10 Introduction
i.e., salespeople can lie, i.e., salespeople do lie, constantly.” And when the student
comments, “That’s not fair,” the professor underscores the point that fairness is
not what they are actually discussing here: “No, no. Fairness is not something that
I accept as a general proposition, and certainly not in my household.” The class
responds with laughter, and your vision is still further refocused to concentrate on
this new legal frame, a frame your professors insistently put on the stories told in
the cases you read, again and again, as they try to redirect your gaze from what’s
fair to what the law says you can or can’t do.
At the end of your first semester comes exam time. Now you have a chance to
demonstrate your newly acquired legal vision of the world. In exam after exam,
you are asked to respond to hypotheticals, stories made up by your professors. These
stories are often replete with pathos and drama. Your job is to ignore as much of
the emotional content as you can while hunting for the details that are relevant to
the legal tests and frames, steadfastly averting your gaze from the human perfidy,
misery, justice, or injustice found in the story. Once you’ve done that, if you’re
very careful, you can throw in a little discussion of fairness, disguised as a “policy”
argument, and sometimes get some extra points.
Your criminal law exam involves a hypothetical in which a woman is “beaten,
raped, and killed in descriptions pornographically detailed.”^13 If you have yourself
been beaten or raped, you may find this question a bit difficult to answer. But your
performance will depend on your ability to dispassionately analyze the details pro-
vided to you for traces of “facts” needed to satisfy one or another legal test. Your
constitutional law exam requires you to read “the lengthy text of a hate-filled po-
lemic” filled with racist slurs against African American and Jewish people, and then
to argue why such a polemic should be protected by the First Amendment.^14 Again,
if you are African American or Jewish (or someone with strong feelings about rac-
ism), this may require an internal struggle of some dimension, but only those stu-
dents who can rise above such emotional reactions to the lofty heights of legal
analysis will ace the exam. You may be able to succeed despite this internal struggle
by putting aside your reaction for the moment and promising yourself that you
will attend to it at some future time. You may even join a small group of students
afterward in protesting the use of such questions on exams. But note that at the
moment of demonstrating your newfound skill at legal thinking, you have found
a way to put aside emotion and social context in order to fit facts to legal tests in
dispassionate fashion.
You may find yourself feeling somewhat ambivalent about this newfound
ability to rise above the heated details of social conflict. On the one hand, it gives
you a very useful tool; in employing this somewhat removed vision, this legal frame,
you can on some occasions rise above your own prejudices and predispositions.
This new habit may actually force you to hear perspectives and ideas that you might
previously have dismissed too rapidly. Before rushing in to take one side or the
other, you find that you can stand back and weigh aspects of the problem at hand
with an eye to realistic solutions and possibilities. Perhaps in a perfect world no
one would ever cheat customers. But given that this happens, what level of cheat-
ing are we going to permit before we bring the full apparatus of the law to bear?
Given that in the real world, it takes lots of time and money to go to court, and