.. in my substantive law classes. Contemporary legal theories--autonomy-centered, welfare-maximizing, critical [fill in the blank]-- provide insights into the law. Legal theory, particularly in its virtue-based forms, may provide a nexus for discussing the relationship between law and justice. But legal theory will never occupy a significant place in the classroom when I'm teaching, say, Contracts.
Rather than providing my own elaboration, I'll quote some portions from an excellent piece by David Lyle Jeffrey, Advice to Christian Professors of Literature.
Consider his comments on what happens in literature courses (and their humanities-lite substitutes gender studies, culture studies, race studies, etc.):
In too many classrooms, professors are obliged to talk about the issues, not about the texts, which may in some cases be an incidental mercy for the teacher, but not for the students. Impoverished to a degree they cannot measure, they are likely to say, as one did recently in my hearing: “Actually, I haven’t read Milton. But that doesn’t prevent me from seeing that he is irrelevant now.”
Then consider Jeffries's comments on what this means for the place of literary studies in the university:
With the growing influence of Freudian, Marxian, Lacanian, structuralist, post-structuralist schools such as deconstruction, post-colonialist, feminist, and queer studies between the late 1960s and our present, one trending fashion has succeeded another, as a quick review of MLA [comparable to the AALS for law faculty] annual conference programs will confirm. The cumulative result has been disruption in the identity of the profession, the curriculum it teaches, and the intellectual gravitas obtaining for literary study among our colleagues in the university generally.
The move toward teaching literary theory instead of literature has not quite been matched in legal studies. Since most law students want to practice law (and, it must be observed, their future clients want legal advice), teaching legal theory instead of law has not totalized the curriculums of all law schools. Legal theory is, however, is coming to occupy more of the curricular space. Substituting theory for law is not a disaster for most graduates of a T-14 law school; by and large they are bright enough to learn the law on the fly. But substitution harms most law students in most law schools and, it should be added, their future clients.
Is there a place for legal theory in the law school curriculum? Again consider Jeffries's observation: "I recognize the potential in various theoretical frameworks, even some of those which I have come to resist or even oppose. In fact, I recommend reading, consideration, and even experimentation with some of these many post-modern approaches now in vogue. There is something to learn from almost any of them."
Thus, I bring interaction with some of my own work in legal theory to the Contracts classroom as an occasion for extra credit. I regularly mention an insight from legal theory when discussing the meaning or effects of a judicial opinion or statute. And we talk about theory quite a bit when I teach my seminar in Christian Perspectives on Legal Thought.
Legal theory is a good but it isn't law. And teaching law--at least when I'm the teacher--is what law school is about.
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