Last week my son started 5th grade and was afforded an opportunity to study a musical instrument, which he took on with gusto. He researched, and consulted, and chose – a trombone. “No kidding?” said I. I’m from a musical family and I don’t think we’ve counted a single trombone player among our ranks. “OK,” I said, “a trombone it is,” knowing full well that there would be weeks and months devoted to simply eliciting a single sound, not to mention what I’m sure will be the tricky business of matching notes with slide positions.
My son, however, has an advantage that first year law students don’t. He knows he does not know how to play. He will listen to his teacher (not me) and will not—if I’m doing my job—take it too hard when he experiences those initial, inevitable, failures. He also knows that neither his dad or anyone else would expect him to be able to play trombone without working really hard at it for a long time.
Compare this state of affairs to the first year law students I encounter each fall semester (I’m encountering them now, in fact). Because they have, as a rule, been very good students, and speak their primary language reasonably well, they tend to believe they should understand perfectly a beginning law case—say, Brown v. Kendall—the first time they read it. Of course, they don’t; because they can’t. From this point, they fall into two groups: those who don’t know but think they do (the most difficult group); and those who don’t know and become upset because they don’t know (a better group to work with provided they don’t get too upset).
I love teaching law students. I’m fortunate because I’ve had the kind of legal career that places me in a good position to teach both the art of cross-examination and the finer points of the Cardozo/Andrews debate in Palsgraf; or Holmes’s dissent in Vegelahn v. Guntner. The negativity surrounding law school over the last several years has been socially debilitating. I can speak persuasively (I like to think) to most of the issues people are discussing. But despite what you or I (or anyone else) might think about law school, there is one truth that cannot be avoided: there is no running away from the legal world we have created. ERISA, the Internal Revenue Code, and workers’ compensation statutes won’t be going away any time soon.
In just the last few weeks’ thinking about workers’ compensation, I have been fighting my way through ERISA preemption, reviewing attorney’s fees laws and cases, and considering the inclusion of farmworkers within the workers’ compensation system in New Mexico after a century of exclusion. In thinking about these issues, I have drawn on my understanding of statutory interpretation, administrative law, equal protection doctrine, and various theories of preemption. In short, workers’ compensation is becoming more complex every day, and anyone imagining we will work through our challenges without the assistance of bright, engaged legal minds is simply wrong. This is not a question of whether one “likes” lawyers. This is a question of requiring expertise to solve problems. We destroy the conditions necessary to foster such expertise at our peril. It is my intention to teach, and teach well. And I will learn to love the trombone.
Michael C. Duff