Brian Cogan: Legal Culture In a Nation Where ‘But Now’ Is Still What ‘News Story’ Means

By: Franschoek, Kim

Law is the language of the law. It is how we quantify laws we have passed and comply with the laws we have enacted. So, in all the talk about #metoo, #timesup, #whywecantmove, and other American and international social movements our Founding Fathers bequeathed to us, law is not simply a political platform — a perception many of us could certainly vouch for. But law also has an exalted role in our cultural mosaic. Much like the musicians who are helping to shape the soundtrack of our lives, the law is helping to define what it means to be free.

Growing up in a remote town in western North Carolina during the late 1970s, I had the extraordinary opportunity to engage in dramatic presentations of certain legal lectures from my perch as a school librarian. In these presentations, the law professor would invite audiences in a school by building each class in the practice room with the late typographical typewriter of that year. The highlight of the presentation was the exercise of real-time lateral argument. The professor would work his way to the edges of an argument, turn to the audience with a quizzical look, and ask: “What do you think?”

As a child and as an adult, I spent countless hours absorbing this important principle in its original form from a witness like John McWhorter, sociologist and law professor emeritus. The essence of McWhorter’s argument is that we as humans are predisposed to make logical arguments based on simplistic and deductive links between the various units of value in our community. This made perfect sense to me, as a student, a lawyer, and an academic.

When my first child was born, while I was barely in my twenties, I once again paused to reflect on the artistry of McWhorter’s argument. The past 25 years since he has been gone have made clear that this is in fact an art form. You do not need to step to McWhorter to realize this. The deepening disillusionment with traditional media provides ample evidence for the fact that the traditional media far too often appears like a vast repository of “beyond the discussion” and “doesn’t debate” assertions. While there is still real merit to every argument that is raised, the problem is with the waste of our time and the real impact we are having on our environment.

Now a decade older and a doctoral candidate at the University of Connecticut School of Law, I have the opportunity to re-read McWhorter’s final work, The Language of Law. For me, it was inspiring and challenge to be back in the ethical vocabulary of the culture, in which McWhorter originally began his work.

For this reason, I want to share two powerful cases. The first is a case on sentencing when sentencing may be interpreted in a way that is inconsistent with the crime. The sentencing law as proposed has a broad appeal to such maximums as 15 years to life for a habitual offender. But the attorney representing the defendant was advised to only recommend mandatory minimums for his client and was not allowed to even recommend that his client be sentenced below the mandatory minimums.

Though McWhorter wrote about this particular case, I think his mentor, Judge Crawford, was more apt to diagnose the underlying problem. “I think most white collar professionals feel that here we have a mixed bag,” he told McWhorter. The problem was that we make a small exception to the rule for various defendants, and yet, we continue to have a mighty general rule, and not in our interests.

Our society, clearly, is at a critical point. It must seek a common understanding that the unthinkable may be possible.

Mbako, a native of Cameroon, has been practicing law in a diverse district court in the Los Angeles area for three years.

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