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February 15, 2005
Hypothetically Speaking, You're A Pervert
"Mr. ______, it's called a hypothetical. I give you the facts and you answer the question. It's an important part of law school."
My Patent prof said something along these lines a year or so ago, when the student on call kept referring to the facts in the case rather than the modified fact pattern the prof used. He was right though. The hypothetical is an essential part of how we learn the law.
This makes it all the more amusing to be in a class where the hypothetical is horribly crippled by social mores. In class discussion of obscenity and pornography, every comment begins with "My 'friend' says..." or "I haven't actually seen it, but..." The professor must walk the line between painting an accurate picture of the law and the underlying issues on one hand, and not offending students on the other.
This morning, my First Amendment prof tried to use a hypo based on "Penthouse Letters" but the student had never heard of that particular publication. You can't really challenge her on that. You can't just say, "Sure you've never heard of it.<wink><nudge>" And I have no reason to think she wasn't telling the truth. But I guarantee I wasn't the only one in the room thinking about the fact that I have heard of it. Do you honestly believe that in a room of 30 adults, 2/3 of them male, no one has ever looked at pornography? This is, I think, the fourth class where I've discussed Miller and related cases, and it's the same every time. We sit in the class and talk about what "turns you on" or "what gets you off" and whether or not "it grosses you out" all while attempting/pretending to be detached and focus on the legal issues.
At the same time, we're still talking about naughty stuff in school. Giggle giggle.
Towards the end of class, someone brought up what I think is a fundamental question on this topic: Why do we treat sex differently? Clearly, it's a reflection of social attitudes towards sex and sexuality, but what's not clear is why the law adopts those attitudes, particularly in a context where legal doctrine generally avoids preferencing one view over another. Of course, the prof acknowledged that it was an interesting question, and proceeded to talk about something else.
Posted by buddha at February 15, 2005 11:30 AM
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