Argument X Would Get A Law Student a Failing Grade. What is X?

by Dave Hoffman · January 30, 2009

It’s common, when attacking a lawyer’s arguments, to say that such arguments would earn a law student a failing grade. See, e.g, Yoo, John, attacks on. Whatever the merits of the underlying attack, that particular claim is surely false, and shows the author either not to be a lawyer, or not to have gone to law school anytime in the last twenty years.

To be clear: to fail a law school class, your arguments have to be worse than merely bad, tending to lead to evil outcomes, and self-aggrandizing. They have to be so incomprehensible that they’re quite literally incoherent.

anon says:

January 30, 2009 at 7:08 pm

Let me guess, to you an “evil outcome” is Arabs *not* getting tortured in Guantanamo and Gaza.
Bruce Boyden says:

January 30, 2009 at 8:54 pm

No, anon, I think what Dave is saying is that no one fails a law school class for being evil.
David Schraub says:

January 30, 2009 at 9:04 pm

Perhaps, but saying an opposing lawyer’s argument would “get him a grade somewhat below the median, that he likely would have been unhappy with” would get you a failing grade in a legal advocacy course :-).
Poster says:

January 30, 2009 at 9:44 pm

Learn to read OP. Hoffman is saying Yoo’s arguments tend to evil outcomes.
TRE says:

January 30, 2009 at 9:50 pm

Argument X would give you a failing grade in Professor Y’s class surely is not wrong.
James Grimmelmann says:

January 30, 2009 at 11:16 pm

The only argument that would reliably get you a failing grade in a law school class is “”.
The Gaucho Politico says:

January 30, 2009 at 11:48 pm

i think the basic point is that law schools really dont fail people in the traditional sense of the word fail. However student who dont earn higher than c- are actually failing. Not to mention that students in law school are used to a’s so seeing that c+ on a grade sheet probably hurts.
Almost did it says:

January 31, 2009 at 12:35 am

The hardest thing about law school is getting in to a good one. The second hardest thing about law school is failing out.
Nihal says:

January 31, 2009 at 2:18 am

This is a really silly post. First, taking the author at his word for the “failing grade” comment is near-sighted. Does it really matter if we’re talking about a C or an F?

Second, the personal attack on the author of your “example” is rather petty, and shows laziness to not simply Google the author’s name: Horton is adjunct faculty at Columbia Law.

http://en.wikipedia.org/wiki/Scott_Horton_(lawyer)

http://www.law.columbia.edu/fac/Scott_Horton
Orin Kerr says:

January 31, 2009 at 3:05 am

I look forward to the Glenn Greenwald posts that will slam Dave Hoffman for his craven defense of John Yoo and Bush Administration lawlessness and his unwarranted personal attacks against those who have valiantly defended the Rule of Law. For shame, Hoffman, for shame!

(On a more serious note, Dave is right about not being able to use the “failing grade” comment any more. But dissing someone by saying that they’re making a C+ argument doesn’t pack the same punch.)
Jens says:

January 31, 2009 at 11:03 am

Advocating torture in public office should not give a bad grade in law school, but prosecution for high treason …
ruleswatch says:

January 31, 2009 at 2:08 pm

There is,perhaps, another question arising from the Yoo affair: “Would argument “X” get the professor a failing grade?”

Horton’s implication, of course, is the obvious circumstantial one that, because Yoo’s opinions, on examination, could not bear scrutiny as being reasonably held by a reasonable person, equipped as Yoo presumably was, at the time he authored the opinions, they cannot have been held in good faith. It is then a short hop from that conclusion to suggest that the opinions were bent to seek reward.

That inquiry should not go far enough for legal academics.

What of the standards of Yoo’s work product when he was not inside the Office of Legal Counsel? Does his writing and academic work otherwise demonstrate a consistency with principle and precedent? If it does, it would seem that the ethical noose surrounding his intellectual neck should be growing even tighter.

But if it does not, then is there a broader, thornier, question of whether and if so, how much, the torture memos originate in standards of American legal academia.

