Lawyers are fixated on conflict. We wade through our lives singlemindedly focused on discord. Clients pay us to fight on their behalf. The fights are glorious, expensive and can last for years. Peace becomes a sorry substitute for unconditional victory over the vanquished. A partner once told me that achieving settlement between two combative parties is "like kissing your sister" --completely inferior and yucky.Lawyers learn to love the fight in law school. Many of you are developing or evaluating the topic of your law review student comment. Many of you may find that something is missing from your topic idea. It should be no surprise that the key ingredient for a student law review comment is conflict. It will never be enough to describe or explain the law. You must expose and glorify the conflict and boldly predict and justify the victor.
Time worn advice for law student scholarly writers is to look for a "split" in the circuit courts of appeal. Two circuit courts disagree on a point of law and the fight is on. Lawyers are all over it. Alison Kilmartin, PSULaw class of 2009 sent me a link to Split Circuits, a blog that tracks federal circuit court of appeals splits. For her, the term used to connote either a gigantic slightly frozen confection or an absurd gymnastic maneuver. Once she became a law review member, however, the word took on a new connotation. "Split" now provokes the same thrill as the chant : "fight, fight, fight" once did shouted over a skirmish between twelve year olds in junior high.
Fights don't last. The Supreme Court may resolve the split before you finish your note. Your task is to find a split with sufficient relevance to be worth your effort in writing about it, but obscure enough so it will last just past the publication of your student note. I wonder what the world would be like if law review students and the whole legal profession could take the energy we devote to identifying conflict and praying it will last and focus instead on its counterpart -- searching and praying for peace.
1 comment:
Isn’t it only through the striving that the peace is found? A settlement is distasteful, because the true "winner" was never really determined. Though our legal system is not perfect, isn’t it the case that we put enough stock in the winner of a case to at least feel, if not believe, as though justice was served? There can be peace, because of res judicata, once and for all the matter was decided. Perhaps we yearn for a fight simply for the sake of the schism, but perhaps it is because we want “peace” by virtue of the adjudication process. Until the winner is determined, no one is found to be “in the right,” and there can be no peace. Peace will only come when the score is settled.
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