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.
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21 comments:
"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."
I hate to belabor my point in my comments to Mike Dorf's post, but this actually is great evidence supporting exactly the opposite of what you think legal education does. Law is extremely flexible, and a law school does not teach students to use law in one way or another. Students entering law school are generally well into their twenties and sometimes in their thirties---which means their notions of justice have already formed prior to entering law school. What happens in law school is simply that students bring to legal analysis their preconceived notions of justice and morality.
I believe it's dangerous to think otherwise, because you would be giving the world a false impression of and impossible expectations about what a law school does. Unless a typical law school curriculum dramatically changes, so that there is significantly heavier emphasis on theory, there is no reason to think that law students are ever going to be any more qualified to engage in discourses regarding law and morality than intelligent people without a law degree.
"[T]here is no reason to think that law students are ever going to be any more qualified to engage in discourses regarding law and morality than intelligent people without a law degree."
While everyone brings their own sense of morals to the table, that does not mean that someone who has never studied the law is as qualified to engage in questions of law and morality as someone who has studied the law. Understanding, for example, the professional responsibility requirements surrounding commingling of funds requires knowing legal rules and norms that non-lawyers simply don't know. It's not just "thou shalt not steal" but questions of what really constitutes stealing, what system is best at preventing stealing, whether to have bright lines or discretion, etc.
But the central point is that legal education does, in fact, include a great deal of discussion of alternatives to current black-letter law, competing norms, etc. Zelikow asserts that lawyers are simply not trained to think about those things. He is wrong.
Much of what seems to pass for normative inquiry in law school classrooms involves little more than one student defending some half-baked "efficiency" argument for what the law should be, followed on rare occasion by another student objecting to its "fairness." There is surprisingly little attempt on the part of those who teach to get the students to think critically about sufficiency of this normative framework, which most of the students (and presumably those who teach them) seem to pick by osmosis in first year Torts.
I agree with Neil (agreeing with me) and disagree with these comments and those on my post. Part of the issue here concerns what moral reasoning is. Many religious people equate moral reasoning with reasoning from (or simply accepting) religious authority on various moral questions. For secular discussions, however, moral reasoning means engaging in a process of sorting through and attempting to reconcile and synthesize moral intuitions---a quest for what Rawls called reflective equilibrium. I'm hardly the first person to notice that this process is structurally identical to common law reasoning. The difference is that the first-order data in the common law method are precedents rather than moral intuitions, but given the malleability of most precedents in hard cases, there is a large dollop of moral intuition among the materials to be synthesized in common law reasoning. As I argued in my 1998 Harvard Law Review Foreword ("The Limits of Socratic Deliberation"), the common law method is actually pretty good at moral reasoning; it's less good at policy analysis.
Mike Dorf says:
"For secular discussions, however, moral reasoning means engaging in a process of sorting through and attempting to reconcile and synthesize moral intuitions---a quest for what Rawls called reflective equilibrium. I'm hardly the first person to notice that this process is structurally identical to common law reasoning."
I think our disagreement is based on whether we are talking about legal education in practice or in theory. This description of common law reasoning is fine by me, in theory. I have read your Harvard Law Review article, and I agree with it in many respects (for instance, I don't think it's an accident that American lawyers, trained in common law reasoning, are successful internationally in various fields).
But I am sure I speak for many, many law students when I say that I took no such insight from any caselaw course I took in law school.
For example, let's think about how students typically react to the study of Constitutional Law. Based on my personal experience (the sample size is small, but I have no reason to doubt its applicability at large), students who were conservative naturally revolved toward the jurisprudence of Scalia, Thomas, etc., and students who were liberal naturally revolved toward that of Ginsburg, Stevens, etc. Sure, we all engaged in discussions about which side is better and tried to convince the other side, but at the end of the day, no one changed his or her views.
This is because legal education, as it is typically carried out, simply does not reach questions of sufficient depth to truly challenge anyone's deep beliefs and ideas. Profs. Dorf and Buchanan are right in saying that it is false to say that absolutely no normative considerations take place in law school, but I maintain that the level of such considerations is pretty shallow.
The reason why I feel strongly about this issue is that I believe a lot of people mistakenly think that law is more powerful than what it actually is. For instance, it is completely misguided to attack Yoo et al. through legal analysis, because in my view their failure is moral, not legal. I believe that a big reason why opponents of the Administration's torture policy have not been successful at attacking it is that they have naively resorted to legal arguments to undertake this attack. In my view, we should not be wasting time trying to convince people how poor their legal analysis is; we should be telling people that they are morally wrong, regardless of their legal analysis.
