Wednesday, November 23, 2011

In Defense of Teaching About Old Things – and In Defense of Teaching and Writing

-- Posted by Neil H. Buchanan

Professor Dorf's post here on Monday mentioned a front-page article from Sunday's New York Times, in which David Segal assailed the supposed problem that law schools do not teach "lawyering." That article has understandably generated a lot of heated reaction from law professors, who have objected to nearly every aspect of Segal's dangerously slanted analysis. The article will still be highly influential, however, because it appeared on the front page of the Sunday Times, and because it feeds the established narrative about woolly-headed academics versus put-upon students.

Like everyone else who has criticized the article, I have no objection to the idea of critically examining any aspect of the law school model -- or, indeed, of critically examining any socially important institution. The law school experience is far from perfect, to say the least, and we all need to think carefully about how to assist our students and graduates as they deal with high debt loads and diminished employment prospects.

The need for constructive criticism, however, is not met by Segal's article, which trades in little more than snide anti-intellectualism and blatant ignorance masquerading as analysis. As just one example (noted by Matt Bodie on Prawfsblawg), Segal cites an academic article with an obscure title as evidence that legal scholars have nothing to say to the wider world. That paper, however, was written by a philosopher, published in a journal edited by philosophers. Words like "shoddy" do not even begin to describe the shortcomings of Segal's article.

More broadly, as Professor Dorf's post reminds us, attacks on the academy -- including philosophers, whose articles in fact do contribute importantly to the advance of human knowledge -- are a very dangerous thing. We must be vigilant against the opportunism of those who would use the Great Recession as a wedge to undermine support for higher learning. American universities and law schools deserve to be defended (and thoughtfully reformed, on an ongoing basis), not gratuitously attacked.

Rather than discuss the Segal article as a whole, however, I will take a moment here to discuss his reference to a case from contract law, Hadley v. Baxendale. His use of that case in the article provides an especially useful window into the barrenness of Segal's attack on the legal academy.

Attacking Langdell's case method approach to law -- a pedagogical method that, Segal insists, "all but ignores the particulars of practice" -- Segal's first example is Hadley, which he breezily describes as "an 1854 dispute about financial damages caused by the late delivery of a crankshaft to a British miller." By this point in the article, Segal has already made it clear that one of the problems with traditional law classes is that they are just so traditional, which apparently means that they rely on too much old stuff. Hence, his description of Hadley not only mentions the date of the case but includes facts that involve an outmoded technology. Segal is dismayed that, rather than studying "actual contracts, the sort that lawyers need to draft and file," students are forced to sit around discussing a case from before the Civil War that has to do with a water wheel in England.

It should not be necessary to say -- but it apparently is -- that there is nothing at all wrong with discussing old things. Few would say that Adam Smith's The Wealth of Nations is not worth reading (although I would suggest that people also read his The Moral Sentiments, to understand that he was not an apologist for untrammeled greed and unregulated markets). In law school, why should we not discuss the Magna Carta, even though it is about to turn 800 years old (and even though it is not binding law in the U.S.)? And do not forget that the United States Constitution is more than two centuries old.

But maybe Segal was merely being a bit sloppy here, using age as an imprecise proxy for irrelevance. We must teach the Constitution because it is still relevant, he might say, not because it is interesting or intellectually challenging. Lawyers should be taught how to do things! Great. In the law of contracts, Hadley is the basis for one of the most important practical requirements that all lawyers must know: the requirement of foreseeability in determining liability for damages. The rule from that case has been adopted into the law across the United States, and it is now the basis for section 351 of the Restatement (2d) of Contracts. A lawyer who does not know the rule in Hadley will not know how to draft a good contract.

Well, why do we need to study Hadley and its silly discussions of crankshafts? Could we not just tell students to read section 351 and move on? Here is the text of that section:

(1) Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made.
(2) Loss may be foreseeable as a probable result of a breach because it follows from the breach
(a) in the ordinary course of events, or
(b) as a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know. 
(3) A court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation.

It seems fair to say that this section might not be intuitively obvious to students. Maybe it would be a good idea to expose students to some examples, one of which would be the case that gave rise to the rule. One does not need to think that crankshafts are inherently important to conclude that students could learn a good deal about the limits of Section 351 by thinking about what the miller told the repairman would happen to his business if the shaft was not returned in a timely fashion, and then to think about what a contracting party must tell his counter-party.

What I am really saying, of course, is that the case method is a valid (not the only valid, but a valid) and valuable way to teach the law. Segal seems to be saying that the "particulars of practice" do not include knowing how to apply legal rules to facts. Note that he does not say, or imply, that this is valid but overdone. He attacks the case method, because it uses old cases and ignores practical stuff. In short, his is just another brief for the age-old cry of "just teach us the black-letter law." That, however, is exactly what a good teacher must not do. It is not possible to understand legal nuance -- the practical questions of how to apply the law to one's clients' needs -- without having looked at different cases.

In part, therefore, Segal is simply putting a new gloss on an old, losing argument. More broadly, his argument betrays a failure to understand that not everything that goes into an education can be directly connected to "a thing that was learned." This is even more clear in his attacks on legal scholarship. What possible good could an article do, he suggests, if it has not been cited by the Supreme Court, or if it has not changed the way we think about law?

This is a manifestation of what I think of as the oil drilling problem, although the phenomenon is quite broad. Oil drilling necessarily involves drilling a lot of holes that come up dry. Every dry hole seems like a loss of money ex post, until one thinks about it in the broader context. Each dry hole provides a bit of information, and each dry hole is a necessary part of ultimately finding the gushers and the solid performers.

