When Nino Pushes Buttons
In response to Wallace's question about the single best piece of advice Scalia would give to law students, he advised them not to waste their time taking "frill courses."
"Professors like certain subjects that they're writing a book on, so they teach a course in that subject," he said, adding that students who take the course get to do the research for the book.
"Because there are so many professors teaching their hobbies, the rudimentary courses are not taught with the frequency necessary for everybody to take them," Scalia said.
"The only time you're going to have an opportunity to study a whole area of the law systematically is in law school," Scalia said. "You should not waste that opportunity. Take the bread and butter courses. Do not take, `law and women,' do not take `law and poverty,' do not take `law and anything,'" he said.
Had he used "Nietzsche and the Law" as an example, it probably wouldn't have rankled anyone too badly, but Nino pushed a button that set off a firestorm. Law and women? Law and poverty? Both women and the poor took umbrage, neither being a particular fan base for Justice Scalia. And here he was, saying they weren't worthy. Oh boy.
But the group he slapped hardest was law professors, when he said that "there are so many professors teaching their hobbies." George Washington Lawprof Jonathan Turley did not take kindly to the slap.
That is a disturbing account to give students and serves only to “dumb-down” legal studies. My students will be better lawyers but not only learning about the practice but the philosophy of law. It is both possible and, in my view, essential to get both in your training. I am distinctly proud of my student’s in their ability to move seamlessly from the theoretical to the doctrinal in class.
I am disappointed in the recent controversial comments by Scalia because he reflects a deep understanding of legal theory and history in his writings. His opinions are greatly benefited by that deeper knowledge. Student gain such theoretical foundation by taking these seminars, which often inspire or challenge the view of law students. Lawyers are not accountants who merely tally columns of precedent. They are part of an organic and ever-changing field. The current laws are changed by the powerful legal theories and policies that constantly move beneath the legal superstructure.
Turley's rhetorical flourishes aside, his disappointment doesn't address the problem. Within the Law and Potted Plants course, there may be contracts, or property, or even criminal law (it could happen), There is no independent body of law that relates solely to potted plants, divorced from the more rudimentary practice areas. If by theory he means the latest law review article on the subject, advocating for a separation of the law of potted plants from those planted in the ground, then it's hard to ignore Nino's "hobbies" argument. There are a ton of theories promoted by scholars, most of which pass quietly through the night, never to be heard of again, and for which we are generally grateful.
But then, there is the problem of cost/benefit analysis. Law students pay a hefty price to learn the law of potted plants. Some do so in the hope of becoming a potted plant lawyer one day. Others just need to flesh out their schedule because they're still required to do a third year of law school regardless of its merit.
I don't disagree with Jonathan's belief that teaching theory as well as doctrine matters. It's the same problem as "remembering the rubric while forgetting the rationale" that I often raise when arguing that an application of "black letter" law makes no sense, as it becomes increasingly distant from its birth. The only way to change the law, to make it serve society better as things develop and change, is to appreciate the theory behind it that justified its inception, and thus be capable of arguing why that justification no longer serves our interest.
But it's not all clear that Nino thinks any differently, even though he tweaked some of our more passionate people in his choice of examples. Theory, doctrine and practice can all be taught simultaneously in more rudimentary law courses, and for those scholars who so desperately want to push their personal hobbies, examples of law and women abound in discussions of property law and contracts. There are no shortage of pet peeve opportunities.
Rather, what doctrinal and practical instruction is offered by the "Law and ..." courses? Recently, I've seen lawyers claim to do hail damage law and even flash mob law. These don't' exist. Stringing words together doesn't make them real, and they are just minor variations on other extant practice areas. They're cute gimmicks, but nothing more.
It's not at all clear that there is any real difference between Nino and Jonathan's perspectives, aside from the fact that Nino would shut down a few teaching opportunities, which would mean smaller faculty parties. Nino didn't say that law schools shouldn't touch upon theory, but that they should not have "law and" courses that embody hobbies that don't reflect actual areas of law.
Rather, I think Nino just pushed Jonathan's button. And a little button pushing from time to time isn't a bad thing.