The First Useful Lesson In Law School…

Amidst the outcry over the Harvard ruling, will anyone reckon with the actual facts of the case and the extremism of Harvard's anti-Asian discrimination? https://t.co/8LAJ01xtyM

— David French (@DavidAFrench) July 1, 2023

...is “Change the facts, change the outcome.”

The second useful lesson is that facts may direct, but do not determine, the outcome.

The third useful lesson is that non-lawyers are the most useless analysts of legal opinions.

Adding: 

I haven’t read French’s op-ed (paywall). I have read this one:

My wife ⁦@katzish⁩ tries to make some sense of nonsense: “We are left trying to make sense of arguments that appear to cut against common sense and common good”: I’m not a lawyer. But I see what the same-sex wedding website case will mean.) https://t.co/q2guxdXrcG

— Kara Swisher (@karaswisher) July 1, 2023

That story hovered in my mind Friday as I read the Supreme Court’s 6-3 decision in 303 Creative LLC v. Elenis. I thought to myself, not for the first time, “Maybe this would make sense if I had gone to law school.” Justice Neil M. Gorsuch’s majority opinion upholds the right of Colorado designer Lorie Smith to open a straights-only wedding website design business. For the state to restrict her from doing so, he writes, would violate her free speech rights under the Constitution. “Tolerance, not coercion, is our Nation’s answer,” he rather grandly concludes. 

If “tolerance” seems like an upside-down way of describing the latitude to refuse services to certain classes of Americans, it’s just part of a slick, almost surreal piece of legal writing that, for this civilian, could only be countered by blinking hard and remembering my real friends turned down by wedding venues.

You can read the red of it. As of the time of writing, at least, it’s free. And it’s more of a reaction than any attempt at apology for the legal reasoning. Which clears it of my third rule.

There is a rule of jurisprudence: that you cannot forget there are people involved, not just legal principles. You can’t set aside the law in favor of the person, but elevating the law above the persons is why English common law incorporated the principles of equity so long ago, the better to insure justice. Even equity is a set of rules (the plaintiff engaged them when she sought an injunction).  But it reminds the law there are people involved, and they are due consideration.

These are strange times, in which those of us without a legal background may watch our rights recede — as women, as people of color, as members of the LGBTQ community — without necessarily feeling able to argue back. We are left trying to make sense of arguments that appear to cut against common sense and common good. For the moment, all we can do is turn to those who do have that training — and speak up about the moments when, in the real world, people lose out on equal opportunity as a consequence of such decisions.

That puts it in a very neat nutshell.