- The National Law Journal has a series of articles proposing various versions of "legal education reform" this week. This isn't just because of the compressed sequence proposed by Northwestern, but for a variety of reasons. Some propose stressing so-called "core competencies" (and what, pray tell, might those be that apply to every lawyer... see below); some propose more purportedly practical legal education (but not, of course, for top students at the top schools who might some day teach); and still others just whinge in general about the poor state of legal education.
I have a three-part, radical suggestion that will accomplish all of these things.
- Get rid of the bar exam. The only thing that law-school courses (and exams) teaches law students is how to pass a bar exam made up of almost clinically clean hypotheticals that never involve clients, but only abstractions. And then we wonder why new law-school graduates can't seem to focus on the clients' needs.
- Get rid of the single-exam grading system. Professors constantly complain about the poor quality of the exams, and how hard it is to grade them. It's a helluva lot easier to grade typed, proofread papers spread across the semester. It also provides more feedback to students... and to the professors on what the class isn't understanding, at a stage when maybe that can be corrected.
- Get rid of letter and other competitive grades in the first year of law school... except for legal writing. Lawyers are notoriously poor writers, and frankly the reputation is well-earned by 465-page complaints, among other things. However, at most law schools the legal writing class is graded pass/fail and does not count in one's grade-point average, while the minutiae of criminal law for the guy who will eventually do commercial real estate leasing does. Instead, grade the "substantive" first-year classes (and, indeed, any required classes after that) on a generous honors/pass/fail basis, and reserve the letter grades for legal writing.
- Speaking of bad writing, one of the main causes of bad writing — particularly in law — is someone trying to bullshit his or her way through complications to reach an ideologically sound conclusion (regardless of any other considerations). This is a particular problem when dealing with the past, as these comments on Scalia, history, and intent indicate. (As an aside, Stanley Fish is also bloviating about this... and misconstruing the meaning of "intent" in law. But that's an argument for another time.1) But none of this helps when one gets the history wrong in the first place, vitiating any real understanding of what "intent" might have been. Consider, for example, the history of the CIA.
- It wouldn't be an indigestible interthingy sausage without some lumps from/for the publishing industry. Nobody can really decide where publishing is going: endpoint books on demand or traditional printing; free digital content or not; censorship or a free press; an increasing deluge of bad books, whether by good authors or bad authors (14 of 15, anyway). Even agents won't talk about their little games, like author poaching, just as Victorians wouldn't talk about sex but their bestsellers included Fanny Hill.
- But the publishing industry is remarkably clear, lucid, and sensible compared to the mass media. Consider this proposal for aggregated music rights, and contrast it with the struggle of Tolkein's heirs for some of the film loot (and the less said about some of the other people who provided creative impetus to those films and got screwed, the less I'll potentially breach any privileges).
- On the theoretical front, here's an interesting piece from across the pond about avatar rights that has an interesting perspective on "ownership" of characters after they have been fixed. One could argue that children eventually grow up... but that doesn't explain much about Disney or the BBC, does it? Nor does it explain laches and copyright, but then nobody really knows what laches means anyway, nor writes about it concisely. I'd say "clam up," but that's just too obvious...
- Last, and far from least, there's the continuing battle between church and state. It's bad enough Over Here, particularly in the Democratic People's Republic of Texas, where a science-education employee was forced out because she publicized a (gasp!) lecture by Barbara Forrest on how Inscrutable Design is not science... after Dr Forrest had so testified in Kitzmiller. The employee has now filed suit, as inelegantly summarized here. Frankly, I don't think she's got much chance of winning... short of the Supreme Court. That, however, is hardly the most-obvious and easiest example of the conflict; consider the potential conflict, at a foundational level, between religion (and Islam in particular) and democracy, which can be stated simply: Democracy relies upon dissent for its viability, while religion relies on conformity.
- OK, the short version: The disjuncture between legal and literary theory results from the legal imperative to have — at least in the instance in question, whether a case or advice to a client — a pretty unambiguous interpretation, whereas literary theory and interpretation embrace ambiguity and pluralistic meaning... to at least some extent. Cf., e.g., Paul Armstrong, The Conflict of Interpretations and the Limits of Pluralism, 98 PMLA 341 (1983). That has a great many implications, the most important of which is simple: Law is rubric-based, while literature is judgment-based. And I'll leave the reflexive ironies of that language for the reader to ponder, preferably over some port after a faculty dinner.