Monday, February 3, 2014

Who Do We Think We Are?: Teaching the History of Lawyering

First of all, my thanks to Dan Ernst and the good folks at the Legal History Blog for the invitation to guest blog this month. As Dan said in his intro on Saturday, much of what I hope to be talking about in this forum will be based on my experiences teaching a course at Pitt Law called "Lawyering: A History." In a nutshell, it's a survey course on the history of lawyering and lawyers from the classical world through medieval Europe, England, colonial America and later the United States down to the present day. Its goal is to help law students consider and answer - from an historical perspective - a basic but remarkably little-asked question: "who do we think we are?" (and yes, Virginia, my riff on the title of a well-known genealogical history TV series on NBC in the US and the BBC in the UK is fully intentional!).

Quite frankly, my otherwise bright and enthusiastic law students don't know who they are. And that's a real problem these days when law students face huge burdens in law school (read "debt") and huge burdens when they graduate (read "job"). They see before them a legal profession buffeted by major challenges and unsure of its direction. Disoriented themselves, they have no sense of what challenges their predecessors faced, what opportunities they grasped, or how they helped create the circumstances that all of us in the law have to live with today. They have little sense of context and lack any grounding in remembered professional experience. Instead, they suffer from might almost be described as early-onset amnesia (an interesting condition which ironically may allow sufferers to continue to perform skills without having any memory of why they are performed).

Of course this amnesia is our fault. As legal historians we teach our law students relatively little about lawyers (as opposed to, say the history of doctrine or of legal thought, or the historical interactions of law and society). Sure, we continually reference lawyers in garden-variety American legal history courses, but apart from mentioning the "usual suspects" (and most of them only in their later capacity as judges) we rarely dig down in an any deep or systematic way.

I know this because I was one of the guilty ones. When I first toyed with the idea of teaching a course on the history of lawyering four years ago, I thought that having taught legal history for some 20 years, it would be a relatively straightforward matter - more, perhaps, an exercise in further specialization than anything else. I could not have been more wrong. Instead, I found myself in a veritable "fair field full of folk" (yes, there are lawyers in Piers Plowman!) but without a usable text, without a clear periodization, and with very few pedagogical precedents to draw on, there being but a tiny handful of similar courses in American law schools (and most of those with a narrower chronological and national focus). At the same time, I began to find lawyers in places and positions where I didn't really expect to find them, and I began to rethink the very idea of offering a "professional" history of lawyering, slowly inclining towards a broader "cultural" history of lawyering that would overtly regard lawyers as having a truly fundamental role in the development of American society in particular, from explorers to investors to orators to revolutionaries to framers to politicians to poets to evangelists to soldiers to editors to entrepreneurs to CEOs to activists and so on, and on, and on. Here, right before me, were individuals who as a class could truly be described (pace Gramsci) as the "organic intellectuals" of the American experience (arguably much more so than members of any other professional or occupational group), but about whom we had told our law students little or nothing.

How crazy is that? Right now, when we want to inspire our law students, raise their horizons, broaden their minds, and prepare them (by necessity) for a world beyond the Scylla of BigLaw on the one hand and the Charybdis of solo practice on the other, shouldn't we be telling them about these people, their successes and their failures, their strengths and their weaknesses, their dreams and their delusions? This is no celebratory "lawyers' history" that I'm proposing, but rather a living, breathing, warts-and-all history of lawyering - a history of lawyers as people whose examples and actions, for good or ill, can be offered to our students. What do they have to gain from all this? Two things at least: first, a better, more accurate and more ambitious sense of themselves and their own potential as lawyers, and second, a humility that comes from knowing that they are not the first generation of lawyers to strive, to struggle, to succeed and even sometimes to fail.

Hopefully my students benefit from these take-aways. I certainly have. Teaching this course on the history of lawyering has been not only educational for me, but truly life-changing. That's a great thing for a legal historian to say when he's mid-career(! - where did the time go??). But it's true. I look at lawyers differently now. It's been exciting to meet literally hundreds of lawyers that I'm very ashamed to say I had never heard of before but who did amazing things. And even many of our unknown and underappreciated "villains" I find to have been remarkable in their own way. Together, the experiences of all these people have forced me to reevaluate many of the nostrums of legal history that I formerly accepted.

This month, on this blog, I look forward to introducing you to just a few of the lawyers in my lawyering history course, partly to whet your appetite and partly just to share my own excitement in (re-)discovering them and hauling them out of history one at a time.

Now, though, I close with a question to colleagues. What aspects of the history of lawyering (and lawyers!) do you teach? Who are the (relatively unknown) lawyers you consider remarkable in history, for good or ill? And what do you think we can do to better leverage our knowledge of these lawyers and the lawyering they practiced for the greater benefit of our students? I look forward to hearing from you, online and off.


Patrick S. O'Donnell said...

I'm neither a law professor or lawyer but I do want to speak to your question about "(relatively unknown) lawyers you consider remarkable in history." I've been studying the history of apartheid in South Africa and have marveled at the number of prominent activists in the anti-apartheid struggle who were lawyers (including, most obviously, Oliver Tambo and Nelson Mandela). What is more, many if not most of the ones I've learned about were once or remained members of the South African Communist Party (e.g., Bram Fischer and Joe Slovo). I think this had enormous consequences when it came to negotiations with the apartheid regime in the late 1980s and 1990 (informal in the former period). It played an especially significant role in the transitional processes involving democratic constitutionalism, including the nature of the country's final constitutional document. More should be written about this, if only because it dispels certain stereotypes, shibboleths, and myths about the relation between communism or Marxism and "the law." Utterly fascinating stuff! (Perhaps only dyed-in-the-wool Lefties like yours truly will agree.)

I've now been researching the role of Communist lawyers in U.S. history.

Todd Leskanic said...

I would love to know what texts or readings you're using for your class. I think it would be incredibly interesting to be in this class and only wish I could be.

Anonymous said...

How do you teach this form of lawyering, from the 1641 Massachusetts Bodie of Liberties?

"Every man that findeth himselfe unfit to plead his owne cause in any Court shall have Libertie to imploy any man against whom the Court doth not except, to helpe him, Provided he give him noe fee or reward for his paines.... "