Sunday, May 12, 2013

Hoisted from the Comments:
Eb on What they Teach in School

The other day I wrote a bit about what they do and do not teach in econ 1A. The Sapient Eb* offers an insight which itself invites a comment.  Eb:
It's amusing to compare Econ 101 to Physics 101. Both are largely false, based on simple ideas that have been discredited. Both are pedagogically sound beginnings. But the difference, I think, is that a person who takes Physics 101 and stops there has learned something useful. A person who does the same with Economics 101 has a lot to unlearn before s/he reattains their previous level of sophistication.

I think that law school is comparable to Econ 101.
  Further thoughts: one, I had a law student a while ago with a pretty good engineering background.  He explained the  teaching of the second law of thermodynamics.  First year, they tell you, you write it down and spit it back on the exam.  Second year, they teach it, you say this can't possibly work.  Third year, they teach it, you say, unh hnh, with the right assumptions and the right luck, this just might be true.

Now, as to law school.  Eb, you touch a nerve.  For years my job in the canonical curriculum was the course in "contracts."  And boy to I mean canonical.  So far as I know, every beginning law student at every Anglo-American law school in the known universe takes "contracts."  

But here's the catch: no one practices contract law.  Don't misunderstand; people practice adjectival contract law:  labor contracts, or entertainment contracts, or construction contracts, whatever.  But the law school course in contracts--it was invented in the 19th and early 20th Century by a madman and a pious fool who believed that there was a single unifying set of principles that underlay all contracts and that they could be usefully stated and taught; more, that they were the right place to begin a legal education.

Next point: nobody believes this any more.  Haven't for a long time, if ever.  It was dying, if not dead when I began teaching 45 years ago.  And as they say about Elvis, it's getting deader.  [Side issue: people will object that there is a realm of contract theory that remains alive and well, articulated by, e.g., Randy Barnett and Charles Fried.  True enough, but the relation between contract theory and a unified contract law is at best haphazard or incidental.]

Yet we keep doing it.  Why?   Well I suppose, we can make some plausible  retrospective justifications: it is at least somewhat possible to teach contracts as a course in "legal method" (if we know what that means).  And it's useful, even worthwhile, to explain what you might call a meta-theory of contract: explaining why it came to be some important, why it isn;t really important, what is important in its stead.  But all this is post hoc.  The real reason, I lies somewhere in the realm of inertia or existential angst: if we didn't have a course in contracts, how would we know we are a law school.

Re the rest of the law school curriculum I suspect the story is more complicated, but I note two points. One, my law students spend more and more of their time in "clinicals," or "externships," which may mean "paying us $50k a year so they can work for someone else for free."  Students tend to love clinicals--often better than their regular courses, as they will be quick to tell you.  And they may be right.  But there lingers the embarrassing question: if we are just an apprenticeship mill, why not rip off the mask and show our true identity?

And two, as to classroom work.  Beyond the "required" or "semi-required" core ("the bar courses"), an awful lot of "advanced" legal education tends to look more and more like polisci.  Translated: stuff the professor thinks will be career-advancing for her, and which s/he can persuade students to think of as fun.

And?  And I don't know. I'm painfully aware that I am sounding like the old geezer.  I remember the geezers from my own youth who complained that "the boys" didn't take code pleading or equity any more --"and where will they learn how to replevy a dog?"    I find myself feeling the same way when I see a student taking a course in tenant's rights when he doesn't know how to record a mortgage.

But I recognize that there's an underlying issue here far deeper than I (or, let's be fair, anyone else) can fathom: exactly what does go on inside a University and in particular, is it worth those insanely high prices when so much of the pure content seems to be online for pennies (or even for free)?  We have only the dimmest shadow of an answer though the word "socialization" appears visible through the void.  More crudely, maybe "contracts" and "polisci" and yes, "externships"  are all just artifacts of a system barriers designed to maintain a hierarchy and, specifically, a core of elites whose main role in life is to be In while others are Out.  Oh dear, vulgar Marxism.  Sorry 'bout that.  Really, I am.
*He goes by the name of Ebenezer Scrooge although I suspect he does not run a London counting house.


Larry, The Barefoot Bum said...

More crudely, maybe "contracts" and "polisci" and yes, "externships" are all just artifacts of a system barriers designed to maintain a hierarchy and, specifically, a core of elites whose main role in life is to be In while others are Out. Oh dear, vulgar Marxism. Sorry 'bout that. Really, I am.

Sigh. One can see the power of the capitalist system when someone must apologize — sincerely! — for stating an obvious truth.

Ebenezer Scrooge said...

1. My real name is Hieronymus Grinch. Or not.

2. I can see a good reason for teaching contracts in law school, and it has nothing to do with subject matter or legal method. It has everything to do with undergraduate education.

One can get an excellent undergraduate degree without ever having done any intellectual close-order drill: collecting, grokking, and prettily arranging abstract concepts for their own sake. Most of the STEM majors and all the philosophy majors have done it--maybe even some economics majors. But not too many others.

This is a lost opportunity--a habit of intellectual precision is a useful habit to have, especially in a hairsplitting business like the law. It's not central for most legal practices, but it is useful nonetheless.

Contracts is close-order drill for dummies. Most law students are not philosophy or STEM majors, and could use the training. The subject matter is irrelevant, but the habits acquired, I think, are useful.