Last week a student contacted me via email to say he was having difficulty preparing for my exam. His nervousness, the student said, derived from training as a “law-student machine” whose job was to memorize and regurgitate rules. He feared that my exam would ask him to do something different than that.
I think the student has subsequently found that my exam was not so odd after all, and I am confident that he did well. However, his comment led me to reflect on the thrust of legal education at the four law schools at which I’ve taught. The schools rarely inspire law-related creativity and imagination. Students think (and are asked to think) so much about what the laws are that they almost never focus on how to modify, reform, or redo the laws. They do not ask what the laws might be.
What are the causes of this phenomenon?
Answers spring to mind: the slow incrementalism of the common law, the intellectual tyranny of the casebooks, the assumption that every legal pronouncement be supported by a previous one, the spread of multiple-choice and short-answer exams, research systems designed to locate the law as is, and — most generally — an overwhelmingly positivist environment.
Breaking free of these restrictions seems virtually impossible, but at least with regard to positivist attitudes one might attempt to convey an alternative natural-law jurisprudence. Such a jurisprudence could be grounded in religion or in secular humanism. With regard to the latter, one could start with the assumption that “true” law should expand human possibilities and enrich the human spirit. One could then go on to more easily explore what law might be rather than what dominant forces say it is.
You will be happy to know that we discuss natural law in Law & Theology. Part of the problem, though, is that the legal profession is hard wired to resist it. Even I am dubious that it can really be rooted in secular humanism.
The problem with a “find the law” approach – and I am not as certain as you are that this is what we do here – is that it ill prepares one for what to do when the law can’t be found. How do we approach a situation in which the law is not settled. In my view, too many lawyers, faced with that situation, want to pretend that it is settled. While I have never been a judge, I have sat as a referee in such situations and that approach is decidedly unhelpful to making a decision. So there are some very practical benefits to stretching a bit.
For a recent discussion of natural law and its role in shaping law and public policy, I recommend this recent thought provoking article by George Weigel (who, incidentally, will be coming to Marquette Univ. Law School Jan. 2010 to deliver a guest lecture).
Prof. Hylton may be able to provide a fuller accounting, but Marquette used to require that students take two courses in jurisprudence, which addressed a natural law approach rooted in St. Thomas Aquinas (See Raymond C. Seitz, 3 Cath. Law. 331, 331-32 (1957)). From what I understand, this was fairly typical of Catholic law schools at the time; indeed, these schools saw it as one of the things that set them apart from secular law schools. The classes were often taught by a Jesuit priest whose training was in philosophy. See, e.g., Robert F. Boden, 53 Marq. L. Rev. [vii] (1970) (memorializing Rev. James F. Orford, S.J.).
Prof. Breen at Loyola Chicago set off a conversation a few years ago about mandating a “Catholic class” at Catholic law schools that would discuss principles of justice, especially social justice. Justice and Jesuit Legal Education: A Critique, 36 Loy.U.Chi. L.J. 383 (2005). Perhaps such an endeavor would be well-served by starting with what Catholic law schools used to require in Jurisprudence.
To elaborate Prof. Esenberg’s point on the presence and shortcomings of the “find the law” approach, I do not perceive Marquette as trying to churn out legal machines or calculators. To the contrary, I’ve had a number of professors repeatedly try to rid us students of the notion that there are right and wrong answers in the law. Take Prof. Secunda’s advice in the Wall Street Journal about reaching a “maybe” conclusion in law school exams, for example. Perhaps there are very clear cases where an answer is compelled by a thoroughly entrenched common law rule, such as the lack of a contract where one party does not furnish any consideration whatsoever. For these types of questions, a clearcut true-false or multiple choice test is appropriate.
In most other cases, as Prof. Esenberg has stated above, many cases cannot be solved by simply saying “Rule X applies, therefore the plaintiff wins.” In any event, Judge Posner has even suggested in his book How Judges Think that the choice to adopt a formalist approach could still reflect a pragmatic decision that one is ultimately better off with mechanical rule-application.
Thus, as a practical matter, most legal work does not turn on finding rules that do all the work for us. To the contrary, those rules must also be applied. That seems facially obvious, but in applying those rules, we necessarily tap into an innumerable list of sources, such as social norms, common sense, our experience, our moral convictions, legal background principles, and ultimately, our own perception and beliefs about how the interests in play should be balanced. That is where the normative side of legal work comes in. By prescribing a result after marching through the rule explanation, advocacy, and application, we are necessarily stating that a particular conclusion is the right result or at least the best or most feasible one. Consistent with Aesop’s fable, the job of a lawyer is not simply to say that the law compels a result, but rather to further argue that the law should prescribe that result.
Without trying to put words in your student’s mouth, I wonder whether the “law-student machine” mentality for some stems from the elephant in the room in law classes: grades. We are all assigned scores indicating that we did better or worse than other segments of the class. However, law school grades often do not depend on whether one gets “the right answer.” While we should strive to find the right answer, the real difficulty lies in the application and the analysis, those logical and intuitive leaps that connect general rules and background principles to a conclusion.