Do the lawyers understand the law?

Scott at PowerLine describes the Disgrace of the law schools by citing George Mason University Law School Professor Peter Berkowitz in the new issue of the Weekly Standard, who looks at the law school litigants in the case giving rise to the Supreme Court decision in FAIR v. Rumsfeld: “U.S. military 8, elite law schools 0.”

Roberts’s opinion does give rise to, and leaves unresolved, one nonlegal but rather large and disturbing question: How could so many law professors of such high rank and distinction be so wrong about such straightforward issues of constitutional law?

While Scott goes on to discuss the misguided effort against the military, the conundrum described by Berkowitz has much broader implications. If eminent legal scholars are willing to attempt to argue a case such as this, what does it say about their efforts to make the legal system fair, impartial, and predictable?

Lawyers are society’s first defence against innapropriate harassment in the form of suits and arguments. But instead of helping their clients pursue reason and helping the courts to clear and predictable outcomes, lawyers are egging on clients to sue for near anything and obfuscating the issues in order to obtain favorable judgments. As a result, the legal system has become a lottery whose outcomes are determined more by tactics, strategy, politics and personality rather than fair and judicious application of law, value, and principle.

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