Taking law and - Really seriously: Before, during and after "the law"

Vanderbilt Law Review

Volumn 60, Issue 2, 2007, Pages 555-595

  Menkel Meadow, Carrie ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 35348942313     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (224)

1. See generally EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING (1949) (positing the theory that law is the method of legal reasoning mentioned above).
2. Despite my own background in clinical education and the practice of law, this notion of law as only practice or activity was suggested to me by a philosopher of law. Karl Llewellyn classically described the law as "what... officials do about disputes." KARL LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 3 (1951). The study of professional practice has itself become a "field."
3. See, e.g., PIERRE BOURDIEU, THE LOGIC OF PRACTICE (1992);
4. DONALD SCHON, THE REFLECTIVE PRACTITIONER: HOW PROFESSIONALS THINK IN ACTION (1983); Herbert Kritzer, Toward a Theorization of Craft, (Symposium on Judgecraft, forthcoming).
5. ALBERT W. ALSCHULER, LAW WITHOUT VALUES: THE LIFE, WORK, AND LEGACY OF JUSTICE HOLMES 138-39 (2000).
6. VARIOUS SECTARIANS FROM THE UDANA: INSPIRED UTTERANCES OF THE BUDDHA (John D. Ireland trans.) (1997), available at http://www.accesstoinsight.org/tipitaka/kn/ ud/ud.6.04.irel.html (Buddhist folktale about the description of an elephant by nine blind men, all "seeing" different parts of the animal in their descriptions of what makes an elephant.).
7. ROGER COTTERREL, LAW'S COMMUNITY 77 (1995).
8. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Little, Brown & Co. 1990) (1881) ("The life of the law has not been logic: it has been experience.");
9. see also Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457 (1897);
10. th anniversary of The Path of the Law).
11. For another discussion of this question of whether law is a field or discipline and how it should be studied, see PAUL W. KAHN, THE CULTURAL STUDY OF LAW: RECONSTRUCTING LEGAL SCHOLARSHIP (1999).
12. I am not the first to ask these sorts of questions. See, e.g., WILLIAM TWINING, LAW IN CONTEXT: ENLARGING A DISCIPLINE 339-53 (1997).
13. For my own examples of "creative" insights and new ideas in law see Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education, 6 HARV. NEGOT. L. REV. 97, 124-35 (2001).
14. In this symposium Ernest Weinrib argues that such concepts as liability (and "proximate causation") and contract are such particularly "legal" and original concepts and that legal thinking is a particular and distinct form of method. See Ernest Weinrib, Can Law Survive Legal Education?, 60 VAND. L. REV. 401, 437-38 (2007).
15. In cultural terms, we can think of ideas, like genes, as "memes" or units of transferable cultural notions and practices. See, e.g., MIHALY CSIKSZENTMIHALYI, CREATIVITY: FLOW AND THE PSYCHOLOGY OF DISCOVERY AND INVENTION 7 (1996);
16. ST CENTURY 82 (1999).
17. Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983);
18. see also LEVI, supra note 1, at 27;
19. LLEWELLYN, supra note 2;
20. Bruce Kimball, The Langdell Problem: Historicizing the Century of Historiography, 22 LAW & HIST. REV. 277 (2004) (reviewing the distortions and inaccuracies in Langdell's legacy as described in succeeding generations of scholars and commentators);
21. Bruce Kimball, Warn Students That I Entertain Heretical Opinions Which They Are Not To Take as Law: The Inception of the Case Method Teaching in the Early Classrooms of the Early C.C. Langdell 1870-1883, 17 LAW & HIST. REV. 57 (1999).
22. Or as Professor Twining so eloquently puts it, "know-what (knowledge), know-why (theory) and know-how (skills)." See TWINING, supra note 8, at 18. As a modern law and society scholar, legal realist and legal clinician, I would add "know-who" (the study of power and relationships in law.
23. See, e.g., YVES DEZALAY & BRYANT G. GARTH, DEALING IN VIRTUE: INTERNATIONAL COMMERCIAL ARBITRATION AND THE CONSTRUCTION OF A TRANSNATIONAL LEGAL ORDER 63 (1996).
24. The leading interdisciplinary text for undergraduates in law and society programs is JOHN J. BONSIGNORE ET AL., BEFORE THE LAW: AN INTRODUCTION TO THE LEGAL PROCESS (7th ed. 2002).
25. LLEWELLYN, supra note 2, at 11.
26. See Harry Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992);
27. see also Sam Estreicher, In Defense of Theory: Notes on the Production of Legal Scholarship, 10 GREEN BAG 49 (2006).
