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Author: Chai Feldblum

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Moral Values and the Curriculum

What great fun to read all these posts!

There are three separate threads on the posts that I want to respond to: the impact of Robin’s analysis and exhortations on what our law school curriculum might look like; the three Rs: Robin, Robert (Cover) and Religion; and the intersection between moral values, relationships and marriage.

So, to the first –curriculum.

Among the changes I hope will follow from Robin’s work are significant changes to the law school curriculum. As Rebecca Lee notes:

As I see it, Robin’s challenge to law schools is particularly timely in light of the curricular revisions many schools are making in response to the changing legal economy. To best equip students to be lawyers and problem-solvers in the 21st century, it is becoming increasingly clear that law schools need to prepare their students to do more than just adjudicative analysis. Students will need a wider understanding of law and its uses and tools in various realms, and this training, I believe, can and should begin in the classroom. As law schools’ raison d’être evolves, so too should our legal commitments and methods, and this rethinking should likewise extend to our scholarship

I completely agree.  Moreover, I think it is essential for law schools to give students a rich grounding in theories of justice concomitantly with teaching them such legal skills.  Robin has noted in this book the importance of liberal progressives being able to deploy normative arguments that rely on a thick understanding of justice and moral goods and she will make an even more extensive argument on the importance of teaching students about justice in her forthcoming book about law schools.  To me, giving students a rich grounding in theories of justice is imperative both to changing our legal approach and our scholarship in the manner that Robin is suggesting.

But I also can’t imagine having students learn about, and critique, theories of justice without also having a deep understanding of how our political system – which ultimately creates the body of laws that reflect our vision of justice — really, actually, and honestly works.

The lack of understanding on the part of the general public regarding the role and authority of the executive branch and the legislative branch sometimes takes my breath away.  By virtue of their profession, lawyers should be leaders in educating people about how our lawmaking system actually works and in helping people engage in citizen democracy.  But we don’t give our law students a comprehensive and rich understanding of lawmaking – the role of legislatures and agencies (as well as courts, which we cover quite well) in the making of law.

The good news is that this is beginning to change. Many schools are expanding their vision of what “teaching law” includes – which often extends to teaching students about advocacy in the political arena that makes law in the first place.

For this reason, I believe a forthcoming article on how law school clinics can lobby, co-authored by Professors Kevin Barry and Marcy Karin who head clinics that engage in both individual client work and policy work, is going to become a popular reading item. As Barry and Karin note in the beginning of their article:

In short, policy advocacy adds value for students, the law school, and the community. With respect to students, this type of clinical experience expands students’ toolkit of transferable legal skills and exposes them to the range of ways in which the law may offer solutions to a particular client or client base. It also responds to the growing student demand for policy advocacy opportunities and enables students to aspire to the highest ethical standards as set forth in the Preamble to the ABA Model Rules of Professional Conduct. These rules state that all lawyers “should cultivate knowledge of the law beyond its use for clients [and] employ that knowledge in reform of the law.” MODEL RULES OF PROF’L CONDUCT Preamble (2012) (emphasis added).

And finally, Jill Hasday’s post brought home to me how important students’ policy advocacy work can be – and what has been missing so far in those efforts, in terms of curriculum.  Jill tells us:

Family caps, which at least nineteen states currently impose in some form, deny or limit TANF benefits to children conceived while their parents are already receiving TANF. For example, New Jersey’s TANF program provides that a family of two will ordinarily receive up to $322 a month, a family of three will ordinarily receive up to $424 a month, and a family of four will ordinarily receive up to $488 a month. These scant benefits are unlikely to cover a family’s basic needs, and New Jersey’s family cap limits them even further. New Jersey’s family cap means that a family that enters TANF with two people is still limited to just $322 a month if another child is born, $102 less than New Jersey itself otherwise thinks necessary for three people’s subsistence.

Well, the only reason there is not a mandatory family cap in ALL 50 states in this country is that, back in 1996, students in the Georgetown Federal Legislation Clinic who were working on behalf of their client, Catholic Charities USA, helped draft legal analyses and talking points against the family cap. The original welfare reform bill had required every state to have a mandatory family cap in its TANF program.  Catholic Charities (the client) took the lead in organizing a coalition against that provision.  Politics was such that the best Catholic Charities could get was a provision that permitted states to impose a family cap if they affirmatively chose to do so.  The students who worked with Catholic Charities over the course of that year learned critical legal skills by doing that work and (from my perspective) helped advance social justice by eliminating the nationwide mandatory family cap.

But here’s my final point – the work of Georgetown’s Federal Legislation clinic on welfare reform (and on many other legislative and administrative issues over the past two decades) has enabled students to learn about the political system and the making of law, and to develop important legal skills.  But there is SO much more about justice and values and normative goods (and arguments about normative goods) that could have been taught to the students if they had had available to them – as Robin calls for — a richer progressive natural law jurisprudence.  Think about what more the students could have learned if part of the law school curriculum would have been to engage them in a substantive goods conversation about the family cap – at the same time that they were working on the issue in a practical way.  (I can tell you — I did not engage the students in that conversation.  But I would do so now, as a complement to their advocacy work.)

So to end with Robin’s words:

As I argue in my book, one other cost of contemporary liberalism’s commitment to this dubious premise [state neutrality toward conceptions of the good] is that partly as a consequence, we don’t have a progressive natural law: liberals disdain the entire tradition, in part, because of their antipathy toward conceptions of the good, and antipathy toward the notion that the state should entertain them. So the part of the natural law that I believe is of most interest — the part inspired by Aquinas and most developed by Finnis and his students, that explores the content of the common good and the role of the state, and of law, in realizing it — suffers from a lack of participation by those who ought to be most engaged.

Amen. (Designed as a segue to my next post: “The Three Rs: Robin, Robert (Cover) and Religion.”)

 

 

 

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So What Is Actually A Good Law? (plus Cheers for Kindle)

In her Introduction to NORMATIVE JURISPRUDENCE, Robin West challenges us with this:

With only a few exceptions, the major practitioners of our dominant contemporary jurisprudential movements do not ask what justice requires of law, what makes a good law good or what makes a bad law bad, or what the good is that law can, or should, accomplish, against which we might judge particular laws or legal regimes. . . . Even more clearly, we do not often ask what it is about social life that seemingly requires address by or recompense from the law, or how a good law might respond to a social ill in a desirable fashion, or how a bad law, or no law, might do so poorly. We do not often ask whether we have insufficient law to address ills of private or social life, or how we would know that, if it is true.

 Thankfully, Robin’s book presents us with a roadmap for beginning to engage in such a conversation (if we agree that such a conversation is important, which I wholeheartedly do). And I celebrate the fact that Concurring Opinions is hosting this week-long blog exchange for those of us who have been salivating for a book of this kind to explore the ideas that Robin has put forward.

For my opening post, I want to make the following two points:

1) This is the FIRST of Robin’s books that is available on Kindle! YAY!!! If you go to Amazon (or click on Normative Jurisprudence above – which will take you to Amazon), you will see that the hardcopy sells for $90; the soft cover for $25; and the Kindle edition for the wonderful price of $14.99. (And as all of us who are devotees of Kindle on our iPads know – you can make the font LARGER for us late middle-age folks.)

OK, right there — I say we are on better grounds for achieving a normative jurisprudence – hopefully, by more people being able to buy the book that can provide us with a road map for having the conversation that can lead to such a jurisprudence.

2) My second point is that I agree with Robin that law (and lawyers and law professors and legal institutions) all have something unique to contribute to the conversation about what is normatively good and bad for our society. Read More