this, our business should be run with integrity. The Bible provides numerous examples of this ranging from ensuring weights and measures are accurate to tax collectors collecting only what is prescribed by law. Generosity towards the poor is also not only virtuous, but mandatory. Finally, the Bible condemns greed, but encourages ambition. Paul made it clear, and it will be quoted properly here: "For the love of money is a root of all kinds of evil, and by craving it, some have wandered away from the faith and pierced themselves with many pains." (1 Timothy 6:10). Money in itself is not evil, the love of money is, and loving money more than our fellow man is how we define greed.
Greed has brought down "Big Law," and has been a driving force behind the financial crisis. The solution is by no means the abandonment of capitalism and to embrace socialism. The solution is to return integrity to business and the legal profession. We are here to make money, but we are also here to help others. Indeed, as Rabbi Daniel Lapin has pointed out on many occasions, profits are rewards for our helping our fellow man. Greed and the love of money result in harming our fellow man, and to that end they should be condemned. Profits earned for helping others and improving their lives should be encouraged. As I often tell people, if I don't do a good job and help my clients, they go out of business, and if they go out of business, then I have no clients and go out of business too. I want to help my clients succeed and to give them the most value, and that should be the way of the future for the practice of law - the Biblical principal-based way of business.
Mr. Scheiber then proceeds to note a very sharp change brought on by the changing economy - he states that "Part of the reason the law-firm ecosystem has changed so dramatically in a single generation is greed." The change? The recession, changes in technology, increased competition; all of these had an impact on the legal profession. Clients no longer have the ability to pay whatever expenses are charged, they now have to watch costs and seek the best value. There is a sort of institutional disdain for cold calling and having to work to get clients. There is increased cutthroat office politics to get greater recognition, fighting to bring in more fees, and cutting anyone not meeting a quota. As a result, many new associates are being let go, and like many new law graduates, are having a hard time finding a job. This is all changing, and should change. Solo and small firms are growing, associations among attorneys and contract work are becoming more popular alternatives to the big firms, not to mention the rise of businesses like legal zoom and the limited practice officers and legal technicians.
In full disclosure, I have only been part of a big firm once in my life. Not a private law firm but a public one - a county prosecutor's office for a year as an intern. I have to admit I enjoyed the experience very much, and made some great friends. Had certain circumstances been a little different, I would have loved to have stayed on. Other than this experience, I have either been a solo practitioner, or had one other partner. Part of the reason I decided against joining a big firm, which I define as having at least 4 partners and around 6 associates minimum, is for the very reasons that Mr. Scheiber pointed out as characteristics of the golden age. I saw many instances where my father needed legal help and was turned away because his case would not bring in at least $1 million for the firm. Not that there wasn't some office politics at the prosecutor's office - indeed there was, but it was minor and of a completely different nature - but at big firms where there is more competition to reach that partner position, or to gain the most credit for bringing in the most fees, the office politics can be brutal and nasty. I have always felt this was unnecessary, and counter-productive to the real purpose of a law firm and in fact a business. Perhaps the most significant reason why I decided to go into solo practice was something that happened to me while in law school
During my first year in law school, several local attorneys volunteered to judge a client counseling competition. I thought this would be a great opportunity to test out how well I could help someone who came into my office. I remember a hypothetical client came into the classroom with me and a friend asking for help with an issue she had and perhaps for representation if she had a case. Our two assigned judges sat quietly in the back of the room. Her issue involved being cheated by a local business but the total damages and expenses involved made the case questionable at best. After we completed counseling her, she left and we awaited the judges critiques. My friend and I were shocked when the judges told us that they would have chased the potential client out of the office in about 5 minutes and that we wasted our 20 minutes with her. They told us that she had no case, and that we should have referred her to the Attorney General's office to let the consumer protection division handle the matter. In hindsight, they were probably right about this point, but what made the most impact was when they told us that we weren't getting into the legal profession to help people - this was a business and we needed to learn to think that way. This floored me since this was precisely the reason why I went to law school. I had aspirations of running for public office or otherwise using my legal education to help people. I certainly understood the need to make a living, but I wanted to do so in a way that helped people.
