Michael Cahill and I did our traditional, medium long, Sunday run with Carol Salem, who gets a special shout out for being married to a law professor and being a tenacious runner.
Our first years start their semester tomorrow, and both Michael and I are teaching in Brooklyn's "Introduction to the Study of Law" program. I've done it several times. This is Michael's first time. Preparing for the course got us to thinking and talking about what the appropriate goals were for such an introductory program.
Ours are ambitious, perhaps too ambitious. Over the course of 10 contact hours, we work the new law students through a challenging set of materials on precedent and statutory interpretation. On the common law side we show how a system based on precedent can evolve from a rule of caveat emptor to strict liability for defective products without ever overruling a prior decision . . . On the statutory side, we hit them with the classic puzzles of textual interpretation: Does the weight of LSD include the sugar cube? is a priest a "laborer?" Is an airplane a "vehicle?"
The cases are old, hard, and the pace is relentless. The students love it. I'm not so sure.
Are we doing our students a service by making their first experience of law one so heavily laden with the legal realist notions that precedents are malleable, judges enact their policy preferences, and statutory text is made of plastic?
Our tendency as law professors is to focus on the marginal hard cases where rules break down. We tend to ignore the extent to which legal rules actually do constrain behavior because they communicate, well enough. This is okay, on one level, because as lawyers we live our lives on that marginal cutting edge. Where the law is clear, litigation is pointless, and counseling is easy (and therefore not particularly profitable). But, should we be starting our students out as skeptics? Shouldn't we be stating them out with a broader focus on how the system actually functions to articulate legal norms, and how legal norms affect behavior on the ground?? More importantly, if that's the goal, how should we teach it??
Then we stopped at our favorite bodega for Gatorade and the conversation switched to a discussion about which one of us was pushing the pace . . .