Ultra Vires

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Letters to the Editor

Dear Editor:

Your last issue contained a good story on the new law school grading scheme by Michael Portner-Gartke. I am one of the faculty who opposed the change, but since it is happening there is no point in debating the various points made by MPG. However, there is one factual inaccuracy that should be corrected. The article states (correctly) that there are ‘guidelines’ governing the number of grades that can be given out in each category. It goes on to say that ‘professors will be given one or two percentage points of flexibility in larger classes and several points in smaller ones.’  In fact it is rather more than one or two percentage points. We all have a chart giving the numbers for each grade range according to class size. Using the example of a 100 person class (because it makes it easier for me to do percentages), the guidelines allow for 12-18 students to receive HH, 28-36 to receive H, and 46-64 to receive a Pass. This is rather more than 1 or 2 percentage points in each category, and could obviously result in disparities between sections of the same course. A faculty member who graded on the low end, for example, could give 12 H, 28 h, and 60 P, while a ‘high marker’ could give 18, 36, and 46 respectively. Put another way, the guidelines allow one class of 100 to have 54 students getting either HH or H, and less than half getting a Pass, while the other class would have only 40 students getting HH or H, and 60 getting Pass.

The ‘flexibility’ of the new scheme was one of my own, and others’, objections to it. In first year in particular there is absolutely no reason to expect such differences to be the result of random selection into sections or of class performance. The old system came in some 30 years ago to respond to such differences in grading, at the request of students. It was not perfect, but it did ensure some consistency across courses.

Jim Phillips

Dear Editor:

Louis Tsilivis’s defence of lawyers in the September issue of UV uncritically embraced the status quo and should be reconsidered. While I agreed with his conclusion that “[a] world without lawyers would be a much, much worse world” Tsilivis never describes, positively and directly, why the lawyer-free world would be worse. What he does instead is show only that lawyers are useful because the law is complicated, specialization is a virtue and frivolous lawsuits are not really a problem. I want to make the case for why these arguments miss the big picture and why I nevertheless think lawyers may make the world a better place.

Tsilivis is right to say the law is complicated. But, does it need to be as complicated as it is? Civil law contracts, for example, are significantly shorter and simpler than common law contracts because the principles and framework of civilian contract law are well understood and do not
require solicitors to spell out every detail of the transaction. Our social, legal and political cultures have developed to expect excruciatingly complex and abundant regulations, laws and agreements and it seems that Tsilivis has assumed that this will always be the case. The law is made by people, and people can work to clarify and simplify the law. While some parts of the legal system may be unavoidably complex, lawyers have contributed more to the unnecessary complexity that currently exists and should now help make our system clearer.

As Tsilivis points out, specialization is generally beneficial: some areas of work may be best executed by, and only by, people who know those areas really well. But isn’t there also personal and societal value in general knowledge? Society is better off if some skillsfirst aid seems like a clear exampleare broadly known. In a political system like ours where each and every citizen holds power, and that power is legal in nature, there is a strong case for why everyone should be minimally competent in navigating the law. Just as firefighters have a role to play in making households fire safe, lawyers should also be helping the public attain basic legal competence. Lawyers should still be available to help on
particularly difficult cases, but everyone should know how to avoid and resolve many potentially legal conflicts. To do that, we also need to demand a system that more people can navigate.

The final point Tsilivis made was that rent seeking was not a significant problem: most disputes are legitimate and courts can weed out the frivolous ones. Even though this is true, I think he misses a bigger possibility. Lawyers as a self-regulating group can apply pressure within the group to make frivolous lawsuits truly exceptional, and use less expensive and contentious forms of dispute resolution. In all three of his arguments I think Tsilivis is settling for what we have rather than advocating for what we might achieve.

Despite all of this, I fundamentally agree with Louis. For one thing, our system was built to facilitate the work of lawyers, so if we were all to retire at once, a good deal of havoc would reign. Over time, though, societies would come to new arrangements that would allow business and government to carry on. I would agree that even this fully adapted world would be worse than our own on some accounts. This is because some complexity, specialization and enforced dispute resolution allows for a richer, more creative world. That does not mean though, that lawyers should become complacent. We should always be working toward simplifying our legal interactions, empowering people to participate in the legal process and encouraging a culture of accountability, in which people would be more apt to resolve their own disputes fairly. Obviously this work is aspirational and long term, but that is all the more reason to advocate for it.

It is easy to agree that the world would be worse without lawyersLouis wouldn’t be in it for one thingall I hope is that we still work for making it the best world with lawyers that it can be.

Lee Webb

 

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