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. Continue reading