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22 June 2006

Comments

Stewart Macaulay

In response to Howie's and Beth's comments, I can describe two things we do at Wisconsin that bring a law in action perspective to law students.

First, we offer the sociology of law seminar every year. Here we use a reader on law and social science (as you might expect, we use Macaulay, Friedman & Stookey, Law & Society: Readings on the Social Study of Law). This is an attempt to teach a law and society approach to ten to twenty students. I regularly get great papers that teach me much about the way the law works in those areas to which my students have access. (Howie and I once taught this together when he was a professor of sociology before he crossed to the dark side).

Second, our basic first-year contracts class is structured in no small part around the sociological foundations of contract law. Again, you won't be surprised to hear that we use the Wisconsin contracts group's teaching materials, Contracts: Law in Action (Macaulay, Kidwell and Whitford, 2d ed. 2005). The Wisconsin casebook brings a social science approach to a basic required first year course. We draw on my notes from interviews with business people and lawyers and on Bill Whitford's experience with consumer protection law. We offer material on how problems come up. We keep stressing that "law is not free," and ask what this does to theories about contracts remedies serving to put the aggrieved party where s/he would have been had the contract been performed. We stress settlement. We explicitly raise the norms and sanctions of long-term continuing relations and ask what contract law at the margins has to offer. And, importantly, we emphasize current modern contracts problems that students are likely to see rather than bits of history from the early days of the industrial revolution. We do teach Hadley v. Baxendale as part of the initiation rite of becoming a lawyer, but it is followed by a note that sets out Federal Express' elaborate disclaimers that would cover a modern Hadley problem. We draw on the briefs and records of the cases that we reprint as well as interviews with the lawyers and parties. We excerpt the Wall Street Journal and the Financial Times. We summarize several empirical studies of contract practices, but our notes ask whether you can generalize from a twenty year old study of general and subcontractors in Virginia. Where we can, we try to keep students thinking about the caliber of evidence and social science methods upon which legal decision making relies. I think that we teach doctrine and we teach contract theory, but we always are asking how does it really work.

The professors who teach contracts at Wisconsin have, for years, met each week to talk over the materials under discussion in the contracts classes that week. Our group includes political scientist Kathie Hendley as well as many others with interdisciplinary know-how, and we are always working to enrich the empirical foundation of the casebook. We often get feedback from those are other schools who use our book, and it is always welcome.

Okay, enough of this commercial for my two books! But the point is that you can bring a law and society approach into law school, even into a basic course such as contracts. My own position is that it both makes law teaching more practical and more theoretical at the same time -- there's nothing wrong with having theories about stuff that matters.

Elizabeth Mertz

Thanks, Howie; your post reminds us that we don't have to accept the prevailing definition of what kinds of skills lawyers need in practice. Nor do we have to translate social science to law students in a form that simply imports social science teaching tout court.

I wonder if we could hear from folks who do teach (or use) social science in law schools about their approaches. Do you confine discussions of social science to upper-level seminars specializing in related topics? Do you import it into "core" or first-year courses, and in what way? (i.e., do you alter the structure of the class or do you add social science insights within the existing structures?) What sorts of approaches seem to work best? Do you ever draw on social science studies of education to alter your teaching methods?

Howard Erlanger

I’d like to address what two-way translation between law and social science might look like in the law school classroom.
The strong tension between legal realism and legal formalism is palpable both in legal education and in the practice of law. A more integrated use of social science in law teaching can be useful in addressing this tension. Empirical researchers on law have not taken the everyday practice of law as seriously as they need to. At the same time, law professors need to take greater account of the extent to which lawyers need the ability to systematically analyze the real world in which they operate.
A new legal realist perspective recognizes that an ability to decipher legal doctrine -- the formal law found in statutes and case law -- is an essential skill for lawyers. As Garth and Martin have shown, it is one of the few skills that attorneys view as both crucial to law practice and as something that law schools can do a good job of teaching. (Of course, clinical education addresses a far wider spectrum of lawyering skills, but it is not a universally-shared part of law training.) Law school should (and will) retain its emphasis on ‘legal reasoning’ as reflected in a focus on the internal logic of legal decision-making, the derivation of legal rules from precedent, certain forms of analogical reasoning, ability to argue either side of a case, etc. But the limit of this approach is that it treats law as a closed logical system. When this remains the dominant focus, students are in essence taught – implicitly or explicitly -- to set aside their understanding of the real world as they learn to “think like a lawyer.”
An NLR approach would not change the focus on rigorous, analytic thinking as the core focus of legal education. But it would expand the range of substantive material that is the subject of that rigorous thinking, and deepen the array of analytical tools that lawyers work with. An ability to think rigorously and systematically about not just the formal law, but also about the problems and situations that students will encounter in practice is a central tool for the informed practice of law. Law is a social institution that does not operate in a vacuum; it is not a closed system, nor are legal rules self-enforcing. Good lawyers of course know this; some form of “common sense” understanding is integral to their everyday practice. Legal education needs to enrich that common sense understanding so that it can become more systematic and sophisticated. Yet traditional legal education remains largely focused on the formal law, while the social reality of law on the ground is treated in haphazard fashion, and often disparagingly. (Of course, not all legal education is traditional – clinical education is a major exception, but in most cases it is segmented off from ‘stand up’ legal education.)
A new legal realist approach, by contrast, could teach law students to understand how empirical exploration is an integral to law practice. Attorneys essentially collect data on problems and then build from the data they obtain to form their own ideas about how the law works on the ground. As law professors we can make students aware that there is a science to collecting data, that there are limitations to the conclusions they can draw based on how they collected the data, and that some inferences are better grounded than others based on the information they have in hand. When they are lawyers, with limited time to collect their own data, they can also draw on existing research in more sophisticated ways. There is a great deal of excellent social science work currently available that lawyers can use to become informed about the world in which they are operating, and more empirical work that is directly applicable to understanding the everyday practice of law should be created. We can help our students enter law practice with the tools they need to find and use this information in appropriate ways.

RCinProv

Great discussions off-line? No fair! I want in! Just kidding--but this has been a great week on this blog. Good to see you here, Beth!

William Henderson

Beth, you offer excellent suggestions, including John Conley's innovative course on the legal profession.

This course is the focus of John's recent publication in the North Carolina Law Review. Here is the Hein-online link: http://heinonline.org/HOL/Page?handle=hein.journals/nclr82&id=1957&collection=journals

I recently talked to John about his in-class interview technique (somewhat informed by his anthropological training); I plan to use his advice in the fall during my Law Firms class.

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