I am re-posting a comment on the Proust entry to the main body of the blog because it raises a very important issue, and may spark quite a bit of conversation. shg’s comment really goes to the heart of the concern about the movement to humanize legal education, and is an important issue for proponents of the movement to respond to, in my view.
Have you considered that the problem isn’t law school, or the nature of the practice of law, but that people poorly suited to the practice of law, the sensitive poets, are nonetheless finding their way into the law school classroom?
After all, it would be wee bit unwieldy for every law student/lawyer to be taught or encouraged to recreate the law in his or her own image, and it would likely not serve clients well for the lawyer to be internally satisfied with his or her effort, though failing to serve the interests of the client. Ultimately, the service of a lawyer is externally judged.
Hi shg – excellent comment. Truth be told, this is exactly the type of viewpoint I want to explore and understand. Let me offer a concise response here and my interest in continuing this discussion.
(1) My suspicion is that law schools are admitting more and more students from diverse academic backgrounds—more literature, philosophy, and critical studies majors.
(2) For my own part, I used to joke that I was admitted to law school in part to fill a quota for feminists, but that the joke was really on me. Because my critical theory background left me at sea in the intellectual climate of law school. I was, in a sense, “poorly suited” to the practice of law. At the same time, while I struggled to find my voice as a lawyer, I can point to very concrete additions I made to the field as a practitioner due, at least in part, to the very sensitivities that made me “poorly suited” to be a conventional law student or lawyer.
(3) Recreating the law in one’s own image is too much. But isn’t there a middle ground?
(4) Stated another way, we absolutely need a common language of law—as you point out, if for no other reason than to serve our clients. But shouldn’t a language that is vital and democratic continue to evolve and receive at least some input from its diverse speakers?
(5) Ultimately, one way of describing the problem is as being at the intersection of sensitive students and a rigid institution. Should there be give on both sides? That’s the sort of pedagogical middle-ground that I’m looking for. I agree that a standardless, “Free to Be You and Me” approach to legal education would be a disaster. But I hope to demonstrate here that this is not what the advocates of humanizing legal education, including myself, are striving for.
(6) By way of example: when my students struggle, I find it is often because they are stuck in what I call “liberal arts thinking” as opposed to “law school thinking.” I explain to them that all students have different intellectual styles, and to the extent they subscribe to a more poetic view of the world, they will have to overcome that—or put it in its place—to succeed in law school. The important point is lifting the curtain and acknowledging that there are different, valid ways of seeing the world, but emphasizing that, to be conversant and effective in the field of law, they need to work with its language and concepts. Only once they are competent in the field can they bring critique and perspective to their work. It is a harsh view, but I think it is ultimately more humane than insinuating that there really is only one correct way of viewing human conflict, and that if they are resistant to it, they are either intellectually sub-par or just don’t get it. And I should emphasize, I don’t think that any of us as professors would explicitly say such things to our students, but as Elizabeth Mertz points out, that message is in many ways the sub-text of traditional law school pedagogy. This approach is also more humane than suggesting that students can freely bring their difference to the study of law (the “Free to Be You and Me” approach), because it simply isn’t true, and they will struggle tremendously if they try to do so.