Put more clearly, “Would the Yoo torture memos have gotten the professor a failing grade?”
JP says:

January 31, 2009 at 2:12 pm

Maybe the author was implying that the arguments were plagiarized. I’m pretty sure that will also result in a failing law school grade.
Space Hog says:

January 31, 2009 at 4:38 pm

John Yoo could not get a failing grade in his own law courses, because he teaches them. If Yoo had earned failing grades in law school, he would not be a law professor. The notion that John Yoo has a low caliber legal mind is ridiculous, unless you intend to disparage hundreds of other high-achievers from Ivy League law schools and insult the academic reputation of their alma maters.
Fail Blog says:

January 31, 2009 at 5:08 pm

Space Hog’s comment is a thing of beauty.

As to the original post: If the “failing grade” type of claim isn’t within the bounds of rhetoric, shouldn’t you reconsider the claim that an exam would have to be “quite literally incoherent” to fail a law school class? That’s more clearly untrue: for example, answering “Professor, you taught me nothing relevant to any of these questions, you stupid hack” would be coherent and maybe even dead-on, but as a predictive matter it would at least risk actual failure. There’s your X!

P.S. What you probably mean is that these kinds of alleged errors wouldn’t come close to earning an F. But note that often this is an attack on a particular argument, and we’re implicitly being asked to extrapolate. That is, take as true the kinds of deficiencies claimed in the cited example (reliance on a precedent that was essentially overturned, and representing that conduct was lawful when the precedent said rather that it was unlawful in a slightly different regard) and imagine them bedeviling everything on an exam, and maybe it’s more plausible to think of failing.

P.P.S. Oddly, the deepest criticism of recent memos — that they were written to tell the audience what it wanted to hear — would amount to lawyering, but an exam writer might think that it’s the best way to ensure you *won’t* get a failing grade!
Orin Kerr says:

January 31, 2009 at 5:09 pm

Space Hog,

Whatever you think of John Yoo’s legal abilities, the reality is that some Ivy League law school graduates are very good lawyers and some are not. Indeed, some Ivy League lawyers who have stellar credentials and great clerkships are not actually very good lawyers.
dave hoffman says:

January 31, 2009 at 6:04 pm

The kinds of posts that inspire comment storms continue to confound me! Anyway, the basic point is minor and rhetorical: to fail a law school exam, at least the ones I’ve graded, students must make no arguments, or arguments that are incomprehensible. I don’t think my grading is idiosyncratic. So, Yoo’s work wouldn’t fail a law school exam. Fail Blog is right, though, that I ought to have clarified that I meant “make no arguments . . . [about the fact pattern].” Insults can be coherent, but they aren’t relevant.

Now it’s true that reality often makes persuasive rhetoric less punchy, and it’s stronger and cleaner to say that “X would lead to failure” than “X would lead to a C+.” But that’s not a great excuse.

Nihal is right. Horton is a lawyer who teaches courses at Columbia. I’m sorry I made the mistake of assuming otherwise. If Horton has ever failed a Columbia law student who wrote an argument like Yoo’s, I’d be shocked.
Scott Horton says:

February 1, 2009 at 3:05 pm

I am puzzled that you can’t understand what “argument x” is. It’s plainly stated in my post. It was citing a decision from the European Court of Human Rights for the proposition that the five techniques under review were lawful without disclosing that the ECHR reversed this decision and the defendant government subsequently agreed it was in the wrong. Yoo is free to make whatever arguments he wishes based on the law or a good-faith argument for its reversal or modification. He is not free to misstate precedent or cover up its subsequent case history–that is what gets a student a failing grade.
Depuzzler says:

February 1, 2009 at 7:15 pm

Professor Horton,

Why are you puzzled? The post wasn’t asking what you were claiming (your “argument x”), but rather challenging that it would attest to a failing paper, and suggesting that some “argument x” would have to be a lot worse.

As to “plainly stated,” you could be more exact here and in your original article about the claims you are assessing and why they are flawed. Selmouni should have been cited and discussed. The memo’s argument, though, was that the Ireland case was especially relevant because the Reagan Administration relied on it in telling the Senate what torture meant prior to US ratification (and he was focused on torture, as opposed to cruel inhuman etc. conduct, because of the criminal implications under Title 18). Later decisions, let alone government concessions, were for that proposition less relevant. To “grade” this error, we at least have to understand the statement being made.

