BY PROF. ELHAUGE

10. Don’t Wait for the Ball

Many students complain that law professors are just hiding the ball, asking a series of questions without just telling students the answer. For my own first two months as a law school student, my notebook was largely blank because I kept waiting for the answer, which like Godot never came, just more and more questions. I wrote this limerick to express my mistaken attitude.

His friends used to tell Socrates
Now really, don’t be such a tease
Just give us the answer
And things will go faster
And thinking would be such a breeze

But obviously you shouldn’t wait for the ball or the answer. Instead, what you need to understand is the analytical structure of questions relevant to an issue, the range of valid positions, arguments made for and against them, and the process of thinking through them. Because, unfortunately, thinking isn’t such a breeze, and there is no simple ball that is hidden, but rather an array of balls that you need to learn how to juggle.

9. Don’t be boring

We are a polite people, but one can take that too far. A British professor once told me, “Americans are too damn polite, so that a conversation between them consists of each person trying to say what the other person would have said had it been their turn to speak. And that isn’t a real conversation at all.” Don’t be afraid to disagree or be provocative, or even to try on positions you aren’t quite sure about. And don’t close your minds to those who disagree with you. You may find that they are more convincing than you thought, or that discussion with them deepens your understanding of just why they are so wrong.

8. Don’t Ignore What Other Students Say in Class

Now, I don’t say this out of any painfully polite sentiment that everything your classmates say is sound and interesting. It isn’t. And I just told you not to be too polite. The reason to listen to fellow students in class is that, through student comments, professors often teach important lines of arguments or limits with those arguments. Even if you wanted to focus only on what the professor thinks, that may be hard to discern from what they actually say, because  professors often just take the opposite position of whatever the student happens to say, to make sure that both sides are developed. So professors may be enthusiastically pushing a position they don’t actually hold. Even if the professor has a position that is revealed during the class, that doesn’t mean it is the gospel or the only thing you should learn, because we’re all trying to prepare you for a world where many judges don’t agree with us – as perplexing as that is – and where the laws, issues, or jurisdictions may differ from the ones we are discussing.

7. Focus on the Forest, Not the Trees

Students often spend huge amounts of times methodically briefing details about case facts, procedural history, and holdings, and memorizing them all. Don’t. It’s a waste of time. As a student, I didn’t cite a single case in any first year exam I took. Professors use case facts and variations to develop doctrinal points, issues, principles, and broader theories. The point is not to know the cases themselves, but to understand the larger points made from them. The cases are only illustrations of the general issues and positions, and a means to the end of understanding them. So brief those larger points, and subordinate cases to what’s really important — the issues, valid positions, arguments, and reasoning about them.

6. Read Before and After Class

I once had a student who all semester complained that he couldn’t follow the class discussion – it was too confusing. Then, at the end of the class, during exam period, he came into my office said, “You know, the class actually makes a lot more sense, now that I’ve done the reading.” So reading is certainly important. But I think people often fixate too much on trying to understand everything when reading the assignments before class. Often the biggest payoff comes to re-reading the material right after the class, when you can incorporate what you have learned during the discussion.

5. Don’t Just Settle for Blackletter Law

There is a lot of blackletter law and it resolves a lot of cases. So not surprisingly, students often take comfort in just memorizing it. But professors don’t spend a lot of time on it in classes. Why? Is it because law professors are evil and enjoy torturing students with the confusing parts? Well, sure, that’s part of it. But mainly it is because we figure that after 17 years of schooling with top grades, most of you already know how to read. To the extent just reading the rule resolves the issue, we kind of think you got that covered on your own. We may spend some time at the beginning of classes summarizing the basic structure of the blackletter law, but that doesn’t mean that is the main thing to focus on and that you can just snooze through the following question and answer period. It is comforting to focus on the blackletter law because it is the clearest, but the debated issues are what you really need to focus on.

4. Law Is Not Distinct from Policy

Students often act like there are two subjects being taught – law and policy – the law part which they apply in figuring out how the law resolves particular cases, and the policy part which they apply to answer the question of what the law should be. Don’t make this mistake. Policy is the just continuation of law by other means. After all, what do we mean by “policy” in law other than arguments about what legal outcomes we should deem best? If you don’t have arguments on that topic, judges will be influenced by your opponent who does, so your opponent will win any area where blackletter law does not provide a clean answer as applied to your case. It can also be hard to understand what the blackletter law means or when it should apply, unless one understands the policies it furthers.

3. Ask What Future Parties Would Want

In addressing policy questions, one gets relatively little out of asking what the best outcome is for the two parties to the litigation, because they are in court precisely because they disagree about that. Instead, generally the best approach is to ask: “What Would Future Parties Want?” Often the answer is clearer before vested interests are acquired, when benefits to one party can be traded off against harms to the other. Or one might want a rule that is more likely to flag the issue to future parties, and elicit what they would want.

2. Go Meta

It won’t surprise you to learn that legal policy analysis often leads to unclear or conflicting conclusions. In these sorts of situations, it is often useful to switch to the meta-question of framing issues around who best is placed to decide the question. Every time one side argues that X is the best outcome, the response can be not only that Y is a better outcome, but also the meta-argument that judges are not the best placed to decide whether X or Y is best, so judges should defer to some other set of actors, such as legislators, agencies, or contracting parties who have chosen (or would choose) Y. Just remember the old saying, “Anything you can do I can do meta.”

1. Realize the Difference Between Being Confused and Understanding the Confusion

Often students have the following the experience. They read the materials and thought the law seemed pretty clear. Then they went to class. And now the issues seem confusing. So they wrongly conclude that class is actually lessening their understanding. What this reaction misses is that often the correct understanding is that the laws and issues are unclear. There is conflict about what the doctrine means, when it applies, when it trumps other doctrines, and what justifies it, and the same set of issues can be framed in multiple ways. Realizing this doesn’t me
an you are confused; it means you understand the confusion.

Others leap to the opposite conclusion that all legal issues are confused. But that doesn’t follow. Some things are resolved, and there is a structure to thinking about the unresolved issues. Unfortunately, sometimes students get so focused on spotting ambiguities and conflicts that they begin to jump at shadows, straining to find ambiguities and conflicts everywhere, even when they don’t exist. You have to understand the confusion that exists without seeing nothing but confusion.

Perhaps I can best explain this with a saying from Zen. So here it is, quite literally, your moment of Zen.

Before I studied Zen, mountains were just mountains and rivers were just rivers.
When I first took up the study of Zen, mountains were no longer mountains and rivers were no longer rivers.
But now that I am a Zen master, mountains are once again mountains and rivers once again rivers.

There will come a time for you this year when legal mountains no longer seem like mountains and legal rivers no longer seems like rivers. But have some faith that when the year ends, and you are a law master, that saying will actually make sense.

Prof. Einer Elhauge ’86 graduated first in his law school class.