Greetings, folks. This is turning out to be great fun for us; we are having quite a few
discussions off-line with colleagues as well as on the blog. Thanks to everyone who is joining us one way
or the other!
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.
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