Line-drawing and Legal Education

What to think when a law professor asks, "Where do you draw the line?"

I recently posted a short draft essay, just 10 pages long, called "Line-drawing and Legal Education."  Here's the abstract:

Law professors love to ask: "Where do you draw the line?" This essay offers a guide to what is in play when professors ask their favorite question. It identifies the assumptions about legal education and the legal system that lead professors to see line-drawing as important. It explores why students may see line-drawing as superficial and small-minded. And it concludes with practical tips for students on how to respond when professors ask them where they would draw the line.

Comments very welcome!  E-mail any comments to me at orin [at] berkeley.edu.

Comments

[Rev. Arthur L. Kirkland]

Why not draw the line at Mick (Taylor) and Bill?

[Rev. Arthur L. Kirkland]

There is often another perspective with respect to that line.

Perhaps the strongest handshake grip I have experienced.

[CJColucci]

Why and how is Mick Jagger even alive now? (No point asking about Keith; he violates all the laws of nature.) If I had had the opportunities thrown my way in my 20's and 30's that he had at that age, I'd probably now be bankrupt, drug-addled, and riddled with STDs, if not dead.

[Rev. Arthur L. Kirkland]

Mick is quite fit. Also, I gather, lucky. And pleasant company.

[Ben_]

It's usually a question used argumentatively rather that to understand anything.

It’s reasonable to take a position on a topic without gaming out every possible thing that could ever happen and having an answer for every eventuality. The lack of some sort of superhuman framework for deciding all questions isn't a fair criticism of someone's specific point on another, possibly related topic.

Life isn’t about drawing lines. And the other guy arguing the other side doesn’t have a perfect game plan that correctly predicts all possible futures either. If he says he does then he's being dishonest.

To the extent the law must draw a line, it should draw with humility and respect for individual freedom and the recognition that things go wrong and problems happen regardless. Doctors take an oath to first do no harm. Lawmakers should constrain themselves similarly. (They don't, of course. Many of them blithely ignore the harm or actively seek out ways to harm because the harm happens to people who are not like them.)

[Dan Schiavetta]

I’m 30 years out but it is fruitful for both students and professors for students to be asked their opinions, once the existing law on a topic has been taught.

[loki13]

Professor: "Where do you draw the line?"

Obnoxious 1L: "I don't. I use a balancing test."

[Orin S. Kerr]

Professor: "What do you balance, and how?"

[loki13]

Obnoxious 1L: “Why, the competing interests, of course. It has to be done carefully, and on a case-by-case basis.”

[bernard11]

Marginal costs vs. marginal benefits, of course.

When they're equal, I'm done.

[loki13]

(I should add that I thought it was a great article for law students! Of course, I immediately thought of Scalia and O'Connor ... probably because I'm old now.)

[NToJ]

Worth publishing. I enjoyed it. A few minor suggestions. You are a better writer than me. I am an editor on a legal journal but was never on law review or any journal in law school, so some of these suggestions may be stupid or nonsensical to academic writers.

1. Something wrong with the formatting on third paragraph on page. Two much gap between "hypotheticals" and "about", first line.

2. I see what you're doing with paragraphs 3 and 5 on page 3. The cadence is nice. Why are they not identical? Why in the unemployment context they "could perfectly satisfy" but in the cop example they merely "could satisfy". I like the latter more and would remove "perfectly" from paragraph 2, since you already use "perfect". I presume that in a perfect world, people solve problems perfectly, without you having to tell me. For the same reason, I don't think "ideally" is doing much in either example, especially since you're using "ideal incentives" in the same sentence on paragraph 2.

3. On page four, first full paragraph, "the example above suggests" should be "the examples above suggest". What's the point of using two examples if you're going to reference one of them? And which one are you referencing? I assume you meant both.

4. Same paragraph: "Instead, there are two recurring concerns driving the sense that legal perfection is impossible." I would rewrite. The point can be made more strongly. Maybe: "Instead, there are two recurring concerns frustrating legal perfection". I don't think that the concerns are that they drive a sense of the impossibility of perfection. I think the concern is that legal perfection is impossible (or sometimes impossible). I thought that's what the examples demonstrated. The opening sentence in the next paragraph treats the issue (impossibility of legal perfection) directly. (But then you switch back to "perfect law seems impossible" in paragraph 4.)

5. Kill the "for example" in paragraph 2 on page 4, either by changing to "In the unemployment benefits example" or "In the unemployment benefits hypothetical". I dislike "for example" interrupting a thought, and it forces the reader to think too much before proceeding to the rest of the sentence. It's also superfluous. (I don't think any reader will assume you had some other basis for using a hypothetical, besides as an example.)

6. Paragraph 3 on page 4, I think you can capture the concept of "group decision means a decision that has to make hard choices among competing but legitimate views" more succinctly. Maybe just: "But the key idea is that a group decision means one in which compromise forces choices among competing, legitimate views."

7. I don't think "Once created" is necessary on paragraph 5 on page 4. Remove "will" from that sentence". "typically" feels clunky, maybe often? Stick with just unique. Not all special things are unique, but all unique things are special.

8. What's that "many" doing on the left hand side on page 5, first full paragraph? Kill it with fire.

More thoughts below.

[Orin S. Kerr]

Thanks, Daniel, I appreciate the close read and suggestions!

[NToJ]

Nice try.

[NToJ]

9. Your formatting for footnotes on page 5 sucks.

10. Relatedly, I think footnote 1 works better at the end of the sentence than in the middle. Also try "A legal rule would have to account for that scale." Take out "we create". The sentence is true of legal rules we don't create, too.

11. Next paragraph, probably take out "what their situation is". I think it goes without saying and is incorporated into the two concepts bookending it. You need to add "and" between "where how". "them" should be "then". And why switch between "for" and "with" in the second to last sentence? I think it sounds better to use one or the other consistently.

