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Posts Tagged ‘Law School’

The Challenge Facing Law Schools

In Academia, Law, Law School, Legal Education & Pedagogy on May 10, 2017 at 6:45 am

This piece originally appeared in the February issue of The Addendum, a publication of the Alabama State Bar.

Many law school administrators have begun the new year anxious about the future. Since the financial crisis of 2008, the number of law-school applications and LSAT takers has plummeted, while tuition costs have continued to rise. Faced with the probability of heavy student-loan debt, a saturated legal market, and stagnant starting salaries for attorneys, some aspiring attorneys have decided that law school is simply too risky an investment and are looking elsewhere to begin their careers.

The decrease in applications for admission and low matriculation rates have hit lower-ranked law schools particularly hard. These schools have struggled to compete for applicants and have decreased the size of their classes to maintain competitive admissions data. Even Ivy League schools have been forced to find creative solutions to contracting enrollment. Harvard Law School, for instance, has accepted more transfer students—whose entering LSAT scores do not have to be reported to publications that rank law schools—presumably to make up for shrinking tuition revenues.

Law schools face a dual threat: the American Bar Association (ABA) and the Department of Education (DOE).  The DOE is cracking down on law schools for allegedly deceptive enrollment practices just years after a string of lawsuits across the country claimed that certain law schools misrepresented employment statistics for their recent graduates.

Last year, the DOE recommended that the ABA lose its accreditation powers for one year. Under pressure from the DOE, the ABA has grown more aggressive, demanding that law schools come into compliance with ABA admission standards or suffer potential reprimands, sanctions, probation, or worse. The ABA imposed a remedial plan on Ave Maria School of Law to improve the school’s admissions practices and bar-passage rates. Then, in November of 2016, the ABA publically censured Valparaiso University School of Law and placed Charlotte School of Law on probation.

Despite the fact that Charlotte School of Law remains accredited by the ABA, the DOE announced in December 2016 that it was terminating that school’s access to federal student aid. In response, students there have filed a federal class-action lawsuit alleging, among other things, that the school and InfiLaw—its parent company—misled them and misrepresented the scope and degree of the school’s problems.

The blogosphere abounds with rumors about law-school closings. Indiana Tech Law School is, in fact, shutting down this June, and in 2015 the William Mitchell College of Law merged with Hamline University School of Law to offset costs and avoid shutting their doors.

In light of the foregoing, law schools should be transparent about the condition they are in and the difficulties they face, lest they find themselves the target of lawsuits like the one filed against Charlotte School of Law. The future of law schools and the legal profession remains uncertain. We are in a transitional—and perhaps unprecedented—moment. How legal administrators deal with it may test not only their patience, courage, and leadership, but also the long-term viability of legal education as we know it today.

 

Why law schools should be transparent about their problems and prospective law students should exercise due diligence before they matriculate at law schools

In Academia, Law, Law School, Legal Education & Pedagogy on February 22, 2017 at 6:45 am

Allen Mendenhall

When I was in college, the common assumption was that students who couldn’t decide what to do after graduation enrolled in law school. The law was a fallback profession, the legal academy a repository for good but dithering students looking to find their way.

Things have changed. The blogosphere abounds with news about the crisis in legal education. The global financial recession brought about a decrease in law-school applications and LSAT takers while tuition rates continued rising. Undergraduates increasingly determined that law school was not worth the time or student-loan debt, in part because starting salaries for lawyers remained stagnant while the job market for legal positions remained saturated.

Law schools with struggling reputations (say, those which fall into the fourth tier of the U.S. News and World Report rankings) have experienced a decrease in applications and reduced matriculation rates. Forced to shrink the size of their classes to remain statistically competitive and satisfy American Bar Association (ABA) admissions standards, these schools have taken creative measures such as accepting more transfer students and developing non-J.D. courses and programming to counteract reduced tuition revenue.

Elite institutions are not immune from trouble. One study has shown that applications to Harvard Law School are down 18%. Applications to the University of Minnesota Law School are down 50%, forcing that school to scramble to save money. It reportedly has not only bought out faculty but also cut coffee in the faculty lounge. Dorothy Brown, a professor of tax law at Emory University School of Law, predicts the imminent closure of a top law school. Meanwhile, as these financial woes grow and spread, LSAT scores and bar passage rates continue to worsen at lower-ranked institutions.

