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The Politics of Law (Teaching)

Published online by Cambridge University Press:  27 December 2018

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Copyright © American Bar Foundation, 1988 

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References

1 See generally Wigmore, John H., “A List of One Hundred Legal Novels,” 17 Ill. L. Rev. 26 (1922);Weisberg, Richard H., “Wigmore's ‘Legal Novels’ Revisited: New Resources for the Expansive Lawyer,” 71 Nw. L. Rev. 17, 2728 (1976);Weisberg, Richard H. & Kretschman, Karen L., “Wigmore's ‘Legal Novels’ Expanded: A Collaborative Effort,” 7 Md. L.F. 94, 99103 (1977). My list would also include Andre Brink, A Dry, White Season (London, 1979); John Casey, Testimony and Demeanor (New York, 1979) (a novella from a book of the same name); John William Corrington, All My Trials (Fayetteville, Ark., 1986) (a brace of novellas); John Gregory Dunne, Dutch Shea, Jr. (New York, 1983), and The Red, White and Blue (New York, 1987); Nadine Gordimer, Burger's Daughter (New York, 1979); George V. Higgins, A Year or So with Edgar (New York, 1979), and Kennedy for the Defense (New York, 1980); Walker Percy, Lancelot (New York, 1977); Geoffrey Wolff, Providence (New York, 1986). For those uninterested in reading legal novels, one can always turn to television or the movies. See Stark, Steven D., “Perry Mason Meets Sonny Crockett: The History of Lawyers and the Police as Televisions Heroes,” 42 U. Miami L. Rev. 229 (1987); Anthony Chase, “Lawyers and Popular Culture: A Review of Mass Media Portrayals of American Attorneys,” 1986 A.B.F. Res. J. 281.Google Scholar

2 Kingsley Amis, Lucky Jim (London, 1954); David Lodge, Changing Places (London, 1975); David Lodge, Small World (London, 1984). The anti-hero of Lodge's novels, Morris Zapp, has made inroads into the legal literature. See Farber, Daniel A., “The Zapp Complex,” 5 Const. Comm. 13 (1987);Schlag, Pierre, “Fish v. Zapp: The Case of the Relatively Autonomous Self,” 76 Geo. LJ. 37 (1987).Google Scholar

3 Anyone who has watched the new television show “thirtysomething” will note how seriously Gary, the English professor up for tenure, takes himself.Google Scholar

4 Professor Thomas Shaffer regularly uses novels to convey the insights he is making. See, e.g., Faith and the Professions (Provo, Utah, 1987). See also Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (New York, 1987).Google Scholar

5 See Chase, 1986 A.B.F. Res. J. (cited in note 1) for an excellent review of efforts in movies and novels to shape the popular image of lawyers–but he didn't discuss my two favorite movies involving lawyers, They Might Be Giants (1971) and Body Heat (1981).Google Scholar

6 The librarian, an elderly woman named Miss Pander (not Professor Pander), has tenure but not as an academic. Professor Shepard is the only woman on the faculty besides Miss Pander.Google Scholar

7 This comparison is both enlightening and harmful. It is enlightening because it confirms my view that many, including Levin, believe nothing happens in legal education unless it happens at an “elite” school. It is harmful because the comparison of law schools is not intended to tether the reader to a comparable “real” law school, but to give the reader a false sense that “this is how it's done at the best schools.”Google Scholar

8 See generally “Women in Legal Education–Pedagogy, Law, Theory, and Practice,” 38 J. Legal Educ. 1 (1988).Google Scholar

9 See Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (Cambridge, Mass., 1982); see also Donna Fossum, “Women Law Professors,” 1980 A.B.F. Res. J. 903. See, e.g., Frug, Mary Joe, “Re-reading Contracts: A Feminist Analysis of a Contracts Casebook,” 34 Am. U.L. Rev. 1065 (1985).Google Scholar