28. See generally LEGAL EDUCATION (Martin Lyon Levine, ed. 1993);
29. ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE 1980s (1983);
30. THE HISTORY OF LEGAL EDUCATION IN THE UNITED STATES: COMMENTARIES AND PRIMARY SOURCES, VOLS. I AND II (Steve Sheppard, ed. 1999).
31. Socrates did not question hundreds of students at once, so even if there was some humiliation in not seeing the logical endpoint of a badly made argument, the student (or students) could learn and modify their thinking without complete shame in front of many peers.
32. For one of the classic statements of how to read and, as we would say now, "process" a case, see LLEWELLYN, supra note 2, at 39-57.
33. This teaching method uses very high student-teacher ratios, even with increasingly high tuition payments from students. PETER DE L. SWORDS & FRANK K. WALWER, THE COSTS AND RESOURCES OF LEGAL EDUCATION: A STUDY IN THE MANAGEMENT OF EDUCATIONAL RESOURCES 339-40 (1974).
34. In one of the first "big bangs" to challenge Langdellian formalism, the era of Legal Realism issued in a broader conception of the textbook which became "Cases and Materials on .. . ." The Legal Realists added some other materials to the steady diet of cases, including some government reports, a few empirical studies, some narrative stories, a few statutes and administrative regulations. It is striking how long this basic format has lasted. Modern "textbooks" still follow mostly this format of cases, with some Notes and Questions, and hypotheticals, and some few other materials for student analysis. Texts that depart too much from this format are often seen as not "real" casebooks by students. Many efforts to radically transform teaching materials have been developed, but none have really challenged the casebook market. See, e.g., GARY BELLOW & BEATRICE MOULTON, LAWYERING PROCESS: CLINICAL INSTRUCTION IN ADVOCACY (1978);
35. Girardeau Spann, with Weistart and Powell, DVD: The Contracts Experience (Duke University School of Law 2002).
36. Nineteenth and twentieth century Socratic teachers still wrote didactic treatises which were intended to state the law, its principles, reasons and policies for judges, practicing lawyers and other legal scholars, if not students. Some would argue that the didactic lecture has returned to legal education as modern law professors increasingly shy away from using conventional Socratic questioning techniques that are now thought to be too brutal. See generally JOHN JAY OSBORNE, JR., THE PAPER CHASE (1974) (classic popular culture real and fictional depictions of legal education in the 1960s and 1970s credited for diminishing the use of traditional Socratic questioning);
37. SCOTT TUROW, ONE L (1977).
38. See Kimball, supra note 12, at 277.
39. Consider the remaining and frequently used Socratic question: "How and why was this case wrongly decided?" - still a staple in many law school classes.
40. JOHN DEWEY, EXPERIENCE AND EDUCATION 4 (1997).
41. In most nations law is studied at university or free standing schools as an undergraduate (non-specialized field of study). Increasingly students from other countries now study for LLMs in the US or European countries to add to their specialized knowledge and to get a glimpse of the famous American way of Socratic instruction.
42. See Edwards, supra note 16, at 34.
43. See Peter L. Strauss, Transsystemia - Are we Approaching a New Langdellian Moment? Is McGiIl Leading the Way? 56 J. LEGAL EDUC 161(2006).
44. This did not happen as smoothly or easily as it often appears to us now. For many years Columbia, Yale and the then new University of Chicago Law School curricula were competitors, and were in fact considered "better" law schools in some circles (e.g., in New York, Wall Street lawyers came from Columbia). See, e.g., JULIUS GOEBEL, A HISTORY OF THE SCHOOL OF LAW, COLUMBIA UNIVERSITY 297-305 (1955);
45. LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960, at 67-97 (1986);
46. JOHN SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE 15-20 (1995);
47. Robert Gordon, Legal Education and Practice: The Case for (and Against) Harvard, 93 MICH. L. REV. 1231, 1235 (1995);
48. Robert Maynard Hutchins, The Autobiography of an Ex-Law Student, 1 U. CHI. L. REV. 511 (1934) (reviewing study of social science, facts and "functionalism" in early twentieth century legal education).
49. ALFRED Z. REED, BASIC TRAINING FOR THE PUBLIC PROFESSION OF THE LAW (The Carnegie Foundation for the Advancement of Teaching 1921).
