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Monday, October 31, 2011

Passion channeled or passion destroyed

One of the common complaints about law school is that students come here full of wide-eyed passion and a desire to do justice and make the world a better place, only to have that beaten out of them by professors and classes focusing only on the boring drag of parsing statutes and cases. There is a nice question of how law school does and should strike this balance. I want to offer three stories; how we view these stories tells us something about this balance.

1) A clinical faculty colleague was discussing one of his students getting into a heated argument (he used the word "fighting") with opposing counsel and said that he was glad and proud to see the student's display of passion.

2) One of our DC candidates, who has some experience teaching Environmental Law, talked about trying to strike that balance with students who come to law school to "save the environment." They want to argue and shout and swing from the ceiling about the environment and how imprortant it is. But they find the real world--parsing and understanding complex statutes and regulations, understanding complex rulemaking schemes--boring. The trick is to make students recognize that they cannot argue and shout and swing from the chandelier until they know what they're talking about. And that means reading and parsing complex statutes.

3) Another colleage was discussing a class (not Environmental, but a subject that inspires similar passion and arguing but that also requires an understanding of complex statute, regs, and interpreting case law) in which the students are very passionate and engaged, but clearly have not done the reading. My colleague was struggling to find the balance between letting students have their say in class discussions and cutting them off when their arguments become, if not wrong, then lacking connection to law or the legal principles governing some area of law.

How do we strike the balance?

On the one hand, if we over-emphasize technical skills or "professional comportment," we make law seem arid and rigid and inhumane, sacrificing some notion of "justice" and the power of law to change the world for the better. Policy arguments and normative arguments are an important part of the discussion; in fact, exploring the normative justifications underlying the doctrine is the major difference between law school and bar prep. If we cut students off when they take off on empassioned policy-based pleas, we risk discouraging them from principled policy fights. We also risk being negatively reviewed as professors who are not receptive or willing to listen to opposing viewpoints (even if our lack of receptivity is because the opposing viewpoint is unsupported).

On the other hand, students probably should know that much of what they do in the real world of legal practice will not involve swinging from the ceiling or making broad policy arguments--if law schools are supposed to prepare students to be lawyers, that dose of reality is pretty important to any sense that we are not concealing what they have gotten themselves into. The same goes for the student who wanted to physically or verbally confront opposing counsel--he needs to learn that, in fact, this is not a good idea. Passion is good, acting like a jerk less so--although the line probably is in dispute. Passion and policy arguments without real grasp of the legal principles is not effective advocacy--even on a blog and certainly in court. And talking loudest or most insistently is not the way to win an argument that has nothing behind it. Our obligations as law teachers require us to make clear that advocacy means knowing the law, even if you are arguing that the law is wrong or bad. It may be that the question "why" is the most important arrow we have in our Socratic quiver.

Students must come to understand, in advance, that, in trying to argue X, they must be ready to point to something underlying X. And that is what the reading is for. But does this hard, slogging work beat the passion out of them? And if so, what do we do? How do we strike this balance?

Posted by Howard Wasserman on October 31, 2011 at 09:19 AM in Howard Wasserman, Teaching Law | Permalink

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