Bonus 172: Legal Pedagogy and the Dual State

The beginning of the new academic year raises an acute version of an age-old question: how much should law professors teach the law on the ground versus (or in addition to) the law on the books?

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With the new academic year almost upon us, I wanted to use today’s bonus issue to write about something I’ve been spending a lot of time mulling over the last few weeks: how best to teach brand-new law students (I’ll have 119 first-year students in my Civil Procedure class this fall) in the increasingly fraught legal and political moment in which we find ourselves. To be sure, there is no one answer—not just because every class is different (Civil Procedure is not the same thing as Secured Transactions), but because every professor is different (I, for instance, am especially tall).

Obviously, all of us who have the privilege of teaching law students have a pedagogical obligation to prepare our students as best we can for what we hope will be redeeming careers in the practice of law. But for better or worse, the practice of law has always involved far more than just rote application of the relevant constitutional, statutory, and/or doctrinal rules. That’s a big part of why law school is both a professional school and a graduate school, even if the proportions vary depending upon the particular institution. Indeed, law operates in (and helps to define) the real world—a real world in which we are increasingly confronted with the appearance that, for at least some of us, legal rules are providing insufficient protection against the whims and caprices of the state.

Many lawyers—perhaps even most lawyers—will spend much of their professional time insulated from that reality, whether because of the nature or location of their practice; the identities of their clients; or both. And it’s my job to teach and prepare those future lawyers, too. But whereas I can’t (and wouldn’t deign to) speak for anyone else (even with respect to the specific context of the first-year Civil Procedure class), my own view is that I would be shirking my responsibilities were I to not acknowledge, and teach at least a little bit about, the elephant in the room. The tricky part, as I try to explore below the fold, is how.

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