The same logic, I think, applies both to studying old cases (and new cases, and hypos) and to writing scholarly articles. The process matters. For example, even though my exchange on Dorf on Law this past summer with Professor Tribe did not change either of our minds, the back-and-forth allowed us to explore possible arguments and to hone our positions. That is the nature of academic inquiry. Asking, "What exactly did this article or case teach us?" is too narrow a question.

None of my observations here is even remotely new. There have been specious attacks on the legal academy for decades, and those attacks will surely be renewed by those who have their own reasons for undermining the legal academy (and higher education more generally). It is surprising, however, to see such elementary errors in such a prominent article. There is an important discussion going on about the future of legal education, but Segal's article moved that discussion backward.

The irony, then, is that Segal has, apparently inadvertently, actually proved an important point about the nature of intellectual inquiry: Even if we cannot judge legal academia by the item-by-item content of its courses and journals, we can at least judge the worthiness of an argument, an article, or a case, to decide whether it contributes to any worthwhile discussion. Contracts professors generally decide -- correctly, in my view -- that Hadley is worth the time in class. Many submitted articles to journals are rejected, because they do not advance knowledge. The same logic surely applies to newspaper articles. The Times simply printed a reject.


Michael C. Dorf said...

A propos of Segal's view that any case involving a crankshaft cannot teach anything about the law of contract today, consider the following passage from Holmes' The Path of the Law:

"There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant."

But I suppose Holmes too can be dismissed, as he wrote that over a century ago.

Sam Rickless said...

Hi Neil,

I agree with everything you say, but I would add a few thoughts.

1. There is usually a grain of truth in every falsehood. If law firms are finding themselves doing much more than they used to do in the way of training their new hires, then this means that there is increasing slippage between what law schools teach and what law firms ask of their new hires. This could be happening for all sorts of reasons: (i) law schools are doing a worse job of teaching than they used to, or (ii) law firms are demanding different things from their new hires than they used to, or (iii) both (i) and (ii). Importantly, one cannot simply infer from the existence of slippage that the main reason for it is (i) or (iii). And in any event it doesn't follow from any of this that law professors should change the way they teach, even if the main purpose of a law degree is to prepare for the practice of law. Perhaps it is better, all things considered, for law firms to be putting extra work into training their new hires, because law schools could not prepare law students for all the particular functions that they might possibly be hired to perform, and it would be far more inefficient for them to try to do so.

2. As a philosopher, I was struck by the part of Section 351 that reads: "or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation". Suppose that A suffers a foreseeable loss as a result of B's having breached a contract with A. A now hires me to advise her as to whether she should sue B for damages. In order to give A good advice, I need to estimate (a) how much a law suit against B will cost A, and (b) how much a law suit against B will yield A in the way of compensation. In order to determine the value of (b), I need to ask myself two questions: (b1) what, in the circumstances, does justice require in the way of compensation?, and (b2) what, in the circumstances, is a judge likely to say that justice requires in the way of compensation? I would think that (b1) is the more important question, because it is going to be difficult to answer (b2) without first having answered (b1). But (b1) is a *philosophical* question *par excellence*. So one would think that good lawyers need to be trained to think *as philosophers* and not only *as lawyers*, in the sense that they need to be able to think about and apply principles that exist at the highest possible levels of abstraction. What better example to show that the nuts-and-bolts of contract law is inextricably intertwined with the kind of abstract ratiocination that pervades the kind of legal training one finds as much if not more in the philosophy seminar room as in First-Year Contracts!

Neil H. Buchanan said...

Sam Rickless's second comment captures an essential point, which also helps to explain why I'm such a fan of interdisciplinarity in legal studies. The "justice so requires" language might have become mere window-dressing in most cases, but it's continued presence in the Restatement certainly argues for Sam's approach to teaching lawyers how to think about justice -- including how to think about how others think about justice.

LucienNicholson said...

As a current law student who is working in a clinical program, I think that the piece did make good points. The most critical issue is that traditional law school does not expose students to many practical sides of practicing law.

There are positives to the case method, but as far as I can tell, it does not provide you with actual skills to be a lawyer. Sure, there may be a place for that skill, and I do think that reading cases serves to allow students to be come acculturated in the practice of law and learn legal reasoning.

However, if students are paying in excess of $20,000 per year to join the ranks of practicing lawyers--not professors--I think some practical experience at counseling clients and solving real problems might actually be superior to reading cases in many respects.

After my first-year property course, I could tell you every single major US Supreme Court case on Eminent Domain and disparate impact claims regarding zoning regulations. But when I, in real life, wanted to figure out if I could run a business out of my house under my local zoning laws, or if I could sue my tenant for subletting my house, I was wholly unprepared.

Though I am not a practicing lawyer, I assume real life problems are more akin to the issues I had, rather than debating the difference between "public purpose" and "public use," or the merits of law and economics and originalism.

I will give credit to my school though. We did read a fair number of contracts in contracts.

Unknown said...

I'm sorry, but your post strikes me as an emotional response to well-deserved criticism.

Segal does not say students should never read old cases, or consider philosophical issues. He says they should do less of that and more practicum. As a lawyer who graduated with honors from a "top 10" law school only to find I was completely unprepared to practice law, I agree. Yes, studying Hadley v. Baxendale was very useful, a great way to start understanding what a contract can and can't do. But practice writing and negotiating a contract would have been at least as useful. In fact, the two would go together really well. Teaching Hadley could and should include small group brainstorming sessions on how to improve on the Hadley contract without falling into other pitfalls.

Segal is also correct that law schools should hire from the field more. Law professors' research and writing may serve a social purpose, although I note that most of what they do is necessarily done in the field by judges anyway, or across the street at the school of public policy. But the law school shortchanges its students when its professors have no first-hand experience with the problems those students will encounter right after graduation.

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