The ABA and the Department of Education (DOE) are cracking down on law schools, the former in response to pressure from the latter.  The DOE, in 2016, proposed a one-year revocation of the ABA’s accreditation powers. Consequently, the ABA has more aggressively enforced compliance with its admissions standards, threatening law schools with, among other things, reprimands, probation, and sanctions. For example, the ABA instituted a remedial plan to reverse the negative trends of Ave Maria School of Law’s bar-passage rates and admissions data. Around three months ago, the ABA censured Valparaiso University School of Law and placed Charlotte School of Law on probation.

The ABA has not revoked Charlotte School of Law’s accreditation, but the DOE has nevertheless terminated this school’s access to federal student aid. Law students there have filed a federal class-action lawsuit alleging that Charlotte School of Law and its parent company, InfiLaw, misrepresented the extent of the problems they were confronting, thereby misleading students about the health of the institution in which they were enrolled. Speculation now circulates about whether the closure of Charlotte Law School is inevitable.

Indiana Tech Law School, known for its experimental pedagogical approaches, has announced that it is shutting down. Other law schools have turned to institutional consolidation to remain financially viable. The William Mitchell College of Law, for instance, merged with Hamline University School of Law in 2015. Thomas M. Cooley Law School affiliated with Western Michigan University in 2014, changing its name to Western Michigan University Cooley Law School. It closed its Ann Arbor campus that same year.

The good news for worried law school administrators is that the ABA House of Delegates has voted down proposed Resolution 110B, which would have required 75% of graduates from any law school to pass the bar exam within two years, a figure that would have resulted in the non-compliance of several schools with ABA standards.

In this climate of institutional contraction and uncertainty, law school administrators must remain transparent, lest they invite litigation of the kind facing Charlotte School of Law. On the other hand, prospective law students must complete their due diligence before enrolling in law school. Although the doctrine of caveat emptor has faded away, some residual form of it could benefit the wider culture. Absent any evidence of fraudulent misrepresentation or deceptive practices, law schools should not be liable for the poor matriculation decisions of starry-eyed students.

Prospective law students have a personal responsibility to make informed choices about their graduate education. They should examine closely a law school’s admissions data, including GPA and LSAT scores, and stay sober about their own qualifications and preparedness for law school. They should account for a law school’s employment records and bar-passage rates. And they should research the state of the legal job market in the geographical area surrounding different law schools, paying close attention to the hiring patterns of local firms and organizations.

Not everyone goes to law school for the same reason. Some wish to study at an institution with a religious affiliation; others attend schools that consistently secure for their graduates judicial clerkships or opportunities to work at prestigious law firms. It’s important that prospective law students know exactly what they want from law school—and that they refuse to “settle” on a law school that isn’t a good fit for them.

During this transitional period for legal education, law schools with a long history of recognized stability may not satisfy consumer demands as they once did. Law schools need students, and they’re recruiting them vigorously with mixed results. The days when law school was a prudent option for students who waffled about their profession or career are long gone. While law schools should be scrutinized for their marketing strategies and admissions and employment data, students, too, should be responsible for their poor decisions.

Accountability runs both ways. Law schools and prospective law students alike must equip themselves with knowledge of the legal job market—in addition to the costs and demands of legal education—and adjust their plans accordingly. Otherwise their future could be bleak.

Razing the Bar

In American History, History, Humane Economy, Law, Legal Education & Pedagogy, Liberalism on June 17, 2015 at 8:45 am

Allen 2

This piece originally appeared here in The Freeman.

The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market. Elizabeth Olson of the New York Times reports that the bar exam as a professional standard “is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments.”

This is a welcome development.

Testing what, exactly?

The dean of the University of San Diego School of Law, Stephen C. Ferrulo, complains to the Times that the bar exam “is an unpredictable and unacceptable impediment for accessibility to the legal profession.” Ferrulo is right: the bar exam is a barrier to entry, a form of occupational licensure that restricts access to a particular vocation and reduces market competition.

