Thursday, May 31, 2007

Legal Education and Morality

Mike's post from this morning discusses comments by Philip Zelikow, a former Bush administration official who argued recently that law schools do not train future lawyers to think about moral or normative questions but only to think about technical legal arguments. Mike's response, with which I completely agree, is that law schools in fact do teach students to think about morality and justice. I'll add here some anecdotal observations as well as a comment about how Zelikow's attack is fundamentally at odds with the usual attacks on legal education.

When I was in law school at Michigan, there were a large number of students (thankfully not a majority, but still a sizable group) who would constantly grumble about how our professors wouldn't simply teach black-letter law and would "hide the ball." Their complaint was precisely that law school was NOT what Zelikow claims it is: a trade school where methods of legal reasoning are taught without consideration of alternative outcomes or normative standards. These students were correct that their professors were trying to get them to confront normative concepts underlying the law; but they were wrong to imagine that this was somehow inappropriate.

Having now taught at Rutgers-Newark and NYU, I've emphasized in all of my classes how much legal education is NOT about merely learning black-letter law. Indeed, to a surprising degree, there is no black-letter law, if by that term is meant a body of unambiguous rules that lawyers can apply without exercising professional judgment based on ethical and moral concerns. Given that I teach contracts and basic tax, this takes some students by surprise. I'm sure there are professors who proceed as if they can teach law as a trade rather than a moral and intellectual pursuit; but I think that those who do so are fooling their students and, quite likely, themselves.

What is perhaps most interesting about Zelikow's argument, though, is that it turns upside down the claims that political conservatives usually make about law schools and about liberal lawyers and judges. The usual complaint from the Right is that law schools are dominated by a bunch of wild-eyed liberals with no fealty to the text of the law, who simply take a 1960's if-it-feels-good-do-it approach to the law. Lawyers thus trained supposedly then go out and become advocates and judges who proceed as if the law is based on morality, not the text of constitutions and statutes. For example, Justice Alito's majority decision in this week's Title VII case sneers at the plaintiff's arguments (which Justice Ginsburg's dissent adopts) precisely because, Alito asserts, those arguments are merely "policy arguments [that] find no support in the statute."

Apparently, then, law schools are overrun either by a bunch of liberal idealists who do nothing but tell their students to ignore the law or by a bunch of technicians who tell their students to think only about scoring doctrinal points in court. Neither is true, of course. Legal education in the United States is most certainly not a monolithic institution, but Zelikow's claim that law students are not encouraged to think about the normative issues behind the law is beyond a stretch.