Legal Commentary

Lawyers and Institutional Roles, or, Why Lawyers Seem So Obsessed With Technicalities

By Orin Kerr

I was thinking recently, after teaching a first-year law class, that one of the key aspects of ?thinking like a lawyer? is understanding institutional roles. The law often breaks down power among different institutions, with each institution getting one part of a broader problem. That means that each institution only has limited power, and the question of how that institution is supposed to act is limited by the specific grant of power given to that particular institution. Of course, the lines won?t always be clear as to exactly what powers are given to each institution: Sometimes the lines are murky. But the basic idea of thinking of each institution based on its role is an important part of thinking like a lawyer.

Consider a routine criminal case. The investigator has one role: Determine if a crime has been committed and who committed it while complying with the relevant constitutional and statutory rules for gathering evidence. The prosecutor has a second role: Determine if the evidence is sufficient to prove the case beyond a reasonable doubt and if justice will be served by a prosecution. The grand jury has a third role: Determine if there is probable cause to permit charges to be brought. The defense attorney has a fourth role: Fight like hell, within the ethical rules, to defend the client. The trial judge has a fifth role: Make appropriate evidentiary rulings, ensure a fair trial, instruct the jury properly on the law, and, if the jury convicts, determine the appropriate sentence under the relevant sentencing scheme. The trial jury has a sixth role: Determine if there is proof of the elements of the crime beyond a reasonable doubt. On appeal, the appellate court has a seventh role: Review the lower court judgments under the appropriate standard of review. Each institution has its role, its appropriate job based on the breakdown of power among the different institutions created by and regulated under the law. It?s a big part about how lawyers think.

This understanding of institutional roles provides a source of endless frustration among non?lawyers. For non-lawyers, thinking about institutional roles can seem utterly ridiculous. It can come off as hiding behind technicalities and an almost pathological aversion to the common sense and the justice of the situation. But to lawyers, it?s just about how we think: It all reflects our background understanding, so intuitive after a while that we rarely consciously see it, that the law often distributes power among different institutions. 

Full post as published by The Volokh Conspiracy on October 20, 2010 (boomark / email).