This mindset, this type of greed, if you will, is certainly not what the legal profession is about, and it is not what business should be about. In fact, God calls for us to not only engage in business, but to also do so in an ethical manner, and this includes the legal business. We are called to work in order to support ourselves and our families (2 Thessalonians 3:6-12; 1 Timothy 5:8), to take care of the poor (Ephesians 4:28), to support the church and its outreaches (1 Corinthians 16:1-3) and to provide a platform for sharing our faith. Because of this, our business should be run with integrity. The Bible provides numerous examples of this ranging from ensuring weights and measures are accurate to tax collectors collecting only what is prescribed by law. Generosity towards the poor is also not only virtuous, but mandatory. Finally, the Bible condemns greed, but encourages ambition. Paul made it clear, and it will be quoted properly here: "For the love of money is a root of all kinds of evil, and by craving it, some have wandered away from the faith and pierced themselves with many pains." (1 Timothy 6:10). Money in itself is not evil, the love of money is, and loving money more than our fellow man is how we define greed.
Greed has brought down "Big Law," and has been a driving force behind the financial crisis. The solution is by no means the abandonment of capitalism and to embrace socialism. The solution is to return integrity to business and the legal profession. We are here to make money, but we are also here to help others. Indeed, as Rabbi Daniel Lapin has pointed out on many occasions, profits are rewards for our helping our fellow man. Greed and the love of money result in harming our fellow man, and to that end they should be condemned. Profits earned for helping others and improving their lives should be encouraged. As I often tell people, if I don't do a good job and help my clients, they go out of business, and if they go out of business, then I have no clients and go out of business too. I want to help my clients succeed and to give them the most value, and that should be the way of the future for the practice of law - the Biblical principal-based way of business.
Thursday, July 4, 2013
...and to the Republic, for which is stands...
It seems appropriate, in light of this 4th of July and our celebration of our Nation's independence, to discuss the question of whether our government is a Republic as stated in our Pledge of Allegiance, or a democracy, as we hear pundits and politicians declare so often. The Constitution does not mention anywhere within it the word, or any phrases implying, democracy. The answer to the question then, is that our Nation was, and arguably still is, a Republic, though a good case for democracy today might be argued. At any rate, it is important to know what the differences are and why it matters.
A democracy, as most kids learn in school, is from the Greek for demos, meaning people, and kratos, meaning government. The literal translation is government by the people, and this certainly has great appeal. Under a democracy, the majority rules without restraint of a given body of law. Indeed the law is whatever the majority say it is. It is rule by whim and emotion rather than by law and reason. Characteristics of a democracy include having voting blocs and group and class interest groups. There are no individual rights, there are only rights for what the majority at a given moment deem exist.
"Laws" are man-made, and do not reflect truth or justice, but power alone. Examples of this, even today, include laws such as gun-control, food bans, or certain environmental regulations (this would not include what I believe are required Biblical stewardship responsibilities); such laws are based on pure emotional reaction to a given perceived societal problem instead of law and reason. Often the result of these laws is to impose a punishment on otherwise honest and law abiding citizenry without regard for justice in the slightest.
Political factions constantly battle for control of the government, often marked by deep seated polarization and constant skepticism, not unlike the battles we see today between Republicans and Democrats. Power is the ultimate goal, and every more is either calculated with power in mind, or questioned as being a play for more power. A modern example is the recent decision by the President to delay implementation of a certain provision of Obamacare on employers. This act is being questioned as an act to gain more power by removing the harmful effects of Obamacare until after the mid-term elections. While this may be true, such skepticism is unhealthy for a Republic and public confidence in the law.
Once power is obtained, the laws begin to reflect what the dominant power wants instead of what is right or just. As pointed out above, individuals rights do not exist, but the dominant faction in power can and will bestow privileges to some. Think of this as punishing those out of power for making mistakes on their tax returns, but promoting others in power even though they were caught cheating on their taxes. Another example would be deciding that the needs of society as a whole outweigh the rights of the individual, so taking a persons DNA, whether they are charged with a crime or not is deemed to be permissible.These are but a few examples that one could use to argue that our Republic has degenerated into a democracy.
What is a Republic then? Republic comes from the Latin res, meaning this, or interest, and publica, which means everyone. The literal translation is everyone's thing or interest. The primary characteristic of a Republic is the rule of law. Just as the Declaration of independence spells out, all men are created equal, with unalienable rights granted by our Creator, and that governments are formed by men to secure these unalienable rights. Government power is derived from the consent of the governed, meaning all people under it, not just the majority in power. So long as the government protects these unalienable rights, consent of the governed will continue. The majority is kept in check by the rule of law from injuring the rights of the individual.
Under a republic, the law is more than just politics, and is not dependent upon which group has the most power. The law is consistent, predictable, reasonable, and seeks truth and justice. Government is intended to punish those who would abuse another person's rights. For example, hurting someone with a gun should result in the government punishing the perpetrator for abusing the victim's right to be free from injury or right to life. It would be unjust to punish everyone else by taking away their property rights to own a gun because of the wrong done by another. This is reasoned and truth seeking, not emotionally reacting to a social ill. Government should have just enough power to carry out its proper functions of protecting individual rights and freedoms. To allow the government more power is to invite tyranny.
