Chalk It Up To This

There's a tension between scholarship and teaching. I have no idea why. They would appear to go naturally together--you read, you learn, you think up new ideas, you write them down, and then you pass on the knowledge. It seems almost, well, elementary. But it isn't. The thing is, what you research and write about and what you teach can be very different. They can occupy the same field, but it's rare that you'll be teaching your "cutting edge" scholarship in a freshman survey course.

For legal academia, there's an even greater schism between research and teaching. Most professors are indentured into teaching at least one "bar course," which is definitely NOT cutting edge law--it's very old, "blackletter" law, or legal precepts that have been handed down through the ages and most likely reaffirmed by lower courts until you can teach it as well-settled Supreme Court precedent. So there's nothing new you can add besides a different pedagogy or way of framing the issues. It's rare to feel like your area is in great flux and that you can bring your current research into the classroom without messing up the students. Sometimes you can though. It was genuinely exciting to be taking Constitutional Law during oral arguments for Grutter v. Bollinger, and "Sexuality and Law" after Lawrence v. Texas, which changed the entire coursebook (making half of it overruled). Some of us even flew to Washington to demonstrate in front of the Supreme Court against Texas' anti-sodomy laws, and still others had gone the previous year to raise our voices for holding racial diversity as a compelling governmental interest. And believe it or not, it was just as exciting to take Corporations and Legal Ethics after the passage of the Sarbanes-Oxley corporate reform bill. But for the most part, there isn't much change in the law, and what change there is is incremental. Roe has been whittled down for the past two decades, to the point where obtaining an abortion in the bible belt is becoming almost impassably difficult, even for "minors" of the age of 19.

Most professors at my school didn't try to avoid controversy or bringing in "policy" or "moral arguments" into the classroom (something that barheads hate), but they are under a duty to teach us the basic law we need to know to pass the bar, so most days, it's just legal rules crammed down your throats. Some don't always adhere to that precept however. The more elite the law school, the less it's worried about its bar passage rate, and the more abstract and theoretical it is. You can take a bar class and learn very little blackletter law. I did well in Contracts, but because it was taught by a law and philosophy professor, I can make basic arguments about contract theory and can do very little actual contract drafting. And yes, you can go through a whole semester of Criminal Law learning very little more than you would from a Law and Order marathon (or even less). Try spending 8/16 weeks studying criminal intent (mens rea) and then trying to answer your friends' basic questions about what they could to expunge an old misdemeanor from their record.

So with the remarkable range in law school courses, and the flexibility given to law professors to teach the material whichever way they wish in most elite law schools, why aren't law students learning cutting-edge legal theory? I have no idea. I think it's just the nature of the field. It's a relatively static, slow-changing field. You slowly appeal up the ladder of the courts, and wait for precedents to be affirmed or remanded or overruled before you can feel comfortable enough to teach it. Except for clinical oriented classes, there's no teaching of novel legal strategies. I admit, the law is kind of stuffy and stuck in place. I concentrated in Critical Race Studies, and even my Critical Race Theory course had a text book that was dated 10 years. I'm supposed to be at the cutting edge of interdisciplinary anti-subordination legal theory, and only NOW are we beginning to talk about the intersectionality of race, gender, and sexuality.

So I can't find anything to chalk up this remarkable resistance to change and innovation than the static nature of law. The legal system is beset by Kafka-esque gatekeepers, arcane rules, and legal precedents that constrain its ability to adapt and change. Bowers v. Hardwick: 1989. Overruled by Lawrence v. Texas: 2004. It takes a while, even as society and its mores changed at a much more rapid pace.

Young academics can take it upon themselves to try to change the pedagogical rigidity of the system without pushing a political agenda. I would hope that I would try to teach some of the things I'm discovering through my research in a politically neutral way, that is, open to discussion and critique. In teaching a course about federalism, for example, I could bring in the angle of the federalization of criminal law and discuss new cases concerning drug enforcement and the Violence Against Women Act. There are pro and contra arguments for anything. In teaching a class about Employment Discrimination, I would bring in issues concerning sexuality as a potentially "suspect" classification for discrimination, how transgenders should be regarded (as effeminate men/masculine women or as women/men?), and how discriminating against typically-Black/ethnic mutable characteristics (cornrows, yarmulkes, Sikh beards and turbans) is de facto racial discrimination. Again, arguments on each side, going back to the melting pot vs. the mosaic.

The legal field is more dynamic than the legal academy, but both are pretty much slow moving beasts. It's the race between the tortoise and the slug. But I would at least argue for making the academy match the innovation of its cognate field. What the academy should do is look outside it's doors to the other buildings on campus. I wonder how other fields would fare if they only taught the survey courses and nothing else, or introduced nothing novel in their survey courses. How can you teach a class on the American Government and discuss separation of powers without discussing the current controversy over the "unitary executive" idea of Alito's? How can you teach economics without introducing the emerging field of behavioral economics? I was an English Lit major once, concentrating in modernist American literature and even there, the professors brought in post-modern deconstructionist theory (though we were the university of Derrida). Every field has the potential to be shaken up a little.

I'm not anti-canon. I'm not one of those annoying newly minted activists in the first blush of political consciousness arguing that seeing a John Singer Sargent exhibit is SO eurocentric (dude, he was AMERICAN) or blithely saying "I don't like Shakespeare--he does nothing for me" (both happened to me). I'm not arguing for throwing out the baby with the bathwater, or radicalizing and politicizing law teaching. You can teach the emerging conservative movement in ANY field too. I'm just sayin', can't we change the syllabus a little? Can't we spend a few less weeks on one point that has been belabored to death so that we can discuss a couple of emerging topics?

Is this too much to ask?