Monday, April 23, 2012

Can Students Learn Law "Without Knowing One Whit of History"?

Last fall, the editors of the Fordham Urban Law Journal invited me to participate in the launch of their online component, City Square, with a response to one of the journal's most thought-provoking recent articles, Amy Wax's "Musical Chairs and Tall Buildings: Teaching Poverty Law in the 21st Century." I welcomed the opportunity to think carefully about my own approach to the course, particularly my commitment to a historically informed understanding of the design and operation of contemporary social welfare law. Wax's recently published reply, titled "The Limited Utility of History in Poverty Law Education," reminded me that my conclusion is far from obvious to other legal academics. Here's an overview of the conversation, which illustrates differences of opinion that extend beyond this particular course and merit legal historians' consideration.

I'll start with "Musical Chairs and Tall Buildings," which was part of a 2007 issue on the place of poverty law in the law school curriculum. In this article, Wax (University of Pennsylvania) asks "[w]hat accounts for welfare law’s current status and continuing marginalization" in legal education today. She discusses the evolution of welfare law as a subject and her own approach to teaching it (the materials are eclectic, but she devotes close attention to the causes of poverty). She then offers some thoughts on "how the problems of deprivation and inequality should be addressed." Here's part of the concluding paragraph:
To the extent that deprivation is still in part “structural”—that is, the product of larger economic and institutional forces shaping labor markets, economic opportunities, and the distribution of wealth—programs like work-support and tax credits for the working poor are now the instruments of choice. But decades of experience and study have revealed that some poverty is rooted in behavior. And programmatic attempts to improve performance have taught us that understanding causes does not necessarily point the way to effective solutions. Because behavior is hard for governments to control, the study of poverty reveals the limits of the government’s power and counsels a more modest approach to what it can accomplish.
In my response, here, I accept the value of Wax's course, but make a case for a different, emphatically historical approach to the topic:
My goal is for students to understand the origins and evolution of legal responses to poverty in the United States and to thereby develop an understanding of how social welfare law works today.  Some countries attach minimum subsistence grants to citizenship.  Why does the United States instead have a system of tax credits, temporary need-based assistance to families, old-age and disability insurance, and unemployment insurance, to name just a few features of our complicated welfare state?  Why do states administer some programs and the federal government others? Why do some beneficiaries get unrestricted cash benefits and others receive benefits in kind?  Why are some benefits tied to behavioral conditions and criminal sanctions, while others are not?
My course has weaknesses, I concede, such as failure to produce welfare law technicians and a relatively limited engagement with the concept of "social justice," but it "captures . . . what I most valued in my own legal education": 
Professor Wax, coincidentally, taught me civil procedure.  She was an effective teacher because she taught us to think about why we have the set of rules that we do and how different rules work together to further several basic goals.  With this foundation, we were equipped to ask civil procedure’s harder questions——about winners and losers, about the proper allocation of benefits and burdens, and, ultimately, about what the federal court’s role can and should be in resolving disagreements.  These are hard questions, about which reasonable people may disagree.  Some students may choose to answer them by reference to social scientific evidence, while others may employ critical theory or philosophy. Still others may defer to the political process or the lessons of their own upbringing.  Students of poverty law benefit from the same approach.  Before we teach them “how the problems of deprivation and inequality should be addressed”——an important subject, to be sure——let us teach them what the law does now and how it got this way.  This, in my view, is Poverty Law 101.
Amy Wax (image credit)
Wax's reply is here. Wax is unconvinced that history is, as I claim, an "essential item[] in the instructor's toolkit." Here's a taste:
As with so many discussions of the significance of history, Tani’s insistence on the usefulness and importance of historical perspectives is advanced at a high level of generality.  There are no real particulars or specifics, and no policy payoff or bottom line.  We are left guessing why we should care what happened fifty or a hundred years ago.  How does history tell us whether we should require single mothers to work, whether public funding of medical care should be means tested, whether and how much the retirement age for receiving social security benefits should be raised, or whether childless men should receive the earned income tax credit?  I submit that all these questions can be meaningfully addressed without knowing one whit of history. 
[footnotes omitted throughout].

Can students learn social welfare law, or any other legal subject, "without knowing one whit of history"? Should they? Is history only useful to legal education when it provides a clear "policy payoff or bottom line"? Based on this exchange, there is room for debate.


  1. Prof. Wax's:

    "I submit that all these questions can be meaningfully addressed without knowing one whit of history."

    might suggest a variation on Francis Fukuyama titled:

    "The End of Legal History"

    I don't think so.

  2. Karen, thanks for posting this. I'm sorry that I don't have time this week to read the full exchange -- and your snippets are so interesting! On the issue that students can understand any area of law "without knowing one whit of history" -- the difficulty with that assumption is that we can only read cases and statues with a basic idea in mind of what the society is that these legal sources apply to. Students have ideas about that social context, but those ideas are often myths about the past or present circumstances. Law itself is so historical -- resting on precedents. So while Wax's overall argument sounds compelling to me (in the snippets! it's a busy week...) the idea that we can even read and understand cases without the critically questioning the assumptions about the social context, including its history which without critical understanding can be an essential myth-making component -- this sounds wrong-headed to me.

    This is why I liked Cary Franklin's Title 7 article, which we recently posted about, showing that the "tradition" invoked in T7 law is a construct. Historical assumptions are prevalent throughout legal doctrine. Of course we need historical analysis to inform that. Thanks for making the point!