50. See ALSCHULER, supra note 3, at 98-100 (providing a clean argument about the actual differences between Langdell and Holmes' approach to the development of law). Alschuler argues that although Holmes became the hero of the Legal Realist movement, he was in fact as much of a formalist (in the historicist mode) as Langdell.
51. Id. at 113-14.
52. Lochner v. New York, 198 U.S. 45, 64 (1905) (striking down labor-protective legislation (limited working hours in a bakery) as substantive due process violation and criticized as an overly formalist reading of workers' "freedom of contract").
53. ROSCOE POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW (1922);
54. Roscoe Pound, The Scope and Purposes of Sociological Jurisprudence, 24 HARV. L. REV. 591 (1911).
55. See also Roscoe Pound, Law in Books and Law in Action, 44 AM L. REV. 12 (1910) (discussing the "divorce" between law in books and law in action).
56. For some representations of this work see JEROME FRANK, LAW AND THE MODERN MIND (1930);
57. FRED RODELL, WOE UNTO YOU LAWYERS (1939);
58. WILLIAM TWINING, KARL LLEWELLYN AND THE LEGAL REALIST MOVEMENT (1973);
59. Jerome Frank, Realism in Jurisprudence, 7 AM. L. SCH. REV. 1063 (1934);
60. Karl Llewellyn, Some Realism About Realism, 44 HARV. L. REV. 1222 (1931);
61. Max Radin, Legal Realism, 31 COLUM. L. REV. 824 (1931).
62. ROSCOE POUND, JURISPRUDENCE (1925).
63. RONEN SHAMIR, MANAGING LEGAL UNCERTAINTY: ELITE LAWYERS IN THE NEW DEAL 152 (1995).
64. See Brainerd Currie, The Materials of Law Study, 3 J. LEGAL. EDUC. 331, 333 (1951).
65. SEE, E.G., SECURITIES AND EXCHANGE COMMISSION, REPORT ON THE STUDY AND INVESTIGATION OF THE WORK, ACTIVITIES, PERSONNEL AND FUNCTIONS OF PROTECTIVE AND REORGANIZATION COMMITTEES (1937-40) (empirical work on securities markets and the SEC);
66. WILLIAM O. DOUGLAS, GO EAST YOUNG MAN (1974);
67. Underhill Moore & Gilbert Sussman, Legal and Institutional Methods Applied to Debiting of Direct Discounts, 40 YALE L.J. 381 (1931).
68. KARL LLEWELLYN & E. ADAMSON HOEBEL, THE CHEYENNE WAY: CONFLICT AND CASE LAW IN PRIMITIVE JURISPRUDENCE (1941).
69. Carrie Menkel-Meadow & Bryant Garth, Of Process and People: Empirical Studies of Civil Procedure, in LAW'S D ISCIPLINARY ENCOUNTERS: NEW FRONTIERS IN LAW'S ENGAGEMENT WITH THE SOCIAL SCIENCES (Terence Halliday et al. eds., forthcoming);
70. Clark & Harry Schulman, Jury Trial in Civil Cases: A Study of Judicial Administration, 43 YALE L.J. 867 (1934);
71. Soia Mentschikoff, Commercial Arbitration, 61 COLUM. L. REV. 846 (1961).
72. Jerome Frank, Are Judges Human?, 80 U. PA. L. REV. 17 (1931).
73. Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 833 (1935).
74. HANS ZEISEL & HARRY KALVEN, JR., THE AMERICAN JURY (1966).
75. See SCHLEGEL, supra note 29, at 211-257;
76. STEVENS, supra note 17.
77. See infra notes 57-62 and accompanying text.
78. See infra notes 62-71 and accompanying text.
79. Harold Lasswell & Myres McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 YALE L.J. 203 (1943).
80. Id. at 207.
81. Decision science, a hybrid discipline of statistics, mathematics, logic and game theory, has returned to law schools in the teaching of some skills like negotiation, but its home has been in public policy and business schools. See, e.g., JOHN HAMMOND, RALPH L. KEENEY & HOWARD RAIFFA, SMART CHOICES: A PRACTICAL GUIDE TO MAKING BETTER DECISIONS (1999);
82. WISE CHOICES: DECISIONS, GAMES AND NEGOTIATIONS (Richard J. Zeckhauser, Ralph L. Keeney & James K. Sebenius eds., 1996).
83. Jerome Frank, Why Not a Clinical Lawyer School?, 81 U. PA. L. REV. 907 (1933).
84. HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
85. See Carrie Menkel-Meadow, Peace and Justice: Notes on the Evolution and Purposes of Legal Processes, 94 GEO. L.J. 553, 558-65 (2006).