The bar exam tests the ability to take tests, not the ability to practice law. The best way to learn the legal profession is through tried experience and practical training, which, under our current system, are delayed for years, first by the requirement that would-be lawyers graduate from accredited law schools and second by the bar exam and its accompanying exam for professional fitness.

Freedom of contract

The 19th-century libertarian writer Lysander Spooner, himself a lawyer, opposed occupational licensure as a violation of the freedom of contract, arguing that, once memorialized, all agreements between mutually consenting parties “should not be subjects of legislative caprice or discretion.”

“Men may exercise at discretion their natural rights to enter into all contracts whatsoever that are in their nature obligatory,” he wrote, adding that this principle would prohibit all laws “forbidding men to make contracts by auction without license.”

In more recent decades, Milton Friedman disparaged occupational licensure as “another example of governmentally created and supported monopoly on the state level.” For Friedman, occupational licensure was no small matter. “The overthrow of the medieval guild system,” he said,

was an indispensable early step in the rise of freedom in the Western world. It was a sign of the triumph of liberal ideas.… In more recent decades, there has been a retrogression, an increasing tendency for particular occupations to be restricted to individuals licensed to practice them by the state.

The bar exam is one of the most notorious examples of this “increasing tendency.”

Protecting lawyers from the poor

The burden of the bar exam falls disproportionately on low-income earners and ethnic minorities who lack the ability to pay for law school or to assume heavy debts to earn a law degree. Passing a bar exam requires expensive bar-exam study courses and exam fees, to say nothing of the costly applications and paperwork that must be completed in order to be eligible to sit for the exam. The average student-loan debt for graduates of many American law schools now exceeds $150,000, while half of all lawyers make less than $62,000 per year, a significant drop since a decade ago.

Recent law-school graduates do not have the privilege of reducing this debt after they receive their diploma; they must first spend three to four months studying for a bar exam and then, having taken the exam, must wait another three to four months for their exam results. More than half a year is lost on spending and waiting rather than earning, or at least earning the salary of a licensed attorney (some graduates work under the direction of lawyers pending the results of their bar exam).

When an individual learns that he or she has passed the bar exam, the congratulations begin with an invitation to pay a licensing fee and, in some states, a fee for a mandatory legal-education course for newly admitted attorneys. These fees must be paid before the individual can begin practicing law.

The exam is working — but for whom?

What’s most disturbing about this system is that it works precisely as it was designed to operate.  State bar associations and bar exams are products of big-city politics during the Progressive Era. Such exams existed long before the Progressive Era — Delaware’s bar exam dates back to 1763 — but not until the Progressive Era were they increasingly formalized and institutionalized and backed by the enforcement power of various states.

Threatened by immigrant workers and entrepreneurs who were determined to earn their way out of poverty and obscurity, lawyers with connections to high-level government officials in their states sought to form guilds to prohibit advertising and contingency fees and other creative methods for gaining clients and driving down the costs of legal services. Establishment lawyers felt the entrepreneurial up-and-comers were demeaning the profession and degrading the reputation of lawyers by transforming the practice of law into a business industry that admitted ethnic minorities and others who lacked rank and class. Implementing the bar exam allowed these lawyers to keep allegedly unsavory people and practices out of the legal community and to maintain the high costs of fees and services.

Protecting the consumer

In light of this ugly history, the paternalistic response of Erica Moeser to the New York Times is particularly disheartening. Moeser is the president of the National Conference of Bar Examiners. She says that the bar exam is “a basic test of fundamentals” that is justified by “protecting the consumer.” But isn’t it the consumer above all who is harmed by the high costs of legal services that are a net result of the bar exam and other anticompetitive practices among lawyers? To ask the question is to answer it. It’s also unclear how memorizing often-archaic rules to prepare for standardized, high-stakes multiple-choice tests that are administered under stressful conditions will in any way improve one’s ability to competently practice law.

The legal community and consumers of legal services would be better served by the apprenticeship model that prevailed long before the rise of the bar exam. Under this model, an aspiring attorney was tutored by experienced lawyers until he or she mastered the basics and demonstrated his or her readiness to represent clients. The high cost of law school was not a precondition; young people spent their most energetic years doing real work and gaining practical knowledge. Developing attorneys had to establish a good reputation and keep their costs and fees to a minimum to attract clients, gain trust, and maintain a living.

