Wednesday, February 17, 2021
Orin S. Kerr (UC-Berkeley), Line-drawing and Legal Education:
Law professors love to ask: “Where do you draw the line?” This essay offers a guide to what is in play when professors ask their favorite question. It identifies the assumptions about legal education and the legal system that lead professors to see line-drawing as important. It explores why students may see line-drawing as superficial and small-minded. And it concludes with practical tips for students on how to respond when professors ask them where they would draw the line.
These perspectives suggest a few practical lessons for law students.
In class, when your professor asks, “Where do you draw the line?,” students might consider four suggestions:
- Your professor is pushing you to translate your values into a legal rule. Think about what really matters to you, and come up with a rule that best accommodates the values that you think are important. Realize that your rule can be tentative, as coming up with the best legal rule is challenging for anyone. No professor expects you to come up with a perfect answer on the fly. Your in-class rule is just your starting point.
- If your professor pushes you to defend your line-drawing, explain why you see your rule as the best way to accommodate the interests you value. If the professor brings up a consequence of your line that you didn’t see, take that as helpful advice. Your professor is helping you see something you missed so you can see it better next time. But recognize that no legal line is perfect, and the professor’s pushback can but need not change your mind. If you still see your approach as the best option, stick to your guns.
- Listen to how your classmates justify the lines they draw, especially when their lines are very different from your own. Try to figure out what values your classmates are bringing to the problem and to see why those values might (in their mind) justify their rules. Your goal in listening isn’t to necessarily agree with them. Often, you won’t. Instead, try to understand how different perspectives influence perceptions about what rule seems best.
- Realize that line-drawing doesn’t have to be small. What looks technocratic is just a reflection from a deeper process about values. WDYDLT is a platform for you and your classmates to debate what matters and how the law should address it. By offering the platform, your professor may be opening the door to a wide range of perspectives. But an open door doesn’t require you to accept everything that comes through it. Listen to your classmates but defend your values.