86. See infra notes 101-109 and accompanying text.
87. See infra notes 63-71 and accompanying text.
88. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 6-8 (1972).
89. GUIDO CALABRESI, THE COSTS OF ACCIDENTS 39-40 (1970).
90. The story of the founding of the Law and Society Association and its scholarly project has also been told many times before. See, e.g., Lawrence M. Friedman, The Law and Society Movement, 38 STAN. L. REV. 763, 764 (1986);
91. Bryant Garth & Joyce Sterling, From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State, 32 LAW & SOC'Y REV. 409, 417-23 (1998);
92. Felice J. Levine, Goose Bumps and The Search for Signs of Intelligent Life' in Sociolegal Studies: After Twenty-Five Years, 24 LAW & SOC'Y REV. 7, 9-12 (1990);
93. Stewart Macauley, Law and the Behavioral Sciences: Is There Any There There?, 6 LAW & POL'Y 149, 150-52 (1984);
94. Carrie Menkel-Meadow, Durkheimian Epiphanies: The Importance of Engaged Social Science in Legal Studies, 18 FLA. ST. U. L. REV. 91, 102-04 (1990);
95. Christopher Tomlins, Framing the Field of Law's Disciplinary Encounters: A Historical Narrative, 34 LAW & SOC'Y REV. 911, 953-55 (2000);
96. David Trubeck, Back to the Future: The Short, Happy Life of the Law and Society Movement, 18 FLA. ST. U. L. REV. 4, 46-47 (1990).
97. See JAMES WILLARD HURST, THE GROWTH OF AMERICAN LAW: THE LAW MAKERS 3-19 (1950).
98. SEE JAMES WHILARD HURST, LAW AND ECONOMIC GROWTH: THE LEGAL HISTORY OF THE LUMBER INDUSTRY IN WISCONSIN 93-116 (1964).
99. See, e.g., Sally Engle Merry, Going to Court: Strategies of Dispute Management in an American Urban Neighborhood, in THE LAW & SOCIETY READER 36-57 (Richard L. Abel ed., 1995).
100. The Law & Society Association does sponsor a one week summer program seminar in social science methods used to study legal phenomena, but the participants have generally been social science graduate students (or students from the one successful graduate program in law and social science, Berkeley's Jurisprudence and Social Policy program, with few aspiring legal academics in attendance).
101. A new "school" of legal thought called Behavioral Economics and Law attempts to study how legal phenomena are experienced and acted on, with a focus on social and cognitive psychology, as well as on sociology. In my view, this school is mostly re-inventing the socio-legal studies wheels of explanation, with a little cognitive and social psychology (and some empirical work) added to conventional Law and Economics analysis. Was anyone paying attention in the 1970s and 1980s, or are economists disproportionately credited when they speak (or analyze)? For a good review of this literature, see Donald C. Langevoort, Behavioral Theories of Judgment and Decision Making in Legal Scholarship: A Literature Review, 51 VAND. L. REV. 1499 (1998).
102. See, e.g., JACQUES DERRIDA, WRITING AND DIFFERENCE (Alan Bass trans., U. Chicago 1980) (1967).
103. See JACQUES LACAN, ÉCRITS: THE FIRST COMPLETE EDITION IN ENGLISH (Bruce Fink trans., Norton 2006) (1966).
104. For some samples of this literature see, e.g., Mark G. Kelman, Trashing, 36 STAN. L. REV. 293, 308-10 (1984);
105. Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1222 (1985);
106. Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. I, 10-14 (1984);
107. Mark Tushnet, Critical Legal Studies and Constitutional Law: An Essay in Deconstruction, 36 STAN. L. REV. 623, 633 (1984).
108. For more comprehensive bibliographies of critical legal studies and its arguments, see, e.g., MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES (1987);
109. ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT (1986);
110. Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 292-93 (David Kairys ed., 1st ed. 1982);
111. Duncan Kennedy & Karl E. Klare, A Bibliography of Critical Legal Studies, 94 YALE L.J. 461 (1984). For a more recent assessment of the impact of critical legal studies, at least on American constitutional scholarship,
112. see Louis Michael Seidman, Critical Constitutionalism Now, 75 FORDHAM L. REV. 575 (2006).
113. The leading text here is, of course, DUNCAN KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY (NYU Press 2004), initially self-published in 1983 as a pamphlet. Duncan Kennedy urged a class upending of law schools and for a time taught from the back (not the front) of the classroom amphitheatre to "de-center" the authority of the professor in the classroom, just as deconstructionists were "de-centering" the text and the word.
