Can law survive legal education?

Vanderbilt Law Review

Volumn 60, Issue 2, 2007, Pages 401-438

  Weinrib, Ernest J ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 35348949677     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (71)

1. MICHAEL OAKESHOTT, The Study of 'Politics' in a University: An Essay in Appropriateness, in RATIONALISM IN POLITICS AND OTHER ESSAYS 184, 187-94 (new and expanded ed., 1991) (1962). As will be apparent, Michael Oakeshott's work has significantly influenced my remarks in this essay.
2. The classic statement of this is Friedrich Carl von Savigny's comments on the Roman jurists: [T]he action of the jurists, appears at first sight a dependent one, receiving its materials from without. However, by their giving to the materials so presented a scientific form which strives to disclose and perfect the unity dwelling in them, there arises a new organic life which shapes and reacts upon the materials themselves, so that from science as such, a new sort of generation of law incessantly proceeds. FRIEDRICH CARL VON SAVIGNY, SYSTEM OF THE MODERN ROMAN LAW 37-38 (William Holloway trans., 1867).
3. In Canada this happened relatively recently. The decisive event was the defection of three of Canada's leading law professors (Cecil A. Wright, Bora Laskin, and John Willis) from the law school operated by the Law Society of Upper Canada and their establishing the modern Faculty of Law at the University of Toronto in 1949. Within a decade, the Law Society of Upper Canada surrendered control of legal education to the universities by recognizing that graduation from a university faculty of law qualified the graduate to enter the profession without penalty. For a description of this "revolution" in Canadian legal education, see C IAN KYER AND JEROME E. BICKENBACH, THE FIERCEST DEBATE: CECIL A. WRIGHT, THE BENCHERS, AND LEGAL EDUCATION IN ONTARIO 1923-1957 (1987).
4. For a recent discussion, see R.C.B. Risk, My Continuing Legal Education, 55 U. TORONTO L.J. 313 (2005).
5. Harry T. Edwards, The Growing Disjunction between Legal Education and the Legal Profession, 91 MICH. L. REV. 34, 34, 41 (1992).
6. Judge Edwards's views are extensively discussed in Symposium, Legal Education, 91 MICH. L. REV. 1921 (1993).
7. This is, for instance, the way Sandy Levinson reads Judge Edwards' critique as stated in Sanford Levinson, Judge Edwards' Indictment of "Impractical" Scholars: The Need for a Bill of Particulars, 91 MICH. L. REV. 2010 (1993).
8. RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 361 (1990).
9. WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW vii (1987).
10. RICHARD A. POSNER, TORT LAW: CASES AND ECONOMIC ANALYSIS 2 (1982).
11. G.W.F. HEGEL, THE PHILOSOPHY OF RIGHT § 201 (T.M. Knox trans., Oxford University Press 1967) (1820).
12. LANDES & POSNER, supra note 7, at 229.
13. Id.
14. Id. at 153.
15. Edwards, supra note 4, at 34.
16. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 143 (2d ed. 1977) (emphasis in original).
17. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 192 (6th ed. 2003).
18. Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 48-49, 51 (1972).
19. For law as the translation of economic principle, see LANDES & POSNER, supra note 7, at 23;
20. POSNER, supra note 6, at 361.
21. Economic analysis may lodge itself within the practice through the influence of economic scholarship on judges, who then apply it in their judgments. Compare the observations of von Savigny, supra note 2. To the extent that this occurs, the disjunction between academic study and legal practice is lessened. However, in its stead a different and ultimately more serious problem arises. Because economic analysis cannot coherently reflect the character of the law, its entry into legal practice sets up irresolvable tensions between the law's fundamental concepts and relational structure, on the one hand, and the economic analysis on the other. Thus, the disjunction between academic study and legal practice is displaced by a disjunction internal to the legal practice, between the economic analysis and the practice's concepts and structure.
22. Robert A. Baruch Bush, Between Two Worlds: The Shift from Individual to Group Responsibility in the Law of Causation of Injury, 33 UCLA L. REV. 1473, 1480-1502 (1986).
23. JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 59-75 (1979).
24. Marc A. Franklin, Replacing the Negligence Lottery: Compensation and Selective Reimbursement, 53 VA. L. REV. 774, 785-88 (1967).
25. Jerome Frank, What Courts Do In Fact, 26 ILL. L. REV. 645, 653 (1931).
26. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 809-12 (1935).
27. Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. CHI. L. REV. 69, 107 (1975).
28. Oliver Wendell Holmes, Jr., Privilege, Malice and Intent, 8 HARV. L. REV. 1, 3 (1894).
29. Leon Green, Tort Law Public Law in Disguise, 38 TEX. L. REV. 1, 1 (1959).
30. A. Mitchell Polinsky and Yeon-Koo Che, Decoupling Liability: Optimal Incentives for Care and Litigation, 22 RAND J. ECON. 562, 562 (1991).
31. Robert D. Cooter and Ariel Porat, Anti-Insurance, 31 J. LEGAL STUD. 203, 204 (2002).
32. Edwards, supra note 4, at 41.
33. MICHAEL OAKESHOTT, ON HUMAN CONDUCT 5 (1975).
34. Lord Mansfield's famous phrase in Omychund v. Barker, (1744) 26 Eng. Rep. 15, 23 (K.B.).
35. Edwards, supra note 4, at 34.
36. See OAKESHOTT, supra note 30, at 1-31 (presenting Oakeshott's suggestive account of the engagement of understanding),
37. Ernest J. Weinrib, The Disintegration of Duty, in EXPLORING TORT LAW 143 (M. Stuart Madden ed., 2005).
38. The metaphors of posture and gear are adopted from the illuminating discussion of correlativity by Michael Thompson, What is it to Wrong Someone? A Puzzle about Justice, in REASON AND VALUE 333, 346 (R. J. Wallace et al eds., 2004).
39. For a discussion of some implications of this for tort doctrine, see Weinrib, supra note 34, at 157-64.
40. Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).
41. See HEGEL, supra note 9, §§ 34-40.
42. For a fuller treatment of the relationship between correlativity and personality, see Ernest J. Weinrib, Correlativity, Personality, and the Emerging Consensus on Corrective Justice, in THEORETICAL INQUIRIES IN LAW 107, 113-126 (2001).
43. On orientation as a role of theory, compare the remarks of John Rawls about political philosophy: [I]t belongs to reason and reflection (both theoretical and practical) to orient us in the (conceptual) space, say, of all possible ends, individual and associational, political and social. Political philosophy, as a work of reason, does this by specifying principles to identify reasonable and rational ends, and by showing how those ends can cohere within a well-articulated conception of a just and reasonable society. JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 3 (2001). In this vein one might say with respect to private law that legal theory orients us in the conceptual space of all possible justifications for liability. It does this by specifying the constructs of correlativity and personality in order to identify the appropriate kind of justifications and by showing how justifications of that kind can cohere within a well-articulated conception of private law.
44. The importance of comparative legal studies has long been asserted, as is evident from the following observations of James Bradley Thayer: [I]t has been wisely said that if a man would know any one thing, he must know more than one. And so our system of law must be compared with others; its characteristics only come out when this is done.... If any one would remind himself of the flood of light that may come from such comparisons, let him recall the brilliant work of Pollock's predecessor at Oxford, Sir Henry Maine, in his great book on Ancient Law. That is the best use of Roman law for us, as a mirror to reflect light upon our own, a tool to unlock its secrets.... Of the value of such comparative studies, and the immense power to lift different subjects of our law into a clear and animating light, no competent person who has once profited by them can ever doubt. James Bradley Thayer, The Teaching of English Law at Universities, 9 HARV. L. REV. 169, 177-78 (1895).
45. ARISTOTLE, NICOMACHEAN ETHICS V, 1131b25-1132b20 (2002).
46. HEGEL, supra note 9;
47. MMANUEL KANT, THE METAPHYSICS OF MORALS (1996).
48. See MENACHEM MAUTNER, ON LEGAL EDUCATION (2002) (Hebrew).
49. NORTHROP FRYE, ANATOMY OF CRITICISM 6 (1957).
50. For the metaphor of a conversation, see OAKESHOTT, supra note 1, at 195-96;
51. ICHAEL OAKESHOTT, THE VOICE OF LIBERAL LEARNING 109 (Liberty Fund Inc. 2001) (1989).
52. See Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960).
53. OAKESHOTT, supra note 1, at 1.
54. Id. at 15.
55. Id. at 9.
56. Id. at 15.
57. Id.
58. Id. at 19.
59. Id. at 1.
60. Bryant v. Lefever, [1879] 4 C.P.D. 172 (Eng.).
61. Coase, supra note 47, at 13.
62. Id.
63. Id.
64. Sturges v. Bridgman, [1879] 11 Ch.D. 852 (Eng.).
65. Id. at 866.
66. Coase, supra note 47, at 10.
67. Sturges, [1879] 11 Ch.D. at 866.
68. Id. at 865.
69. Id.
70. OAKESHOTT, supra note 46, at 110.
71. Prohibitions del Roy, (1607) 77 Eng. Rep. 1342, 1343 (K.B.).