Lessons for law from Kahn Academy

I just finished reading Salman Kahn‘s book about a new education model entitled “One World Schoolhouse.” It was an inspirational read about doing away with old antiquated notions of education and changing the status quo toward a better way of doing things.  It struck me how the legal system is equally stuck in the past and how lawyers and judges are products of our flawed education system.  There are certainly lawyers and judges who are models of intelligence and vision, but, those few aside, there is vast room for improvement in our profession.

A very important idea about law is that it can only provide approximate solutions — it takes people to make it more precise on a case-by-case basis.  The great judge Learned Hand used to labor over his decisions because he innately understood that law, as a body of words and rules, is very crude without wise application.  Words convey the law, but words are merely guides to the underlying ideas.  The job is to work with ideas without getting too fixated on the words that are meant only to serve as markers for those ideas.  Too often however underlying ideas get disregarded in favor of dogmatic, rote, and superficial application.   We need the opposite.  We need wise and able thinkers who are not afraid to think for themselves — not afraid to reach beyond mere words to get at the underlying ideas.

It is becoming increasingly evident that traditional schooling has a strong tendency toward superficial learning.  A premium is placed on compliance and following directions.  There is little incentive to grapple with nuance, uncertainty, and the open-ended nature of reality.  Test-taking and grades are what the system is primarily about.  Deep and inspired learning rarely happens, and worse, it gets eliminated as a preference.  Those that can work within that environment succeed.  Lawyers & judges are longtime members of that system and one has to wonder how that shapes law.

I started out my legal journey thinking it was a noble and intellectual pursuit.  I later discovered that while such is sometimes true it is more often something less.  Maybe there are other contributory factors but I wonder about the pool of people who’ve met the prerequisites for law school in the first place.  Perhaps there’s a rigidity built-in from years of education in our flawed system.  Perhaps it’s the law itself with its endless nuance that exhausts us and pushes us toward the easy answers.  Whatever the problems or causes, the law could greatly benefit from a Kahn-style self inventory to see how we can improve our legal system.  No easy task for sure, but it all starts with the right kind of people.

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True true true…..

Abraham Lincoln: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”

Ralph Waldo Emerson: “The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape.”

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…Judge says what!??

I recently had a case where my client was a beneficiary of her father’s  &  stepmother’s joint trust.   After father died, the stepmother revoked her half of the trust thus cutting in half what my client would get.  At that point in time stepmother was the trustee of both “halves” of the trust and owed all beneficiaries a fiduciary duty to act reasonably and in good faith treating all beneficiaries equally and fairly.  Thus, stepmother owed my client a fiduciary duty.  Also, the trust says that stepmother could revoke if she thought it best (basically).   So, what takes precedence?…the duty to treat a beneficiary fairly and in good faith, or the right to revoke simply because the trust says you can.  One thing is for sure in law: the fiduciary duty the trustee owes the beneficiary DOES NOT go away no matter what the trust says.   This is manifest in law.  OK, so what if we add to the mix that the available evidence strongly suggests that stepmother revoked her half just to screw my client.  That would be bad faith, right?…A breach of the duty to treat all beneficiaries fairly and in good faith, right?…completely irrespective of what the trust said, right??   I researched the hell out of this and the law is unanimous and clear —  basically trustees can do whatever they want within reason (even make mistakes and misjudgments) so long as they do it in good faith, i.e., not for bad faith purposes.  The law is very clear on that.  Trustees get latitude but they must uphold their fiduciary duty and act in good faith.  Such is in case law, statutory law, and I think this resonates in common sense.  HOWEVER, my judge ruled that stepmother can revoke — “even in bad faith” — simply because the trust said she can revoke if she wants to.  On that basis I never even got to present my witnesses and evidence that would hopefully demonstrate bad faith.  Case over, on the spot, based on one very cockeyed ruling IMHO.  What say thee enlightened masses?  Good ruling or bad ruling?

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