It’s August, so classes are about to start for everyone (well, not me, because I’m on sabbatical, but for the rest of you), and I imagine in some places 1Ls are already starting to show up for orientation, eager to get started on their legal career. Which is genuinely exciting!

But I also think there are some big overarching issues we don’t touch on enough in the 1L year, certainly not in orientation events, that I think 1Ls should keep in mind all the time, across all their classes. Things that push back against some of the dominant (if implicit) themes that run through the entire first year. So I thought I would list a few of them here.

1. Casebooks are inherently misleading. All of them. Unavoidably so. Because they focus on published cases, and published cases reflect just the very non-representative tip of the legal iceberg. Despite what Law & Order and almost all other legal dramas would suggest, almost nothing ever goes to trial: about 1% of criminal cases and even lower percents of civil cases go to trial. If they aren’t dropped or dismissed they’re settled or pled out, and those resolutions usually include an NDA (for civil cases) or a pretty-much-blanket waiver of appeal (for criminal cases). Which means they will generate no trial or appellate case. So your casebook reflects the outcomes of those non-random 1%s. In criminal cases, it’s even more asymmetric, because there’s no appeal if the defendant wins, so generally only cases where the prosecution wins, and wins at trial, can end up as an appellate opinion in a book.

That’s not to say that those cases are irrelevant. They are, in a way, how we set the law (sort of, but also not, despite how 1L classes treat them, which I’ll get to in a moment). But they are not representative. Their facts and legal positionings will inevitably be distinctly complicated, because it is those complications that made it impossible to reach an agreement.

It also means that the academic-y skills you tend to focus on in your 1L year–can you distinguish that legal outcome from this one, or point out how the facts here don’t exactly fit the doctrine there–are often not going to be the core skills you’ll need in the routine cases that will make up your day to day. Most aggravated assault cases are going to be open-and-shut aggravated assaults. The defenses will either be something procedural (“your witness sucks!”) or something more institutional or policy-based or relationship-based (“c’mon, we’ve done ten agg assaults this week alone: do you really think this guy deserves the same amount of time you got for Joe yesterday?”).

Again, I’m not saying what you get from caselaw is irrelevant. But it’s important to realize that cases are, by nature, outliers, and the cases that make casebooks likely even more outlier-y still. Outliers that are serve the important purpose of making broad statements about what the law “is” (or at least “should be”), but still outliers.

And sometimes we overlook this nature of cases in ways that really mislead us. There have been several empirical studies on the impact of “qualified immunity,” a defense that police officers can raise when they get sued in federal court for violating people’s rights. To measure the impact, studies generally look at published opinions to see how often suits get dismissed on QI grounds. But notice what that misses: how many cases never get filed because lawyers fear that QI will kill the claim, and thus any real chance of getting paid (if they are working on contingency, which they almost surely will have to, given the average economic status of those most likely to get beaten up by police). So looking at the dismissal rates in opinions is just looking at the rate of dismissals of those non-random cases where lawyers thought they had the best shot of avoiding QI. So the actual chilling impact of QI is something much larger.

2. Property Isn’t Teaching You Property Law (Neither is Torts, or Crim, or ….). Because there is no such thing as “criminal law” in the United States. Or property law, or torts. We have 50 states, each with its own law. Casebooks might lay out the major and minor rules, but at some point you will be a lawyer practicing in a specific state, and the law in that state will be the law you lawyer over, whether majority, minority, or off-the-wall bonkers idiosyncratic (looking at you, federal criminal sentencing rules). The real goal of your 1L year is not “to learn Contract Law,” like that is a thing that exists, but to learn the skills for figuring out what Contract Law in your state says.

In public law areas, the issue is even messier. We have 50 states, but ~2,200 prosecutor offices, and within a given state those DA offices have a lot of discretion to implement the law differently. And the DA offices can generally only prosecute those the police arrest, and our ~17,000 police departments (we don’t even know how many we have, which is an issue for another day!) have almsot unfettered discretion about who they choose to arrest. So even one state can have wide systematic geographic differences in what the criminal law looks like on the ground.

