When I went to law school, my professors taught law much like Kingsfield. While I had some undergrad profs who were unabashedly ideological (Roger Keeran was my faculty adviser and first-year labor history prof, whose final exam question was something along the lines of “Explain why capitalism is a failure,” but he had a sense of humor about it.)

My law profs? I haven’t the slightest clue what their politics were. They lectured about competing theories and interests represented in statutory and caselaw without telling us which was right or wrong. We, their students, would vigorously argue about it, but they remained neutral, leaving it to us to weigh the competing interests. It never occurred to me that law could, or would, be taught any other way.

And then came academics who didn’t seem capable of teaching law without it being tainted by their radical views. When I learned that Mary Anne Franks taught criminal law, criminal procedure and First Amendment law at Miami law school, it didn’t seem possible. Not only were her loudly expressed views on these areas of law absurdly off the wall and contrary to existing law, but she hated the law as it existed, denied its existence and constantly argued that the law wasn’t, and shouldn’t be, the law.

How does one teach something whose existence one constantly and vociferously denies? Oh yeah, and she isn’t even a lawyer, having no actual subject knowledge of anything she teaches, but existing only in her own dream world of existential reality as she’s never so much as argued a bail app, no less tried a case. That anyone would give her a job teaching seemed insane, yet there she was, not only a prawf but now a tenured prawf, teaching what she knew nothing about.

When I raised this question years ago, some of her students came to her support, telling me she was a good professor and they learned a lot from her. It was good to hear, as nobody (myself included) wanted her students to be deprived of an education. Granted, their ability to assess her qualifications and pedagogy were severely limited by their experience; if they knew nothing else, they wouldn’t know what they were denied.

But maybe Franks was mature enough to put aside her personal peculiarities and teach the law straight up, what it was rather than her absurd notions of what it ought to be. Maybe she kept her radical views out of the classroom and didn’t divide the law into good and evil, the latter being whatever law failed to suit her personal sensitivities. Was that possible? It had to be or the dean would have handed her a dime, right?

Then again, maybe things have changed since the Paper Chase.

https://twitter.com/LeahLitman/status/1251193854461648905

I don’t begrudge, nor necessarily disagree in whole or part with Leah Litman’s views on Shelby County v. Holder, but this video was the stuff one would expect from a snarky wag rather than an academic. More concerning than teaching the decision as the embodiment of bad law rather than the competing rationales was how Chief Justice Roberts, and the Supreme Court itself, was painted as political hacks. If students come to court believing the Least Dangerous Branch is rigged, then why bother doing law if the outcome is decided at the polls rather than the bench?

In response, Notre Dame prawf Rick Garrett and Case Western prawf Jon Adler questioned how this would fly with a FedSoc-inclined student, or propounded by a conservative academic, but this just fed deeper into the issue that concerned me. Was it all about competing ideologies now? So I asked.

Are law students unable to conceive of law being taught without an inherent ideological tilt? Is that as foreign a concept as it seems?

— Scott Greenfield (@ScottGreenfield) April 19, 2020

The replies were ranged from horrifying to illuminating. On the downside, some reflected so mindlessly blind a perspective that they were very much incapable of grasping the learning of law beyond their ideological absolutes. People like this should not be lawyers. Yet, there they were.

Others raised some very interesting points, such as the foundational notion that in an Academy grounded in critical theory, to suggest that anything can be taught neutrally was “laughably naive.” As Jordan Lewis subtly explained it, “Mostly. But in the ‘what’s water?’ sense.” If a law student has never experienced being taught law outside the context of ideology, how would he know? Andrew Parks fleshed it out more.

In my experience, there are two ways profs approach this: 1) Some are honest about their views, but make class convos very open and welcoming for opposing views.

2) Others believe their views are dogmatically correct and will not accept most, if any, others.

Varies by prof.

In other words, the pedagogy is no longer “just the facts, ma’am,” but inherently ideological, and the only flexibility is whether students can express opposing views without fear of flunking.

Others, like Alexandra R., suggested that not all law schools were so steeped in ideological education.

My law school education was remarkably non-ideological (admittedly it was at UVA, which is known as being a bit more conservative than its peer schools, although it’s all relative).

But can she see the water? I would like to think so, but how would anyone know? Is there any room in the legal academy for teaching law students to think, to reason, to spot issues and create rational arguments to address them as their clients may someday require of them? Or is such pedagogy now gone, replaced by competing camps of ideology indoctrination?