The study of disobedience should be a core part of the law school curriculum. Instead, law schools pretend that all rules get followed, or, at least, that all rules should be followed. So teaching the rules is for them enough. This is ridiculous. Not only is it fact that many rules don’t get followed by courts and other government administrators, or get selectively or imperfectly enforced, it is also the case that this can be a good thing. Congress cannot see the future or adjudicate in advance every case to which its rules will be applied. So implementing its intent often involves disobeying the letter of its laws. A good lawyer must be able to predict what rules will get enforced and what rules will not get enforced and know how to argue for and against enforcement. Indeed, a great deal of legal practice involves no more than this. Yet a lawyer receives zero training for this in today’s law schools.
Is teaching lawyers disobedience dangerous or immoral because they may use it to pervert justice rather than achieve it? The fact that the law is non self executing and imperfectly enforced means that lawyers have much discretion in their behavior. And where there is discretion there is ambit for ethics and morality. But if law schools have no course directed to disobedience they certainly do not teach lawyers how to exercise their discretion in a moral fashion. If we pretend that all lawyers should follow the law when we know that they do not and sometimes should not, then we miss the opportunity to teach them when it is morally right for them to do so and when it is morally wrong. If you deny the reality of disobedience, then there is no hope of addressing it.
What a lawyer needs is a course on cultural attitudes toward disobedience. When does it get noticed, when not? What does it do to the social and political standing of the client? When is it required as a moral matter and when not? When is it advisable as a business matter and when not? How do you identify rules that are likely to be enforced and when not?
I recall reading somewhere that planners call dirt paths that appear in parks “desire lines” because they show you where park users wish to have paved roads. We might sometimes think of areas of disobedience as legal desire lines, reflecting areas in which the public desires non enforcement. And often gets it, if, for example, the sheer volume of disobedience overwhelms enforcers. A good course in disobedience might teach lawyers how to identify legal desire lines to which enforcers have acquiesced and help guide clients through them. Assuming, of course, as a moral or policy matter, we think that the public’s desire should be respected.