Teaching legal imagination: Harvard dean calls for it, I am grateful, but a lot of work remains.

Kristopher Nelson of in propria persona graduated from Harvard Law School in May and now is a graduate student in the history of science. He astutely observes that law school emphasizes training its students to practice law but does a rather poor job of actually doing so: “Law school . . . while pushing the prac tical, does not teach it.” As I’ve made clear, I think his criticism is particularly well placed when it comes to Harvard.

So I am happy to see that Nelson points to an article written by co-written by Martha Minow (pdf), the new dean of Harvard Law School, in which Minow and her co-author, Todd Rakoff, explicitly acknowledge that law students need more. What do they need? I think Minow and Rakoff are right to identify it as “legal imagination”:

[S]tudents need more, and they need more not for arcane or unusual careers, but simply to be good lawyers. While an expert in differentiating mental skills could probably produce a raft of labels for what they also need, when we think of what students most need that they do not now get, we think: “legal imagination.” What they most crucially lack, in other words, is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills. And unless they acquire legal imagination somewhere other than in our appellate-case-method classrooms, they will be poorer lawyers than they should be.

How will they be taught this legal imagination? By being given “cases” more like students are given in business school than students are given now in law school: complex problems in which the students are required to generate real world alternatives, recommend the best, and be evaluated on the quality of their judgment:

[T]he type of materials we have in mind can be described in general. Students ought to be presented with relatively dense materials that lay out a situation, experienced as a problem for a person, or group of people, for legal treatment. Students should face a choice that challenges them to identify options and that permits multiple resolutions, sometimes within a relatively tight ambit. Such resolutions might include issues such as which settlement offer would make it sensible to forego litigation. Sometimes these choices might be within broader (but still specifiable) alternatives, such as whether trying to get particular legislative language adopted would be feasible and preferable to private ordering. The problems ought not to be situated in one doctrinal area, but should present opportunities for mental maneuvering around the legal universe. Teaching should emphasize generating alternative solutions as well as appropriate grounds for choosing among them. And criteria for resolution should include legal, normative, and practical considerations.

Of course, Minow and Rakoff also believe that “following the business school model, we think that case writers will need to get their materials from practitioners.” Why isn’t this already going on throughout law school? One reason, I’ve always believed, is that law professors are those who have done best in law school (not necessarily, or even usually, as lawyers), so they perpetuate the existing institutional model in their belief that if law school has identified them as the best and brightest it must be well designed. Law professors are not unique in this tendency. Anyone who succeeds in an institution has a vested interest in believing the institution’s promotion procedures are very good at judging genuine merit. 90% of law firm partners will tell you their firm is better than most at judging associates. And Minow even recognizes this impediment to the change she calls for:

Law professors were good law students, and given the history of legal education, this means that they almost universally feel comfortable handling appellate opinions in the classroom even if they have no experience doing so in practice. By contrast, for many of us, the arenas of the legislature, the agency, the political movement, the media— perhaps even the trial courts—are ones we may only remotely watch. Ideally, case studies and teachers’ notes could be crafted so that they could be taught by professors as we know them in law schools as we know them. But, frankly, many of us will need to learn some new things.

I am thrilled that the dean of Harvard Law School is making these arguments. As goes Harvard, so goes virtually every law school in the country. But there is also another piece of the puzzle that needs to be put into place, as I’ve previously written about: how in the world can we measure whether we are effectively teaching “legal imagination”? In many ways I think I’m ahead of Minow in trying to do what she calls for. But until I can prove that what I am doing in fact teaches students how to be lawyers better, I’m afraid that I won’t have a ton of influence. Fortunately, Minow, merely because she is the dean of Harvard Law, can have influence even without first proving what she is arguing for works.

The financial institutions and their lawyers could not see the big picture, redux

I’ve written before of the failure of our financial geniuses to see the “big picture” when they created their house of cards built of mortgage backed securities, credit default swaps, and the assumption that housing prices wouldn’t crash. But there’s a piece of the picture other than the inevitability of falling markets those geniuses failed to consider — what is required to foreclose on the homes that are the underlying asset giving the mortgage backed securities their value.

In order to foreclose, the owner of the mortgage has to be identified.  But no one knows who owns mortgages that have been packaged into mortgage backed securities.

The mortgages packaged into mortgage backed securities weren’t packaged whole.  In other words, if you are the owner of a mortgage backed security, you were not holding the right to collect on the loans to one or more specific homeowners.  Instead, you were holding the right to collect a portion of an enormous number of loans made to an enormous number of homeowners.  Thus, each homeowner’s mortgage is owned in by an enormous number of buyers of mortgage backed securities, to each of whom some fraction of his loan is owed.

