Thoughts on Legal Education, the Curriculum, and the Importance of Process Over Substance - John O. Cole

• Citation: Vol. 63 No. 3
• Publication year: 2012

Thoughts on Legal Education, the Curriculum, and the Importance of Process Over Substance

John O. Cole*

Introduction

Curricular reform conversations are valuable as a process of continually thinking about, and discussing, the form that a "proper" legal education should take. The key concepts here are "conversations" and "process," for I would immediately suggest that the "substance" of whatever curricular reform that is created at the back end of this conversational process is itself of little importance or interest. That is to say, in the grand scheme of ideas concerning legal education, the specific ordering of courses and the particular list of required courses are of relatively minor importance in the development of a healthy curriculum.¹

I offer here a few thoughts concerning what I consider to be the essential center ofall legal education, an education in many ways unlike any other. It will become clear that in my view legal education has two primary goals: to train legal practitioners and, no less importantly, to prepare lawyers for a central role in the governance of our country.

As to a couple of introductory matters, I believe that the curriculum should be designed with the overriding purpose of serving the consumers of the product, the students, to prepare them to be excellent practitioners² of this practice we call the law.³ This overriding purpose should

* Professor of Law, Mercer University, Walter F. George School of Law.

1. I am aware of the continuing conversations and controversy concerning the place of practical education in the curriculum, but will only mention it in this Article in passing.

2. The focus here is on the word "excellent," not simply on "practitioners," as I hope to make clear.

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inform decisions about when during the day various classes should be taught and what the basic content of each course should be. These decisions should be based primarily on pedagogical purposes, as opposed to faculty preferences concerning when they want to teach and what subjects they favor.

These decisions focus on the content of the curriculum, but specific content decisions are of lesser importance than decisions about the context in which that content is held. To speak generally about what lessons I believe should be taught in a law school in terms ofthe context in which a lawyer works, as opposed to the content of specific areas of law, requires a proper understanding of that context, and how that context should be taught. As an overview, I would assert the following brief description of what a legal education should be about, on the level of context.

The education ofa law student should, above all, create in the student a sense of wonder concerning the openness and discretion in the legal system when dealing with problems that we characterize as "legal." Law students need to experience on an intellectual and emotional level an understanding that there are no answers to the fundamental questions that arise in a legal context, and the questions are handled not by searching irritably for the answer,⁴ but by conducting a conversation carried on in the institutionalized framework of our legal system-a framework that has evolved as a means ofenabling legal adversaries to seek a common ground. In this conversation we are not seeking a discoverable, true answer to a problem; rather, we seek clarity about who we are and what values we are willing to espouse.⁵

3. To be excellent practitioners they must, of course, jump the hurdle of the bar exam, a kind of hazing initiation into the membership of this particular professional organization, and the students must be prepared for this hurdle.

4. See John Keats, Selected Letters (Robert Gittings ed., 2009).

5. When it is acknowledged that under disguise of dealing with ultimate reality, philosophy has been occupied with the precious values embedded in social traditions, that it has sprung from a clash of social ends and from a conflict of the inherited institutions with incompatible contemporary tendencies, it will be seen that the task of future philosophy is to clarify men's ideas as to the social and moral strifes of their own day. John Dewey, Reconstruction in Philosophy 26 (2009). Oakeshott explained:

A morality, then, is neither a system of general principles nor a code of rules, but a vernacular language. General principles and even rules may be elicited from it, but (like other languages) it is not the creation of grammarians; it is made by speakers. What has to be learned in a moral education is not a theorem such as that good conduct is acting fairly or being charitable, nor is it a rule such as "always tell the truth," but how to speak the language intelligently. ... It is not a device for formulating judgments about conduct or for solving so-called moral problems, but a practice in terms in which to think, to choose, to act, and to utter.

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The lawyer's role in this conversation is central and majestic. The purpose of a legal education is to sensitize students to the essential openness of language, including legal language, and to train them to understand the proper role of language in this creative process. This training prepares them to play an important role in the societal conversation concerning what kind of a society we want to create and why. The excitement of being a lawyer is that the lawyer stands in the center of the rhetorical process by which we create our society under law.⁶

Law students coming to law school seeking answers to how the legal world is made will be disappointed by this news. The legal process is one in which accommodation ofvarious world-views is paramount in the creation process, not one in which one world-view is chosen over all others.

To understand the need for this education, I begin with a conception of what "law" is, and what its place is in our world. In terms of our world, Isaiah Berlin has written the following:

The world that we encounter in ordinary experience is one in which we are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others. Indeed, it is because this is their situation that men place such immense value upon the freedom to choose; for if they had assurance that in some perfect state, realisable by men on earth, no ends pursued by them would ever be in conflict, the necessity and agony of choice would disappear, and with it the central importance of the freedom to choose. Any method of bringing this final state nearer would then seem fully justified, no matter how much freedom were sacrificed to forward its advance.⁷

And further,

We are doomed to choose, and every choice may entail an irreparable loss. Happy are those who live under a discipline which they accept without question, who freely obey the orders of leaders, spiritual or temporal, whose word is fully accepted as unbreakable law; or those who have, by their own methods, arrived at clear and unshakeable convictions about what to do and what to be that brook no possible doubt. I can only say that those who rest on such comfortable beds of dogma are victims of forms of self-induced myopia, blinkers that may

Michael Oakeshott, On Human Conduct 78-79 (1991).

6. David S. Clark, Politicians, Lawyers as, Encyclopedia of Law and Society: American and Global Perspectives, Vol. 3, at 1143 (2007).

7. Isaiah Berlin, Two Concepts of Liberty, in Liberty 166, 213-14 (Henry Hardy ed., 2002).

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make for contentment, but not for understanding of what it is to be human.⁸

I.

Legal education should prepare a student to live in this world: to understand that the "world that we encounter in ordinary experience is one in which we are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others,"⁹ and not be happy to

live under a discipline which they accept without question, who freely obey the orders of leaders, spiritual or temporal, whose word is fully accepted as unbreakable law; or those who have, by their own methods, arrived at clear and unshakeable convictions about what to do and what to be that brook no possible doubt.¹⁰

Their education should prepare them, in other words, for an "understanding of what it is to be human."¹¹

Given this world, law can be defined as an ongoing, never-ending, often changing, highly structured (yet flexible), procedural conversation, concerned with ways to keep the peace in society by negotiating a common ground "between [whose] ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others."¹²

Conversation is a process, a discussion among participants. To understand the law is to understand the process that forms the conversation that defines the law. The primary goal of legal education is, then, to develop a procedural skill, not to pass on specific content. This legal conversation is:

1. Ongoing, Never Ending, and Often Changing: Because there is no closure, except temporarily when a legitimate decisionmaker chooses a particular outcome, and those outcomes, the conversation itself, and the language used in those conversations, change through time.¹³

8. Isaiah Berlin, The Pursuit of the Ideal, in The Crooked Timber of Humanity 1314 (Henry Hardy ed., 1990).

9. Berlin, supra note 7.

10. Berlin, supra note 8.

11. Id.

12. Berlin, supra note 7.

13. In speaking of historical periods, C.S. Lewis quotes G.M. Trevelyan speaking to this point about change well:

All lines of demarcation between what we call "periods" should be subject to constant revision. Would that we could dispense with them altogether! As a great Cambridge historian [G. M. Trevelyan] has said: "Unlike dates, periods are not

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2. Highly Structured (yet flexible):...