The pedagogy of "yes we can": teaching reformative legal justice in the age of Obama.

Author:Pernell, LeRoy
Position:Fifth Annual Fred Gray Sr. Civil Rights Symposium

The following reflects comments delivered as part of the 5th Annual Fred Gray St. Civil Rights Symposium, Faulkner University, Thomas Goode Jones School of Law October 21, 2009.

The American Bar Association's Standards and Rules of Procedure for Approval of Law Schools states, as to the purpose of legal education, that a "law school shall maintain an educational program that prepares its students for admission to the bar, and effective and responsible participation in the legal profession." (1) In order to achieve this goal legal education has, for a long time, relied on the so-called "Langdellian" case method--one that is heavily reliant on Socratic teaching technique. (2)

One commentator has described the Langdellian approach as one designed to "isolate and analyze the relatively few principles of the common law that the Harvard system postulated and to show how some ... judges had deviated from them." (3) Traditionally the analysis has been accomplished by the "case method" that is highly reliant on teaching consisting of "massing barely edited cases." (4) More often than not, this case method analysis is devoid of personalization. We seldom know the human emotion, fears, or social-political ramifications surrounding how the conflict arose or the impact of the law's solution. When we do know such things they are often afterthoughts or relegated to policy considerations that may have influenced, but seldom controlled the legal outcome.

For example, John T. Noonan Jr., in his classic Persons and Masks of the Law: Cardozo, Holmes, Jefferson and Wythe as Makers of the Masks, (5) interestingly points out that in the seminal case of Palsgrafv. Long bland Railroad (6) we are not even privileged to know the first name of Ms. Palsgraf or that two of her children were with her when the scales fell; surely of great emotional trauma and concern to the children.

With the human dynamic removed, legal education focuses more on the balance of the analytic and the logical and its conformity to the status quo. Langdellian education makes the case for acceptance of legal conflict resolution while social/political conflict resolution is seen as being only tangentially related (7).

Most law teaching, particularly in the first year, treats political conflict resolution as an interesting "extra," relevant only as an add-on to the core values of legal understanding. Note, for example, that the first year student's old reliable saw, IRAC (8), does not give any recognition of, let alone a minor role for social or political change.

The impact of the traditional approach to legal education reinforces the protection of the status quo. Traditional legal education says that change is appropriate only if it is both absolutely necessary and that change can somehow be reconciled with the existing legal system by way of analogy. The law student quickly learns that the protection of the status quo is richly rewarded not only in academic recognition through grades, but also through examples of those who have achieved the most success financially.

Admittedly, Standard 301 does speak about an obligation to instruct students concerning responsible participation in the legal profession; however, aside from periodic references to pro bono responsibilities and general encouragements to do good works, there is little that is done in the standards (or in the applicable standards of professional behavior that all members of the bar are eventually subjected to) that excites, inspires, or moves the student beyond ennui--like recognition of duty. Indeed, law school teaches students that professionalism involves emotional detachment from the non-legal woes of society and that professionalism focuses instead on zealously stretching existing principles to meet a distilled legal objective of the client. (9) Wealth collection is recognized as an implicit value although the ethical canons and principles of professionalism give formal recognition to law serving a vaguely defined public good.

These brief comments do not challenge whether law schools and the profession sufficiently make the case for public service and commitment to societal good; admittedly most existing standards and curricula do. Rather, these comments address the opportunity for legal education to tap, and expand on, a heightened psychological and emotional commitment that might be engendered in law students following the election of Barack Obama as President of the United States.

Of particular importance in placing traditional legal education in the context of reaction to the Obama election is the recognition that the value of status quo protection, traditional values of personal gain, and success has a particularly profound impact on society. This impact is particularly visible in young adults who over the past thirty years have developed a scrupulous cynicism borne of perceived powerlessness of individuals to make profound political/social change. A distressing aftermath of Vietnam, Watergate, intractable and sensationalized crime increase, among other things, has produced an "atomized" (10) individual, suspicious in the wake of a failed "Great Society" of their parents. (11) Disbelief in the law as capable of (or even properly concerned with) widespread reformative change is understandable. The status quo oriented legal educational system nurtures that lack of conviction.

What does the election of Barack Obama have to do with all this? First, the capturing of youthful energy and focus on change may offer a window of opportunity for a different paradigm that can be recognized by the revolutionary fact that a black man was elected president of...

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