10 The denial of tenure to Professor Clare Dalton at Harvard and the denial of tenure to Professor Drucilla Cornell at the University of Pennsylvania are apparent instances of the fear of difference at well-known law schools. See Debra Cassens Moss, “Would This Happen to a Man?”A.B.A. J., June 1, 1988, at 50; “Down and Out in Cambridge,”Newsweek, April 4, 1988, at 66. As usual, these articles focus on the tenure decisions at “prestigious” law schools, suppressing similar happenings at “less important” ones. This review essay itself makes disproportionate use of materials concerning legal education at Harvard and Yale because these two schools have been deemed important, so more is written about them. This selective reporting of arbitrary or suspect decision making in academia is criticized by Russell Jacoby in his book, The Last Intellectuals 135-39 (New York, 1987).Google Scholar

11 See Frug, 34 Am. U. L. Rev. (cited in note 9); Coombs, Mary Irene, “Crime in the Stacks, or A Tale of a Text: A Feminist Response to a Criminal Law Textbook,” 38 J. Legal Educ. 117 (1988). See generally Erickson, Nancy S., “Sex Bias in Law School Courses: Some Common Issues,” 38 J. Legal Educ. 101 (1988) (reporting on a study of sexual bias in classroom teaching and casebooks).Google Scholar

12 See Erickson, 38 J. Legal Educ. at 103 (“[M]ost schools still offer no course in sex-based discrimination”).Google Scholar

13 See generally Kissam, Philip C., “The Evaluation of Legal Scholarship,” 63 Wash L. Rev. 221 (1988) (noting the divergent views of good legal scholarship).Google Scholar

14 Scott Turow, One L (New York, 1977); John Jay Osborn, Jr., The Paper Chase (Boston, 1971).Google Scholar

15 For articles noting the credentials traditionally deemed necessary to be admitted to a law faculty, see Powell, Thomas Reed, “The Recruiting of Law Teachers,” 13 A.B.A. J. 69 (January 1927);Prosser, William L., “Lighthouse No Good,” 1 J. Legal Educ. 257 (1948);Cavers, David F., “How to Become a Law Teacher,” 8 Harv. L. Sch. Bull., Feb. 1957, at 9; Cullen Murphy, “Want a Low-paying, High-Prestige Job? Sorry,”Juris Doctor, Oct. 1974, at 34; Donna Fossum, “Law Professors: A Profile of the Teaching Branch of the Legal Profession,” 1980 A.B.F. Res. J. 501, 507 (reporting that as of 1975, five law schools–Harvard, Yale, Columbia, Michigan and Chicago–conferred the first law degree upon 33.1% of all faculty members, and 60% of all faculty members were graduates of less than 15% of all law schools). See also Bruce, Jon W. & Swygert, Michael I., “The Law Faculty Hiring Process,” 18 Hous. L. Rev. 215, 243–60 (1981) (discussing the “selection criteria” for hiring new law faculty members, including kind of law school attended, class rank, law review experience, clerkships, and other professional and teaching experience).Google Scholar

16 See Large, Arlen J., “Suicide Research Gains As Curbing Depression Becomes More Feasible,” Wall St. J. Aug. 10, 1983, at 1, col. 1 (64% of all male suicides are by gunshot and three times as many men kill themselves as women).Google Scholar

17 See Posner, Richard A., “The Jurisprudence of Skepticism,” 86 Mich. L. Rev. 827, 847 (1988) (“I am led to wonder whether the highly inductive, case-oriented, analogv-saturated “Socratic” method actually teaches legal reasoning at all” (footnote omitted)). Cf. D'Amato, Anthony, “The Decline and Fall of Law Teaching in the Age of Student Consumerism,” 37 J. Legal Educ. 461, 466 (1987) (defending the use of the socratic method). Even at Harvard Law School, where Langdell and his followers nurtured the socratic method, this pedagogical method is used by relatively few professors.CrossRefGoogle Scholar

