Take a Law School Class with Me

Law school is arguably a waste of time. It could be shortened to two years, in my view, without much loss of value. You could probably shorten it even further if you integrated it with an apprenticeship program of some kind. In point of fact, I think law school is used to subsidize other, less lucrative fields of higher education, which I'm mostly fine with (though you can certainly make a case against it). Either way, though, legal education as it exists seems needlessly protracted and wasteful.

However, law school does involve reading a lot of cases and thinking about tricky issues that are not exactly rocket science but not entirely intuitive either. A classic example is the "mistaken identity" line of rape cases. My memory (which could be very wrong—this is not legal advice!) is that if a man, say, crawls into bed with a woman who thinks he is her husband, and has sex with her, that's rape. The idea is that she didn't consent to sex with this man, she consented to sex with her husband. However, this logic only extends so far. If a man pretends to be a famous actor, when in reality he's a waiter in a restaurant, this is not the sort of deception that vitiates his partner's consent. If she says, "But I didn't consent to sleep with a waiter (ugh!), I consented to sleep with a famous actor!" the court will not be moved. And weirdly, I believe this is true even if the waiter pretends to be a particular famous actor. (Though not, of course, if he pretends to be the famous actor who is married to the victim. That would just be our first example. By the way, the rumor is that Leonard Cohen pretended to be Kris Kristofferson in order to sleep with Janis Joplin, although apparently she was not deceived.) The thing is that if you think about it, it's very hard to know where to draw the line between different kinds of deception. What if he says he's had a vasectomy, when he hasn't? What if he says he's free of HIV, when he isn't? (In fact the HIV cases required some novel legal theories and statutes, I believe.)

Anyway that particular example, while interesting, might not give us much insight into other areas of life. But some of the classic tort cases focus attention on causation, and so lawyers tend to have a more nuanced understanding of it than lay people.

The example I'm thinking of is a case in which two individuals have carelessly started a fire that has burned down a valuable forest. Imagine the following defense: "I should only be held liable to the extent that my behavior caused any damage to the owner of the forest. But my behavior was irrelevant—the other fire would have spread throughout the forest and burned the whole thing down anyway. My negligence contributed nothing to the damage." Assume this claim is factually true (either fire, by itself, would have burned the whole forest down). Should the defense be permitted?

No! The problem is that both of the careless fire-causers might be able to use this defense, leaving the forest owner without recourse, even though there was clearly wrongful activity that damaged his property. It's often helpful to think about the marginal damage that a wrongdoer has caused, but in some cases this kind of thinking can go awry. (By contrast, I believe—though again, don't quote me!—that a careless fire-starter would get away with it if the second fire were caused by something like lightning. In that case, the forest was going to burn down anyway with or without any carelessness, and so the forest's owner has no legal recourse against the fire-starter. I think! Not legal advice! The law is weird.)

Anyway that is what I am thinking about when I see that people are debating whether Trump or McConnell is responsible for the GOP's failure to "repeal and replace" the Affordable Care Act. My feeling is that each man "started his own fire," and would have fucked the whole thing up on his own. Each of them is like the negligent fire-starter who points his finger at the other and (rightly!) claims that his own behavior caused no marginal damage because the other one fucked it up so badly. If you haven't been exposed to the "two fires" case, you might have trouble seeing that in fact there is no non-arbitrary way to divide the blame.

(And by what deception did Trump convince the GOP to get in bed with him?)