Shaping the Law

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I was inspired reading Barbara Glesner Fine's post on the Law Prof Blog, where she reports on a law professors' conference. "Professor Aiken made the important point that we can teach our students how to feel empowered to be agents for justice. We must guide our students to examine the underlying values and assumptions in judicial decisionmaking (and perhaps in our own representation of clients) and how those decisions and representations may conflict with our client's values and realities. We can then devise methods to help our students exercise a role in helping law to more closely match the values and realities of our clients."

Is a lawyer's role to help law more closely match the values and realities of our clients? I think so. We have a wonderful opportunity to shape the law, case by case.
One of my all time legal favorite passages is from Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984), which Justice Charles Leibson wrote, demonstrating how the court could and should change our contributory

negligence law to comparative negligence:
"In broad outline, stare decisis directs us to "stand by" our previous decisions unless there are sound legal reasons to the contrary. Every case must be decided with a respect for precedent. But the doctrine of stare decisis does not commit us to the sanctification of ancient fallacy. In Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1983), the Supreme Court of Iowa observed:
'(S)tare decisis does not preclude the change. That principle does not require blind imitation of the past or adherence to a rule ... We must reform common law doctrines that are unsound and unsuited to present conditions.' Id. at 753.
The common law is not a stagnant pool, but a moving stream. City of Louisville v. Chapman, Ky., 413 S.W.2d 74, 77 (1967). It seeks to purify itself as it flows through time. The common law is our responsibility; the child of the courts. We are responsible for its direction. In International News Services v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918), Mr. Justice Brandeis wrote:
'The unwritten law possesses capacity for growth; and has often satisfied new demands for justice by invoking analogies or by expanding a rule or principle." 248 U.S. at 262, 39 S.Ct. at 81 (emphasis on favorite passages supplied.)

While certainly it is the appellate courts that have the power to change the law, it is lawyers who are trying the cases, preserving those issues for appeal, and framing the issues on appeal. We cannot even define what constitues a family any longer. Every time I hear how many biological parents a child can possibly have, the number is higher than the last. (The last I heard, with DNA extraction, one child could have seven biologically related parents. Equally important are the "de factos" actually nurturing children.) The "values and realities" of our clients are changing. Regardless what the law is today, as Justice Leibson says, it is not a "stagnant pond." Practicing and shaping the law in this dynamic field is a great joy. I am glad the law professors are passing this important notion and responsibility on to the next generation of advocates.

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