114. Paul D. Carrington, Of Law and the River, 34 J. LEGAL EDUC 222, 227 (1984).
115. See, e.g., Frank Munger & Carroll Seron, Critical Legal Studies versus Critical Legal Theory: A Comment on Method, 6 LAW & POL'Y 257, 275 (1984) (urging that Critical Legal Studies scholars return to the empirical research methods of the Frankfurt school).
116. See KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES, supra note 65, at 297 n.1 (citing the initial outreach letter from the organizers of the first Conference on Critical Legal Studies, dated January 17, 1977). I was a member of CLS from the beginning. The first meeting was held in Madison, Wisconsin in 1977, and the last official meeting was held in Washington, D.C. at several participating law schools in 1995 (where the demise of class analysis as a result of "identity politics" was explored and debated by a new generation of legal scholars).
117. See, e.g., Peter Gabel & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 N.Y.U. REV. L. & SOC CHANGE 369, 370-71 (1982/1983) ("This Article is a first attempt to link the theoretical advances made by the Conference [on Critical Legal Studies] with the accumulated practical experience of creative [National Lawyers] Guild attorneys.");
118. David Kairys, Introduction, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 6 (David Kairys ed., 1st ed. 1982) ("This book is an attempt to present a progressive, critical analysis of the operation and social role of the law in contemporary American society.").
119. See Calvin Trillin, A Reporter At Large: Harvard Law, NEW YORKER, Mar. 26, 1984, at 75-76 (telling the stories of hiring battles and other tales of Harvard and CLS encounters).
120. JOHN RAWLS, A THEORY OF JUSTICE 118 (1971).
121. RONALD DWORKIN, LAW'S EMPIRE 239-40 (1986);
122. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 105-10 (1977).
123. See James Boyd White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. CHI. L. REV. 684, 684 (1985) ("In this paper I shall suggest that law is most usefully seen not... as a system of rules, but as a branch of rhetoric"). For one of the most elegant essays exploring the turn of law and legal study to such methods in other disciplines,
124. see Martha Minow, Law Turning Outward, 73 TELOS 79, 86-89 (1987).
125. As an example of this form of scholarship, see David Kennedy, The Turn to Interpretation, 58 S. CAL. L. REV. 251, 266-74 (1985).
126. WHEN WORDS LOSE THEIR MEANING 231-74 (1984) (applying a literary critique to the Declaration of Independence, the Constitution, and a judicial opinion);
127. JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW 77 (1985);
128. JAMES BOYD WHITE, THE LEGAL IMAGINATION 8-13 (1973) (using Mark Twain's Life on the Mississippi to teach "the language of the law").
129. ROBIN WEST, NARRATIVE, AUTHORITY, AND LAW 345 (1993) ("[L]egal theory itself contains a substantial narrative component that can be analyzed as literature.").
130. RICHARD H. WEISBERG, POETHICS, AND OTHER STRATEGIES OF LAW AND LITERATURE 3 (1992) ("[Literature provides unique insights into the underpinnings of law and . . . stories and poems stand as sources of law.");
131. RICHARD H. WEISBERG, THE FAILURE OF THE WORD: THE PROTAGONIST AS LAWYER IN MODERN FICTION (1984) (analyzing eight fictional works with lawyer protagonists).
132. MARTHA C. NUSSBAUM, POETIC JUSTICE: THE LITERARY IMAGINATION AND PUBLIC LIFE 79-80 (1995) (reflecting on the role of a judge as a type of poet).
133. See, e.g., MICHAEL ASIMOW & PAUL BERGMAN, REEL JUSTICE ixx (2nd ed. 2006) (analyzying courtroom movies to "enhance your understanding of our legal system while helping you think through the messages about law, lawyers, and the legal system that the films convey");
134. MICHAEL ASIMOW & SHANNON MADER, LAW AND POPULAR CULTURE: A COURSE BOOK 6-8 (2004) (examining "[t]he relationship between popular culture and the law");
135. DAVID PAPKE ET AL., LAW AND POPULAR CULTURE: A TEACHING COMPANION (forthcoming 2007).
136. STANLEY FISH, IS THERE A TEXT IN THIS CLASS?: THE AUTHORITY OF INTERPRETIVE COMMUNITIES 356-57 (1980).
137. See NUSSBAUM, supra note 78, at 54 (exploring the use of law and literature as a point for ethical discourse);
138. see also Robin West, Law and Fancy, 95 MICH. L. REV. 1851, 1857 (1997) (reviewing POETIC JUSTICE).
