Sunday, May 24, 2015
"Exercising Common Sense, Exorcising Langdell: The Inseparability of Legal Theory, Practice and the Humanities"
A new article by Professor Harold Lloyd (Wake Forest) and available at 49 Wake Forest L. Rev. 1213 (2014) and on SSRN here. From the abstract:
Maintaining that theory without practice is empty and practice without theory is blind, this article explores the impossibility of meaningfully separating legal theory from practice and the implications of this impossibility for legal education. Recognizing that no meaningful distinction can be made between legal theory and practice, this article maintains that there can be no meaningful distinction between “doctrinal” and “non-doctrinal” or “practical skills” courses and faculty. Accordingly, it explores the resulting implications for law school curricula and for faculty hiring standards.
As a part of its exploration of the semantic and practical impossibilities of any real theory-practice divide in legal education, this article also examines modern cognitive theory of embodied meaning, how metaphor and category usage drive embodied meaning, and the resulting inseparability of the humanities from legal education and practice. In light of the foregoing, this article also explores reasons why Langdell’s case method is inefficient, myopic, lifeless, and simply wrong in its general elevation of certain appellate cases over other sources of law.
Among other things, this article proposes: (1) abandoning the case method except in subjects such as constitutional law where cases actually comprise important primary materials, (2) revising course books to incorporate hornbook material and materials from actual law practice, (3) recognizing the importance of substantial practice experience when hiring new faculty, (4) erasing arbitrary lines between “core” and “non-core” faculty, and (5) placing greater emphasis upon the humanities in legal education. This article also predicts that these changes will be mandated from without if not voluntarily adopted from within.