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Saturday, November 26, 2011

Instrumentalism?

This is a curious editorial for several reasons, one of which is the last few lines, where an opinion is offered about the nature of law.  The jurisprudential choices on offer seem to be: (1) Langdellian legal science; or (2) law as "a means, rather than an end, a tool for solving problems."  I'm not a philosopher of law, but I am having trouble with these options as conceptions of law.  I also don't understand their relationship to the call for "legal education reform." 

First, one does not need to believe in the legal science model (of Langdell or Savigny et al.) to think that the case method of legal education is still viable.  In many respects (not as many as in the time of Langdell, to be sure), ours is still a common law system, and one can be a legal realist, a crit, a law-and-economics maven, etc., and believe in the importance of studying cases as a means to understanding what law is all about.  So the options cannot be "study cases" or "use the law as a means to an end": these possibilities are not in the same conceptual category.

Second, what can it mean to say that law is "a means rather than an end, a tool for solving problems"?   

At one level, no one -- and certainly very few law professors that I know -- would disagree with the statement.  Langdellians (raise your hands and be counted!) would agree with it.  Natural lawyers would agree with it.  Legal positivists would agree with it.  Of course law is in some measure an instrument to accomplish certain social ends. 

But there seems to be something more in the Times's account of law, something along the lines of: 'there's nothing more to law than the mechanical application of skills to achieve a client's desired outcome, and law ought to be taught that way.'  If that is more the meaning of the statement, I'm afraid I don't agree.  There is more to law than mechanically applying rules to serve a client's wishes.  There is more to learn about law than the acquisition of skills to reach some predetermined end.  Indeed, it is exactly because law is in part an instrument to achieve social ends that it is about much more than the mechanical application of skills.  Speaking in part as a professional responsibility teacher, stripping away that quality of law is more than just a mistake; it's a dangerous way to conceive the profession of law.  And it has an, at best, uncertain and an, at worst, directly harmful effect on some of the other reforms that the editorial thinks would be worthwhile improvements, such as an increase in the representation of low-paying clients.

No one doubts or denies that the law may be used to achieve particular outcomes.  But many people doubt or deny that conceiving of the law in exclusively these terms is either sound in itself or useful as a way to reform legal education.    

Posted by Marc DeGirolami on November 26, 2011 at 07:45 AM | Permalink

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Comments

Hear hear! I also found that line from the Times editorial galling.

Posted by: GU | Nov 26, 2011 1:27:12 PM

The Times here just seems to be channeling Holmes's instrumental view, which is that the job of a lawyer is to help a client just as the job of a physician is to heal the client and that of a plumber is to fix the toilet. Each must operate within certain legal bounds and each has duties to folks other than his or her clients. I suspect most people see it this way. There's more to medicine than serving an injured client, but why is that a bad way to think about training physicians?

Posted by: Frank Snyder | Nov 28, 2011 12:23:18 PM

Prof. Snyder, I guess I didn't see it that way. The editorial's challenge to the utility of the "case method" is just bizarre, in my opinion. You don't have to be a Langdellian to think that learning how to read, process, and understand cases is important or useful. Indeed, you can be a pragmatist and still believe through and through in the case method. If Judge Posner or Justice Breyer has ever come out against the importance of learning to read cases carefully, I haven't seen it. That makes the exclusive association of the case method with Langdell, and the claims of "outdatedness," strange. Sure, Langdell gave us the case method. But only someone who was not a lawyer would think that the reading and understanding of cases is not of vital importance to lawyers.

I agree that it is trivially true that an important aim of a lawyer is to help a client, as constrained by certain rules. Indeed, as you say, virtually no one would disagree with the claim that a lawyer should serve a client while operating "within certain legal bounds and each has duties to folks other than his or her clients." It's such a trivial point that it struck me as implausible that the Times would spend editorial space to make it, since no one could possibly disagree with it. What all of that has to do with the viability of the case method, or whether it was out of date as of the 1920s, is mysterious to me.

But if (as I speculated...but of course I could be wrong), the aim of the editorial was to suggest that law consists of nothing more than some sort of non-case-law related skills training in "solving problems" to benefit the client -- that it is nothing more than the rote application of a skill to reach a premeditated outcome -- then I think that *is* a non-trivial point, and one which is dead wrong, descriptively and as a model for legal education.

Posted by: Marc DeGirolami | Nov 28, 2011 2:37:35 PM

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