The rise in technology and social connectivity in our present era also means that reputation markets have improved since the early 20th century, when consumers would have had a more difficult time learning by word-of-mouth and secondhand report that one lawyer or group of lawyers consistently failed their clients — or ripped them off. Today, with services like Amazon, eBay, Uber, and Airbnb, consumers are accustomed to evaluating products and service providers online and for wide audiences.  Learning about lawyers’ professional reputations should be quick and easy, a matter of a simple Internet search.  With no bar exam, the sheer ubiquity and immediacy of reputation markets could weed out the good lawyers from the bad, thereby transferring the mode of social control from the legal cartel to the consumers themselves.

Criticism of the high costs of legal bills has not gone away in recent years, despite the drop in lawyers’ salaries and the saturation of the legal market with too many attorneys. The quickest and easiest step toward reducing legal costs is to eliminate bar exams. The public would see no marked difference in the quality of legal services if the bar exam were eliminated, because, among other things, the bar exam doesn’t teach or test how to deliver those legal services effectively.

It will take more than just the grumbling of anxious, aspiring attorneys to end bar-exam hazing rituals. That law school deans are realizing the drawbacks of the bar exam is a step in the right direction. But it will require protests from outside the legal community — from the consumers of legal services — to effect any meaningful change.

Unraveling

In Arts & Letters, Creative Writing, Creativity, Law, Literature, Writing on July 27, 2012 at 8:45 am

Rose Auslander is a partner at a Wall Street law firm and Poetry Editor of Folded Word Press. Co-editor of the Twitter anthology On A Narrow Windowsill, Rose has read her poems on NPR; her poem “For You Mothers” received a Pushcart nomination; “Oh My” received a Best of the Net nomination. She is a Regular Contributor to Referential Magazine, and her work appears in cur-ren-cy, Right Hand Pointing, Cyclamens and Swords, The Dead Mule, and Red Dirt Review. And she blogs!

The following excerpt, which first appeared here in The Mom Egg, is part of Rose’s upcoming memoir, A Pencil on the Ceiling, about surviving as a pregnant first-year law student nursing her way through her diploma

My infant, my daughter, my beautiful red-blond, blue-eyed child, lies in my arms, in my bed.  An unseasonably cold September afternoon, raining, chill, the chill that seeps into a person’s veins like formaldehyde.  My three-month-old daughter sleeps in my arms; my poor, embalmed arms feel nothing.

I wrap up in the afghan I crocheted for her, the yarn I worked into granny square by square, month after pregnant month, obsessively, mathematically, finding new permutations of pastel blue, pink, yellow and green to draw through into white, infinite borders of white.  I sit wrapped in yarn, unraveling.

How did I ever think I could start with yarn and crochet a garden of colors for a baby?

If only I could sleep, sleep . . .

No, study first. 

Law school.  How did I ever think I could get through law school with a baby at home?

A pile of case books rests on the pillow next to my infant daughter, next to markers of neon blue, pink, yellow and green, and pencils for thoughts, all for my numb hands to try to draw through into white, infinite pages of white.

Come on, just study. 

Or at least color:  Blue for facts (what happened in the world to cause the dispute), pink for procedural history (what happened with the case in the courts), yellow for the holding (what the court decided), green for what I can’t understand.

I drift off into National Business Lists, Inc. v. Dun & Bradstreet, Inc., 552 F. Supp. 89 (N.D. Ill. 1982), sleepily coloring in facts like:  “The customer does not itself receive much of the information contained in the computer data base.”  Feeling much like that customer, it takes me forever to get to the holding, and by that time, I’ve forgotten what the case was about.  I’m stranded somewhere in endless fields of green.

Hoping somehow to get through the hundreds of assigned pages, I try to read cases while holding baby Freddie, nursing her, even changing her.  But I swear, each time she nurses herself to sleep, she sucks more of my brain cells out with the milk.  And the milk/ammonia scent?  A knockout drug for those of us who’ve been staying up until 2 a.m. each night reading cases, and getting up again at 5 a.m. to nurse a baby-who-will-not-sleep.