Now, you may have to treat what you learn in Contract Law as “Contract Law” for your final! I’m not encouraging you to say “I can’t answer your question without you giving me the specific state we are practicing in.” But you should appreciate that the law is different in every state (and maybe county, and maybe city), and what we teach in our 1L classes is not actually The Law, because The (singular) Law doesn’t exist.¹

3. Legislation/LegReg/Whatever Your School Calls It (If They Have It) Shouldn’t Be A Class. Now, let me be clear: Fordham was one of the first schools to make LegReg–a course focused on statutes and regulations–a required 1L class, and I’m damn proud of us for doing that. What I mean, though, is that it should not be a class because its ideas should be deeply baked into the entire 1L curriculum, not isolated as a stand-alone class.

Because do we have a class for 1Ls call “Case Reading”? No. We call those Torts, Property, Contracts, and (infuriatingly) Criminal Law.² Having a course like LegReg suggests that statutes are these exceptional things we need to talk about on their own, while treating caselaw as so inherently “part of” the law that it is just embedded in all the other classes.

There’s an historical reason for this. The caselaw system was invented by a former dean of the Harvard Law School, Christopher Columbus Langdell. Who died in 1906. A good thirty years before the rise of the modern post-New Deal state. It’s an educational system, mostly unchanged for well over a century, that was invented during a time when the law simply looked different than it does today.³ These days, whole swathes of law are driven by and defined by statutes and regulations. There is no need to have multiple substantive courses all teaching the same case-reading skill, while consigning statutes to one catch-all class.

For 1Ls, though, the big takeaway should be this: you’re going to get the sense that cases are at the heart of the law. And in some areas, they still matter a lot. But statutes and regulations are hugely important. Many of you will spend your careers in areas where they are the core thing that defines the rules. Don’t over-weigh the importance of cases, and take quite seriously any course that touches on statutes.

An anecdote: I had a 1L who had me for Crim tell me once that she was offered an internship at Legal Aid (one of NYC’s public defender agencies, whose internships are really competitive) basically on the spot when she told them that her 1L Crim class had focused on statutes. She was the first 1L they’d interviewed who could actually read statutes with some confidence, which they said was both almost all of the job and something almost no 1L they had interviewed seem to know how to do.

4. The Law On The Books Isn’t the Law On The Ground. Or, put differently, neither cases nor statutes are self-effectuating. Someone has to choose to invoke them, or have the ability to do so, and often can use them in ways the language might not expect.

An example: when I was in law school, my Crim Law professor told the story of a judge in California who said that apparently the sun never sets in California. Why? Because the legislature drafter (at least) two types of burglary: of a residence during the day, and of a residence at night. The latter carried more extensive sanctions, because the risk of injury was greater. Now, as part of the plea process, defendants have to acknowledge in open court what they did and what they are pleading to. And the judge had seen a lot of plea allocutions (as they’re called) that basically went:

Judge: What are you pleading to?
Defendant: Burglary during the day.
Judge: What did you?
Defendant: Well, your honors, at 2 am I kicked in the door...
Judge: Any objections?
Prosecutor and Defense Attorney: [Silence]

The legislature created a system of rules that prosecutors and defense attorneys proceeded to plead around, while judges just shrugged their shoulders and signed off on everything.

Or consider Robert Ellickson’s book Order Without Law, which talks about how farmers and ranchers in Shasta County, CA, often settle disputes based off decades of customs and norms that often bear little resemblance to how the formal caselaw on the issue would allocate liability–just their own private way of resolving things. So if you learn what caselaw in California says about the liability ranchers bear for their cows eating farmers’ crops, you’re … not actually learning what the law is in practice.

Or sometimes the law is what the cases say it is, but maybe no one can actually invoke those rules. What if I post something mean but true about Elon Musk here, and I get a takedown letter from his lawyer, accusing me of libel? Now, truth is an absolute bar to libel, and perhaps I made it clear it was my opinion, not a statement of fact, which also is a defense. I can fight this, and if I do I’ll win. But I’m an academic with three college tuitions on the (very) near horizon. Musk is a wildly-overcompensated Twitter poaster. He can bankrupt me long before I can win without feeling a thing. So I take my post down, despite its clear legal permissibility. So what is the law there? Caselaw says one thing, my Citibank account says something else altogether different.⁴

Don’t lose sight of the real-world issues that determine what the law is. Cops don’t have to make arrests. Prosecutors plead around the plain language of statutes. People can’t raise claims that are entirely meritorious because they can’t afford to at the sort of scale that undermines the law’s effectiveness overall (like Musk suing me). The formal law you’ll study in your 1L year lays out some broad rules, but those broad rules get filtered through a very messy, very political real world.

