|
Law in Contemporary Society
|
|
Paper Title-- By JonathanWaisnor - 13 Apr 2010Section IInjunctions as a Tool For Warding Off Foreclosures On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm, that forces Fremont or any company holding a part of a Fremont mortgage tied to property in Massachusetts to undergo a direct review by the AG's office to determine whether the loans are "presumptively unfair." This category includes all of Fremont's mortgages and the option for judicial review is on a case by case basis, so the basic effect of the law is to keep 2200 homeowners in their homes for the foreseeable future. Could this strategy be used in other states to prevent foreclosures? Would need: a consumer protection statute on point, is there a federal statute? Individual state consumer protection laws? Company the engaged in predatory lending practices. Would need a party to bring the lawsuit Attorney General- Pros, resources, not necessarily concerned with getting payment out of the settlement/judgment, interest of the public. Cons- Vulnerable to political change, need for political donations may prevent anti-business lawsuits. Plaintiff's lawyers- class action. Pros: Not beholden to wealthy corporations for donations Cons: Logistics, getting payment, may not think it is worth anything to support a bunch of foreclosed homeowners. Third Way- Legal clinics. Professors, pro bono practicioners, deferred associates working together. Is there a way to harness the talents of the deferred associates all over the country? What about the unemployed lawyers?Subsection ASubsub 1Subsection BSubsub 1Subsub 2Section IISubsection ASubsection BWe are exposed to the law during our first year of law school as a series of legal battles fought in appellate courts. We are given these battles in casebooks, which are collections of cases arranged in an order the author feels best highlights the evolution of law he wants first-year students to learn. Although some cases warrant greater exposition by the casebook author, we are mostly given unedited opinions, with the facts filtered through the pen of the judge. At the end, one side wins, the judgment is affirmed or reversed, the law expands or contracts, and the outlines grow. This system gives us no context or understanding of the concerns involved. We may get a brief procedural history, but we won't learn what happened before someone walked into a law office, who the counsel were for the parties, how events in a court of law changed the lives of everyone involved. This method of teaching has many effects on a first-year student, but this paper concentrates on the emphasis on legal reasoning- the process the judge followed to reach his conclusions, as described in the text of the opinion. We dissect the opinions, sometimes line by line, and, although we may not agree with the conclusion, generally believe that the or holding follows logically from the line of reasoning. On the exam, we are evaluated not only on our knowledge of the rules, but on our legal analysis. So-called policy considerations are considered optional, something to include at the end of the essay as long as you have spotted and fully analyzed all the issues. This way of thinking about the law is necessary because this is how these particular legal battles are fought and need to be fought in order to maintain the myth that the law exists independently of human concerns. Like Moglen's young Constitutional Law professor said, we must learn the wrong way before the right way, and that is so we do not make the mistake of not taking this myth seriously enough and being bad lawyers. Law students must learn legal reasoning independent of other consideration as the basis for law because that is all law students are prepared to do once they become lawyers. However, this method of teaching creates a certain picture of the law that influences the development of students as lawyers- that is, they do not learn to fight wars. They do not learn, for example, how the losing side in a case could have avoided the negative decision by not ending up in court or found a way to fight another battle- this time on more favorable legal grounds. This might be acceptable, if law students were expected to go out into the profession and learn to fight battles as steps to learning how to fight wars. However, law students are not able to do this, because they are very quickly offered positions with mercenary companies in which they will fight a never-ending series of battles for masters they do not choose. These companies are called law firms. Wars are fought by lawyers (and people) on crusades. They involve much more than effective legal reasoning. Some lawyers must meticulously plan their wars, because they know that the opposing side is better entrenched or has more money or friends in higher places. Lawyers can be both generals and soldiers in these wars, or can be one or the other. A war, however, might involve other actions that legal reasoning. It might involve diplomacy, logistics, supply, funding. It might involve setbacks or sacrifice on the road to overall victory. It might be fine to lose a battle in order to avoid losing an even bigger one down the road. Law firms have no interest in associates who can fight wars. Fighting wars is for lawyers with causes- and the law firm's cause is the self-perpetuation. Law firms enter the picture when war is on the horizon or already afoot, when one side needs a top litigator to argue in appellate court or Skadden Arps to flood some poor small-town practitioner with discovery motions. Law firms are paid a lot of money to do this, and they train their young warriors accordingly. But what happens when those clients- usually the great corporations of American capitalism- decide that they would rather have lawyers who fight for their cause, or at least that hiring mercenaries who only know how to fight battles isn't enough. The great cities of medieval Italy learned the hard way that mercenaries often exorted money, ran from fights they couldn't win, and sometimes stormed the very cities that hired them. When it became viable to train and equip professional armies, the mercenaries lost work or were relegated to work too menial for the professional armies of citizen-soldiers. This is the crisis that law schools will face, and the one that might precipitate the greatest change in how America teaches its lawyers. Activism by the students or change initiated by the faculty may be both impractical or ineffective in the face of external pressure. What will drive change in law school is the death of the mercenary system in favor of lawyers who are professional soldiers for their cause. To succeed in this era, law students will then need to learn not only how to fight the battles, but how to fight the wars. Most law students came to law school to fight wars, although, except for perhaps a few, they had very little experience in how to do this. They thought that law school would equip them with the tools and strategies to fight wars, which would include winning battles, and might even involve being a mercenary for a few years. They quickly learn that unless they have a crusade picked out in their first-year of law school, they will be branded as mercenaries and won't be thought of in the same way as the members of the "Public Interest Holy Order". So they go to the mercenaries, who offer them easily obtained employment at an excellent rate.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line: # * Set ALLOWTOPICVIEW = TWikiAdminGroup, JonathanWaisnor Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
|
