Tuesday, April 29, 2008

Majoring in Not Teaching

Commenting on Jeff Harrison's April 27 MoneyLaw post,"Majoring in Not Law," Anonymous Yale Grad Turned Law Professor writes:
You assume that law professors should teach the law -- as declared by the courts. But as every Yalie knows, what courts do is often wrong; judges' words are not "the law." And just because a higher court reversed opinions we worked on below, doesn't mean that the higher court was right.
Last time I checked, "the law" was not synonymous with "right" or "wrong;" whether a court's words are right or wrong have nothing to do with whether they are law. Some can and will debate the answer to "What does one call the "5" in a 5-4 Supreme Court decision?" until the end of time, all the while ignoring the obvious (although perhaps not the only) answer: "It's the law of the land." (Those who disagree must necessarily begin the next sentence with, "But . . .")

Whether one likes it or not, and no matter how much one wishes it weren't so or praises it to high heaven, at the end of the day the judges' words in Bush v. Gore and Roe v. Wade remain the law not because they are right or wrong but because the real highest court in the land has so declared. Plessy v. Ferguson was shamefully wrong, but make no mistake: it was nonetheless the law until Brown v. Board of Education said otherwise. Just ask those who were "separate but equal" from 1896 until 1954, or are still considered so 54 years later.

AYGTLP continues:
In the highest court of the land -- the classroom -- we finally have the opportunity to expose the errors of the appellate courts throughout the land. We can, in fact, teach students the actual "law," set, of course, in proper theoretical context. . . . Sure, what the students learn in such a course bears little resemblance to what the Rehnquist Court has held in its so-called cases, but my students at least get a coherent theoretical picture of what con law ought to be.
Hold your breath -- (insert the sound of a lightning bolt striking me dead) -- the classroom is not "the highest court of the land." It's not a court at all. No evidence is presented; no disputes are resolved. What happens in a classroom only truly matters when someone takes what he or she learns there and applies it to benefit others, and not a moment sooner. Exposing "the errors of appellate courts throughout the land" is an academic parlor game some may find fascinating, I suppose, but it should not be confused with teaching unless and until it is preceded by a solid foundation of how and why those errors came to be, so a student can learn to no longer simply be amused at others' shortcomings and instead help her client avoid their consequences.

David Goldberger (J.D. Chicago) taught me more than I could ever hope to learn about "what con law ought to be," not through a theoretical context, but by skillfully fostering a classroom discussion on the Fourteenth Amendment so civil and open that when one student commented that racism was not really much of a problem any more, another shared that the previous year she saw an effigy hung outside a dorm window with a cardboard sign that read, "Niggers, go home" and explained its effect on her and other African-American students. (This was in 1994, not 1954.)

Jim Brudney (J.D. Yale) taught me far more about labor law and workers' rights than any theoretical context possibly could by showing me how corporations spend years letting their manufacturing equipment grow obsolete while using subsidiaries to build new factories with new equipment overseas, and spend months trimming their raw materials inventory, only to "suddenly" lay off hundreds or thousands of workers with absolutely no notice, claim they had no other choice, blame the economy, and tell everyone how sorry they were. Hence, the WARN Act.

For me, the same is true for Kathy Northern and John Quigley (Harvard), Louis Jacobs (NYU), Allan Samansky (Penn), Nancy Rapoport (Stanford), and Douglas Whaley (Texas). But I won't bore you with more stories; you either get it by now, or you don't. They are great law professors not just because they went to great law schools, but also because they are passionate about the subjects they teach and the students to whom they teach them. They work hard, and above all know that their jobs are not so much about showing how smart they are and how much they know (so stipulated), but about how smart they can help their students become and how much more they can help them learn.

(As an aside, is it any wonder why the public doesn't respect the judiciary when some law professors apparently don't? The Rehnquist court did not decide "so-called" cases, while, say, the Warren court heard real ones. If the Rehnquist court decided "so-called" cases, then did Sandra Day O'Connor write "so-called" opinions or make "so-called" deciding votes? Please.)

So, dear Anonymous Yale Grad Turned Law Professor, if you truly aspire to greatness in your chosen profession, go to Columbus, Ohio and look up "Yalie" Nancy Hardin Rogers at the Ohio State University. You won't need an appointment; she makes time for everyone even though she's the dean, active in the classroom, current in her publications, and on the side was on the Board of the Legal Services Corporation and the president of the AALS. Follow her around for half-a-day; she'd be glad to have you.

To learn about her accomplishments, though, you'll have to read her vitae. You see, she will be too busy asking you about what you want to do and how she can help you do it to spend any time talking about herself. For all she's done and continues to do, it's never about her; it's always about those she serves. Hopefully, you'll leave her with a new appreciation for what you do, open to all kinds of possibilities you never imagined -- even if you already have tenure.

