A Lawyer’s View: Steps toward Civic Literacy

1. A Lawyer’s View: Steps toward Civic Literacy The law is reason free from passion. (Aristotle) We are in bondage to the law so that we might be free. (Cicero) From Current Issues, Chapter 11

2. Ours is…” a government of law, not of men.” (John Adams, 1774) • Much of public conduct is regulated, rightly, by principles of law that by general agreement ought to be enforced and that can be altered only by our duly elected representatives, whose power is derived from our consent. • In a democracy, laws, not individuals (e.g. tyrants or oligarchs) govern. (428)

3. Thus the need for Civic Literacy: • …the ability to understand the principles by which our government and its courts operate so that we can act appropriately. • And from the time of Socrates, no profession has prided itself on the ability of its members to argue than the legal profession.

4. Civil Cases: unintended, accidental, non-malicious, or premeditated harm. • In a civil case, one party (the plaintiff) brings suit against another (the defendant) claiming that he or she has suffered some wrong at the hands of the defendant, and deserves some remedy. • A judge or jury decides for or against the plaintiff based on the evidence and relevant law. • Two people have a dispute over property boundaries. • An uninsured driver is sued for damages in a fender-bender.

5. Criminal Cases: a defendant is charged with a misdemeanor or a felony. • In a criminal case, the state, through its prosecutors, seeks to convict the defendant as charged. • The defendant, with his or her attorney, seeks acquittal (or conviction on a lesser charge) or a lesser punishment. • The state seeks the conviction of O.J. Simpson for first degree murder of his wife, Nicole, and Ron Goldman. • Jodi Arias’s lawyer seeks to present evidence such that she avoids the death penalty for killing her boyfriend, Travis Alexander.

6. Trial and Appeal • Most cases never go to trial. • Most civil cases are settled out of court. • To save time and money, I agree to compromise. • Most criminal cases are settled with a plea bargain. • To save time and money, I admit guilt in exchange for a lesser punishment. • If the losing party feels wronged, he can appeal the decision to a higher court. • …on the grounds that relevant law was misstated or misapplied. • Appeals can go all the way to the Supreme Court for final decision.

7. Decision and Opinion • Only appeals cases are reported (viz., published) • Reported cases have two elements: • The court’s holding (decision) • A one-sentence conclusion. • The court’s opinion (reasons for the holding) • A several-page explanation of the premises behind the holding. • Thus, in reading a report of a decided case, one asks: • What did the court decide? • What reasons did the court offer to justify its decision?

8. Majority, Concurring, and Dissenting Opinions • A majority opinion contains the ruling and reasoning of a majority of its judges. • A concurring opinion occurs when a judge agrees with the majority, but for different reasons. • A dissenting opinion is when a judge or judges explain why they disagree with the majority. • In such cases, we ask: • On what issues do the majority and concurring opinions agree? • On what issues do they disagree? • Where does the minority in its dissenting opinion disagree with the majority? • Which opinion is more convincing?

9. Facts and Law: Relevance • Every court’s decision is based on relevant facts and relevant law. • In an appeal, the relevant facts and relevant law are restated in the opening paragraphs. • In such cases, we ask: • What are the relevant facts of the case, insofar as they can be determined by what the appellate court reported? • Are there issues of fact omitted or ignored by the appellate court that, had they been addressed, might have shed light on the decision? • Was my cow in the wrong place at the wrong time, through no fault of my own, when the train “caught” it?

10. Facts and Law: Forms of Relevance • Common law principles • I can’t use the courts to profit from my own mistakes. • Statutes • Legislatures levying excise taxes for cars. • Ordinances • Towns rule that you have to curb your doggie and scoop your poop. • Precedents • If it works, why fix it? • Executive orders • The POTUS orders DHS not to enforce immigration law. • Administrative regulations • Health nsurance companies can’t compete over state lines. • Constitutional interpretations • To yell “Fire!” in a crowded theater (when there is no fire) is not “free speech.”

11. Interpretation is the Key • Appellate judges interpret the relevance of the statute, regulation, or decision. • The Supreme Court determines that the Obamacare individual mandate is Constitutional. • Appellate judges also have to interpret the intention of a legislature or lower court. • We must ask: • Exactly what law or laws is the court trying to interpret? • What evidence does the court cite in favor of its interpretation?

12. Balancing Interests • In Supreme Court cases, the decision often turns on how competing interests are balanced or weighed. • In New Jersey v. T.L.O. two interests are at stake: • The privacy interests of high school students. • The supervisory interests of school officials. • So we must ask: • In a constitutional case, what are the conflicting interests? • How does the Supreme Court propose to balance them? • Why does it strike a balance one way rather than another?

13. A Word of Caution • Lawyers are both officers of the court and champions for their clients’ causes. • They seek the larger purposes of justice. • They want to serve their client’s interests. • Argument is not a weapon for use in mortal combat but as a device for exploring the controversy or dispute under discussion, a tool for isolating the issues in contention and for helping in the evaluation of possible outcomes. If it is used properly, properly conducted arguments clarify our own ideas and make them better.