Why does it matter if we are a Republic or a democracy? A simple comparison between the two demonstrates why. Democracies are inherently unjust and unstable and have always ended in tyranny. Democracy was described by Thomas Paine to be the most vile form of government ever known, and at the Constitutional Convention of 1787, Edmund Randolph made the observation, paraphrased here, that the purpose for the Convention was to provide a cure for the evils under which the United States labored, those evils being the turbulence and follies of democracy. John Adams even warned: "Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy that did not commit suicide." Even Chief Justice John Marshall noted that the difference between a democracy and a republic was like chaos and order. There are clearly identifiable and understandable differences between the two forms of government, and our Nation's founders definitely had a preference.
With the increasing polarization and viciousness in politics, and the overt campaigns for more power illustrated by the constant concern over which party will gain or keep control over the House and Senate, it would appear that though our Founders and our Constitution established a Republic, we may have already degenerated into exactly what the pols and pundits already say - a democracy. If this is so, it certainly explains the polarization and incivility between ever increasing interest groups. If we have fallen to democracy, or are at least heading in that direction, how did we get here? By failing to adhere to the fundamental truth that there is a right and wrong. Failing to study history and learn from earlier mistakes. Failing to do the right thing in exchange for being liked. Choosing security over liberty. Failing to stand up for, and to seek to do, justice. Failing to abide by the Biblical principles upon which our Nation was founded. Allowing God to be purged from our legal jurisprudence and replacing Him with the concept of evolutionary operations and moral relativism (as I pointed out in the previous post).
The result, as noted in God, Man, and Law: The Biblical Principles, by Herbert W. Titus, from where this Blog borrows its name, the result is a "massive loss of confidence in the law - not only on the part of law consumers, but also on the part of law makers and law distributors." Without confidence in the law, power becomes the only reliable source for stability, and democracy soon follows that. However, we know from history that unless confidence in the law is restored, democracy will continue to overtake the republic and soon collapse it into tyranny. Tyranny is already showing signs as individual rights are beginning to be infringed upon, starting with religious liberties. Confidence can be restored, however, but it must start with a return to values and principles that created confidence and stability in the law in the first place. This means a return to reason and truth. This means reversing the purge of God from our legal system.
Enjoy the fireworks and celebrations, family, friends and good food, and remember that confidence and the Republic can be restored. As echoed by Abraham Lincoln, "If my people, who are called by my name, will humble themselves and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land" (2 Chronicles 7:14). Healing restores confidence.
Friday, June 14, 2013
Welcome to God, Man, and Law.
Welcome to God, Man, and Law. The intent of this, and future posts, is to attempt to restore public confidence in the legal system by explaining and discussing the Biblical and moral principles that serve as the foundation of our legal system. I will discuss past and present decisions and topics and address their implications in an effort to help promote justice for all. It is also my intent to point out where cases or topics have strayed from Biblical and moral principles and the resulting implications on justice and society.
Unfortunately modern legal education has been largely purged of its Biblical foundations and this has had a detrimental impact on the practice of law ever since. Since our Nation's founding until sometime past 1850, most lawyers were not trained in law schools but in law offices. That is not to say that there were no law schools - from 1829 to 1945, Harvard Law School earned great respect under the leadership of Supreme Court Justice Joseph Story. In 1869, however, Charles William Elliot became President of the school and it was then that legal education changed. Elliot hired Christopher Columbus Langdell, who began the "purge" and replaced teaching the law as based on Biblical and moral principles with the emerging trend of the day, the scientific method. Within 10 months of Langdell's hiring, he became Dean of the law school, a position he held for the next 25 years.
During this time, he developed what became known as the Langdellian method of teaching law that spread across the Nation and is in current use today. Prior to the Langdellian method, students would receive a copy of Blackstone's Commentaries and a Bible, and legal instructors would lecture on general rules and then provide examples of their application in particular cases. The basis of the Langdellian method, on the other hand, was not only science and the scientific method, but that the law was governed by an evolutionary principle of growth. The method may sound familiar to many lawyers and law students today - take a collection of case opinions, present them in a text book for students to read and study. Thereafter, the reasoning of the judges, and the students, would be questioned until generalized rules of law could become refined and extracted from the daily deliberations.
Langdell's philosophy, as stated in his own preface to his book, Cases on Contracts, 1879, was that "Law, considered as a science, consists of certain principles or doctrines...Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectually, is by studying the case in which is it embodied." In other words, the law was ever evolving.
