Dec 16 2014

Will Next Generation of Lawyers Be Too Soft?

Its a cliche when  an older generation laments that the next generation coming up is “too soft” Think of the old joke about a parent telling their child that they used to walk uphill to school “both ways!”  So I risk being labeled an old hack when I say law schools are in danger of raising a generation of lawyers that are “too soft.”  Well you know what, things become cliche for a reason – they are constantly repeated because they are true. As society and technology advance, each generation tends to have it easier than the preceding one and is therefore seen as too soft.

But recently two stories have caught my attention that has made me shake my head and wonder if we are not coddling this generation of law students  well beyond the normal trend. Earlier this month, I wrote on this blog about Columbia and Harvard Law Schools agreeing to postpone final exams for any students who were too traumatized by the Michael Brown and Eric Garner Grand Jury decisions. To save you the time of going back to read it, I will summarize: it was a ridiculous decision which only served to play into political correctness and I stated that folks who needed the time off due to this trauma should probably consider a different profession.

Today I read an article in The New Yorker by Jeannie Suk entitled “the Trouble With Teaching Rape Law.” Professor Suk laments that in today’s current climate:

Students seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor. Student organizations representing women’s interests now routinely advise students that they should not feel pressured to attend or participate in class sessions that focus on the law of sexual violence, and which might therefore be traumatic. These organizations also ask criminal-law teachers to warn their classes that the rape-law unit might “trigger” traumatic memories.    

Harvard LawCan prior traumatic experiences trigger difficult emotions when similar or related issues are discussed in a law school classroom? Yes, of course. But that is no different than what people will experience in every aspect of their life and particularly if they choose law for a career. You would need to give a “trigger warning” for every law school class. Many times experiencing a bankruptcy that renders your family homeless or fores you to lose a business can be highly traumatic. People lose life and limb in accidents that result in lawsuits. Families have been divided forever over will contests and trust disputes. Law does not deal with the niceties of life. Lawyers are forced to look under the rocks and dead wood of life and try to help their clients successfully navigate the difficult and complex legal system. Almost every class could have the potential of triggering some awful and life-changing event so that all classes would have to begin with a disclaimer. If you think I am stretching to make a point, consider something else Professor Suk wrote:

One teacher I know was recently asked by a student not to use the word “violate” in class—as in “Does this conduct violate the law?”—because the word was triggering. Some students have even suggested that rape law should not be taught because of its potential to cause distress.

 

What escapes these students is that society’s perception of rape victims and how rape should be treated by society will never change if rape law is not taught in law schools. We would not have made any progress in this area of law over the last few decades if during the 50s, 60s and 70s law students did not discuss how wrong it was to re-victimize the victim by cross-examining her about past sexual experiences or about what she may have been wearing on the night of her attack. Rape shield laws were passed by legislators to protect the victim from this second attack and to protect victims from being named in newspaper articles about the case. For all the jokes folks make about lawyers and our uselessness, it is a fact that these types of societal changes are often made through the courtroom and are often made by people who went to law school. We need to raise a generation of lawyers that understand that difficult issues must be discussed and debated in law school classrooms so that future generations will have lawyers, judges, legislators, thinkers who have the stomach and tenacity to take on societal change. A debate is currently raging across the country over how we deal with allegations of sexual assault on college campuses – do we really want this topic off the table in law school of all places?

To quote Professor Suk one last time:

Now more than ever, it is critical that law students develop the ability to engage productively and analytically in conversations about sexual assault. Instead, though, many students and teachers appear to be absorbing a cultural signal that real and challenging discussion of sexual misconduct is too risky to undertake—and that the risk is of a traumatic injury analogous to sexual assault itself. This is, to say the least, a perverse and unintended side effect of the intense public attention given to sexual violence in recent years. If the topic of sexual assault were to leave the law-school classroom, it would be a tremendous loss—above all to victims of sexual assault. 

Couldn’t have said it better myself.   You can find her article here:

http://www.newyorker.com/news/news-desk/trouble-teaching-rape-law

 

 

 

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