I am working on my now drastically-overdue brief, and I am subtly frustrated by, um… legal argument.
We spend all this time on our briefs arguing what the law is—that this IS the rule because it is like this case and not like that case, rather than arguing what the law ought to be. Then the court rules on our cases, and through the guise of claiming what the law is, they prescribe what the law will be.
I know this idea about law itself is not new—I mean, that was the whole realist and crit shtick. So, I don’t mean to make the critique myself. I’m only saying that as a law student, it is hard to shift gears from being able to use every argument at your disposal, to being confined to just a persuasive description of what the law is.
Maybe this is an appellate thing? Maybe at the trial level, there is more leeway.