12. This is probably me being wrong, but I'd cut "henceforth" in the next paragraph. I don't think anybody is going to be confused about what "WDYDTL" means moving forward, even if you don't announce it with "henceforth".

13. Second full paragraph, page 6. I'd change "But say" to "But suppose". I love your informal style. But I generally hate "But say" since it's an ambiguous command that distracts readers. Are you asking me to say something? No, I think you're asking me to take for granted, suppose, assume, etc. I think you can substitute a word that has fewer alternative meanings to make it easier on the reader. Also that sentence has entirely too many prepositions, try to kill a few or just shorten it somehow. "But suppose you can push that person to draw a bright line for when officers may make stops." I think the conclusion is strengthened if you change "for nefarious reasons" to "nefariously". There's probably some fucking nerd rule against ending sentences in adverbs but who cares.

14. Probably don't need as many sentences to make the points in (full) paragraphs 2 and 3 on page 6. Also "such as" should be removed, just say "stop dangerous driving like excessive speeders and drunk drivers"? Even better "stop speeders and drunk drivers"?

15. Last paragraph on page 6, I'd change "In a sense, they are" to "Because they are." Next sentence maybe remove "as much as others might". Too much hedging. It would be unusual if any person had not valued something as much as another person might value. If you want to keep the last part, just remove the "might". Or just remove the "might"?

16. Top of page 7, move the "in the mix" to the end of the sentence, or omit entirely.

[NToJ]

17. Top of page 7 I'd change "a range of answers". Not sure what to, but seems generic. Maybe spectrum. Range creates ambiguity. Same paragraph, just a pet peeve of mine, I hate "impact" for "affect". Take out "the" before "different choices". The last sentence could also drop, too, IMO.

18. First full paragraph under IV, I don't think the "of course" is adding anything. Nor is "specific". Maybe just "In the real world legal rules are created by institutions, like legislatures, courts, and agencies." Shorten the next two sentences to: "They might operate at a state, federal, or even international level."

19. Top of page 8, first full paragraph, I'm not feeling "arguable constraints". Perhaps just "may add constraints on WDYDTL."

20. First full paragraph page 9, "Some perspectives are right and other perspectives are wrong" could be "Some perspectives are right and others wrong."

21. Next paragraph you've replaced your typical (I think?) offset en-dashes for a double dash. I don't think either is wrong but they should be consistent.

22. Second to last full paragraph on page 9, move "both" to after "treats" as opposed to modifying "fair concerns". So: "The line-drawing perspective treats both as fair concerns." Or maybe even better: "The line-drawing perspective treats both concerns as fair."

23. On page 10, you have "Where do you draw the line?,". The comma should be on the outside of the quotation mark. We don't have to keep pretending that the American rule makes sense. Be the change you want to see in the world.

24. Paragraph (1), probably could drop "to you". If you're asking the reader to consider what matters to them only, it's implied because the person doing the considering can only consider from their own perspective. Also we don't want to encourage law students to be solipsists. There are a lot of other things out there with values that matter, besides our own brains. Paragraph (4), I don't understand "just a reflection".

25. It's a great article. I am sure it will get published. Really this exercise was intended to get your attention and ask that you post here more often. The VC is a worse place without your engagement both on the front page and with readers. You're missed.

[bernard11]

You are a better writer than me.

"than I," surely, Mr. Editor?

[NToJ]

No. In the sentence I wrote “than” is operating as a preposition, not a conjunction. Better than me and better than I are both grammatical.

[Daniel Schmutter]

This is a very good concept for law students to practice and understand. Line drawing takes place all the time in the real world of litigation. When you’re asking a judge for some sort of relief, you’re often asking the judge to draw lines. The way a judge rules on your particular case can easily require the judge to consider the broader consequences of a decision. Understanding how that influences what a judge might do is very important, and knowing the consequences of your particular instance of line drawing can be crucial in persuading a judge to do what you’re asking.

Good essay, Orin.

[ducksalad]

Seems like an easy question. The line is always between Us and Them.

[Gary H]

If a line must be drawn, then the underlying legal principle is flawed and thus invalid. A valid principle should be applied no matter what the results. And, if those results are seemingly absurd or unjust, then equity steps in. Mercy tempers the rigors of the law. The principle remains inviolate. Basic Aristotle.

[Noscitur a sociis]

You obviously didn't read the post, much less the article. Did you even read the whole title?

[Cal Cetín]

'According to the Talmud, “If a fledgling bird is found within fifty cubits of a dovecote, it belongs to the owner of the dovecote. If it is found outside the limit of fifty cubits, it belongs to the person who finds it.” Jeremiah, a renowned fourth-century rabbi, once asked what the outcome would be if a bird were to have one foot inside the limit and the other outside. This was one quibble too many. “It was for this question,” the text relates, “that Rabbi Jeremiah was thrown out of the House of Study.”'

https://www.laphamsquarterly.org/rule-law/miscellany/toe-line

[SimonP]

I struggle to think of a single example from law school where the “where do you draw the line?” question was used to focus students on competing interests or concerns implicated by a given legal test. It was almost always used as a lazy reductio, without ever showing how an absurd result would ineluctably follow from some premise, or that the result was in fact absurd. If the student couldn’t come up with a natural limiting principle, the mere question, “where do you draw the line?” was treated as a sufficient rebuttal.

Given this, this piece might be more useful as a reminder to professors on how to use the prompt.

The prose itself is not at all pleasing to read. Just incredibly dry, with not enough variation in sentence structure. Like chewing flour. It makes me very sad to imagine this being handed to a law student to read during a 1L “welcome to law school” class.

[ArnoldTaylor]

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