Wednesday, December 14, 2011

Teaching Law: A Reply to Stanley Fish

Stanley Fish has a piece in the New York Times in which he defends the graduate school approach to legal education.  He writes:

"In the course of the semester my students have learned how to read religion clause cases against the background of long-standing debates in philosophy and theology about the relationship between religious imperatives and the obligations of democratic citizenship. They have become adept at recognizing the arguments behind the arguments the justices are making explicitly. They can see how a case ostensibly about vouchers or school prayer or Christmas trees on courthouse steps is really about whether principle or history should inform a court’s decisions."

He continues:

"The question asked by an article and an editorial published recently in this newspaper is whether what my students have learned will be of any help to them when they enter practice. At first glance the answer seems to be “no,” . . . .  One can, however, make the case that the practice of law is more than a technical/strategic exercise in which doctrines, precedents, rules and tests are marshaled in the service of a client’s cause. The marshaling takes place within an enterprise that is purposive. That is, law is more than an aggregation of discrete tactics and procedures; it is an enterprise informed by a vision of how the state can and cannot employ the legalized violence of which it is the sole proprietor. That vision will come into view in the wake of a set of inquiries."

He concludes:

"The law is surely a practice but it is also a subject, and if it ceases to be a subject — ceases to be an object of analysis in classrooms and in law reviews — its practice will be diminished."

I so wish I could agree with Professor Fish.  It is so much fun to teach law as philosophy or to sit in the classroom as a student and discuss jurisprudential questions free from real world considerations.  Teaching jurisprudence was probably the most fun I had in my teaching career.

Law school, however, is not a philosophical undertaking like philosophy, musicology, or literature.  It is a profession that students learn to help clients and earn a living.  We should not say to our students that we are going to teach you the deep meaning of law and you can learn the practicalities on your own.  Law students don't spend tens of thousands of dollars or more to learn philosophy.  Clients do not pay lawyers  to consider the jurisprudence of their divorce or their will.

There is room in law schools for courses like Professor Fish teaches.  I do not mean to ban jurisprudence and theory completely from the classroom.  However, the majority of the law school education needs to be in practicalities.  By this, I am not saying that we should teach students to find the court house, where to file corporate documents, or how to fill out forms.  What I am asking is why can't we teach doctrine and skills together.  Students can learn doctrine by writing contracts clauses in contracts.  Students can learn doctrine by writing wills.  Students can learn doctrine by applying law to facts in problem solving exercises.  Why can't we teach students how to do a merger?

Lawyers practice in the real world, not in an ivory tower.  Law schools must provide their graduates with an education for that world.

(esf)

P.S. How many attorneys have cases that involve the religion clauses in their practices?   

http://lawprofessors.typepad.com/legal_skills/2011/12/teaching-law-a-reply-to-stanley-fish.html

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