Why won’t she let me sleep?

By 3 a.m., I put down the books, and close my eyes.  There are still endless unread pages of unintelligible heretofores, theretofores, therefors, and wherefores in every subject.  If I can’t get my brain back from wherever it has gone, I’ll never get to  my environmental law reading, where I’m already dangerously behind.

How did I ever think marking up cases in colors would somehow turn me into a lawyer?

Lack of Intellectual Preparation?

In American History, Arts & Letters, Book Reviews, Historicism, History, Humanities, Law on May 25, 2012 at 9:03 am

Allen Mendenhall

Last week I was reading several old reviews of Lawrence Friedman’s landmark work, A History of American Law.  I came across a 1974 review by David J. Rothman in Reviews in American History.  Rothman made the following point, which, despite being made 34 years ago, is bound to offend some readers of this site, especially those who are lawyers or law professors:

I have attended conferences of law professors doggedly determined to be interdisciplinary, and I have been appalled at the lack of intellectual preparation that many of them had for such work. They would talk blithely about bringing the insights of, say, game theory to the law-with only the vaguest idea of what game theory was all about. (Indeed, how could they have had more than a vague idea? After a general undergraduate training, they went to the law schools, then to the courts as clerks, then back to the law schools.) So one must, perforce, have a lurking fear that some of the new interdisciplinary efforts will be so inadequate as to prompt law professors to decide to do well what they can do, rather than to do badly what they should do. And law schools may well continue to perpetuate half-knowledge. They remain torn between serving as trade schools to the profession and graduate schools to the scholars. This compromise may turn out to be less and less tenable over the next years.
 
Does Rothman’s claim remain true when the “new interdisciplinary efforts” aren’t so new anymore?  Today many law professors hold Ph.D.s in various disciplines, and these professors use their unique, specialized training to enhance legal scholarship in their respective sub-disciplines.  But does “extra” graduate work or a specialized degree necessarily signal a superior skill set, or is Rothman’s view elitist?   These questions will be the subject of a future post on this site, and potentially of a future article, so I would like to hear back from readers.  Please email your responses to me or, if you’d prefer, post them in the comment box below.    

Liberty and Shakespeare, Part One

In Arts & Letters, Humanities, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Shakespeare, Western Civilization on May 17, 2012 at 7:51 am

Allen Mendenhall

The following essay originally appeared here on Mises Daily.

In an October 2002 article in the New York Times, “Next on the Syllabus, Romeo v. Juliet,” Adam Liptak investigates the curious if questionable move to install literary texts in law-school curricula. Liptak’s opening lines betray his skepticism:

The fact [that Kafka was a lawyer] got the discussion started on a recent afternoon in a sunny seminar room at the New York University School of Law, where 17 law students and 2 professors gather every week for a sort of book club, for credit, in a class called Law and Literature.”[1]

Liptak’s likening of the class to a book club, quickly followed by his strategic comma usage setting off the phrase “for credit,” implies that, in effect, the course is more about enthusiasm than scholarship. How could the activities of book clubbers, Liptak seems to suggest, merit course credit in professional school? Liptak implicitly raises an even greater question: Does literature matter to the so-called “real” world?

In arguing for the inclusion of humanities courses in law school curricula, law-and-literature professors have had to answer that question. They have convinced professional school deans and administrators that literature is important and relevant to actual problems. The turn to political criticism among English faculty is also a move to show that literature has some practical bearing beyond entertainment or leisure. As humanities programs lose funding and students while law-and-literature faculty, courses, conferences, and journals proliferate, it bears asking whether law-and-literature adherents have done a better job persuading university officials that literature is socially significant.

Nearly every Anglo-American law school offers a course called Law & Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow.

This essay examines the history of Shakespeare studies vis-à-vis legal education. It begins with early law-and-literature scholarship, which focused on Shakespeare’s history or biography — speculating as it did about whether Shakespeare received legal training or became a lawyer — and concludes with recent law-and-literature scholarship treating Shakespeare as a source of insight for law students and lawyers. Early law-and-literature scholarship on Shakespeare anticipated new-historicist theory. More recent law-and-literature work, with its turn to presentism, seems in lockstep with current Shakespeare studies. In law-and-literature classrooms, Shakespeare is more fashionable (like a hobby) than scholarly (like a profession). But law-and-literature scholarship on Shakespeare represents high-caliber work based on interdisciplinary research and sustained engagement with legal and literary texts.

