Two cheers for line-drawing (closing thoughts)

Note: this is probably my last blog post on Orin Kerr’s essay “Line-Drawing and Legal Education.”

Thus far we have been exploring the technique of line-drawing from the perspective of lawyers, moral philosophers, and scholars generally: (a) the ubiquity of line-drawing in law and ethics (why all hard cases in law boil down to line-drawing), (b) the politics of drawing lines (who decides who gets to draw the line?), and (c) philosophical objections to line-drawing (small-mindedness and moral relativism). What about the perspective of students? To his credit, Professor Kerr concludes his beautiful paper on line-drawing by providing three practical pointers for his law students, which I will distill as follows:

  1. “Your in-class rule is just your starting point.”
  2. “… recognize that no legal line is perfect.”
  3. “Listen to how your classmates [or the professor] justify the lines they draw, especially when their lines are very different from your own.”

In other words, when your professor asks you, “Where do you draw the line?,” what he is really asking is for you to do is to somehow translate your moral values into a workable legal rule–a rule that is clear enough for any person to understand and that is fair enough to harmonize whatever conflicting values are at play. In other words, the professor is asking you to perform a difficult, if not impossible, task. That is why whatever rule you propose or whatever line you draw should be considered a mere starting point in an intellectual contest with no end point or finish line: because no rule will be perfect or even close to perfect; because all rules require difficult tradeoffs. That is also why you should listen very closely to what your classmates have to say: to figure out what their deeper values are, to understand what is really at stake whenever we have to draw lines, and to update your Bayesian priors …

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About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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