Discussion (1L): Legal Education in History: Conflicts Over Law and Its Teaching

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This seminar explores debates over the nature and purposes of law and legal education in the United States from the late nineteenth century to the present--with a particular focus on the role of law schools in managing the line between law and politics. We will begin by examining the formation of modern legal education at Harvard, exploring the turn to legal formalism and its interconnections with the rise of modern capitalism (including the emergence of the defense bar) and anti-immigrant sentiment (including the rise of the plaintiffs' bar). The formalist approach--and its deployment by a conservative U.S. Supreme Court eager to strike down welfare legislation in the Progressive era--would in turn give rise to sociolegal jurisprudence and later legal realism. Centered first and foremost at Columbia and Yale, these approaches would profoundly transform American law schools, all but definitively separating American legal education from its counterparts across the globe. In the wake of the Second World War, as Americans increasingly turned to positivist social science and its promise of law beyond politics, American legal education embraced a new philosophy--that of the process school--which highlighted (American) institutions and procedure as the key to avoiding the pitfalls of both formalism and realism. We will conclude by examining the current landscape of American legal education. Even as the promise of the process school has faltered, the present-day American law school is indelibly marked by its history--including the case method (inherited from late nineteenth-century formalism), a realist commitment to studying law in action, and the process school's obsession with (American) institutions and procedure (as exemplified by the study of federal courts). At the same time, we see a turn to interdisciplinarity and to legal clinics--representing the polar extremes…