The Role of Law in Legal Disputes

Law school teaches students that law is a seamless web of rules emanating from authorities like statutes and cases which they must memorize and finely parse in hypothetical cases.

In real life, practitioners generally think of law in terms of Oliver Wendell Holmes’s famous definition:  “prophecies of what the courts will do in fact.”

Of course, legal rules affect these prophecies, but they are only one factor, sometimes overshadowed by other factors.  Lawyers know that court decisions may be affected by many factors such as the personalities of parties, lawyers, and witnesses; availability of persuasive evidence; and attitudes of judges and juries.

I recently wrote this short article analyzing how practitioners and parties can use the law in various dispute resolution processes, including:

  • Critical standard in assessing possible agreements
  • One standard of fairness
  • Society’s default standard of fairness
  • Presumptive standard for decision
  • Decisive standard
  • No standard

The post suggests how lawyers and mediators can use the law to help their clients in real life, which could be an eye-opener for your students.

Take a look.

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