Friday, September 29, 2006

A legal fiction

My favorite legal term is one that most of you will have heard. In fact, unlike most excellent legal terms, it does not get its excellence from diabolical spelling or comical pronunciation. Rather, its very simple, "a legal fiction."

I love this because it is so value laden. The concept drips its own self-importance. Why do we have "agents" or "implied consent"? Well they are legal fictions. They are made up so that we can make the laws work.

The best part about this comes from the implications. First of all, it implies everything else to be legal fact. If there is one thing I have found, perched on my seamless web, there are no legal facts. Every case has its counter, and isn't there a reason my case books are all written in questions? If they are asking questions constantly are there really right answers? What does that say about the system?

This is not a criticism, rather it speaks to what I refereed to yesterday, the formation of the law as a metaphysical entity. Because every case has its opposite and every rule has its exception, law creates its own life. It thrives on its own fiction.

What does that say about our system? I hope it says something about our values of fairness. There are so many cases where I picture the judge saying to the clerk "So I think the plaintiff won, how do we get there?" In those sticky cases worthy of reaching a case book, the issues might rest on the legal advocates providing the judge a good excuse to find one way, rather than convincing him as a blank slate.

It makes our law bend and evolve without breaking. It makes the web analogy feel even more poetic.

The other side of a "legal fiction" is that now we go a step further. Our system, like the famous aboriginal world of anthropological lore, is the elephant that sits on a turtle, the turtles subsequently on other turtles all the way down. On top of an infinite number of turtles, we put a bunch of blatantly made up stuff on top, and deem them as such.

Why? Because it works. Its all of the pretension and self-agrandizing of philosophy but at the end of the day, law can put people into small cubes for the rest of their life while making only a small subsection of people mad. That's power, that matters, and that is what makes legal fiction worth reading.

A seamless web

Law school revolves around a constant state of ignorance. They don't teach you things, they ask you things. And you don't have answers, why? Because they never taught you. Its learning through osmosis.

My Civil Procedure class speaks of this frankly, our book refers to Civil Procedure as a "seamless web." In procedure we do not get some starting point on which we build an inverted pyramid. Instead, we get a "seamless web."

My problem, if the web is seamless, isn't it by necessity circular?

I find myself viewing knowledge in shapes. This has always been a practice I have shunned yet admired. I love the poetic imagery of the "blog o sphere." I hate the cheapening of the concept that it entails. As such, I have always been turned off by writers who refereed to the concepts learned in the first year of law school in shapes and broad generalizations.

Yet, I don't know how else to describe it. I find it baffling hard to explain what's hard about law school. It just is. It can make the most rudimentary concept utterly enthralling from the right perspective. It can make the most exciting case so mind numbing that I would prefer to suffer through the complicated and horrifying incident of the plaintiff rather than learn about its legal ramifications.

Case in point: A man drops blocks over a ledge, that is his job. The blocks are dropped some four stories down (unclear on this one, but my image is a sizable drop). As he is dropping a block, his boss (who sounds like an idiot at this point) wanders directly under the drop point. However, having begun to drop the block, the man has a choice:

Save the life of the unexpected innocent below or sacrifice his own life for a man he probably barely knows?

He chooses the latter. He falls with the block, and diverts it in mid-air.

Yet the judge's fact statement on this reads like a dictionary.

Let me write it again, because even the writing of it is intense: He falls with the block, and diverts it in mid-air.

The class discussion of this very famous case (Webb v. McGowin) was good (not nearly as good as it is in concept, but still). However, the book was mind numbing.

At the same time, I have a professor so impassioned by civil procedure we had the following discourse in class:

"What is going on here?"
"Forum shopping?"
"FORUM SHOPPING! One of the world's three great evils: crime, drugs, and forum shopping."

She said this dripping with disgust over the mere concept.

However, even explaining these little concepts, in narrative forum, begs thousands of questions. And that is what law is, thousands of questions. Its not math, it has no right answers. It has millions of questions. No question is right, because every question is relative. If everything is relative, what do you get?

A seamless web.