This essay concludes with a note about the direction of the university in general and of the law-and-literature movement in particular. My closing argument is, I admit, tendentious. It raises issues usually raised by confrontational academics and suggests remedies for what William M. Chace has called “the decline of the English Department”[2] or what Harold Bloom has called “Groupthink” in “our obsolete academic institutions, whose long suicide since 1967 continues.”[3] If Chace and Bloom are right about a decline in academic standards — evidence shows that they are at least right about a decline in the number of English majors — then the fate of literary studies seems grim. Nevertheless, Chace and Bloom overlook the migration of literature professors into American law schools, a phenomenon that has not received enough attention.

One aspect of this phenomenon is the migration of students from the humanities to professional schools. I have known students who hoped to attend graduate school in the humanities but quite understandably viewed that route as impractical and went to law school instead. A positive result of this trend is that many law students are open to the idea of law and literature and find luminaries like George Anastaplo or Stanley Fish more interesting than other law professors. The final comments of this essay will address the strange exodus of literary scholars into professional schools, which pay more money and arguably provide vaster audiences and readership, more generous funding opportunities, and reduced teaching loads.

Perhaps more than other literary disciplines, save for cultural studies, Shakespeare studies has moved into the realm of interdisciplinarity, albeit without large contributions from scholars outside of literature departments. The law-and-literature field would have perished without the expertise of literature professors; likewise, Shakespeare studies, if it continues down the path of politics and cultural criticism, will perish without the expertise of economists, political scientists, and law professors, whose mostly non-Marxist ideas, when pooled with the ideas of the literature scholars, might fill out a space for interesting scholarship and redeem the interdisciplinary label. Information sharing is especially crucial for literature scholars who, in order to examine the history of Shakespeare in American culture, have turned to practices and methods traditionally reserved for other disciplines. In this respect, the direction of Shakespeare studies is representative of the direction of the humanities in general.

It may be possible to overcome disciplinary boundaries while recognizing the importance of disciplinary expertise. For understandable reasons, conservative literary critics decry political trends in current literary theory. What these critics ought to decry, though, is the nature of the political trends rather than political trends themselves. What if, instead of Marxist or quasi-Marxist paradigms, literary critics adopted the theories of free-market economics?

Adherents of law and literature unwittingly have carved out an approach to literary studies that jettisons Marxism and quasi Marxism but that retains civic goals. Law and literature cuts across labels like “conservative” and “liberal.” It demonstrates how professional or vocational studies are incomplete without teachings in liberal arts. At a time when antitraditional, quasi-Marxist ideologies have taken over graduate programs in literature, and when humanities funding and enrollment are wanting, the burgeoning law-and-literature courses offer an avenue for restoration of literary study with a civic focus. Read the rest of this entry »

Review of “Teaching Law and Literature”

In Arts & Letters, Book Reviews, Fiction, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, News and Current Events, Novels, Pedagogy, Teaching, Writing on April 24, 2012 at 8:33 am

Allen Mendenhall

Teaching Law and Literature.  Austin Sarat, Cathrine O. Frank, and Matthew Anderson, eds.  New York: Modern Language Association, 2011.  vii + 507 pp.  $25, paper.

What began as a coordinated, idiosyncratic project in American and British law schools has become a common component of curricula in English departments across the globe.  Law and literature as a subject and as a movement has gained purchase over the last three decades.  Inaugurated in 1973 with the publication of James Boyd White’s The Legal Imagination, which highlighted, among other things, the affinities between legal and literary rhetoric, law and literature has splintered into so many narrowed foci that today it is just as common to see courses like “Law in Late 19th Century American Literature” as it once was to see courses called, quite simply and broadly, “Law and Literature.”

