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14 Law Tchr. 1 (2006-2007)

handle is hein.journals/lawteaer14 and id is 1 raw text is: THIE LAW


Institute for Law School Teaching  - Promoting the science and art of teaching -  Fall 2006

Law's Arc
by Lawrence Friedman
spend no small amount of my time as a law professor
thinking about metaphors-about ways of describing
the law and how law operates in terms that relate the
conceptual to the real. Some of this thinking makes itself
known in scholarship: we often use readily grasped images
and conceits to illustrate new perspectives on the interpreta-
tion and application of legal principles. But much of this
thinking occurs in the midst of preparation for the classes I
regularly teach, constitutional law and civil procedure.
I have found that a phenomenological approach to
lawyering is helpful for explaining abstract legal concepts to
first-year law students. Utilizing this approach in civil
procedure, for instance, I select an anecdote from my
practice experience that illustrates the mechanics of a
particular procedural maneuver-say a summary judgment
motion-and discuss the experience from both the lawyer's
and the judge's perspective. But such examples take me
only so far in illustrating the broader concepts; students are
bemused by the war stories but may not fully appreciate the
concerns animating the doctrinal rules underlying summary
judgment determinations.
Civil procedure, it turns out, is rife with concepts that
students find utterly alien. The idea that formal dispute
resolution could be so elaborately systematized is not
intuitive. The rules themselves, moreover, represent just one
dimension of civil procedure. Many of the subject's sweep-
ing concepts (personal jurisdiction, subject matter jurisdic-
tion, the Erie doctrine) reflect, in addition to a concern for
procedural order, considered judgments regarding alloca-
tions of authority under the U.S. Constitution-between
Congress and the federal courts, on the one hand, and the
state legislatures and state courts, on the other.
To fully appreciate civil procedure from a phenomeno-
logical perspective, it's important for students to understand
how constitutional allocations of authority inform the
application of the rules and related doctrine in a concrete
factual situation. And that kind of understanding seems to
require a metaphor to capture the imagination of students
who are initially uncomfortable with both the notion of rules
to govern dispute resolution and the divisions of authority
that influence the ways in which the rules operate.
There may be no better place to turn for a phenomeno-
logical approach to understanding the operation of complex
systems than the work of writers on human physiology and
athletics. In The Sweet Spot in Time (Breakaway Books,

1998), John Jerome writes about the ability of elite athletes
to consistently locate the sweet spot in time, that moment,
for example, at which a batter's perfectly timed series of
movements of muscle and bone and connecting tissue
produces the satisfying crack of bat on ball. An understand-
ing of this phenomenon requires at least some understanding
of how the human body works. Jerome explains that all
human movement is a series of arcs: [t]he joint is the
fulcrum; the limb, or segment of limb, is the lever. Compli-
cated movements require the arcs to be linked in series, but
the arc is the inevitable basic unit, since at least one end of
every segment is attached somewhere. Id at 14.
Now a metaphor begins to present itself. The law's
movement-rules applied to facts-may be seen as a series
of arcs. Distinct areas of civil procedure, like subject matter
jurisdiction in the federal district courts, can be portrayed as
a series of doctrinal levers attached to authorizing fulcra.
The sweep of a lever represents the reach of a court's
authority in a given area. Each doctrinal lever is attached to
a fulcrum-a source of authority. This system of fulcra and
levers can be represented graphically to illustrate, for
example, the way in which Article III of the U.S. Constitu-
tion and the relevant Congressional statutes, 28 U.S.C. §§
1331, 1332, and 1367, authorize and limit federal subject
matter jurisdiction. Subject matter jurisdiction in the federal
courts might look like this:
Limit of Federal District
Court Jurisdiction
Continued on page 2

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