And while Selmouni was clearly more expansive in its understanding of torture, and highly relevant, be wary of suggesting that the ECHR “reversed” its earlier decision — that’s usually used to describe more explicit shifts. As I recall, the majority purported to act consistently with the Ireland case, though not all the judges were convinced — some were concerned that the majority was drawing on the wrong treaty (the one, in fact, of more concern to OLC). Perhaps I am incorrect.

None of this means the memo was right, but it does sound much more like the kind of error that in a student exam would be venial. Indeed, it works much better as an exam paper than as professional advice, and it’s not clear why you have to defend the position you are.

Professor Hoffman,

If you want to predict posts that will attract comments, I’d say combining “torture” and “law school grades” is a pretty good bet.
Kaimi says:

February 2, 2009 at 12:04 am

Misstating a case cited in a brief — an important case — would lead to a failing grade in a course at Columbia?

I went to Columbia. I heard fellow students misstate case holdings, badly, in class discussions. I’m reasonably sure that it happened in papers. And yet it was almost unknown for a student, any student, to receive a failing grade.

How do I know? When I was a student at Columbia, each professor’s grading history was available to students, in a binder in the library. With a tiny handful of exceptions, no one ever gave even anything below a B-minus. (As I recall, the exceptions were Coffee, Fletcher, and Moglen, who occasionally gave C’s or below — I don’t think they all gave F’s.)

If that binder is still used, it should be pretty easy to determine whether or not Professor Horton has ever given any failing grades.
dave hoffman says:

February 2, 2009 at 12:15 am

Well, there’s no reason for anyone to actually check on Scott Horton’s grading policy, in my view. It’s sort of a bit specific and besides the point (though Horton might disagree, based on his comment here)? I just generally find this particular claim, that stupid & foolish & internally incoherent arguments lead to failing grades, to be one that is just wrong.
A.W. says:

February 2, 2009 at 9:08 am

A few things to clear up the air.

First, i think the Yoo reference was not meant to raise or make a deep argument. i am disgusted with how my alma mater has treated the man, but i don’t think you can detect from this author’s post an actual point of view on the subject. he is just saying Yoo is the latest example of this canard. Second, the “evil” part could be intereted as an admitting for the sake of argument, argument. So I really don’t see any content in the Yoo reference except to say people have said that about him and what he said is arguably evil, which no one can deny that some people think.

Third, since you guys turned this into a discussion of Yoo, Jens, you are a fascist to think that a lawyer giving legal advice should ever face prosecution.

And in general his arguments are neither incompetant nor evil. Lest we forget that he wrote this just after we had been attacked, with the blood of 3,000 americans on the streets, their bodies still being dug out of the rubble. And the morality, legality, and even the definiton of, torture is one that is hotly debated by good americans. If torturing one man (and i mean the hard core stuff, not just pouring water up his nose) will save 10,000 innocent people, it is hardly “evil” to say we should consider it, and it is hardly “evil” to talk about what the law actually says on the subject. People as liberal as Guido Calabresi have said exactly that and proposed loopholes in the rule against torture in similare scenarios.

The only thing that is clearly wrong here is what is being done to this lawyer. Let us remember Shakespeare’s prescription for the death of democracy: first, kill all lawyers. Now you might object to that citation by saying that lawyers do not threaten democracy by empowering power, but at the risk of now killing a straw man, that would be erroneous thinking. it is not enough for a government to avoid personally violating our rights; it must also affirmatively protect our rights from foreign powers. Right now the greatest threat to our freedom of speech is not some government censor (although there are rumblings about a return of the orwellian “fairness doctrine”), but from the terrorists. Don’t believe me? Ask Salmon Rushdie, or Matt Stone or Trey Parker (of South Park fame). One has had to go into hiding because of the islamofascist threat while the other two found that their network was too afraid to air a reportedly mild depiction of mohammed in cartoon form, just before they aired a depiction of Jesus and George W. Bush defacating on each other, the american flag and random people–a subtlely sharp jab at comedy central and its cowardice.

So democracy has a duty to protect us, too, and if it fails, then democracy fails. So in fact if we go too far in straight-jacketing our institutions to really meet the threat, then eventually the people will lose faith that their institutions can protect them and we will see real fascism here, not the hallucinated fascism of the last 8 years.