18 Arthur E. Sutherland, The Law at Harvard: A History of Ideas and Men, 1817-1967, at 175 (Cambridge, Mass., 1967) (quoting Record of the Commemoration, November Fifth to Eighth, 1886, on the Two Hundred and Fiftieth Anniversary of the Founding of Harvard College 97–98 (1887)) (“Sutherland, Law at Harvard”).Google Scholar

19 Id at 174 (quoting the preface to Langdell, Cases on Contracts (1871)).Google Scholar

20 When the University of Chicago prepared to open its law school at the turn of the century, a political scientist named Ernst Freund suggested that it “cultivate and encourage the scientific study of systematic and comparative jurisprudence, legal history and the principles of legislation.” Harvard Law Professor Joseph Beale, a disciple of Langdell who had been proposed as the first dean of the law school at the University of Chicago, objected that Harvard taught none of those subjects, and Harvard Dean Ames stated, “We are opposed to the teaching of anything but pure law in our department.” Robert Stevens, Law School: Legal Education from the 1850s to the 1980s, at 40 (Chapel Hill, N.C., 1983) (“Stevens, Law School”). See also Horwitz, Morton J., “Are Law Schools Fifty Years Out of Date 54 UMKC L. Rev. 385, 385–87 (1986) (concluding that Langdell and his followers believed that private law was “real”, and public law artificial).Google Scholar

21 See Sutherland, Law at Harvard 176.Google Scholar

22 Id. at 177.Google Scholar

23 See Stevens, Law School 73–91.Google Scholar

24 For an insightful discussion of Langdell's influence on the reaction and nurturance of legal formalism, or classical legal thought, see Grey, Thomas C., “Langdell's Orthodoxy,” 45 U. Pitt. L. Rev. 1 (1983). For a general overview of the history of American legal thought, see Grant Gilmore, The Ages of American Law (New Haven, Conn., 1977).Google Scholar

25 Stevens, Law School 59-61 (discussing the triumph of the socratic method or the “Harvardization” of law schools).Google Scholar

26 See generally Laura Kalman, Legal Realism at Yale, 1927-1960 (Chapel Hill, N.C., (“Kalman, Realism at Yale”), for a history of the development of legal realism. See also infra note 49.Google Scholar

27 Id. at 121; Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value 159–78 (Lexington, Ky., 1973).Google Scholar

28 Kalman, Realism at Yale 67–97.Google Scholar

29 See note 48.Google Scholar

30 From the description given in the book, it appears that Professor Shepard (and her creator) are unaware of the numerous critiques concerning legal education. From the mainstream in legal education, see Herbert T. Packer & Thomas Ehrlich, New Directions in Legal Education (New York, 1972); Lasswell, Harold D. & McDougal, Myres S., “Legal Education and Public Policy: Professional Training in the Public Interest,” 52 Yale L. J. 203 (1943), and McDougal, Myres S., “The Law School of the Future: From Legal Realism to Policy Science in the World Community,” 56 Yale L. J. 1345 (1947); from the left, see Kennedy, Duncan, “How the Law School Fails: A Polemic,” 1 Yale Rev. L. & Soc. Action 71 (1970); id., “Legal Education as Training for Hierarchy,” in David Kairys, ed., The Politics of Law: A Progressive Critique (New York, 1982) (“Kennedy, ‘Legal Education’”); and Joel Seligman, The High Citadel: The Influence of Harvard Law School 201–16 (1978) (“Seligman, High Citadel”).CrossRefGoogle Scholar

31 See E. Joshua Rosenkrant, “Law Review's Empire,” 39 Hast. L.J. 859, 860 n.8 (1988) (citing articles which indicate that law reviews annually publish between 150,000 and 160,000 pages).Google Scholar