As Emerson wrote, "The secret of education is in respecting the pupil." Robert Frost wrote that he was "not a teacher, but an awakener." He also wrote, "There are two kinds of teachers: the kind that fills you with so much quail shot that you can't move, and the kind that just gives you a little prod behind and you jump to the skies." Choose wisely. And good luck to you.


Blogger Ani Onomous said...

Actually, I thought that comment was intended to be a parody.

4/29/2008 6:58 PM  
Anonymous Anonymous said...

Oh. Dear. Me. I've struck a nerve I think. Let me try to defend my earlier comment against Mr. Peck's absurd attack.

To be sure, there are some Yalie folks who think that lower courts have to hold their noses and follow the Supreme Court's lead. And there are other Yalies who do not accept the concept of judicial hierarchy (on the ground that it is too, well, hierarchical and subordinating.) To which I say: whatever; different strokes for different folks. Indeed, when it comes to the very difficult question of whether lower courts have to pay attention to what higher courts not led by Warren and Brennan say, let a thousand flowers bloom (as I think a famous former YLS Dean once said).

But to disparage the classroom as something other than the real and ultimate deal -- as Richard does -- indeed, to regard it as something other than the place where Legal Truth is to come out in spite of what the courts might from time to time hold -- whoa! Why, that kind of heresy might get you a (well-deserved) Low Pass at YLS.

Absurd, man!

- Yale Law Grad Turned Law Prof

4/30/2008 1:24 AM  
Blogger Richard Peck said...

ani --

Perhaps it was; I may well have read far too much into it. Thanks for the comment.

anonymous --

I did not mean to disparage the sanctity of the classroom or to attack anyone; in hindsight I realize that my praise of Nancy Rogers can only have come across as a scolding from a pretentious, presumptuous smart-ass. I should have recognized my extraordinarily poor choice of words and unjustifiedly sanctimonious tone long before I hit "post." I humbly apologize.

Those professors I mentioned showed me why and how cases turn out the way they do, rightly or wrongly, so I could apply what they taught me about that process for others' benefit. They shared not their credentials, impressive as they are, but their passion to search for the legal truth in every case rather than let me leave law school thinking it has already been found.

Sadly, many lawyers are apparently taught more about legal truth and less about how to find it, because they don't know what to do when an answer isn't what they expect it be other than shrug their shoulders, to the detriment of their clients and the profession as a whole. The classroom is indeed the real deal; I just see it as a fountain, not a high court.

4/30/2008 9:28 AM  
Blogger Nancy Rapoport said...

My comment may be a tad self-serving (because I really was touched by what Rich Peck had to say--thank you, Rich!), but I want to point out a huge distinction between Rich's remarks and anonymous's remarks: Rich had the courage to sign his name. Anonymous's snarky rejoinder hides behind his shield of, well, anonymity. It doesn't take a lot of courage to mouth off without identifying oneself, and I really don't understand the point of view that chooses to snipe and then run away under cover of darkness. So my ability to weigh the seriousness of someone's view is linked in part with the person's willingness to 'fess up to his identity. Of what are these anonymous posters really afraid? And, if they have legitimate fears, can't they at least be civil in their postings?

5/03/2008 11:34 AM  
Blogger Ani Onomous said...

Professor Rapoport,

It's totally your call as to whether to permit anonymous commentary -- I can see both sides of the question. But it serves important functions other than merely sheltering those who are "afraid" (which smacks, no doubt inadvertently, of a schoolyard taunt). For example, it permits a commentator's views to be expressed and evaluated without regard for her or his status, be that high or low. Not to mention that, had anonymous instead adopted a flattering tone, we might have cause to think it more genuine.

In any event, it looked like there was fair indulgence of anonymity here -- even putting aside the curious case of Gil Grantmore -- so you might cut we presumptive cowards some slack.

I totally agree as to the need to keep a civil tongue, especially in anonymity. In this case, I think the other anonymous (Yale Law Grad Turned Law Prof) was assuming a tone in order to mock Yalie pretensions, and the later comment here was consistent with that high dudgeon. So I don't think this is representative of sniping and running away under cover of darkness . . . at least if you look at the original Harrison post and the comment in context. It was more like indirect, well, arch support.

5/03/2008 11:23 PM  
Blogger Jeff Harrison said...

I think the anonymous posting issue is a difficult one. I can understand why an untenured person or someone working for a law firm may feel that he or she would like to have a say but not be identified. On the other hand, there are the others who want to remain anonymous who are more akin to those in high school who scribbled on the bathroom walls. To me the distinction is more between anonymous comments that agree or disagree but are on point with respect to the original post and those that are just intended to be personal digs at the poster without taking on the post. When they fall in the second category, at least as far as my posts are concerned, out they go.

5/06/2008 2:36 PM  

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