Associate Justice Antonin Scalia has long proven a lightning rod on the Court, particularly his consistent and controversial habit of making highly charged public comments. I have previously criticized him and other justices for the increasing public speeches, often to highly partisan groups, that undermine the legitimacy of the Court. This week Scalia raised eyebrows in his advice to law students not to take “Law and Women” or “Law and Poverty” courses which he says amount to little more than professors teaching their “hobbies.”
Scalia struck out at “frill courses.” He started out well by correctly noting that “[t]he only time you’re going to have an opportunity to study a whole area of the law systematically is in law school.” As a law professor who litigates, I also emphasize such courses and try to incorporate real-practice elements to my courses. However, I also teach legal history and theory in all of my courses, including my first year classes that range from feminist theory to economic theory to Hegelian theory. I believe that such theoretical knowledge deepens a lawyer’s understanding of the law, including the practice of law.
Scalia however saw things a bit differently and offered a strikingly anti-intellectual view of such courses: “You should not waste that opportunity. Take the bread-and-butter courses. Do not take, ‘law and women,’ do not take ‘law and poverty,’ do not take ‘law and anything.’ . . . Professors like certain subjects that they’re writing a book on, so they teach a course in that subject . . . Because there are so many professors teaching their hobbies, the rudimentary courses are not taught with the frequency necessary for everybody to take them.”
That is a disturbing account to give students and serves only to “dumb-down” legal studies. My students will be better lawyers but not only learning about the practice but the philosophy of law. It is both possible and, in my view, essential to get both in your training. I am distinctly proud of my student’s in their ability to move seamlessly from the theoretical to the doctrinal in class.
It is also highly ironic to read Scalia’s account which will be used by some who want to teach law as a type of trade school. National law schools have long ago rejected that model. Those are the very schools that Scalia identified as the only institutions from which he would take clerks. I previously criticize Scalia for his comments that students at most schools should not hope to become Supreme Court clerks because those positions are reserved to the top schools.
I am disappointed in the recent controversial comments by Scalia because he reflects a deep understanding of legal theory and history in his writings. His opinions are greatly benefited by that deeper knowledge. Student gain such theoretical foundation by taking these seminars, which often inspire or challenge the view of law students. Lawyers are not accountants who merely tally columns of precedent. They are part of an organic and ever-changing field. The current laws are changed by the powerful legal theories and policies that constantly move beneath the legal superstructure.
No school teaches primarily through seminars with such specialized subjects. Rather these are electives that allow students to drill down on areas of particular interest, often exploring the impact or the rationale for legal doctrine. It is terribly disappointing to see a justice criticizing such courses and downplaying their value in legal education.
Source: ABA Journal
SwM,
Well, from what I read many of these “criminals” have no idea they are breaking the law when it comes to those two acts I mentioned (and others I didn’t mention). And, since the need to prove intent is absent from so many of these laws the person charged is really stuck.
Prosecutors and Judges love ’em cause it’s easy-peasy prosecution and conviction resulting in huge fines and, in many cases, mandatory prison time which is good for those who want a strong record of law & order on their resume.
These are normal citizens digging for arrowheads, musket balls, snowmobiling etc. They don’t even have to be on federal land as some of the laws have been amended to included privately owned land adjacent to federal land. It’s crazy and it seems to me that a lawyer who familiarizes him/herself with these laws and keeps up with the changes and additions (which are constant and numerous) would have a wealth of fairly sane and ordinary clients.
Many states, seeing the money-making possibilities, have adopted their own similar laws to cover state lands.
Just pick a state that has a lot of federal and state owned parks/land to set up one’s practice or promote one’s specialty and join a firm already located in the area.
Bron,
I’m not saying purchasers shouldn’t perform due diligence. I’m saying that the contractual relationship between professional and client isn’t as simple as you are trying to paint it. Due diligence or not, a professional is not just selling a service, but their professional expertise and that in itself has value and part of that value is that the client is relying upon said expertise in providing both advice and services. Reasonable reliance/detrimental reliance is at the heart of almost every malpractice case. That’s just how it is, Bron, your laissez-faire fantasy of the situation notwithstanding. Someone can have an excellent Martindale-Hubbell ranking (a ranking service for the legal profession) and still get sued for malpractice if they give a client bad advice that the client relies upon to their detriment.
Welcome to the law of the jungle.
as a non-lawyer in an ever increasingly complicated world hinged often on legal documents that are un-interpretable by lay persons….why haven’t Law schools expanded to add on an additional year to accomodate for all the new laws and intellectual complications etc. that are accompanying the worlds changes and expansion? And why no additional requirements ie: internships in the SAME MANNER that Doctors must complete before being lisenced to practice?….as long as we are talking sense…..
oops…… has taken
Interesting…… Blouise. My daughter had taken some seminars and clinics. This semester it is “Legislative Lawyering”.
