How The Tail Wagged LawDog

Some years ago, I called for law professors to take back the classroom. At the time, the questions presented ranged from students majoring in Facebook to the shift in their relative roles, students deeming their professors to be their peers, demanding that they “respect” their opinions as opposed to telling them when they were wrong, or worse still, telling them they “respect” their opinions as opposed to tell them when they were wrong, or worse still, tell them they didn’t belong in law school.

What type of educator panders to youth culture in this way?  All types, actually.

At PrawfsBlawg, Howard Wasserman wrote a sentence that was astounding.*

As professors, our focus is not on what we discuss in class but how we discuss it.

This assertion is shocking. So the focus in crim law is no longer actually teaching crim law, but teaching whatever is being taught (is it still about crim law?) in a manner acceptable to students? Howard refers back to an apocryphal story by Neil Buchanan.

Back when I was an economics professor, my introduction to macroeconomics course naturally included a discussion about unemployment.  Using what was in no way a unique approach, I would begin by discussing the various consequences of unemployment that have been identified and quantified by researchers.  In addition to lost economic productivity, my list included increases in “crime,” “suicide,” “spousal and child abuse,” and other social ills.

During the year that I was a visiting professor at Barnard College, I was surprised when one of my star students angrily stopped me at that point and said, “Spousal and child abuse are crimes!”  I responded, “Yes, they are.  I was referring to crimes like robbery, murder, and so on.  What is your point?”  “Well, you’re saying that there is ‘crime’ and there is ‘spousal and child abuse,’ which says that they are not the same.”  “I see.  Would it be better if I said, ‘Crime, including property crimes and violent crimes such as murder and spousal and child abuse’?”  “Yes, that would be better.”

Putting aside issues with the student’s assertion, that “spousal and child abuse are crimes” (they may be or may not, according to the breadth of one’s definition of the vague word “abuse”), one student dictated to the professor and to the class what could be said, what should be taught.

This was 1997, and I had already taught that course more than a dozen times in my career, but that was the first time that anyone had objected to my framing of that set of problems.  I could have responded by saying, “I’m so tired of people policing my word choices!  If you want to read ill intent into my failure to word this exactly as you’d like me to word things, too bad for you.  I have better things to worry about.”

Or he could have responded in a less emotional, more academic way by explaining that the law can accommodate a great many interpretations, but no one student’s perspective is entitled to impose its view upon the class, its approved words upon a professor charged with the duty to teach that class.

But being too weak to respond thoughtfully to one student who demands her politics dictate a professor’s job and other students’ education is only the starting point. Buchanan goes on to tell another, more disturbing story.

And even in the context of a law classroom, the nature of the joking must change over time.  One of the more memorable cases in my basic income taxation class involves a tawdry story about beautiful twin sisters who each become sexually involved with a rich old man who gives them large sums of money while professing his love for both of them.  The appellate court that wrote the opinion (addressing the question of whether the money counted as gifts or income to the sisters, who were wrongly imprisoned for criminal tax evasion) revels in the details of the sexual aspects of the relationship, using plenty of arched-eyebrow word choices (describing evidence as “scanty”) and obviously having a good time while writing an opinion that was needlessly long and detailed.

In the fifteen years that I have been teaching that case, students have always found it to be giggle-inducing and fun.  Even so, the way I teach the class has changed over time, as it must.  Only a few years ago, I channeled Michael Scott from “The Office” by responding to a student’s inadvertently loaded comment with, “That’s what she said!”  Even though no one complained, I would never do that today.  Making fun of a situation that people now more readily understand as troubling and exploitative no longer makes sense, and professors must adapt.

Assuming the teaching of the case served a greater purpose than childish titillation (it served to differentiate between gifts and income), it was “reinvented” not by the judge who wrote the opinion, but the students took the situation out of context and turned it into “troubling and exploitive,” which wasn’t the state of affairs at the time and undermined the point of the case.

Professors must adapt? So the children aren’t offended by being taught law?

Harvard lawprof Jeanie Suk wrote that crim law profs were foregoing teaching the law of rape for fear of offending students. That was in 2014. Is it even possible to teach it today, given the difference between what students “believe” rape to be and what the law says it is? What words would be permissible? Are they victims, survivors, accusers or witnesses? And don’t even try to talk about what constitutes legal “consent,” as that will make the little darlings’ heads explode.

The upshot is the students will leave class feeling fulfilled, but uneducated and unprepared to become lawyers. And the academics have not merely abandoned their duty to teach, and rationalized away all responsibility to be the not just the grown up in the room, but the teacher. But they must be good because they got tenure and “Professor of the Year.”

Yet, some defendant accused of rape will be represented by some former student deprived of a necessary education and advised to plead guilty to a sentence of life plus cancer because they’re “literally Hitler.” But at least they’ll use the defendant’s preferred pronouns as they wave good-bye when they lead him out of the courtroom to lockup.

*In the closing paragraph of his post, Howard wrote:

Even if we as professors change our presentation, the question remains whether the presentation in the assigned case becomes problematic over time and thus no loner usable. Is the relationship described in that Seventh Circuit case so toxic or presented in such a sniggering way that it should not be used, if some other vehicle is available to teach the gift/income distinction? This can be about a court’s tone or language. Plyler v. Doe uses the phrase “illegal alien,” which has drawn complaints in Con Law.

Caselaw which uses “tone or language” unacceptable to sensitive students that had been taught for generations to demonstrate a legal concept will no longer be used because it offends students? After all, nothing matters in law school more than not offending the students with the law.

5 thoughts on “How The Tail Wagged LawDog

    1. SHG Post author

      Would hate to be their client when they start screaming at the judge that he’s not respecting their opinion.

    2. B. McLeod

      At which time, the biggest problem will be they will do it wrong. I mostly like judges, and generally appreciate what they do (without which. we would all be out of a job). Don’t correct and judge if you don’t have to (there are no “points” for it) and when you have to, don’t be a dick. I like the format, “Well, Your Honor, I think it’s actually _______.” (If the judge disagrees, it’s still his or her courtroom, and time to move on).

  1. wilbur

    The reaction of some of my professors would’ve been:

    I see. Since you are so keenly interested and apparently knowledgeable in the grouping of things legal, you will compose an exposition, footnoted of course, on the concept of “Expressio unius est exclusio alterius”. It will be due by the next class, when you may give an oral presentation on this subject to your classmates.

    The rest would’ve made a dismissive wave of the hand and forged ahead with the class.

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