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.