Gene H:
People should check out any professional they hire. Kick the tires ask for references, speak to former clients/patients. Do your due diligence prior to hiring someone who is going to have an affect on your life.
That seems pretty straight forward to me. A contract protects you after the fact, what you want is not having to rely on your contract for protection.
Bron,
What exactly do you think is at the core of the majority of professional malpractice cases regardless of the particular field?
It’s usually where someone who isn’t an expert has reasonably relied upon the advice of an expert (or alleged expert) to their detriment. It’s the same in every professional field from architects to surgeons. You are paying money not just for a service but for their professional expertise which you the purchaser lacks. That caveat emptor may be one of your laissez-faire ideals, but that’s not how contracts for professional services work in general.
With well over 4,500 crimes in federal statutes, bread and butter courses aren’t going to suffice.
If I were a law student I’d think about specializing in crimes while on or near Federal land like the ones outlined in the Archaeological Resources Protection Act of 1979 and the Wilderness Act of 1964.
“I’m a firm believer that the equitable solution is smaller fines to those who suffered from detrimental reliance and that the managers/advisers should bear the brunt of the penalties and all of the jail time.”
I think that would put a good many lawyers and accountants in jail, probably doctors and other professionals as well.
Maybe Willie and Wesley need to take more interest in their affairs?
Just because someone has a state license doesnt mean they are any good at what they do. only 50% of the people who take the PE test pass the first time. Next time you hire an engineer 1 out of 2 failed to pass a test that really isnt that hard.
It is up to the client to determine the level of competency of the professionals they hire. Just because someone has a PE doesnt mean they can competently design a multi-story building. The professional has a duty to understand the limits of his competency but the client should check out the professional. If he doesnt he bears responsibility for bad actions taken on his behalf.
Darren, Amen. I majored in criminal justice but have a minor in philosophy.
Bron,
The Nirvana fallacy. The system is imperfect. It always will be. The goal is to minimize such errors. The issues with the IRS could largely be mitigated by simplifying the tax code and taking steps to ensure equitable enforcement. Oh, and tell that to Willie Nelson and Wesley Snipes: two guys who got screwed by the IRS because they had bad businesses managers/advice. If you in good faith rely upon allegedly expert advice and it results in sever penalties and jail time for tax issues? I’m a firm believer that the equitable solution is smaller fines to those who suffered from detrimental reliance and that the managers/advisers should bear the brunt of the penalties and all of the jail time.
None of which changes that Scalia is an embarrassment to both bar and bench.
Gene, The IRS Gestapo show no mercy. During WW2 the great Joe Louis did numerous charity bouts w/ all the proceeds going to groups that helped soldiers and their families. After the war the IRS nailed him big time for not paying taxes on some of his regular bouts.
“they became a case study in getting screwed by the IRS”
the IRS never screws people. They are a benign force for good in this country. They facilitate redistribution.
Every Age is burdened with a Scalia. He is the proverbial “one step back”.
mespo:
but doesnt “regular” law encompass those issues?
As far as poverty law goes, isnt the real issue access to good council?
Access to legal council is the problem, at least as I see it. The issues faced by the poor, minorities and women are no different than those faced by white males, white males just have better access to legal council. And can afford to make the problem go away.
Reblogged this on Mary Cosmo and commented:
Scalia’s advise for law students…
I don’t know if this was Justice Scalia’s intent but there is something to be said about taking majors in college, not just a couple classes but entire fields of study, which have essentially few opportunities to earn a career in, other than prepetuating the subject by becoming employed as academics in it.
People are free to study what intersts them but can several thousand people nationally really expect to find employment as a poet after having majored in Victorian Era Poetry? Yes, there might be one or two, yet how many would have found more gainful employment if they studied something more practical?
nick,
“Great clip. Those dumb guys laughed all the way to the bank.”
Actually, they didn’t. They weren’t starving or anything, but in the 1950’s they became a case study in getting screwed by the IRS in addition to both of them being heavy gamblers. The IRS liens forced them both to liquidate the majority of their assets in the mid-50’s.
But they were indeed funny in the extreme.
Bron:
“One thing I don’t understand is why do poor people and women need special law, …”
*********************
They really do since their issues involve unique questions of law applicable to their particular circumstances. Obviously, women’s “law” involves equal pay for equal work, reproductive rights, and the myriad of other issues that appertain due to both their gender and historical differences in legal protection or the lack thereof. Poverty law involves government benefits, housing issues, legal assistance, and Social Security law. These are topics I encounter every day and wish they would have been offered in the Dark Ages when I went to law school.
Scalia wants a return to the first year law school basics which is not a totally unreasonable approach but his method of disparaging other meaningful areas of legal study does him no credit. These are not just “hobbies” but are real issues that affect the lives of real people without the social security a judge for life enjoys. We can do without Scalia’s “let them eat cake” attitude.