Legal Commentary

Since Howard and Jeff have been talking legal education reform in their interesting recent posts, I thought it'd be fun to be the wet blanket.

One of the catch-phrases of legal education reform is "values education."  It is often teamed with teaching "skills" but it seems to me to be rather ambiguous by comparison.  For example (from the "Best Practices" report): "The central message in both Best Practices and in the contemporaneous Carnegie Report is that law schools should: broaden the range of lessons that they teach, reducing doctrinal instruction that uses the Socratic dialogue and the case method; integrate the teaching of knowledge, skills and values, and not treat them as separate subjects addressed in separate courses; and give much greater attention to instruction in professionalism."

Sometimes, in explanation of this sort of sentiment, it is claimed that all law school courses should be taught on the model of Professional Responsibility, which (it is again felt) does a reasonable job fulfilling this aspirational model.

As it happens, I've just finished my second semester teaching Professional Responsibility, and I have not the first idea about what it would mean to "teach a value"; and to the extent I do have an idea about what it would entail, I think it would be anathema to do any such thing -- at least, if I want to continue to claim that I'm involved in anything resembling an educational enterprise.

Here's my thinking.  In addition to Professional Responsibility, I also teach Criminal Law, a subject near and dear to my heart.  When we talk together in class about theories of punishment, or about whether premeditated and deliberated killings are really more terrible than other intentional killings, or about the dangers of conspiracy as a prosecutorial instrument, or about the distinctions between justification and excuse (sorry Jack Chin!!), I'm not teaching anybody "values."  I'm not telling anybody what to think, or what the responsible citizen ought to believe, and I'm certainly not telling them what I believe.  That's not my job.  My job is to stimulate thought about topics of perennial concern, that have occupied great minds of the past and about which students may not have thought before.  I think of this process a bit like the way I imagine a butcher deals with a fine Prosciutto di Parma -- the more expert he is, the more finely he slices. Prosciutto is exponentially more delicious and complex the thinner the piece.  The sophisticated thinker is like the master prosciutto slicer: suppleness of thought with an idea requires a careful examination of each little morsel of it, considered in its own, special uniqueness.  To the extent that "values" get taught, they do so by this process of learning and listening to others learn alongside oneself

Professional Responsibility is no different.  Sure, there are the Rules, which prescribe the baseline of acceptable behavior.  But to the extent that Pro Ro is interesting as a subject of study, it is because firm answers to what constitutes "moral" behavior are often not to be had.  Again, the mature thinker is the one who has considered from all sides the complexities and tensions that inhere in particular legal ethical dilemmas, not the person who has arrived at a place of unhesitating certitude about what "professionalism" demands. 

If that is what we want from the course -- or any course -- i.e., cheerfully certain conclusions -- we ought to stop pretending that Professional Responsibility deserves a place in the law school curriculum or any other place of learning.  One does not teach a value by beating it into the recipient with a bludgeon until one achieves a mindless concession.  One does not teach a value by imagining that students are empty vessels into which we can pour the liquid of "values" and then congratulate ourselves on a job well done.  One does not teach a value by providing students with a coat of armor that will protect them against a hostile, vice-ridden world.  That's not education; and it certainly won't be what I'll be doing in my classes -- least of all in Professional Responsibility.

Of course, if that isn't what teaching "values" means, then I am at a loss to understand what distinguishes this mode of instruction from any other responsible learning experience, in law school or elsewhere.