Ah, the old favorite LawProf's argument-stopper -- incorporating by reference an entire law review article! :-) Jes' teasing.
I find myself agreeing more with Kenji on this issue than with Mike and Neil. Although as a teacher I do encourage students to think about alternatives to current doctrine, our discussion of these issues often feels thin and unfocused, in part because we don't have time (in survey courses) to read the theoretical literature that would ground such a discussion.
In addition, I often worry that the one skill we manage to teach law students is the ability to argue either side of an issue without regard to which side is better. I get particularly frustrated when I read exam answers that simply recount the arguments either side could make without fully evaulating the merits of those arguments. No doubt this is my fault for urging them to address counterarguments without making clear that not all arguments are created equally. But I think the students are also hesitant to commit to a position because we spend so much time during the semester shooting holes in any position they do take.
By the way, Mike, I seem to recall that you give students a guide to taking exams that encourages them to avoid simply saying, "on the one hand X, on the other hand Y" and to instead engage in more evaluative analysis. Would you mind sharing that? I'd like to give something similar to my students. Thanks.
Mike, I'm not sure how pointing to a formal similarity between between common law reasoning and Rawls's method of reflective equilibrium proves your point. Logicians use it as well (in justifying forms of inference, etc.), but unless you're in France, the idea that they are engaged in any type of moral reasoning is going to be pretty hard to swallow.
I don't disagree with your point that moral intuitions will play a role in legal reasoning (although they are usually used to predict rather than to justify particular outcomes), but I am skeptical that this therefore makes it a species of moral reasoning. There seems to be little room for full-fledged moral reasoning in the common law tradition. After all, the thing we ought morally to do in many cases is to ignore precedent altogether (not necessarily because the precedent is wrong but because our moral reasons are fully determinative of what we ought to do in the first place). Perhaps there is an argument to be made that our moral intuitions demand something like a common law system of judge made law, but this genuienly moral question is hardly the sort of thing we could justify spending much time on in the first year curriculum.
They can correct me if I am wrong, but Mike and Neil aren't saying that law school "teach[es] students to use law one way or another." Zelikow contends that lawyers are not trained to evaluate the link between policy and law because legal pedagogy does not include an examination of that relationship.
This is patently false.
I just reviewed the list of classes I took in law school, and with the possible exception of Legal Accounting, a filler class I took my last semester in which I paid no attention, I can think of concrete examples in each class where consideration of policy was absolutely essential and explicit.
Additionally, I have often shared Prof. Healy's frustration with the sophomoric quality of the discussions. But I would respectfully submit that this is a different issue than whether such discussions are even a part of legal education.
Zelikow claims that they are not.
Tam said:
Additionally, I have often shared Prof. Healy's frustration with the sophomoric quality of the discussions. But I would respectfully submit that this is a different issue than whether such discussions are even a part of legal education.
Zelikow claims that they are not.
What Zelikow actually says is this:
Moral reasoning, which most people think has something to do with ‘right and wrong,’ is not taught in law school.
This is not to claim, as Mike seems to suggest in his original post, that there is no connection between law and morality. On the contrary, Alenikow goes on to say that:
The relationship of law to morality is an interesting question, wonderfully explored by thinkers as diverse as Edmond Cahn and James Q. Wilson. But, for better or worse, moral reasoning is not generally taught in law school.
This is hardly the kind of thing you'd expect to hear from someone who, according to Mike, rejects the connection between law and morality explored by the likes of Fuller and Dworkin.
A much more charitable interpretation of Zelnikow's claim is not that there is no connection between law and morality, but that law schools fail in getting their students to see it. When Zelnikow claims that law schools do not teach moral reasoning, he is not claiming that law professors do not raise moral issues in class, but that they do not teach their students how to address them. Instead, they just elicit their untutored moral intuitions and raise mostly sophistical objections to them before declaring the issue to be "irresolvable" or "open to interpretation."
It is not surprising that in Plato's greatest works, Socrates abandons his so-called method altogether and proceeds to develop his views in the fairly straightforward pedagogical manner must discplines outside law schools adopt. Reducing his interlocutors to aporia is just a first step in the process of getting them to the point where they can finally see the truth. Law professors get so caught up in that first, negative stage that they fail to demonstrate what good, morally informed legal reasoning consists in, and end up playing the sophist to Socrates' sage.
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