To celebrate and explain this movement, The Modern Language Association (MLA) has released Teaching Law and Literature, an edition with forty-one essays by some of the most prominent scholars in the field, including none other than White himself.  Although law and literature has enjoyed ample funding and has become the subject of an increasing number of journals and conferences, not enough work has been done on the pedagogical aspects of the discipline.  Put another way, the discipline has yet adequately to address the question of how professors ought to teach the interplay of law and literature to students.

That is a gap that this book seeks to fill.  According to editors Austin Sarat, Cathrine O. Frank, and Matthew Anderson, Teaching Law and Literature  “provides a resource for teachers interested in learning about the field of law and literature and how to bring its insights to bear in their classrooms, both in the liberal arts and in law schools.”  Despite that stated goal, the book is weighted toward undergraduate education, and the editors admit as much in their introduction.

At a time when American law schools are under fire for admissions scandals and fabricated data, professors of law and literature—and law professors interested in humanistic and jurisprudential approaches to law teaching—would do well to turn their attention to undergraduates.  When budget cuts and faculty purging befall the legal academy, as they likely will, law and literature (and its various offshoots) will be the first curricular elective to suffer.  A discipline whose proponents struggle to articulate its purpose—will a course in law and literature help law students to pass a bar exam or to become better lawyers?—may not survive the institutional scrutiny of deans, administrators, and alumni associations.

Yet it is the urgent quest for validation that makes law and literature such an important subject.  At its core, law and literature is about grand questions: Why study literature at all?  What use do novels, plays, poems, and the like have for the general public and for the practical, workaday world in which lawyers serve a necessary function?  Might the recurring themes of justice, fairness, and equality expressed in canonized texts from disparate cultures and communities point to something recognizable and distinctive in the human condition?  And are there paralyzing limits to specialized knowledge of periods and genres when so many law and literature scholars, working out of different traditions and trained in supposedly autonomous disciplines, arrive at the same or similar generalizations regarding human experience?

One such generalization, interestingly enough, is that complicated relationships between people—whether based in race, gender, class, or whatever—ought to be understood in terms of ambiguity and contingency rather than certainty and absolutes, and that simple answers will hardly ever suffice to illuminate the nuances and contradictions of any given phenomenon, especially law.  That law is too often reduced to blackletter, blanket rules is not lost to writers of imaginative literature, who, many of them, have used law and legal institutions to enable critiques and explorations of complex social and philosophical problems.

It is little wonder, in light of the compatibility between literary and legal rhetoric or hermeneutics, that a Maryland appellate judge recently wrote in his concurrence that “[t]his case is E.M. Forster’s A Passage to India all over again.  Something happened up there at the Marabar Caves.  Was it an attempted rape?  Was it some form of hysteria triggered by strongly ambivalent emotions imploding violently in a dark and isolated catacomb?  Or was it some unmappable combination of the two as moods and signals shifted diametrically in mid-passage?  The outside world will never know.”  Here is a judge employing a work of literature to demonstrate a point about the limitations of human knowledge.  Law provides topoi in countless works of literature, and works of literature, as this judge apparently recognizes, can supply context and profundity to the deforming routines and desensitizing rituals of everyday law practice.  Without following the judge through to the end of his reasoning, one can sense in his lines a stark awareness of the incapacity of human faculties and hence the perspectival nature of what the philosophers call “justice.” Read the rest of this entry »

Note from a Reader: An Article about Leaders in Legal Education

In Law, Legal Education & Pedagogy, Legal Research & Writing, Pedagogy, Teaching on August 2, 2011 at 11:46 am

Allen Mendenhall

A loyal reader of this site has suggested that I post a link to this article about 10 leaders in legal education.  I’m happy to do so.  I’m curious what other readers think of the list. 

Although I’ve posted the list below, I encourage readers to click on the link above to see why these leaders were chosen.

