Franklin, K --- "Theory Saved My Life" [2006] LegEdDig 38; (2006) 14(Spec Ed) Legal Education Digest 10

Theory Saved My Life

K Franklin

(2006) 14(Spec Ed) Legal Education Digest 10

N Y L Sch, Public Law and Legal Theory, Research Paper Series 05–06 #21, 2006, pp 599–631

In the wake of the conflicts over interpretation that took up so much energy in previous decades, the rise of Critical Legal Studies, American poststructuralism, and a host of new theories of reading, the consensus around how legal texts are read and legal scholarship is written has changed dramatically. Even if they do not explicitly engage with the raft of critical theories available to them, legal scholars today can hardly avoid at least being aware of them. Indeed, these debates irrevocably shaped the way legal scholarship is done. In this essay I argue that as teachers of law, we need to think seriously about the role of theorising at every level of legal pedagogy.

Over the past several decades, many, if not most law schools have looked at the question of why some law students thrive under standard law school pedagogy while other students struggle, when incoming predictors suggested that they would or could do as well as the first set. To solve this problem, school after school has turned to academic support professionals, whether faculty or administrators, to offer supplementary teaching. The usual sense of this work is that struggling law students, and perhaps all beginning law students, most need to be taught the basic teaching of basic skills. I do such teaching myself, and I cannot imagine a successful academic assistance program that does not offer this type of enrichment.

We want students to develop effective techniques for reading cases, constructing analogies, generating support for propositions, reasoning deductively, and writing clearly and effectively. And yet, this precise skill is one that we seem never, or rarely, to teach law students directly. Too often our classical curriculum assumes either that this skill cannot be taught, or that it is solely for our ‘strongest students’ to discern. Yet the design of most law school curricula seems to expect that students will almost immediately be able to grasp not just the technical details but the larger universe of assumptions that produce and contextualise those details. Some students find this process fairly intuitive. However, most are trapped within the hermeneutic circle, unable to see the connections between individual rulings and cases and the larger structures on which legal decisions are based. Students need to be able to glimpse all the possible levels of legal expertise if they are to work towards achieving them; they have to recognise what mastery of legal analysis looks like in order to believe that they too can do it.

One of the most important skills that beginning law students need to learn is the ability to discern and describe analogies and distinctions between comparable fact patterns. That decision-making process is interpretive; that is, it is theorising. This is a hugely valuable function of legal education, and underlies much of what both law students and practicing lawyers do.

In my teaching I use an exercise very much like this. I have reproduced three nineteenth and twentieth century paintings that have some commonalities, and in examining these pictures my students and I try to synthesise a theory that connects them to each other. This is just a brainstorming session in which we imagine every possible analogy and difference. Next I ask students to speculate as to which commonalities might be the most significant. Ironically, at this point of the exercise students are almost incapable of making those kinds of common sense distinctions. Once we have talked through this crisis, students begin to find it easier to make comparisons beyond the simplistic analogies they have come up with so far, and to construct a hierarchy of resemblances that might have some application to the paintings and the judgment of the donors.

To ground these ideas about interpretation in the kind of work the students do every day and to translate these concepts into a more material reality, we must eventually return to using actual legal decisions. The most helpful way to do this is to use another common strategy in teaching legal reasoning: working through a small, carefully chosen set of cases building on one another and requiring student synthesis to understand where the law stands in the context of each holding.

This closed universe model is almost always used to begin instruction in legal writing and legal reasoning, and is designed to lay the foundation for the kind of work students will be doing in their doctrinal classes. Typically, then, we would conclude a closed universe problem with a writing assignment or an exam designed to promote a synthesised understanding of law that the cases generate. Students are expected not just to regurgitate doctrine, but to imagine its implications, its legal history, and its interpretive potential. With the ability to theorise comes not only an ability to speculate, but the possibility of seeing (or imagining) the big pictures of legal doctrine while recognising and learning the details that make it up.

But we live in an anti-theoretical culture, which means that many students, despite the best efforts of their undergraduate institutions (or because of those efforts) don’t come to law school with a theoretical orientation. A theoretical approach cannot wait until the second or third year of law school, nor can it be offered only to the strongest and most academically successful students in the class. Students need theory not only because it helps them understand doctrine and do well in school, but also because it makes law school an intellectual experience.

Theory opens up not just the law but the world — it makes space for analysis beyond the task at hand, beyond tasks at all. It provides room for the abstract, for imagining alternate theories, perhaps even alternate worlds. Finally, it makes room for genuine critique of the legal status quo — not simplistic agreement or disagreement with cases’ outcomes, but thorough examination of the reasoning and rationales used by judges and advocates to support their positions. Certainly some of the most skilled lawyers aren’t always interested in that kind of questioning. But the best — the most imaginative, the most daring, the most courageous — see the law as a beginning, not an end.