The watchers on the walls defending rights and liberties are often lawyers, yet those lawyers must ascend to their posts themselves, their legal training preparing them little for the climb. Law schools must do more.
Law schools have long recognized that the first year is the most effective moment in legal education, but by and they large have declined to use that opportunity to spur a legal conscience. The first year of law school builds skills, to be sure, teaching the student to “think like a lawyer” in the most traditional sense. But as the student quickly learns, often through a dismissive scoff in response to “justice” offered as a reason for a rule, lawyers don’t think in abstract right and wrong. Justice must not enter naked: only clothed in a precedent, a statute, in economics or another authority may it make an appearance. “Only when you’ve exhausted all else should you turn to what’s right” is the first-year professor’s mantra. There must be something more for aspiring keepers of freedom’s shield. To me, that something more should be a mandatory 1L course on legal morals.
The two standard answers to such a course are a) it’ll degenerate into an explanation of how close you can toe the line without sanction, or b) it’ll turn into a broad, philosophical, “what is justice?” class that doesn’t belong among its demanding Socratic brethren. But the most difficult questions I’ve encountered in law school have not asked for the reasoning behind a rule or vague policy rationales, but instead asked why a rule should be so. The student answered, and the professor followed with the contrary; the student tried another answer and received another challenge. The professor did not seek abstract logic, quotation from precedent, or even the student’s mere “opinion” about rule; the professor sought a consistent set of values that is as much the lawyer’s toolkit as precedent and statute, at least for any lawyer who cares about shaping her world rather than letting it pass her by. That is what every student needs in the first year, when she is just beginning to comprehend the law and its worth.
To those who say you can’t create consciences in the classroom, I say no one is asking for such a feat. Very few people live entirely without a moral compass. Most people find it convenient to put it aside and everyone ignores it at least some of the time, but it is not often lost for good. The point of thinking about how one’s values interact with the legal world is not to cure the sociopaths but to have the student find out what she cares about, what puts a fire in her eye as she looks on an imperfect world. It will be a challenge to create a course on legal morals that is rigorous enough to stand beside Torts, Contracts and the rest of the old guard, but if it can attach deeper thought to questions of law in a lasting way, it’ll be well worth it.
For the American Association of Law Schools to say it teaches students to think like lawyers is to say nothing. Lawyers think like law school teaches them to think. The idea that the way lawyers think is an external truth to which law schools must conform is a dangerous fiction. Law schools must accept their profoundly important role in molding legal minds, and take seriously their duty to keep watchers on the walls.