Saturday, November 26, 2011

New York Times' Editorial on Legal Education: A Bit of Progress Immersed in Murk


Like most New York Times' editorials, yesterday's editorial Legal Education Reform does not have much analytical depth, but it is an improvement over the position (it's gotta be either theory or practice) taken in the earlier NYTimes article.  Even so, the value of "useless" theory is not considered in yesterday's editorial. So we do not know if the New York Times thinks that stuff such as European medieval legal history belongs in the law school curriculum.

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Although I think it is possible for law school courses to marry theory and practice (I think my course in fact investigation does so) and although I believe that experience in law practice can be an important source of knowledge about law, some of the reasoning in the editorial is positively silly -- and perhaps even dangerous.

For example, in criticizing the Langdellian version of the "case method," the New York Times says, "The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth. [paragraph] That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems."

The New York Times seems to be blissfully unaware that generations of American law teachers who have not viewed the law as a "science" have used the "case method."

Beyond that, I don't know of many legal scholars (including Langdell) who actually thought that law is an end rather than a means. (Hans Kelsen, a German legal theorist of the first half of the twentieth century, may be one of the very few legal scholars who did so. His cast of mind is hardly that of the typical American law teacher either now or in the past.)

Finally, if the New York Times endorses the view that law is a means -- it is not clear that the Times does so -- what does the Times think is the implication of the possible truth of that proposition? Does the Times think that moral or ethical truths or cultural values cannot be extracted from or discerned in the law? Does the Times think that the law is or should be nothing more than a means of social control? In seemingly endorsing the view that law is not a "source of truth," does the Times believe that no knowledge can be gained by the study and observation of the forms of American law? These are not unimportant questions. But the Times' views about such questions are a murky mess.   

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I very much agree that American legal education requires serious reform. I agree that many law teachers who purport and wish only to prepare law students for law practice do a shabby job at their chosen task. But if the New York Times editorial is an example of the kind of thinking that will guide efforts for the reform of legal education, we are better off leaving legal education in the mess it's in now. We can then at least be reasonably assured that at least some attention will be devoted in law schools to important questions without much immediate cash-value -- such as the question of the meaning of the idea and ideal of the "rule of law." (Some people, including the New York Times, have occasionally asserted that this idea(l) is one of the shining jewels of Western civilization and of civilization in general.)

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