1.  Massachusetts School of Law, Andover

2.  Richard Matasar

3.  Elizabeth Mertz

4.  Association of American Law Schools

5.  Barbara Boxer

6.  David Lat

7.  George Leef

8.  Susan Sturm and Lani Guinier

9.  Bryan Garner

10.  Stephen R. Marsh

The Problem with Legal Education; or, Another Piece About the Aimlessness, Pointlessness, and Groundlessness of Law School

In Arts & Letters, Humanities, Law, Legal Education & Pedagogy, Pedagogy, Teaching, Writing on July 27, 2011 at 2:23 pm

Allen Mendenhall

The latest issue of Academic Questions (Summer 2011: Vol. 24, No. 2) devotes most of its content to legal education.  Published by the National Association of Scholars, Academic Questions often features theme issues and invites scholars from across the disciplines to comment on particular concerns about the professoriate.  (Full disclosure: I am a member of the NAS.)  Carol Iannone, editor at large, titles her introduction to the issue “Law School and Other Tyrannies,” and writes that “[w]hat is happening in the law schools has everything to do with the damage and depredation that we see in the legal system at large.”  She adds that the contributors to this issue “may not agree on all particulars, but they tell us that all is not well, that law school education is outrageously expensive, heavily politicized, and utterly saturated with ‘diversity’ mania.”  What’s more, Iannone submits, law school “fails to provide any grounding in sound legal doctrine, or any moral or ethical basis from which to understand principles of law in debate today.”  These are strong words.  But are they accurate?  I would say yes and no.

Law school education is too expensive, but its costs seem to have risen alongside the costs of university education in general.  Whether any university or postgraduate education should cost what it costs today is another matter altogether.

There is little doubt that law schools are “heavily politicized,” as even a cursory glance at the articles in “specialized” law journals would suggest.  These journals address anything from gender and race to transnational law and human rights.

But how can law be taught without politicizing?  Unlike literature, which does not always immediately implicate politics, law bears a direct relation to politics, or at least to political choices.  The problem is not the political topics of legal scholarship and pedagogy so much as it is the lack of sophistication with which these topics are addressed.  The problem is that many law professors lack a broad historical perspective and are unable to contextualize their interests within the wider university curriculum or against the subtle trends of intellectual history.

In law journals devoted to gender and feminism, or law journals considered left-wing, you will rarely find articles written by individuals with the intelligence or learning of Judith Butler, Camille Paglia, or Eve Sedgwick.  Say what you will about them, these figures are well-read and historically informed.  Their writings and theories go far beyond infantile movement politics and everyday partisan advocacy.    Read the rest of this entry »

Adam’s Rib and the “Two-Worlds” Problem

In Arts & Letters, Communication, Film, Humanities, Information Design, Law, Legal Education & Pedagogy, Pedagogy, Rhetoric, Shakespeare, Teaching on June 29, 2011 at 1:28 pm

Allen Mendenhall

Directed by George Cukor, the film Adam’s Rib tells the story of Adam (Spencer Tracy) and Amanda Bonner (Katharine Hepburn), New York attorneys whose marriage smacks of “tough love.”  The couple square off when Adam is assigned to prosecute a woman (Judy Holliday) who has attempted to murder her philandering husband—a bumbling dweeb—in the apartment of his mistress.  Amanda, who approves of the woman’s act, which she views as resistance to patriarchal society, takes up the case as defense counsel.

Genesis tells us that God fashioned Adam from dust, Eve from Adam’s rib.  Adam’s Rib tells a different story.

If anything, Amanda, or “Eve,” is the starting-point—a source of controversy, inspiration, and curiosity.  Adam’s Rib isn’t the first production to render gender contests in comedic tones—it’s part of a tradition dating back at least to Shakespeare’s Taming of the Shrew or Fletcher’s Tamer Tamed, and probably much further—but it is one of the more remarkable of all twentieth-century productions, especially in light of Amanda’s advocacy for a doctrine that, in American family law, came to be known as “formal equality.”

What, exactly, does Adam’s Rib offer law students?  What does it teach law students, and why should law professors bother with it?

A film that’s in no way after verisimilitude is unlikely to teach law students how to file motions, write briefs, analyze statutes, or bill clients—tasks that we assume are requisite to becoming “good” lawyers.  So what’s the point?

In his cunning way, James Elkins, during his Lawyers & Film course that I took in law school, responded to questions of this variety by drawing two boxes on the blackboard: one representing law, the other film.

“We’ve gotta get from this box to this box,” he explained, retracing the diagram with the tip of his chalk.  “One place to start,” he suggested, “is with the movie scenes depicting lawyers or the courtroom.”  Read the rest of this entry »

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