Previously, we learned about the overarching premise of Mertz’s 7 Propositions: that premise being that law school teaches students a way of knowing (an epistemology) by teaching students a common language that structures their view of the world, the people in it, and human conflict. On another level, legal language (what we read and how we learn to speak) structures the pursuit of the “right” answer, that is, the truth.
The 7 Propositions then describe the specific content and mechanisms of imparting the world view articulated through and shaped by legal language.
As we know, Mertz studied the language used at eight different law schools by eight different professors, and yet, in Proposition 2 she concludes:
This legal worldview and the language that expresses it are imparted in all of the classrooms studied, in large part through reorienting the way students approach written legal texts. This reorientation relies in important ways on a subtle shift in linguistic ideology.
The first point—that there is consistency in these classrooms despite the opportunity for difference.
The second point—that there is a specific method used to teach legal language and thinking: namely, “reorienting the way students approach written legal texts.” What does Mertz mean by this?
Thoughts on the Case Method
As I understand, Mertz is referring to the “case method,” whereby students learn the law not by being taught abstract concepts or the large-scale structure of legal doctrine, but by dissecting individual judicial opinions and discerning the progress of doctrine over time. Thus, students are asked to read a case, then to present their native responses to the case during a Socratic dialogue with the professor, who then corrects and re-directs the student to a proper reading of the case, that is, a reading of the case that conforms to the law’s way of knowing and of speaking.
As most are aware, the case method was famously developed by Professor Langdell of Harvard Law School in the late 19th Century.
I pause here simply to note that there is something quite shocking about adhering to a teaching technique (pedagogy) developed over 100 years ago—a point certainly made by others.
I often emphasize to my students that law is at its core a hierarchical and essentially conservative (in terms of conserving forms and practices, not politically conservative) institution. Thus, it makes sense in some ways that the academy would retain a traditional mode of pedagogy developed over a century ago at one of the field’s preeminent institutions. But does this retention make sense in other ways? And if not, do we have the courage to depart from what has been validated by pedigree and the passage of time?
There is, of course, nothing inherently wrong with a technique simply because it was developed over 100 years ago. What matters are the reasons for its retention. If it has been tested, questioned, and proved to be superior, then all is for the best. If it is retained unquestioningly, or for fear of losing one’s own legitimacy by association, then these are not valid reasons, I would contend.
Trees, forest; forest, trees
My primary objection to strict adherence to the case method is that it loses the forest for the trees—an analytical shortcoming by any measure.
I often speak to my second- and third-year students about the relationship between the forest and the trees. In this metaphor, the forest is legal doctrine, and the trees are the details of individual cases. In my experience, law students are so caught up with the details of the information presented to them that their ability to identify themes and organizing ideas has atrophied.
I can’t help but imagine that this is due in part to the fact that, in traditional legal pedagogy, first year law students are in essence unleashed in a dense forest and told to find their way through it by studying the individual trees they encounter. But they do not know the shape of the forest until the end of the semester—and only then if they are lucky. Generally, the shape of the forest is hidden from students as a form of privileged knowledge available only to those who have toiled through the process of resolving all the disparate rules of law presented in the cases they read.
Law students’ confusion and disorientation is exacerbated by an unclear understanding of the relationship between rules of law, holdings, reasoning, and dicta.
There are, I believe, personal ramifications to this pedagogy that go beyond any educational goals. By thrusting students into the midst of the trees without any guidance, we enforce an experience of confusion, disconnection from internal instincts, and self-doubt. As I will discuss in later posts, my suspicion is that this has a more severe impact on at least some diverse students, including students who self-identify as “outsiders” in any number of ways.
By this method of teaching, we also inflict on students—and thus externalize—our own sense of confusion upon first encountering the law, which we now experience in stark contrast to our current mastery.
Thus, law students see their professors as authorities, and the law as an authority that one can only begin to understand after years of study, much less validly question, critique or challenge.
This psychological dynamic of authority in many ways is in direct conflict with the essential meaning of what it is to teach.
For my part, as a student at Yale in the late 1990s, I came from an undergraduate background of critical thought, and attempted to bring a critical, questioning perspective to my legal studies. This approach was explicitly and implicitly rejected for the basic reason that I did not yet know enough to be critical of the institution of the law. Until I had mastered its language and reasoning, I was not in a position to challenge its presumptions.
Of course, after years of devoted, uncritical study, one becomes a captive of the subject one is trying to learn. I often joke, without really joking, that my students will ultimately experience a sort of Stockholm Syndrome: they will learn to love their captor, namely, the unforgiving analytical rigidity of the law.
Is a “forest-first” model viable?
Without overstating my case: we can imagine a form of legal education where the contours of the forest are described at the outset, and students are then guided in interpreting individual trees with reference to that larger framework.
This rubs up against another important challenge of law school teaching: namely, promoting active versus passive learning. I think there is legitimate concern that our students want to be spoon-fed, and that if we succumb to this desire our students will not develop the analytical sharpness and intellectual self-sufficiency that we require of attorneys.
I would like to propose a middle ground, or third alternative, to these extremes. This notion will be explored in subsequent posts.