Nothing, however, tends to make lawyers more frustrated than having shifting standards. We love bright line tests and certainty. Our clients like the same. It is very cliche now that the average attorney's answer to a client's every question is "it depends." This is also the primary reason why most people have little faith and confidence in the law and justice. The idea that the law evolves, or "grows," necessarily implies that the rules of the game will change over time and have little certainty. This erosion of public confidence is further damaged when our legislatures engage in similar conduct by enacting new changes to existing laws, or passing laws that are redundant or otherwise unnecessary. Recent examples that come to mind are yearly changes to the nonjudicial foreclosure statutes, paralyzing banks and borrowers alike as well as investors and ordinary home buyers. Another example would include creating the new traffic infraction of driving while texting or using a cell phone. This infraction was intended to stop people from texting and driving, or talking on a cell phone and driving. Such conduct would already be considered negligent driving, a serious moving violation affecting one's insurance rates. The new cell phone violation is only treated as a non-moving violation and never affects your insurance rates. Not only is this law redundant, but it hardly serves its intended purpose and has become a useful option to generate revenue for county and local municipalities as an amendment to a more serious violation. The Counties or Cities get the fine money without a fight from the defendant who only wants t protect his or her insurance rates. This is hardly justice, and definitely not confidence inspiring.
These and other subjects will be presented and discussed frequently and it is my hope that everyone reading this will enjoy, learn, teach, and benefit from all the posts. Ideally if the legal system overall could be transformed as a result, generating greater confidence in the law, my goal will have been accomplished.
Thanks.
Soli Deo Gloria!
Unfortunately modern legal education has been largely purged of its Biblical foundations and this has had a detrimental impact on the practice of law ever since. Since our Nation's founding until sometime past 1850, most lawyers were not trained in law schools but in law offices. That is not to say that there were no law schools - from 1829 to 1945, Harvard Law School earned great respect under the leadership of Supreme Court Justice Joseph Story. In 1869, however, Charles William Elliot became President of the school and it was then that legal education changed. Elliot hired Christopher Columbus Langdell, who began the "purge" and replaced teaching the law as based on Biblical and moral principles with the emerging trend of the day, the scientific method. Within 10 months of Langdell's hiring, he became Dean of the law school, a position he held for the next 25 years.
During this time, he developed what became known as the Langdellian method of teaching law that spread across the Nation and is in current use today. Prior to the Langdellian method, students would receive a copy of Blackstone's Commentaries and a Bible, and legal instructors would lecture on general rules and then provide examples of their application in particular cases. The basis of the Langdellian method, on the other hand, was not only science and the scientific method, but that the law was governed by an evolutionary principle of growth. The method may sound familiar to many lawyers and law students today - take a collection of case opinions, present them in a text book for students to read and study. Thereafter, the reasoning of the judges, and the students, would be questioned until generalized rules of law could become refined and extracted from the daily deliberations.
Langdell's philosophy, as stated in his own preface to his book, Cases on Contracts, 1879, was that "Law, considered as a science, consists of certain principles or doctrines...Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectually, is by studying the case in which is it embodied." In other words, the law was ever evolving.
Nothing, however, tends to make lawyers more frustrated than having shifting standards. We love bright line tests and certainty. Our clients like the same. It is very cliche now that the average attorney's answer to a client's every question is "it depends." This is also the primary reason why most people have little faith and confidence in the law and justice. The idea that the law evolves, or "grows," necessarily implies that the rules of the game will change over time and have little certainty. This erosion of public confidence is further damaged when our legislatures engage in similar conduct by enacting new changes to existing laws, or passing laws that are redundant or otherwise unnecessary. Recent examples that come to mind are yearly changes to the nonjudicial foreclosure statutes, paralyzing banks and borrowers alike as well as investors and ordinary home buyers. Another example would include creating the new traffic infraction of driving while texting or using a cell phone. This infraction was intended to stop people from texting and driving, or talking on a cell phone and driving. Such conduct would already be considered negligent driving, a serious moving violation affecting one's insurance rates. The new cell phone violation is only treated as a non-moving violation and never affects your insurance rates. Not only is this law redundant, but it hardly serves its intended purpose and has become a useful option to generate revenue for county and local municipalities as an amendment to a more serious violation. The Counties or Cities get the fine money without a fight from the defendant who only wants t protect his or her insurance rates. This is hardly justice, and definitely not confidence inspiring.
These and other subjects will be presented and discussed frequently and it is my hope that everyone reading this will enjoy, learn, teach, and benefit from all the posts. Ideally if the legal system overall could be transformed as a result, generating greater confidence in the law, my goal will have been accomplished.
Thanks.
Soli Deo Gloria!
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