My question is purposely hyperbolic, but consider the following:
Two of the leading proponents of shutting down the government to defund the Affordable Care Act ("ACA") were senators Ted Cruz (Texas) and Mike Lee (Utah). These senators have much in common. They are new to the Senate and are widely popular among Tea Party members and Republican members of the House of Representatives. They both graduated at the top of their law school classes and had distinguished careers as appellate attorneys before running for office. I regarded all of this as coincidental until I read the following that led me to think of the abstract nature of legal education:
I knew [Ted Cruz ]pretty well in college, law school, and beyond, and it’s hard to believe that he’s actually become someone who believes this stuff. He’s incredibly well-educated, and at least used to have a circle of friends that included people very different from his general conservative bent . . . My sense is that being in the Senate has taken him too far outside his natural skill-set. He has always been a debater at heart – someone who enjoys taking extreme positions – not because he believes them necessarily, but because it’s fun (emphasis added).
I have no insight into what Mr. Cruz believes. Based on my experience, however, students who tend to fare well in law school and beyond are able to take legal positions on controversial issues and defend them capably. Indeed, many take joy in doing so. This is obviously an important skill set for an appellate attorney as well.
However, in taking legal positions, especially absolutist positions, it is easy to forget that these positions affect real people. When law school classes discuss affirmative action, abortion, or even more mundane issues such as whether a certain shareholder agreement should be enforced, they do not know the parties involved or those that will be affected by the court's eventual decision. In some cases, the appellate opinions students read will provide only a meager sketch of the underlying facts, and of course, the judges often do not present inconvenient facts that would seem to undermine the rationale of their opinions.
One of my favorite cases to teach in business law is Rosiny v. Schmidt precisely because the dissent highlights a whole course of dealings that calls into the question the majority's theory that it was merely enforcing a run-of-the mill shareholder agreement (the case could be used to teach MR 1.8 as well). Is it any surprise that two men who excelled in the rough and tumble worlds of law school and appellate practice, where maintaining a particular legal theory, no matter the practical consequences, is often viewed as a mark of intellectual consistency, should not be especially concerned that their cri de coeur against the ACA damaged the country's economy and hurt countless public workers? By treating law largely as an academic exercise, do law schools help to produce individuals who see compromise and empathy as evidence of weak-mindedness?
I am genuinely open to the views of others and acknowledge that I have somewhat simplified the law school experience and appellate advocacy.