32 See generally Seligman, High Citadel at 10-19 (cited in note 30) (discussing previous proposals for a two year program in legal education, the problems at Harvard Law School with integrating clinical studies into the curriculum, the problems with the grading system and proposals to incorporate a pass/fail system, and student resentment of the socratic method). See Edward A. Adams, “Yale Placement Office Ups Ante For Firm Interviews on Campus,”Nat'l L.J., Sept. 28, 1987, at 4 (Yale Law School increasing and scaling interview fees based on size of private law firm).Google Scholar

33 This is a rhetorical question. I often use them in class. When I use them, I tell my students not to answer. Some faculty members seem eager to answer this question. See Carrington, Paul D., “‘Of Law and the River,” 34 J. Legal Educ. 222 (1984) The responses are found in Correspondence, “‘Of Law and the River’ and of Nihilism and Academic Freedom,” 35 J. Legal Educ. 1 (1985).Google Scholar

34 See Brook Thomas, Cross-Examinations of Law and Literature: Cooper, Hawthorne, Stowe, and Melville (New York, 1987); James Boyd White, Heracles' Bow: Essays on the Rhetoric and Poetics of the Law (Madison, Wis., 1985); Robert A. Ferguson, Law and Letters in American Culture (Cambridge, Mass., 1984); Richard H. Weisberg, The Failure of the Word: The Protagonist as Lawyer in Modern Ficrion (New Haven, Conn., 1984); see generally “Symposium: Law and Literature,” 60 Tex. L. Rev. 373 (1982) The author does introduce an assistant professor who is a performance artist. This professor is interested in law and the arts.Google Scholar

35 “Critical Legal Times at Harvard,”Time, Nov. 18, 1985, at 87; Harvard Society for Law & Public Policy and The Federalist Society for Law & Public Policy Studies, “A Discussion on Critical Legal Studies at the Harvard Law School,” Occasional Paper No. 1 (May 13, 1985) (on file with author); Frug, Jerry, “McCarthyism and Critical Legal Studies,” 22 Harv. C.R.C.L. L. Rev. 665 (1987) (reviewing Ellen Schrecker, No Ivory Tower: McCarthyism and the Universities (New York, 1986).Google Scholar

36 Donna Fossum, 1980 A.B.F. Res. J. 903 (cited in note 9); id., 1980 A.B.F. Res. J. 501 (cited in note 15).Google Scholar

37 Fossum, 1980 A.B.F. Res. J. at 908; id., 1980 A.B.F. Res. J. at 507.Google Scholar

38 Fossum, 1980 A.B.F. Res. J. at 507, 520. Harvard, Yale, Columbia, Michigan, and Chicago law schools had awarded the J.D. degrees for over 33% of all law professors as of 1975-76. As one who has studied the teaching branch of the legal profession in order to enter it, my impression is that in the last ten years, “local” law schools have broadened their search for professors. Instead of recruiting graduates of their law schools, these “local” law schools, apparently pressed by the ABA accrediting standards, which strongly encourage educational as well as other kinds of diversity, are recruiting teachers from the “elite” law schools. My view is that an update of the Fossum study would likely show a greater percentage of law professors holding J.D. or LL.M. degrees from one of the 20 producer schools, since the “elite” law schools are recruiting in much the same way as always.Google Scholar

39 David Lodge, Small World (London, 1984).Google Scholar

40 Symposium, Legal Scholarship: Its Nature and Purposes,” 90 Yale L.J. 955 (1981).Google Scholar

41 Tushnet, Mark, “Legal Scholarship: Its Causes and Cure,” 90 Yale L.J. 1205, 1208 n.14 (1981). Tushnet also notes the “phenomenon of privileged access to law reviews. Such privileged access has three forms. A scholar at a more elite school can almost automatically get an article published in a review at a less elite school. Ceremonial addresses in formal lecture series will almost always be published. These forms of privileged access are seldom used. Much more significant is the fact that law reviews will almost always publish the work of scholars on the faculties at their own schools.”Id. at 1207-8 n.13.CrossRefGoogle Scholar

