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 (in his mind, anyway) 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 advanced 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:

§351. UNFORESEEABILITY AND RELATED LIMITATIONS ON DAMAGES 
(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 unfortunately overdone. He attacks the case method per se, because it uses old cases and supposedly 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.