Respecting Student Experience

wallsOne of my favorite Christmas gifts this year was a copy of Jeannette Walls’ amazing memoir, The Glass Castle. In it, she describes growing up with her three siblings in a household characterized by chaos and poverty on the one hand, and love and a sense of wonderment on the other.

Jeannette and her siblings live in a series of cars, tents, or leaky-roofed houses without heat. They forage for food in farmers’ fields and trash cans, wear cast-off clothing, and bathe so infrequently as to attract the scorn of schoolmates. Their unstructured life and economic deprivation are partly a product of their father Rex’s alcoholism, and partly a result of their mother’s free-spiritedness, which often bordered on mental illness. The parents held jobs for periods of time, but usually quit or were fired because they did not like the infringement of a work schedule on their freedom or did not see eye-to-eye with their bosses on some point. Despite these physical hardships, the Walls family is full of love and mutual affection, and Jeannette’s account of her family is surprisingly gentle and forgiving.

As a Family Law teacher who addresses issues such as child maltreatment, parental rights and child protection, I am fascinated by first person accounts of family life, and Walls’ account is full of nuance and insight. There is one scene however, that haunts me as a teacher. 

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One Class: Deconstructed

eckstein hallIn a previous post, I took an op ed piece that I authored and provided a “deconstruction” of the text that explained the thought process behind the piece’s organization and argument.  In today’s post, I propose to take one class period from my Constitutional Law course and to deconstruct the class in a similar fashion.  Readers of this blog may find my thought process surprising, appalling, or some combination thereof.

The class period in question deals with the constitutional doctrine of standing in the federal courts.  Because federal courts only possess the power to hear cases described in Article III of the Constitution, standing doctrine has been developed by the Supreme Court to differentiate “cases” and “controversies” from disputes that are merely hypothetical, or that request an advisory opinion, or that are better left to family or political decision makers.  The case in the textbook that provides an entry way into a discussion of standing doctrine is Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000).

In that case, the plaintiff was a member of an environmental group who wanted to sue a polluter who had dumped mercury into a South Carolina river.  Congress had passed the Clean Water Act, which creates a cause of action in federal court for any person “adversely affected” by a violation of the statute.  The issue was whether the plaintiff in this case, who alleged that he no longer swam in the river or picnicked along its shore due to a fear of contamination, had suffered a sufficient “injury in fact” to have standing to sue.

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Langdell’s Curse

langdell_portrait_vinton_03Michael Ariens has, through a number of blog posts, shared with us his thoughtful sentiments about American legal education.  This post is an attempt to continue that dialogue and to consider how we can better prepare our students for practice by contextualizing legal education.

Most legal commentators believe the primary purpose of law school is to prepare students for practice.  While there isn’t a single interpretation of what that means, it must at least include the ability to help clients “solve” their legal problems. (I use quotation marks around the word “solve” because legal problems are not like most mathematical problems in which there is only one solution.)

While that objective might seem obvious to some, especially the legal practitioner, it isn’t necessarily obvious to everyone, especially in light of the pedagogical approach to legal education that most law schools take.  This is because most law school courses teach substantive law, as well as fundamental legal skills like legal reasoning, through the vehicle of the case method.

The use of the case method as we know it can be traced to at least as early as 1870, when Christopher Columbus Langdell first instituted it at Harvard Law School in an effort to make the study of law more rigorous.  The idea was to treat the law as a science, and to treat cases (the source of the law) as if they were to be poked at and dissected in order to reveal their legal principles.  By requiring students to learn the law through such demanding exercises, the case method achieved its goal – law school became a more rigorous enterprise.

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