December 2, 2009
McFarland on Teaching Torts
Robert McFarland (Jones School of Law) has posted to SSRN Teaching the Law of Wrongs Without Searching for What is Right. Here is the abstract:
This essay fits into a growing body of academic literature examining a crisis of identity in the legal profession. Three recent reports (Carnegie Foundation Report, MacCrate Report and Best Practice in Legal Education Report) link professional malaise to the the state of legal education in America.
This essay argues that a significant problem is embedded in the structure and pedagogy of the traditional first-year curriculum. First-year students are typically not invited to develop an understanding of jurisprudence or professionalism in the first-year. Instead, the typical first-year pedagogy focuses on development of analytical ability and writing skill at the expense of development of a coherent legal philosophy.The typical student learns to set aside questions of justice in order to “learn the rules” and write the brief. Because students are not permitted to search for "right" answers to any question, students develop a fierce cynicism which follows them into the profession and manifests as professional malcontent.
My argument is advanced in three parts. Part one examines the crisis of identity currently afflicting the legal profession and connects this problem to the place where professional identity is formed: law school. Part two follows a student through her first-year experience in torts and describes a process whereby the student loses her moral identity in order to obtain rigorous analytical ability. She learns to set aside her own qualms in order to learn “the law” but is not equipped nor given the opportunity to reconcile the law with her moral and ethical instincts. Part three then argues that this process is problematic because the first year lacks balance and proposes changes allowing the student to learn analytical ability without developing a cynical view of law and justice.
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