139. See ABA Standards for Approval of Law Schools, Standard 302(a)(5) (2005-2006), available at http://www.abanet.org/legaled/standards/2005- 2006standardsbook.pdf (requiring "substantial instruction in ... the history, goals, structure, values, rules, and responsibilities of the legal profession and its members").
140. DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE 200-03 (2000) (chronicling the post-Watergate rise of courses in professional responsibility); Symposium, Teaching Legal Ethics, 58 LAW & CONTEMP. PROBS. (SPECIAL ISSUE) 5 (1995).
141. See, e.g., Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 SIGNS 635, 648 (1983) (examining how rape law denigrates women);
142. Carrie Menkel-Meadow, Mainstreaming Feminist Legal Theory, 23 PAC L.J. 1493,1493 (1992).
143. See Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Theory, 3 WIS. WOMEN'S L.J. 81, 84-85 (1987).
144. For a discussion of common criticisms of the Critical Legal Studies approach, see Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 330-62 (1987).
145. AUDRE LORDE, The Master's Tools Will Never Dismantle the Master's House, in SISTER OUTSIDER: ESSAYS AND SPEECHES HO, 112 (1984).
146. See Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 15-19 (1960).
147. See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986);
148. CATHERINE MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979), 90.
149. See Charles Ogletree, Jr., Reparations: A Fundamental Issue of Social Justice, THE BLACK COLLEGIAN, Oct. 1, 2002, at 118.
150. See Katherine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829 (1990).
151. See, e.g., MARY BELENKY ET AL., WOMEN'S WAYS OF KNOWING: THE DEVELOPMENT OF SELF, VOICE, AND MIND (1986);
152. Carrie Menkel-Meadow, Women's Ways of "Knowing" Law: Feminist Legal Epistemology, Pedagogy, and Jurisprudence, in KNOWLEDGE, DIFFERENCE AND POWER: ESSAYS INSPIRED BY WOMEN'S WAYS OF KNOWING 57 (Nancy Goldberger et al. eds., 1996).
153. See, e.g., Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
154. See KENJIYOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CLVIL RIGHTS (2006).
155. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994);
156. JEAN FRANCOIS LYOTARD, THE POST-MODERN CONDITION: A REPORT ON KNOWLEDGE (1984);
157. PAULINE ROSENAU, POST-MODERNISM AND THE SOCIAL SCIENCES: INSIGHTS, INROADS AND INTRUSIONS (1992).
158. See, e.g., PRAGMATISM IN LAW AND SOCIETY (Michael Brint & William Weaver eds., 1991).
159. See, e.g., JOSEPH SINGER, PROPERTY LAW: RULES, POLICIES, AND PRACTICES (3rd ed. 2002).
160. See, e.g., ROBERT ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (2nd prtg. 2005);
161. CARRIE MENKEL-MEADOW ET AL., DISPUTE RESOLUTION: BEYOND THE ADVERSARIAL MODEL (2004).
162. See, E.G., WILLIAM ESKRIDGE, JR. ET AL., CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY (3rd ed. 2001).
163. See, E.G., LISA HEINZERLING & MARK TUSHNET, THE REGULATORY AND ADMINISTRATIVE STATE: MATERIALS, CASES, COMMENTS (2006);
164. CASS SUNSTEIN, THE COST BENEFIT STATE: THE FUTURE OF REGULATORY PROTECTION (2002).
165. I know; I am one of them. See Carrie Menkel-Meadow, The Legacy of Clinical Legal Education: Theories About Lawyering, 29 CLEV, ST. L. REV. 555 (1980);
166. see also Gary Bellow, On Teaching the Teachers: Some Preliminary Reflections on Clinical Methodology, in CLINICAL EDUCATION FOR THE LAW STUDENT 374 (Council on Legal Educ. Prof'l Dev. ed., 1973).
167. DAVID BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT CENTERED APPROACH (2d ed. 2004).
168. See Louise G. Trubek, Crossing Boundaries: Legal Education and the Challenge of the "New Public Interest Law", 2005 WIS. L. REV. 455.
169. See Scott L. Cummings & Ingrid V. Eagly, A Critical Reflection on Law and Organizing, 48 UCLA L. REV. 443 (2001).
170. SECTION OF LEGAL ED. & ADMISSIONS TO THE BAR, AM. BAR ASS'N, REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP (1992) (widely known as "the MacCrate Report," named for its Chair, Robert MacCrate, a retired Sullivan & Cromwell member who advocated that legal education be reorganized according to a set of practical skills and values).
