Today I did something that I seem to do once a year, which is to listen to law students at Loyola Law School give their final Moot Court arguments. I'm always amazed at how well a first year student can do (after only a year of classes) making arguments that are pretty much like what you see in a real appellate courtroom. But there is one thing that seems to trip up most of the students: how to use the law to persuade. But maybe that's not their fault. What is the proper role of written law in deciding disputes? Moot Court problems always seem to make me wonder about that...
Today's question pitted the issue of a person's right to privacy and the right of the press to publish truthful information about someone who wants to keep the information private. By definition, the right to privacy and the right to publish information are both valid interests, which our society values, and which it should protect. Moot Court problems are always designed to give the students a fact scenario that presents a clash of important rights. For me that would be an easy case to argue because there is no right answer and no prior case could completely govern the result in this new fact scenario. But such problems are hard for law students. They seem to think that judges apply the law mechanistically based on the existing rules of law that they can find by doing legal research. And so they keep thinking that every question posed to them can be answered definitively if only they could remember the right case or the right language from a case. Few of them seem to understand that there is no "right" answer. I don't blame them, though.
I remember being shocked when I left law school to go clerk for a federal trial judge here in New Orleans. I was shocked at how the judge I worked for often did not need a full legal briefing from me on the law before he got a sense of how the case would be decided. I'm not saying that he ignored the law-- he didn't. But he had a great instinct for how to apply the law to reach a just result, even before he was given a comprehensive description of the applicable law. It took me a long time to figure out how he was able to accomplish that.
Somewhere into the second year of my clerkship it hit me: he was applying common sense. He operated from the premise that the morass of legal rules, regulations, and court opinions were just the result of common sense. And while we might agree he is a good judge for applying the law in a common sense fashion, I think we all see the obvious problem coming....
There are a lot of legal decisions (or statutes) that make no sense whatsever. Why? Well, I think the problem is that many judges (and legislators) switch off the "common sense" mode and go straight to the mode of thinking that looks for a rule that was applied to a similar problem. A lot of judges aren't comfortable just making a decision based on common sense. They like to have a rule to point to--in case one of the litigants complains. Then the judge can say, "well I'm sorry but my hands were tied by the So-and-So case"
But isn't that a cop out? Isn't that the root of many problems that our society has with its legal system? I think so. These rules that we have (which we're now drowning in, and more are on the way) didn't all materialize out of ponderous appellate decisions, committee hearings, complex statutory schemes (which are complex because of competing lobbying efforts). Somewhere long ago when the world was less convoluted the rules arose because they made sense, and because people came to understand what was expected of them to be part of the tribe. Now things are different...but they are not better.
I can understand that people don't want to say well let's just make rulings based on common sense. Somehow it's hard to make a decision where you can't point to a legal rule that says you're right. But sometimes (not always) that's what you have to do. And it is often hard to find the delicate balance between competing interests, but it doesn't get easier when judges festoon their opinions with dense legal citations. We're all basically like children. We need to know what the rules are and why they are being applied. But, instead we are often seem to believe that rules are meaningful just because they were written down in some dusty goldleaf volume. We don't need more laws in this country (we've got too many to keep track of already), what we need is more common sense.