A very interesting conversation has been circulating about the future of law school education (most recently on Madisonian.net). This conversation is one we have been having at my own institution as well. I begin from the premise that interdisciplinary study in law is imperative to legal education, even in non-elite law schools (for the other view, see here). I also agree with Dan Solove’s eloquent defense of interdisciplinary study (here). Yet, much of the conversation about law school curriculum has focused on infusing more skills training into the law school classroom. The debate is framed in terms of why we need to teach more practical lawyering skills to students to better prepare them for the practice of law, and how best to accomplish this goal. At my own institution, the conversation is often about how to integrate skills training into traditional doctrinal courses. I want to ask a parallel question: how do we integrate interdisciplinary training into the curriculum?
In what is a small gesture for me, but what is experienced by the students as a much bigger gesture, I lead my students through Kafka’s The Trial in my constitutional criminal procedure course. It is an effective way of gaining some understanding as to why we have criminal procedures by first imagining what the world looks like without them. I have also been assigning my constitutional law students more reading on theories of interpretation. These are small interdisciplinary gestures that attempt to integrate a law and humanities approach into the classroom, much like the civil procedure professor who asks students to draft a complaint attempts to integrate a skills component into the classroom. I suggest that integrating interdisciplinary learning into the classroom is equally as important as learning to draft a complaint. Across many doctrinal courses, I can imagine the useful infusion of similar interdisciplinary elements. The barrier to integrating interdisciplinary learning is that a more systemic treatment of economics, philosophy, psychology, literature, etc., is always thwarted by the interstitial exposure students obtain by such exercises as reading Kafka in criminal procedure. The importance of interdisciplinary training is no less real than skills training, though the problems of how to embed more of each in the midst of reading cases and statutes may be quite similar.
Skills training teaches students how to practice law. How does interdisciplinary teaching help students learn to practice law? I would suggest that this question is based on too narrow a view of what constitutes legal practice. There is more to practicing law than talking to clients, filing papers, or reviewing documents. Take prosecutorial discretion for example (though many other lawyers must make discretionary choices as part of their practice). Prosecutors have discretion at many levels regarding how to allocate scarce resources, what to charge, or how aggressively to pursue. That such discretion can produce systemic effects is a premise behind, for example, the Violence Against Women Act and the theory rejected by the Supreme Court in McKleskey v. Kemp. In many respects, prosecutorial discretion (together with legislative discretion over what kinds of behavior to criminalize) can be one of the most important aspects of criminal justice. Where in law school training do we teach future prosecutors how they should exercise their discretion? Not in a MPRE preparation course in professional responsibility. Not in so-called skills courses that teach students how to write a complaint, how to conduct an interview, or how to engage in negotiation. All of these provide valuable skills training, but do not teach the rational sensibilities required to exercise discretion.
Why is there no equivalent hand-wringing about law school’s need to teach courses aimed at providing instruction in the normative nature of discretion? Where do we impart the rational sensibilities required for sound decision making? What Nate Oman calls “theory” (here) is one place where law schools do this. An increased focus on interdisciplinary inquiry has led to greater scholarly understanding of the normative nature of legal practice. But how has this understanding become embedded in law teaching? One way is through teaching courses on social justice, critical theory, law and philosophy, and law and literature. At my own law school, students will choose one of these kinds of courses to fulfill a “perspectives” requirement. A one-course, one-semester shot of “perspective” is not enough, however, if one agrees that the discretionary component of legal practice requires greater normative understanding of ethics, justice, society, or culture. Here is where integrating interdisciplinary learning into the classroom can help fill this need.
One might object that an important dissimilarity between normative inquiry and practical skills is that there is no scholarly consensus on a particular normative vision. Sensibilities and normative visions are often inseparable from a person’s more comprehensive political and moral outlook. Law schools don’t want to get into the business of political indoctrination. But I’m not suggesting that we indoctrinate students into adopting Rawls’s theory of justice, for example. Rather, by exposing them to competing theories of justice, Rawls v. Nozick perhaps, we teach them how to reason through difficult normative issues, which can be vital to their exercising discretion over a lifetime, no less than learning how to file a complaint can be important to practicing law for the new lawyer.
To end on a question, I am curious what other interdisciplinary approaches others have taken in more traditional courses?
Posted by Tommy Crocker on April 14, 2008 at 01:39 PM