171. For example, The University of New Mexico School of Law and The City University of New York School of Law.
172. See, e.g., Mark Spiegel, Theory and Practice in Legal Education: An Essay on Clinical Education, 34 UCLA L. REV. 577 (1987).
173. For an early and eloquent version of this issue, see Thomas F. Bergin, The Law Teacher: A Man Divided Against Himself, 54 VA. L. REV. 637 (1968).
174. For example, the New York University School of Law's "Lawyering Program."
175. As I have argued above, for me, this work is somewhat repetitive of early law and society work, just applied in different places, but I guess every generation has to have a new project. See Symposium, New Legal Realism, 2005 WIS. L. REV. 335.
176. See, e.g., LOUIS KAPLOW ET AL., ANALYTICAL METHODS FOR LAWYERS (Howell E. Jackson ed., 2003).
177. The Council of Legal Education for Professional Responsibility, itself funded by the Ford Foundation, funded clinical education in American law schools for over twenty years.
178. However, there has been a lot of ink spilled on the issue over the years, including in the pages of the Journal of Legal Education, the reports of various ABA Task Forces, and in Association of American Law Schools mini-workshops.
179. See also HERBERT L. PACKER & THOMAS EHRLICH, NEW DIRECTIONS IN LEGAL EDUCATION (1973).
180. The Fund for the Improvement of Post-Secondary Education, a funding program within the U.S. Department of Education.
181. See LEONARD L. RISKIN ET AL., DISPUTE RESOLUTION AND LAWYERS ix n.1 (3ded. 2005).
182. See infra Part IV.A-B.
183. I guess almost fifteen years at a Catholic institution has affected my metaphors! But, it is also convenient here since I do not revisit the number of years of an optimal legal education and instead keep to the current three year program offered at virtually all law schools.
184. This of course makes it easier to construct a new curriculum within the current three year program, though over the years there have been many proposals for both shorter (two year) and longer (four year) programs of law study, such as SCALE (two-year program at Southwestern Law School) and the University of Michigan's two-and-a-half year program, among others. Southwestern Law School, SCALE - Two-Year J.D. Program, http://www.swlaw.edu /academics/jd/scale; The University of Michigan Law School, Frequently Asked Questions: Summer Starters, http://www.law.umich.edu/prospectivestudents/admissions/faq.htm#summer; see PACKER & EHRLICH, supra note 113, at 37-46.
185. This model replicates what has been going on in problem-based education in medical school in Canada and the United States. See, e.g., Harvard Medical School, Department of Social Medicine, Academic Programs, http://www.hms.harvard.edu/dsm/WorkFiles/html/academics/academics.html ("Members of the Department move systematically between social research and clinical application and teaching through the Department's Clinical Programs.").
186. DWORKIN, LAW'S EMPIRE, supra note 73, at 96-98;
187. LON L. FULLER, THE MORALITY OF LAW 168-86 (rev. ed. 1969);
188. H.L.A. HART, THE CONCEPT OF LAW 6-13 (2d ed. 1994).
189. In my own legal education this course was called Judicial Process (though it treated much more than court processes), was required of all first-year students, and used the Hart & Sacks Legal Process materials. HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW iii (Tentative ed. 1958);
190. see William N. Eskridge, Jr. & Philip P. Frickey, Introduction to HART & SACKS, supra, at li.
191. My second year of law school (1972) at the University of Pennsylvania required study of Corporations, Taxation, Accounting, Evidence and Constitutional Law. By the time I began teaching at Penn in 1975 only the first year was required (and included a regulatory course, either Labor Law or Social Welfare, called Income Security (the latter a brainchild of the now-deceased Edward Sparer and my long-time friend, mentor and colleague, Howard Lesnick).
