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Good Luck On the Bar Exam

Did you know that Jerry Falwell's college, Liberty University, has a law school?

Dr. Falwell says:

If our graduates wind up in the government, they'll be social and political conservatives. If they wind up as judges, they'll be presiding under the Bible.

That may be true but before one becomes a judge, it is customary to pass the bar. That may be a problem.

The school is not yet accredited by the American Bar Association, which means its students are taking an enormous risk. If accreditation is not granted by the time they graduate in 2007, they will not be eligible to take the bar examination. Dean Green said the subject kept him awake at night.

Tuition is about $18,000 a year, though several students said they had received generous scholarships.

I would not want to pay for and attend three years of law school with the risk that after if I graduate, I may or may not be allowed to take the bar, but I do not begrudge anyone else that choice. You pays your money and takes your choice.

It will be interesting to see how Liberty University teaches law. The early returns are not promising.

In Professor Tuomala's civil procedure class, the topic on Wednesday morning was a law school warhorse: the Supreme Court's 1938 decision in Erie v. Tompkins, a case that has baffled generations of law students. Judging by the halting Socratic dialogue, Professor Tuomala's natural-law critique of the case did not immediately clarify matters.

The Erie decision, which is viewed as uncontroversial in much of the legal academy, represented a disastrous wrong turn, Professor Tuomala said. In ruling that federal courts may not apply general principles in some cases but must follow state laws, he said, the Supreme Court denied the possibility of "a law that's fixed, that's uniform, that applies to everybody, everyplace, for all time."

That remark, perhaps, would be a better subject for someone like Jeff Cooper to discuss. I do not think I have the ability to adequately explain just how stupid a remark it is. Nonetheless, I will give it a shot.

Federal Courts have limited jurisdiction. In order for a case to be brought in federal, as opposed to state courts, there must be some basis for the federal court to exercise its juristidiction. If a case presents an issue under a federal statute or under the US Constitution, a federal court has what is termed "Federal Question Jurisdiction." In those cases, the federal court will apply the law as found in federal statutes or the constitution.

There is also a type of federal jurisdiction known as "diversity jurisdiction." When the Federal court system was established, Congress was concerned that regional bias might effect the results of a law suit. If a New Yorker sued a Georgian in a Georgia state court, the New Yorker might suffer from being an outsider.

To avoid that sort of bias, the Congress gave federal courts jurisdiction to decide cases when the parties were from different states. Even if the case is entirely based on state law claims and presents no federal question, federal courts can exercise jurisdiction if there is complete diversity of citizenship among the parties.

The Erie decision addresses the issue of what law federal courts should apply when they hear cases pursuant to their diversity jurisdiction. Before Erie, Federal judges in diversity cases applied what they called "the general law" or "Federal common law" to state law issues. Erie ended that practice by requiring federal courts to apply the law of the states as announced by the statutes of the state or the opinions of the highest court of the state in diversity cases.

Professor Tuomala complains that Erie denied the possibility of "a law that's fixed, that's uniform, that applies to everybody, everyplace, for all time." That sounds like a criticism of a lack of uniformity in the law. As such, it is beyond stupid.

The Erie decision ensured uniformity. If a lawsuit about a car wreck involving two Georgians is filed in a Georgia court, it is beyond dispute that the Georgia court would apply Georgia law. If an identical wreck occurred in Georgia between a Georgian and a citizen of another state, the case might be brought in federal court. The Erie decision requires that the very same law be applied in both instances. In the absence of Erie, the state court action would be decided under Georgia law while the Federal Court action, based on identical conduct of the parties, might be decided based on the "general law." If uniformity is the goal, Erie ensures it. Erie is one of the great decisions promoting uniformity of law.

In the absence of Erie, how would judges decide what law to apply in diversity cases? To find the "general law," Federal judges might look to the law and decisions from various states and other federal courts. They might also look to various commentators, law review articles and learned treatises. In the end, though, the Judge, having no binding guidance from the statutes and decisions of the state in which the case arose, would simply decide what he thought the law should be and annouce that it was the "general law."

Is it ironic that a professor at Jerry Falwell's law school would be advocating for pure judicial activism? For a Judge to decide on his own to ignore the legislative enactments of a given state just because of his personal assessment of what the law should be is the core criticism people like Falwell make against what they view as judicial activism. I guess it is not activist for a judge to impose his own view of the law if that view conforms to Falwell's.

Perhaps though, Professor Tuomala is speaking of a greater law. Perhaps he is speaking of a form of natural law or a law as provided by the creator. What then, would be the sources that federal judges are to consult to find the law to be applied in diversity cases? The Ten Commandments, perhaps? Maybe the Old and New Testaments? I think that is a fair conclusion given that Dr. Falwell is promising that if graduates of Liberty University Law "wind up as judges, they'll be presiding under the Bible."

I believe that there is great wisdom in the Bible. Nonetheless, it seems that such wisdom is not particularly relevant to many of the decisions that a federal judge deciding diversity cases has to make. What exactly, is the Ten Commandments' take on the effect of contributory neglience in a personal injury action? What does the New Testament have to say about minority shareholder rights in a closely held corporation? Does the Old Testament address the issue of the statute of limitations in a libel case?

Professor Tuomala is surely correct when he notes that his view of Erie is outside the mainstream of legal thought. Indeed, it is outside the orbit of Saturn.

I hope that the graduates of Liberty Law School are given the opportunity to take the bar exam. Indeed, I do no think that graduating from an accredited law school, or any law school for that matter, should be a requirement for practicing law as long as one can demonstrate sufficient legal knowledge and ethical standards.

Given what at least one of their professors is teaching, I wish Liberty graduates good luck on the bar exam. They may need it.

Posted by Dwight Meredith at November 23, 2004 09:04 PM | TrackBack