Today we are hoping to generate some further discussion on the issue of integrating social science into legal pedagogy. A number of NLR scholars have echoed Bill Henderson’s earlier sentiment that it’s very important to pay attention to “how realism affects the education and training of law students.” Bill’s previous set of questions on this point challenged us to consider how to integrate our roles as scholars and law teachers.
In reply, I drew on my forthcoming book, The Language of Law School: Learning to “Think Like a
Lawyer”. My study was based on
transcripts of actual law school teaching. We taped all of the classes from the entire first semester of Contracts
classes in eight very different law schools, and then analyzed them qualitatively
and quantitatively, turn by turn. I
found that professors whose research is frankly critical of doctrinal
approaches send linguistic messages in first-year classes that are in some respects quite
similar to those sent by professors who are doctrinal scholars. This can be traced through subtle aspects of
the language cues found in classes which differ in other ways (predominantly
lecture vs. more conversational vs. “modified Socratic” styles). These language cues tell students to reorient
their attention from social context to the layers of legal authority associated
with doctrinal readings.
On the one hand, there’s a real dilemma here. Law professors cannot in good conscience send their students out into practice without the ability to parse doctrine. This is a new skill when students enter law school, and it is a major focus of first-year teaching. Students need to take stories of social conflict and read them in a very different way, disregarding some elements that would have seemed crucial before. Once they have learned this kind of reading, they have incorporated a new sense of what’s important, where authority rests, where their attention belongs. This reorientation is not so easy to simply discard or put aside. If we as scholars are having trouble integrating the epistemologies and norms of law and other disciplines or perspectives, what can we expect of our students?
On the other hand, people can be bilingual. Certainly anyone who becomes a trial lawyer will have to relearn a more common kind of narrative convention. Bob Burns, author of A Theory of the Trial, recently told me that as a clinical law professor he often feels that he has to retrain law students to understand and tell “normal” stories of social conflict – to “undoctrinate” them to a certain degree. So, can we also train them to read and understand social science of various kinds, and to integrate that with their roles as lawyers? (One NLR response would be that maybe we have to think through that issue of integration ourselves if we are to teach it to our students.)
My own personal experience in law teaching is that empirical research can serve as a wonderful bridge between “practical” and formal legal training. Research on law “on the ground” can be immediately appealing to students who long for some sense of what their lives will actually look like once they leave law school. This is particularly true of research on the legal profession itself. John Conley, a fellow anthropologist who teaches at UNC, has carried on a very interesting class at the law school there for a number of years: students interview practitioners as part of their class on the legal profession, in the process both creating an ongoing data base while learning about the practice of law.
I recently attended a very interesting conference at Vanderbilt on legal education (at which there was quite a bit of discussion about integrating empirical research and legal education). I was particularly struck by a distinguished practicing attorney who spoke to us about his wish that law professors would stop conveying a sense of disrespect and disdain for the practice of law to their students. He didn’t want us to stop educating them about all kinds of interesting and different perspectives on law; when else will they have that important opportunity? But he was asking why there has to be such antagonism across parts of the profession. Arguably, empirical research that takes law on the ground seriously could help law professors walk in the shoes of those who are struggling with the realities of law practice. (Of course, it could also help lawyers walk in the shoes of their clients as well – here ethnographic and interview data might be quite useful.) Louise Trubek has suggested some intriguing ways to erode the boundaries that separate clinical education, interdisciplinary training, and classic law school pedagogy. (“Crossing Boundaries: Legal Education and the Challenge of the ‘New Public Interest Law,’” 2005 Wisc. L. Rev. 455.)
I do work with my students on how to judge relevant social science information when I'm teaching family law, asking them to assess critically studies purporting to show the effects of divorce on children, the effects of mediation on outcomes in divorce, etc., etc. They will be receiving this information one way or the other, through the popular media or in CLE training. I think it is quite possible to integrate some training in social science method into the core curriculum. But we still face the question of how to help our students navigate the difficult cognitive and linguistic clashes that arise when they grasp the real discontinuities between legal and social science thought. We can’t ignore the fact that we aren’t training would-be social scientists. There is likely a limit in the amount of energy someone who plans to practice law is willing to invest in learning the details of social science methodologies. And so we have a responsibility to think through how best to take account of law students' quite different professional trajectories when working to integrate our kind of research into law training.
We can also use the exiting empirical research on education to improve how we teach. As Peggy Davis and others have noted, this is a very interesting aspect of the relationship between social science and law teaching -- one about which we don’t often speak.