192. LAWRENCE KOHLBERG, ESSAYS ON MORAL DEVELOPMENT VOLUME 1 THE PHILOSOPHY OF MORAL DEVELOPMENT: MORAL STAGES AND THE IDEA OF JUSTICE 68-69, 274-75 (1981);
193. Matthias Mahlmann & John Mikhail, Cognitive Science, Ethics and Law, in EPISTEMOLOGY AND ONTOLOGY 95 (Zenon Bankowsi ed., 2005);
194. John Mikhail, Moral Heuristics or Moral Competence?, 28 BEHAV. & BRAIN SCI. 531, 540 (2005).
195. This is a question now discussed in much legal scholarship on international human rights and morality. See, e.g., MICHAEL IGNATIEFF,, THE LESSER EVIL: POLITICAL ETHICS IN AN AGE OF TERROR 167-70 (2004);
196. MICHAEL IGNATIEFF, THE NEEDS OF STRANGERS 9-23 (1984);
197. JOHN RAWLS, THE LAW OF PEOPLES 3-10 (1999);
198. David Luban, A Theory of Crimes Against Humanity, 29 YALE J. INT'L LAW 85 137-39 (2004).
199. Some of this work is now part of modern legal scholarship on social norms, from both law and economics and behavioral psychology perspectives. See, e.g., ERIC POSNER, LAW AND SOCIAL NORMS H-35 (2000).
200. These are Bruce Ackerman's "constitutional moments." See, e.g., BRUCE ACKERMAN, WE THE PEOPLE: VOLUME 2: TRANSFORMATIONS 7-10, 346 (1998).
201. For a critique of cost-benefit analysis see FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING 35-40 (2004).
202. LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE 18-28 (2002).
203. See, e.g., JACK KATZ, SEDUCTIONS OF CRIME 4-10 (1988) (describing the thrill of law violation among criminals which reduces the effectiveness of "rationally" based deterrence theories of criminal law).
204. See, e.g., ROBERT CIALDINI, INFLUENCE: THE PSYCHOLOGY OF PERSUASION xiii-xiv (1993).
205. See, e.g., DOUGLAS G. BAIRD, ROBERT H. GERTNER & RANDAL C. PICKER, GAME THEORY AND THE LAW 1, 6-7, 79-80 (1994);
206. AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY: THE COMPETITIVE EDGE IN BUSINESS, POLITICS, AND EVERYDAY LIFE 31-55 (1991);
207. THOMAS C. SCHELLING., THE STRATEGY OF CONFLICT 53-80 (1960).
208. See, e.g., HAMMOND ET AL., supra note 49, at 109-25 (1999);
209. R. DUNCAN LUCE & HOWARD RAIFFA, GAMES AND DECISIONS: INTRODUCTION AND CRITICAL SURVEY 275-78 (1989).
210. For some effort to import some of this work into the legal curriculum that has already occured, see also KAPLOW ET AL., supra note 111, at 8-11.
211. See HUNTER CROWTHER-HEYCK, HERBERT A. SIMON: THE BOUNDS OF REASON IN MODERN AMERICA 192 (2005);
212. JAMES G. MARCH & HERBERT A. SIMON, ORGANIZATIONS 4 (2d ed. 1993);
213. HERBERT A. SIMON, ADMINISTRATIVE BEHAVIOR 118-20 (4th ed. 1997).
214. Gary L. Blasi, What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory, 45 J. LEGAL EDUC 313, 329-32 (1995).
215. See, e.g., MORTON DEUTSCH, PETER T.
216. CARRIE MENKEL-MEADOW ET AL., supra note 98, at 34-40;
217. MICHAEL L. MOFFITT & ROBERT C. BORDONE, THE HANDBOOK OF DISPUTE RESOLUTION 386-404 (2005).
218. NYU School of Law, Hauser Global Law School Program, http://www. nyulawglobal.org; see Catherine Valcke, Global Law Teaching, 54 J. LEGAL EDUC. 160, 160-62 (2004).
219. Georgetown has a special Global Law Scholars program for a small group of selected JD students. Georgetown Law, Global Legal Scholars, http://www.law.georgetown.edu/gls (describing the program and Week One).
220. Louis M. Seidman, Georgetown University Law Center, Proposal for Reform of First Year Curriculum for U.S. Law Schools (1989) (submitted to Fund for the Improvement of Postsecondary Education) (on file with author).
221. See Diego Galer, The CIDE Experiment in Legal Education, J. LEGAL EDUC. (forthcoming); http://www.cide.edu/presentation. htm (providing a fuller description of the CIDE program); Carrie Menkel-Meadow, Evaluation of Problem-Based Legal Education at CIDE (Jan. 6, 2004) (Hewlett Foundation, on file with author).
222. There is no direct correlation!
223. CPR: International Institute for Conflict Prevention & Resolution, Problem Solving in Legal Education Award, http://www.cpradr.org.
224. See generally Edward L. Rubin, What's Wrong with Langdell's Method, and What to Do About It, 60 VAND. L. REV. 609 (2007).