For example, the day after I financed my house my mortgage company sold its rights to collect on my home loan to one of the companies who put together these mortgage backed securities.  Then that company likely took its right to collect on my loan, split it up in littlet pieces, and put those each of those little pieces into different mortgage backed securities along with little pieces form other loans.  Theoretically, if I owed $1000 per month on my mortgage, there could be one thousand people to whom I each owe one dollar,  or one hundred thousand people to whom I each owe one cent, and so on. Could anyone tell me who owns my mortgage? Maybe 1,000 or maybe 100,000 different individuals and institutions.  Could anyone identify them to a court hearing a foreclosure case against me?

I doubt it.

Thus, as the Foreclosure Defense Group puts it:

In Ohio and other states, the inability of the “Lender” or Mortgage Servicer [the company in the above example who purchased my mortgage the day after it was created and subsequently packaged it into mortgage backed securities] to produce the original note and mortgage, combined with their inability to produce the documentation regarding the assignment or sale of the loan has resulted in de-linking the mortgage from the security interest in the home and the cancellation of the note giving the borrower free and clear title to the property that was subject to the original loan transaction.

It’s hard to train good lawyers.  Students just want “the law.”  But practicing law isn’t just a matter of knowing the law.  Knowing the law or, as is more often the case, knowing where to find the law, is of course necessary, but it’s the easy part.  The hard part is making sure your clients make good business decisions based in part on the law and in part on all the other constraints the clients operate within (including financial constraints, constraints established by the client’s aversion or lack of aversion to risk, constraints imposed by market and social conditions, etc.).

In order to do that you always have to have in mind the “big picture,” the implications of any specific decisions to the client’s long-term interests.  Lawyers might have reviewed every single possible regulation pertaining to securities when they approved the mortgage backed securities.  What they apparently didn’t think to look at, however, were the requirements the states impose on foreclosure actions.  Without the power to foreclose, the mortgage backed securities have no mortgages to back them.

The next time someone starts talking about financial geniuses (which I hope at least won’t be for some years), run!

Good lawyering means remixing

Gerry Spence on one of the secrets of his enormous success:

The Bush Administration’s tyrannical torture policies and its rewards

I’ve written here before of the Bush Administration’s “interpretations” of law that lied about and distorted the rules on which their authors based their conclusions.  One point I made was that achieving real intelligence in any creative endeavor, including law and art, requires acting within constraints. Anthony Lewis has an excellent article in the current New York Review of Books that goes into some detail on the history of what he calls “Official American Sadism.” Among other matters (read the whole article), I am grateful that he points out that with respect to torture and the treatment of prisoners in the so-called “War on Terror,” many U.S. lawyers, military lawyers who have represented “enemy combatants,” have followed the “rule of law,” the very constraint that keeps the President from acting like an arbitrary tyrant. In contrast to those real heroes, Lewis’s suggests that members of the administration have committed war crimes, a point that is certainly not far-fetched, though I doubt we’ll ever see them prosecuted:

Unlike John Yoo and William Haynes, most American lawyers who have been involved in the issues of torture and boundless detention have defended American ideals of justice. That has been strikingly so in the case of lawyers in the military services, the judge advocates general. Major Frakt, whose powerful argument on behalf of Mohammed Jawad I noted above, is one example among many. Large numbers of private lawyers have volunteered their time and struggled against official obstacles to represent prisoners. . . .

To date the “enablers of torture” . . . are doing fine. President Bush, Vice President Cheney, and David Addington remain in office. Jay Bybee, who issued the legal opinion that said the president had unlimited power to order the use of torture, was nominated and confirmed as a judge of the United States Court of Appeals for the Ninth Circuit before his torture role became known. John Yoo is in his professorship at the Berkeley law school; the dean, Christopher Edley, said in April that tenure protected him there and that his clients—President Bush et al.—were “the deciders.” Yoo is also regarded by television programs and by the opinion pages of newspapers, including The Wall Street Journal and The New York Times, as a legitimate voice on issues of presidential power, and he appears frequently.

Yoo and Addington appeared in June before a House Judiciary subcommittee; they ducked questions about their responsibility. When Addington was asked whether it would be legal to torture a detainee’s child, he replied: “I’m not here to render legal advice to your committee.” [Yoo, on the other hand, has not been as evasive, at least in the past. In December 2005 he stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody - including by crushing that child’s testicles.”] William Haynes, the former Defense Department general counsel, appeared before a Senate committee and repeatedly said, in answer to questions, that he could not remember. A Washington Post column on his testimony was headlined “Abu Ghraib? Doesn’t Ring a Bell.”

Torture by officials is prohibited by US criminal law as well as by the international Convention Against Torture and the Geneva Conventions. According to the new book by Jane Mayer, the International Committee of the Red Cross concluded in a report last year that interrogation methods used by the CIA on a high-level prisoner “categorically” constituted torture. Her book, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals, says the ICRC report was sent to the CIA, the detaining authority, which “shared it with the President and the Secretary of State.” Mayer writes that the report “warned that the abuse constituted war crimes, placing the highest officials in the US government in jeopardy of being prosecuted.”

(hyperlinks added; footnotes omitted).