Your 1L profs will ask you “what is the law here?” and your answer is whatever the case or statute says. But as you give that answer, realize that that is the formal answer, not the practical one. The lived experience of those for whom that case or statute is officially “the law” may be very different than what the language of that case or law says.

5. Judges Are Political Creatures, and Humans. A lot of the 1L year is trying to draw doctrinal distinctions between cases (“Case A reaches a different outcome than Case B because of Fact X”). Like, in the Crim casebook I use, there are two cases in different states involving deaths during drag racing that reach different conclusions about whether a racer who wasn’t involved in the accident is still liable for the deaths that happened. Now, one could find some sort of doctrinal line to draw: in one case, for example, the person killed was another drag racer, while in the other it was a third party. And maybe that sort of line matters.

But maybe it doesn’t. Maybe the answer is that one state’s judges just viewed liability differently, because they were ideologically different, or came from different legal backgrounds, or were just hungrier when they heard the case.⁵ The 1L year all too often tries to avoid those sorts of non-legal explanations for different legal outcomes, but they are very real. I mean, I recall during Trump 1 that a lot of legal academics got upset that people were referring to federal judges appointed during his term as “Trump Judges,” because they thought it somehow unfairly impugned the integrity of “the courts.” Rather than an acknowledgement of the undeniable reality that federal judges are political actors who are appointed because of their ideologies (especially at the circuit and SCOTUS levels).

Again, on your exams, if you have to distinguish between cases, it’ll often not be in your best interest to make some sort of “there’s nothing capital-l Legal going on here, it’s just political judges being political.” But don’t think for a minute that legal outcomes are not constantly suffused with politics, even if the opinions try desperately to avoid reflecting that, and our case-centered casebooks too often don’t give those politics and ideological pressures the attention they deserve.⁶

***

This post is long enough, so I’ll stop here. If there is one big overarching tl;dr takeaway, it’s to never lose sight of the fact that the formal law of cases and statutes does not just automatically work. It gets imposed by humans. Political, fallible, sometimes unpleasant but also sometimes merciful humans, vested with all sorts of discretion, operating in a country with serious issues of income inequality, access to lawyerly assistance, racism, sexism, homophobia, but also kindness, compassion, selflessness, and so on, all of which are what really shape how that written law becomes what people experience.

And also that none of that ever happens at trials, trials are vanishingly rare and jury trials rarer still, and it’s all about settlement and pleas and definitely do not lose sight of that.

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1. This is why I believe the entire 1L curriculum should be redesigned with Contracts, Property, and Torts all collapsed into a single “How to Read Caselaw” course, so that we put the skill at the forefront, not the substance. I also think we should do this because skills are easier for students to retain than the nitty-gritty details… almost all of which, again, are state-specific, and students will have to learn their state-specific version during bar exam prep (several years later). ↩︎
2. Criminal Law is not a common law area of law, even though almost every casebook treats it like it is, filling their pages with cases and looking almost identical to a Torts book. Criminal Law is almost entirely statutory, and has been since the 1800s. Yet our casebooks rarely give statutes, and are full of cases (that rely, as much as they often try to downplay it, entirely on statutes). That we treat even Criminal Law as a case-based class is one of the deader canaries in a pedagogical mineshaft full of dead birds. ↩︎
3. But even then, Criminal Law was a statute-based field, and even those books are all full of cases. I’m not letting this go. It’s something that really drives me crazy. If I weren’t on sabbatical this year, there’d be 90 Fordham 1Ls who’d be finding out just how much this drives me crazy this spring. But alas. ↩︎
4. This is why some states have passed Anti-SLAPP laws, which would force Elon to pay my legal bills if a judge thinks his case had no merit and was designed to get me to fold out of fear of legal costs. ↩︎
5. In the cases in the casebook, the state court that ruled second acknowledges the other state that had reached a different outcome and basically says “whatever, they can do what they want, that’s not how we see it.” Not doctrinal finesse, just a dismissive shrug. ↩︎
6. #NotAllCasebooks, I am sure. ↩︎