As the summer wanes, law school begins for a new batch of students experiencing a mix of eager anticipation and anxiety. They will receive and mostly ignore the sound advice to try to maintain a balance between their studies and the rest of life. Instead, if you are a beginning law student, you are likely more interested in hearing what you need to do to excel at your studies. Accordingly, I shall oblige. Consider this column the second installment of a two-part series.
I wrote the first installment eighteen years ago. In it, I offered advice on “how to think like a lawyer.” I said then that there is no such thing. “There is only clear thinking and confusion.”
I stand by that advice, but I want to supplement it with a lesson I have learned since I wrote that column. In the ensuing time I have become a more experienced, if not necessarily a better, teacher. I have come to conclude that law students would get more out of their studies were they to recognize that a big part of their legal training aims at providing them with a particular skill—the ability to distinguish among different types of legal questions, what I call easy questions, complicated questions, and indeterminate questions.
Legal scholar and later federal appeals court judge Jerome Frank began his 1930 book Law and the Modern Mind with a puzzle: why does the general public both respect and despise lawyers? Given the importance of law, Frank did not worry much about the respect part, but he noted with concern that the public also viewed lawyers as “tricksters and quibblers.” The source of that view, Frank explained, is naïveté. People without legal training believe that the law is or can be perfectly clear but that lawyers introduce complexity so that they may deploy their secret knowledge for their own pecuniary benefit.
That view is naïve, Frank argued, because the law addresses social questions that are themselves often messy and complicated. We could have simple rules—like killing is always a crime—but only at the cost of injustice—what about killing in self-defense or due to a blameless accident? Although unscrupulous lawyers might indeed multiply complications to line their pockets, even the most trustworthy lawyer will frequently find that she needs to provide her clients with complex decision trees and probabilities rather than with certainties.
That said, some legal questions are easy. What is the statute of limitations for a medical malpractice tort suit in New York State? We can look up the answer: subject to a number of expressly articulated exceptions, it is two-and-a-half years. Here is another seemingly easy question (although I shall argue below that it is not so easy after all): for what term do federal judges serve? Answer: they serve for life.
Lawyers do not earn much money answering easy questions because one can simply look up the answer to an easy question in a book or some online resource. Even if a client does not know where to look for the answer, the lawyer who does will be able to bill for at most a few minutes of her time.
Likewise, law teachers do not spend much class time on easy questions. We may ask an easy question to start a discussion or to ensure that students have done the reading, but from there we will typically proceed to the other two kinds of questions.
Many legal questions are complicated. They might have determinate answers, but to arrive at those answers, one must deal with some considerable complexity. Take the second “easy” question I posed above—for what term do federal judges serve? I said the answer is that they serve for life, which is mostly accurate but masks considerable complexity.
The literal text of the Constitution’s Article III does not say that federal judges serve for life. It says they “hold their Offices during good Behaviour.” Someone who stumbled across that language might think that federal judges can be removed for rendering decisions that, say, the President does not like—for that would constitute bad behavior from the President’s perspective. However, both the original understanding and the post-enactment history confirm that federal judges can only be removed by being impeached, which in turn requires that they must have committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Disagreement with a federal judge’s decision—even very strong disagreement—is no basis for abridging the judge’s term.
Many legal questions that at first appear simple are likewise complex in this way. To know the law in any area it is not enough to know the text of the relevant statutes and regulations. One must also know how the courts have construed that text.
Here is another example. Suppose that police officers arrest Sam using what he believes is an illegal chokehold. Sam can sue the officers for damages, but can he sue the city for which they work? The relevant statute was originally enacted in 1871 and subjects to civil liability “any person” who, under color of state law, violates civil rights. Is a city a “person” within the meaning of the statute? In Monroe v. Pape in 1961, the Supreme Court said no, but the justices changed their mind seventeen years later in Monell v. Dep’t of Social Services of the City of New York. Since then, local governments (but not States, which have sovereign immunity) have been on the hook for civil rights violations that are the result of official policy or practice.
Almost nothing about municipal liability for civil rights violations is simple, but a knowledgeable civil rights lawyer will be able to navigate the complexity to provide a clear answer to the question of what must be proven to establish municipal liability. A good deal of what new lawyers must learn is how to synthesize various sources of law to find the answer to a complex but determinate legal question.
Some legal questions have no determinate answer, by which I mean that either in the abstract or as applied to some concrete set of facts (or both), reasonable arguments can be offered for a range of possible outcomes. For an example of a question to which there is no determinate answer, let us return once more to the matter of judicial terms.
What if instead of impeaching a judge, Congress were to pass a new law simply abolishing the judgeship she holds? Article III expressly allows Congress the power “from time to time ordain and establish” lower federal courts. The phrase “time to time” pretty clearly implies that Congress can eliminate a lower federal court it previously created. But can it eliminate such a court while judges still sit on that court? Or must Congress wait until a judge’s seat is vacant (through impeachment, retirement, or death) to eliminate it?
The U.S. Supreme Court has never directly passed on that question, but it did acquiesce in congressional abolition of occupied judgeships in the 1803 case of Stuart v. Laird. Following the election of 1800 but before the inauguration of President Thomas Jefferson and the seating of the new Congress, outgoing President John Adams signed the Judiciary Act of 1801, which created new lower court judgeships that were promptly packed with Federalists by Adams and the lame-duck Senate. In the Judiciary Act of 1802, the Jeffersonian Congress repealed the 1801 Act and thus eliminated the new judgeships. Although Stuart did not officially pass on the validity of the elimination of the judgeships, it tacitly accepted them by officially allowing the reassignment of cases that had been given to the new judges. Accordingly, one could cite the Stuart case for the proposition that Congress can indeed end a lower court judge’s term prematurely by eliminating the judgeship.
However, that citation would hardly be dispositive. As noted, the Stuart case did not expressly allow Congress to eliminate occupied judgeships. And to the extent that Stuart implied such a power in Congress, in the ensuing two-centuries-plus our notions of judicial independence have evolved. Any attempt by Congress to eliminate an occupied judgeship would likely occasion litigation the outcome of which would be uncertain.
More broadly, a great many cases that reach the state and federal appeals courts and nearly all cases that reach the Supreme Court present legal questions that have no determinate answer. After all, if they had a determinate answer, then lawyers for each side could ascertain that answer and avoid the time and expense of further litigation. That is why the ability to distinguish indeterminate legal questions from easy and merely complicated ones is so important for a lawyer.
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I conclude with a caveat and a warning. The caveat is that the categories of easy, complicated, and indeterminate are not rigid. A legal question can lie at the boundary. For example, it could be somewhat complicated. Alternatively, a legal question could be both complicated—requiring considerable research and synthesis to locate an answer—and indeterminate—so that once one has undertaken the necessary research and synthesis one realizes that they do not fully resolve the matter.
Now the warning. If the answer to some legal question is indeterminate, that means that there is no unique right answer. However, just because there is no clear right answer does not mean that there are no clearly wrong answers. Typically, indeterminate legal questions are only partially indeterminate. The relevant legal materials allow for a range of possibilities, but answers falling clearly outside that range are wrong. Indeterminate does not mean wide open.