42 If this sounds like whining, I suppose, in part, it is.Google Scholar

43 In 1986-87, Assistant Professor Daniel K. Tarullo, a graduate of the law school at the University of Michigan, taught at Harvard Law School. I did not include him as a tenure-track professor, because he had been denied tenure at Harvard Law School the previous year. He left Harvard at the end of the 1986-87 school year. While the faculty at Harvard is much more diverse politically, and now has some women and blacks on its faculty, it is less diverse educationally then it was in 1967. Compare Sutherland, Law at Harvard, at Appendix (listing vita of faculty) (cited in note 18) with 1987 Harvard Law School Yearbook (same).Google Scholar

44 See Letter, “Brown-Nosing the Radical Big-Wigs: Hierarchy in CLS,”Lizard No. 2 at 6. See also Menkel-Meadow, Carrie, “Feminist Legal Theory, Critical Legal Studies, and Legal Education or ‘The Fem-Crits Go to Law School’,” 38 J. Legal Educ. 61, 6266, 70 (1988).Google Scholar

45 Levin obviously took this from the study of John Heinz & Edward Laumann, Chicago Lawyers: The Social Structure of the Bar (New York, 1982).Google Scholar

46 Columbia Law School has also weighed in with A History of The School Of Law: Columbia University, written under the direction of Julius Goebel, Jr. (New York, 1955).Google Scholar

47 Carrie Menkel-Meadow, “Too Little Theory, Too Little Practice? Stevens's Law School,” 1986 A.B.F. Res. J. 675 (review essay of Robert Stevens, Law School: Legal Education form the 1850s to the 1980s (Chapel Hill, N.C., 1983)).CrossRefGoogle Scholar

48 While anecdotal evidence suggests that the socratic method is used less and less by teachers of first-year students, see Menkel-Meadow, 38 J. Legal Educ. at 67 n.31 (“In actual practice many law school classes now consist of brief lectures with a ‘Socratic’ tag question occasionally punctuating a paragraph of a lecture”), there are strong supporters of the socratic method. See D'Amato, 37 J. Legal Educ. at 466 (cited in note 17) (distinguishing between a “good” socratic method and a “bad” socratic method, and favoring the former).Google Scholar

49 See Bergin, Thomas F., “The Law Teacher: A Man Divided Against Himself,” 54 Va. L. Rev. 637, 638 (1968) (“the modern law teacher has been suffering from a kind of intellectual schizophrenia for the past twenty-five years–a schizophrenia which has him devoutly believing that he can be, at one and the same time, an authentic academic and a trainer of Hessians”). See generally Kalman, Realism at Yale (cited in note 26); Stevens, Law School (cited in note 20); Seligman, High Citadel (cited in note 30). See also Schlegel, John Henry, “American Legal Realism and Empirical Social Science: From the Yale Experience,” 28 Buff. L. Rev. 459 (1979); id., “American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore,” 29 Buff. L. Rev. 195 (1980).CrossRefGoogle Scholar

50 Most law faculties consist of a substantial majority of tenured faculty and a small minority of untenured faculty. See A.B.A. J., June 1, 1988, at 53 (listing tenured and nontenured positions at 22 well-known law schools).Google Scholar

51 “If it ain't broke, don't fix it.”Google Scholar

52 The alumnae/i rarely influence change in the law school, although there are instances of alumni attempting to get rid of faculty members who are on the wrong side of the political spectrum. See Sutherland, Law at Harvard 250-62 (cited in note 18) (discussing “The Trial at the Harvard Club” of Harvard Law School Professor Zechariah Chafee in 1921 and the resentment of Felix Frankfurter by alumni for his public support for Sacco and Vanzetti).Google Scholar

53 For example, the protest by students at Harvard Law School over the denial of tenure to Professor Dalton had little, if any effect. Her appeal to Harvard University President Derek Bok has been officially denied. See David Snouffer, “Denied Again, Dalton Waits,”Harv. L. Rec., April 15, 1988, at 1.Google Scholar

