It happens to every law student. She or he is called upon to recite a case, or answer a hypothetical question, or answer a direct question, and proceeds to stumble through the answer, enduring a barrage of agressively asked follow up questions from the prof as she or he is slowly reduced to rubble. Oh, sure, he (read: me) was prepared, read the material, made notes on the material, thought he understood the material well. He came to class confident, ready, and even eager to answer any question. He had even thought of some controversial notions about the material (or so he thought).
This happened, though in a rather tame way (in retrospect) to me yesterday in Criminal Law. We had an enormous amount of reading to do for this class, about twice as much as my other classes this week. The reading included 11 cases and 2 articles (more background info as this was the first class). It's clear from the syllabus that the prof is really focused on reading cases, so I read the articles quickly, made a few cursory notes, and moved on to the cases.
He called on me to answer questions regarding one of the articles. This particular article was a philosophical discussion about why we punish criminals in our society. There was some discussion of justice, and he had a few clear principles that he laid out. I made some notes on justice, his four principles, and moved on.
So the prof turns to the white board and writes two words: "Utilitarianism" and "Retributivism". Neither term is discussed explicitly in this article. He then turns to me and the following exchange (paraphrased) results:
Prof: Did you read the Richards article?
Prof: Good. Tell me about utilitarianism.
Me: Um. [at this point I'm frantically scanning my notes looking for utilitarianism, or anything that might mean utilitarianism. My hands are starting to sweat. did I really read this article? Do I even know what I'm talking about? all I can think is "oh shit", and I proceed to mumble:] well the meting out of justice is meant to serve the needs of everyone, the greater good [I then cringe, as I've just stated the 7th grade definition of utilitarianism].
Prof: Well you've just brought up a standard, pedestrian, use of the term, but what does Richards think of utilitarianism?
Me: Well he thinks that punishment needs to serve both the needs of society as a whole, and the needs of the individual being punished, by protecting his rights [there was a whole section of his article talking about equality in punishment, and that everyone deserves their day in court, blah blah blah, I thought I was on to something.]
Prof: Here, let me help you [he then turns to the board and writes the word "deterrence" on the board].
Me: [OK now I get it and give a decent answer regarding general and speific deterrence, I won't bore you with that here, but I seem to get this part right. don't worry, it gets worse.]
Prof: Good. Now, what about Retributivism?
Me: [clearly nobody in the room gets it either, they're all looking at me with that "better you than me" expression, so I say:] Revenge. Retribution. Punishment serves these purposes.
Prof: [laughs] Yes yes, it makes us feel better, right? think Kant.
Me: I Kant [Oh god I just told the oldest philosophy joke in the book. nobody laughs except the prof, who may have actually found it funny]. I suppose I am not sure what you're looking for here. I saw this article balancing the needs of the individual with the needs of the state. What did I miss?
Prof: I see. what does hammurabi say about punishment?
Me: [here is one I know, miraculously] an eye for an eye, a tooth for a tooth.
Prof: Right. is there anything like that in our legal system today?
Me: Kindof. [now I'm starting to think about one of our cases] we believe that our punishment should fit the crime, though not so literal as hammurabi did.
Prof: yes. now. what does retributive suggest?
Me: I, uh, [I really see nothing in this article about this. I'm trying to answer the prof's question as it relates to the article. I'm completely lost.] I suppose I don't know the answer to that question. I didn't see anything in Richards beyond the balancing ideal.
That's enough I suppose. It went on for a few more minutes, he trying to prod me into the right answer, me not getting it, and finally he let me off the hook and proceeded to explain. Now this exchange was quite tame, especially since I did have a few things to say that he wanted said, but that doesn't change the feeling that it left. I was ready to discuss any case, I understood them all, and in the final assessment my notes pretty much matched his notions as the class went on as far as the cases went. I was taken off my guard being asked about an article I didn't care about. During break more than one student came up to me and said something like "boy I'm glad it wasnt me discussing that article." and I even got a "good job" from one student who apparently admired my courage or something.
welcome to law school, eh?