By Mohammad T.
[This is a short piece I wrote for a course on legal writing. I plan on turning this into a larger, publishable article. I will try to return to this subject a number of times over the next few months, and add iterations to this that will ultimately (and hopefully) coalesce into an article with some redeeming value. I welcome any comments you might have – they will be enormously helpful.]
“Into that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions. I am not concerned to inquire whether judges ought to be allowed to brew such a compound at all. I take judge-made law as one of the existing realities of life. There, before us, is the brew.”
-Cardozo’s “The Nature of the Judicial Process”
I believe in a more prominent role of theory and theory-based education in legal pedagogy. Though legal pedagogy does an adequate, if not good, job at producing legal minds after graduation, it could still stand to benefit, I think, from a more sustained and rigorous focus on theory. Reading Holmes and Cardozo only makes me even more firm in holding this opinion.
What exactly do I mean by theory in this context? Legal education as I have experienced it seems predicated on teaching both substantive areas of the law (e.g. doctrine and policy) and on procedural areas of legal practice (e.g. trial practice and public speaking). My focus for this piece is on the former. I generalize legal education to cover two key areas of substance: matters of legal doctrine, and matters of policy that underlie, undergird, and give meaning to these doctrines. A student not only learns “the law” as it is practiced or written, but also is allowed the opportunity to inquire into its efficacy, its history, its drawbacks, and its place within the larger body politic. This seems relatively straightforward, and fairly intuitive.
The problem is, though, that a student is not asked to interrogate how she is to necessarily learn both the doctrine and how to interrogate the policy behind and the context of the doctrine. I think it’s fairly safe to say that legal pedagogues assume that students will know how to begin tackling these questions, and how to understand these questions. They often draw upon, as Cardozo says, the “ingredients” that composes them as intellectual beings and hope they are equipped to deal with these questions. Beyond a (superficial) recognition that students, lawyers, and judges make decisions based on these “ingredients,” there appears very little in the way of critical study that interrogates exactly how these decisions are made, let alone how these decisions should be made. This is the role of theory that I find missing in legal academia.
Consider the study of criminal procedure, specifically of the duties and limitations of investigative policing in the United States. In a traditional course, students are asked to learn and to engage with Fourth Amendment jurisprudence on how law enforcement should conduct criminal investigations. Often this takes the form of reading Supreme Court opinions on areas of study, with students asked to evaluate current high court jurisprudence. It is not clear, though, how a student should proceed with this evaluation? What are the ingredients that a student may draw upon in order to make an evaluative determination as to the validity of a particular Fourth Amendment doctrine? Should a student be asked only to evaluate the arguments cited in the majority and dissenting opinions of a particular case discussing that doctrine? Can students bring to bear any personal experience they have had with the police, and use that experience to inform their judgments? Are students expected to know, or encouraged to know, empirical data that analyzes the efficacy of a particular police practice? Are students expected to know the history of American policing? Anglo-American policing? Are students expected to conduct field research on the topic while they are in class? Some of these questions are easier to answer than others, but they raise an important point: if, as Cardozo (and Holmes before him), describe the process of judicial rule-making as one involving a set of data points, stretching across a person’s experience, knowledge, custom, morality, and politics, how are we to evaluate and to hone an effective and just balancing of these different data points? How is a student to know how to engage in their criminal procedure class? What is a professor to expect from their students in this regard?
My thesis is that these questions need to be more rigorously dealt with in order to develop a more grounded and relevant legal pedagogy. I have often considered a radical restructuring of legal education and practice that would do away with law schools as we have set them up in the Anglo-American tradition, and instead diffuse legal education across the disciplines that we have already developed that study the particular legal questions that students want to know anyway. Environmental law would be taught primarily in environmental science, biology, biochemistry, and geology departments. Corporate law would be taught in business schools. Constitutional law would be taught in political science, civics, and policy schools. Law school as we know it would be transformed and slimmed down only to develop very narrowed sets of legal technocrats with basic knowledge of contracts, torts, and real property (maybe basic civil procedure as well). What would result would be a system whereby environmental law would not be a field for individuals disconnected with the substance and theory of the environmental sciences, but would instead be part and parcel of a greater education on issues relating to the environment. Environmental lawyering would require a background in environmental science and policy, but only a background in environmental science. An environmental lawyer would have some basic theoretical and methodological experience in the field she was practicing in, and would be able to make her decisions based on this substance background since she has a theoretical grounding in the subject. Likewise, the law of criminal procedure might be better suited for those who can actually engage in the theoretical questions I posed earlier.
This is one particularly radical way to get at the problem of theory in legal education. I think this radical reinvisioning of legal education comes with serious challenges, of course: Who would be allowed to practice law? Does anybody get to practice law in any of the fields where they have a degree? What about interdisciplinary matters? Don’t we need a special class of individuals specially equipped with the training to deal with questions only relevant to legal practioners? These questions are, of course, what make my proposed system only a mere proposal. But nonetheless I think it responds to a legitimate concern that I have seen with legal education as I’ve experienced it, and it responds to the now-articulated nature of the judicial process as Cardozo explains it. This system seeks to better understand the proper place of theory in legal education, and I hope that a full-on investigation of the merits of more theory-focused legal pedagogy can happen.
The model as it stands now seems to create two key disadvantages: it places lawyers and judges (and, in turn, politicians) in a specially powerful position to determine how particular legal regimes should be created and governed, and it necessarily complements this position of power with a legal training that is necessarily disconnected from the very disciplines and fields of life that such regimes seek to govern. Only when a legal pedagogy sufficiently tailored to these walks of life is developed can the makers and arbiters of legal regimes be more equipped to handle the unique responsibility of legal governance.
 I realize, of course, that this is a gross simplification of all of legal pedagogy, but this generalization I must make for lack of experience in or vast study of the entire legal academia.
 “[The judge] must balance all his ingredients, his philosophy, his logic, his analogies, his history, his customs his sense of right, and all the rest, and adding a little here and taking out a little there, must determine, as wisely as he can, which weight shall tip the scales.”
 This would, as a side effect, lead to judicial rule-makers who do not make decisions on these matters in abstraction, but would instead have some background in the day-to-day realities of the crime control system and its impact on lay citizens (or whatever other field a case may arise out of). This seems to be a problem especially pervasive in the study of and adjudication of Fourth Amendment law.