54 Your elders [the senior faculty] are your betters. It's like someone saying, “I'll take care of you.” Depending on its context, one is either a dependent in a relationship of power, or one is going to be crushed by another in power. I understand that tenured faculty members have been and are agents of change, but the traditional law school usually will not admit enough of those persons to the tenure club to effect change with impunity. For an example, see the current goings on at Harvard Law School.Google Scholar

55 Cf. “Applications Up: Who Are These People?”Law Services Report, Newsletter of the Law School Admission Council/Law School Admission Services, April-May 1988, at 1.Google Scholar

56 See note 50.Google Scholar

57 It is interesting to note that this is occurring when the percentage of women and other minorities applying for tenure is greater than ever.Google Scholar

58 See Tushnet, Mark V., “Truth, Justice, and the American Way: An Interpretation of Public Law Scholarship in the Seventies,” 57 Tex. L. Rev. 1307 (1979) for a critical review of this kind of scholarship. See generally Kissam, 63 Wash. L. Rev. (cited in note 13); “American Legal Scholarship: Directions and Dilemmas,” 33 J. Legal Educ. 430 (1983); “Legal Scholarship: Its Nature and Purposes,” 90 Yale L.J. 955 (1981); see also Danzig, Richard, “The Death of Contract and the Life of the Profession: Observations on the Intellectual State of Legal Academia,” 29 Stan. L. Rev. 1125 (1977) (reviewing Grant Gilmore, The Death of Contract (Columbus, Ohio, 1974), and bemoaning the current state of legal scholarship).Google Scholar

59 Whether you side with Professor Duncan Kennedy, see his “Legal Education” (cited in note 30), or Professor Anthony D'Amato, see his 37 J. Legal Educ. (cited in note 17) on the socratic method and the no-hassle pass, it seems clear that both professors insist upon the importance of learning in the classroom. Cf. Hantzis, Catharine W., “Kingsfield and Kennedy: Reappraising the Male Models of Law School Teaching,” 38 J. Legal Educ. 155, 162 (1988) (criticizing Duncan Kennedy's “jeering cynicism”).Google Scholar

60 See Schlegel, John Henry, “Searching for Archimedes–Legal Education, Legal Scholarship, and Liberal Ideology,” 34 J. Legal Educ. 103 (1984)Google Scholar

61 See Carrington, 34 J. Legal Educ. at 227. I think it is a mistake for me to analogize the actions of those determined to root out critical legal studies adherents or fellow-travelers to McCarthy's tactics, since I have chided Levin for taking himself too seriously. Cf. Frug, 22 Harv. C.R.C.L. L. Rev. (cited in note 35). Nevertheless, there seems to be a lack of understanding of critical legal studies in some quarters. See Report of Dean Gellhorn, In Brief, published by Case Western Reserve University School of Law, vol. 37, at 2, 3.Google Scholar

62 Cf. CUNY Law School Queens College 1983-84 Catalog (the first year curriculum consisted of courses entitled “The Work of the Lawyer,”“Adjudication and Alternatives to Adjudication,”“Liberty, Equality, Due Process, in Historical and Philosophical Context,”“Law and a Market Economy,”“Responsibility for Injurious Conduct,” and “Law and Family Relations”).Google Scholar

63 See Kissam, 63 Wash L. Rev. (cited in note 13), for a schematization of different kinds of legal scholarship. See also Posner, Richard A., “The Present Situation in Legal Scholarship,” 90 Yale L. J. 1113, 1113 (1981) (arguing the centrality in legal scholarship of doctrinal analysis).CrossRefGoogle Scholar

64 No more calling faculty members “crits,” unless they approve, or “mushy left-liberals.” or “Neo-Nazis.”Google Scholar

65 See generally Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York, 1976).Google Scholar

66 Edward A. Purcell, Jr., The Crisis of Democratic Theory 159–78 (Lexington, Ky., 1973).Google Scholar

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