News that law schools are in crisis has been around for a while now, but the crisis itself persists — though maybe not where it is usually thought to lie. It is couched mainly in terms of jobs and debt: There are too many students finishing law school with crushing debts and poor job prospects. The legal profession itself has been changing as more and more routine work goes offshore, or onto the Internet, and even large firms hire fewer new associates. Most of all, firms that are hiring insist that the newly minted J.D.s be “practice ready.”
Inevitably, this has led to calls — from lawyers, from bar associations, even from President Obama — for a more vocationally oriented law school, one that offers more hands-on legal experience, possibly reduced to two years in order to cut costs. As a report of the Illinois Bar Association put it: “It is no longer sufficient for law school graduates to merely think like lawyers; they must be able to perform the basic tasks central to legal practice.” The final recommendations voted by that bar included: “Law schools should cut back on courses such as ‘Law and Literature’ that focus exclusively on the academic study of law, with no practical application.”
The teaching I have done over the past 30 years in a handful of different law schools falls precisely into the general category of “law and literature,” or, more accurately, “law and the interpretive humanities.” It has been based on the idea that law is, among other things, a rhetorical practice, that oral argument and written opinions activate an art of persuasion and communicative strategies that literary critics and linguists study but law schools usually don’t. In fact, law students rarely study legal texts as a whole; instead they read excerpts in casebooks that reduce opinions to their essential holdings and rules. That means they don’t often think about the construction and rhetoric of a legal opinion. Yet the practice of law was originally, in ancient Athens, primarily a rhetorical act, and approaching the law from the perspective of rhetoric — including narrative analysis and attention to the implicit poetics of the legal opinion — might be just restoring twins separated at birth to their rightful relationship.
Law needs to be held accountable to other disciplines. Its language cannot be wholly hermetic.
As it became professionalized — as were so many disciplines during the late 19th century — law tended to repress its rhetorical origins and to emphasize its autonomy as a form of thought and practice. Legal education moved from law-office apprenticeships (and the reading of Blackstone and other legal treatises) to law schools, and law schools became part of universities. The modern law school emerged when Christopher Columbus Langdell became professor and dean at Harvard Law School, in 1870, and instituted the “case method": the study of law as it is made in concrete cases, which ought to lead, in his conception, to the constitution of a legal science.
From the start, law schools have been built over a divide between the vocational — producing graduates who could be licensed by the various state bars — and the intellectual, occupying a place among other graduate and professional schools in a university that increasingly saw itself dedicated to the production of knowledge for its own sake. The law-review article eventually became a crucial credential for someone seeking to teach in law school — and became longer and longer, with a seemingly unstoppable epidemic of footnotes. As some law schools have moved to become more vocational (though very few have signed on to the two-year model), others have reaffirmed their commitment to scholarship. Yale Law School even recently added a Ph.D. in law to its degree offerings.
The tension inherent in the mission of law schools also extends to their topographical place within the university, which I have found interestingly undecided. When I taught at the University of Virginia Law School, I found it took a certain determination to cover the distance between central campus and the law school, set apart on its own commodious campus. There was no casual connection. Georgetown University Law Center is located on Capitol Hill, some heavily trafficked miles from the main Georgetown campus. Yale Law, on the other hand, sits near the center of things — right across from Sterling Memorial Library, inscribed above its entry with the proclamation that it is the heart of the university. Yet in my experience it was the rare law student who left the law building to venture into courses elsewhere in the university. And while I was invited in to teach, my Yale professorship was not good enough: I had to be appointed a visiting lecturer in the law school.
That’s perhaps emblematic of the law school in the university: part of it but apart, dedicated to the sui generis business of training people to “think like lawyers.” That is a very special skill, which I look on with admiration and some envy. Plunging into a legal dispute and figuring out how the various stories in contention can be made legally cognizable and lead to a solution that keeps faith with precedents is not possible for the untrained. “Thinking like a lawyer” generally means setting aside naïve ideas of justice, of right and wrong, in order to work within the constraints of certain rules and discourses. But that precisely points to the value of teaching that comes from outside the law, from literature or philosophy or political theory: Law needs to be held accountable to other disciplines. Its language cannot be wholly hermetic: When, for instance, it talks of confessions by criminal suspects as the product of a “free and rational will,” or when it discusses the relation of “guilty act” and “guilty mind,” it uses terms of art that are not simply that, but which should be open to discussion and critique from other disciplines.
The very practice of law can be better understood if you pay analytic attention to its narrative and rhetoric.
During a discussion of “The Crisis in Legal Education” held recently at Georgetown University Law Center (and sponsored by the American Academy of Arts and Sciences), Professor Robin L. West made a similar point: A purely vocational law school would lose its critical stance toward law as practice — the capacity to contrast law as it is to what it could be in a more just society, for instance. Or as Louis Michael Seidman, organizer of the Georgetown discussion, sees it, the special virtue of law school has been its dual nature, devoted both to learning a real-world skill and to social critique. The calls for a more vocational law school assume that learning to perform legal tasks is all that matters. Critique doesn’t pay.
Of course it doesn’t. What I have taught law students isn’t necessarily useful. I want them to understand something about legal language as a nexus of rhetoric and power, a practice of performative utterance that has far-reaching consequences. I claim that the very practice of law can be better understood if you pay analytic attention to its narrative and rhetoric. If you unpack the hermetic terminology often used by the legal profession and hold it up to cross-disciplinary attention, sometimes illumination follows. To what different audiences are Supreme Court opinions implicitly addressed, and how does that affect the speaking voice of an opinion? What about their narratives of “the facts of the case,” given that facts usually don’t become noticeable as facts until they are made part of a story? What should one make of metaphors that have become a routine part of legal discourse, such as “the fruit of the poisoned tree”? Occasionally students tell me that they learn more about what law is from the kind of attention to law as language that I have tried to instill than from some of the courses that teach them to be lawyers.
The pity of the push to a more vocational law school, producing more practice-ready young lawyers, would be not only the loss of critique within the law school but also a diminished intellectual place for the law school within the university. The built-in tension of legal education, between practice and analytic critique, has on the whole been a source of energy that has given many law schools a place of pride within their universities. If the tension atrophies, they will have less to contribute.
