West’s Normative Jurisprudence and Law School Reform

I’d also like to extend my gratitude to Robin West for writing such an important book and to Danielle Citron and Concurring Opinions for hosting this terrific online symposium.  As a former student of Robin’s and now law professor myself, I have deeply appreciated her work and mentorship, and am delighted to take part in this dialogue dedicated to her latest project.

In Normative Jurisprudence, Robin makes a compelling argument for a renewed scholarly legal discourse that breaks free of the confines of what law is and has been, and takes up the essential question of what law ought to be in light of what justice requires.  We should engage in “deep criticism of law and legalism and legal ideals” and not simply study, or work within, the existing legal framework and system, which for legal scholars has been court-centered and therefore constrained by past judicial pronouncements.  She urges the legal academy to move beyond this past-dependent focus and instead take on the more forward-looking and creative task of exploring legislative and regulatory avenues to advance what we identify as the common good.  Speaking expressively yet directly, she encourages us to give attention and voice to this much-needed type of examination.  In one such passage, she asserts:

“. . . The absence of either philosophical debate over the nature of the good, or its implications for the value of legislative initiatives or regulatory regimes governing various areas of social life, in law schools and in legal scholarship generally, is striking.  Law schools study court decisions, largely on the basis of other court decisions, whereas other branches of the university study both legislative initiatives and competing conceptions of the good they ought to further.  This is an odd division of labor.  There is no reason other than inertia that law schools should not be central to debates over the value of proposed or existing legislation, as well as central to debates over the meaning and value of competing understandings of the good against which those proposals might be judged.  Law scholars, presumably, would have much to contribute: lawyers and legal scholars know a thing or two about law, about what it does well, where it fails, and why.  That knowledge of law and its value is oddly cabined, unengaged with debates over the possibilities of law’s contribution toward the quality of public life.”

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.

We as legal academics, then, can help shed light on matters in need of sociolegal reform, whether or not we see ourselves as directly participating in the movement.  Although Brian Bix understandably wonders whether legal academics have the attributes and skills to best advance social justice causes, it seems to me that law professors, even if not especially activist-inclined, through their research and teaching help provide the building blocks for those who may be more so.  Legal scholars whose expertise tends to focus on deconstructing theories and unpacking doctrine certainly contribute by helping to light the spark for others who then reconstruct them toward change.  It is engagement in this kind of conversation, much like the one we are having in this online symposium, that plants the seeds for further thought and suggests different paths for reform.  The enterprise is ultimately a collective rather than solo one, but it builds on the efforts of each of us.


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2 Responses

  1. Amy Uelmen says:

    Thanks for this thoughtful post, Rebecca. I know that Robin’s current scholarship is drilling into this topic – and in my exposure to that as well as her arguments in Normative Jurisprudence, I have been struck by a number of thematic parallels between Robin’s work and the essays by Roger Cramton. (The Ordinary Religion of the Law School Classroom, 29 J. Legal Educ. 247 (1978); Beyond the Ordinary Religion, 37 J. Legal Educ. 509 (1987)). Reading these with my students recently, it was interesting to see how current the critique is, and wonder why it took 35 years for these ideas to get more traction – speaking of inertia! Did we need a financial meltdown, or is it deeper than that? I’d be curious to hear the thoughts that folks might have on this.

  2. Rebecca Lee says:

    Thanks, Amy, and a very good question! I think part of the problem is that law schools are largely very tradition-bound. Just as the common law relies heavily on precedent, the common law school model relies heavily on past teaching practices. Broadly speaking, resistance to reform expressed as fidelity to long-followed norms, rather than inertia, may help account for the mostly static nature of legal education. As a student, I was actually involved in curricular reform efforts in a different professional school context (public policy school) and there seemed to be greater institutional support for change — and quicker change — in that environment. Change, however, appears to come less easily in the law school context, requiring then something like economic pressures to create urgency for the need to depart from old ways of doing.