Friday, February 28, 2014

Of Lawyers and Lifeboats

Nova Scotians like myself are all too familiar with lifeboats. From our fishing villages and lighthouse stations they and their crews have long put to sea in all manner of weather to rescue the wrecked, the distressed, and the drowning. On more occasions than we'd prefer to remember, other lifeboats have come to our shores, carrying their tragic cargo of survivors from ships sunk in horrific storms or smashed to bits on coastal shoals. Lifeboat work is in many respects grim, but at the end of the day it's life-affirming. Going out or coming in, lifeboats save souls.

In its own academic way, lawyering history is also about saving souls. To me, one of the most exciting and satisfying aspects of teaching, researching and writing in this area over the last four years has been the chance I've had to encounter hundreds of fascinating and largely forgotten individuals who "lawyered", if you like, in a range of cultures over more than two thousand years. This is not to reduce history to biography or to say that other things like ideas, political events, economic trends or social circumstances don't matter. Of course they do. But history - be it lawyering history or legal history, or any other type of history - is ultimately about people, and I think we've done ourselves a disservice by looking the other way and largely ignoring or treating as incidental most of the men and women who have actually made law what it is. It's high time that we rescued lawyers like John Gower, John Rastell, Fyler Dibblee, John Breckenridge, Catharine Van Valkenburg Waite, William Sprague, George Wingate, Cyrus Ching, Phelan Beale, Roy Humphrey and others (mentioned in these posts and not) from the oblivion to which we've effectively consigned them. It's not just that we've overlooked them as individuals in some hypothetical lawyering history that's simply gone in other directions. It's much worse than that. We've overlooked them as an entire group.

But lawyering history isn't just about people in the past. It also addresses people in the present. Today's legal profession seems lost, beset by overwhelming economic, technological and social challenges. Contemporary lawyers are unsure of where they're going and even of what's going to become of them as a collectivity over the next few decades. In this context professional amnesia doesn't help. If lawyers knew who they were - if we told them - maybe they could get their bearings and face the future with greater confidence. I think many lawyers yearn for this kind of guidance and grounding. But we need not kow-tow to some puffed-up sense of professional pride. Perhaps a better understanding of their history would encourage lawyers to take greater responsibility for their current plight. Perhaps they would learn from their failures as well as their successes. Perhaps they would recognize their weaknesses as well as their strengths. Perhaps they would gain humility in being reminded of their humanity. Perhaps, ultimately, they would reject panic in favor of perspective.

Lawyering history could also help us closer to home. These are not the best of times for legal history and legal historians, at least in law schools. The current buzz in legal education today is all about skills training and preparing law students to be "practice ready". Leaving aside for now the arguments that some of us might make for legal history's potential contributions to those goals, it's increasingly difficult for many of us - especially those at non-elite law schools - to persuade our colleagues, or our students, that what we do matters. But maybe we have an alternative at hand that's an easier sell. Why not teach budding lawyers about the history of lawyering? Why not talk to them directly about the men and women who were their predecessors and about the profession they created - the very profession that most of our students are going to enter? Why not use historical lawyers (and any others we would consider as engaged in the lawyering process) as explicit opportunities to educate, broaden, warn, and inspire? Talking about legal history in this individualized, concretized sense might get more law students into our classrooms and give our historical insights a better chance of hitting home. In the process we might suddenly discover ourselves (as I did at Pitt) teaching a "legal profession" course newly considered to be at or very near the core of the curriculum, with enrollment levels to match.

I don't say this merely to be utilitarian. Lawyering history is (to me at least) not just an academic Trojan Horse or yet another legal history course with a professional bent. It's a whole alternative perspective on legal history that invites us to reexamine, reconsider, and restructure just about everything we "know" about legal history in general. It cuts across cultures, time periods, and doctrinal areas. Given lawyers' multiple roles in American culture in particular, it potentially ranges far beyond the traditional confines of "law". Now of course we're not throwing the baby out with the bathwater - we're simply opening ourselves up to a complementary way of looking at things, with a new set of questions and even goals in mind. But this has major implications. Four years after taking my personal turn in this direction, I look back on my twenty years of prior experience teaching general legal history and can honestly say that I'm astonished at (and actually ashamed of) all I didn't know, the areas I didn't explore, the individuals I didn't encounter, the connections I didn't make, and the questions I didn't ask. Teaching lawyering history has given me the opportunity to shake myself up and see legal history from a brand new and exhilarating angle. In helping my law students understand who they are (or will become), I've moreover come to better understand who I am as a lawyer and a law professor. What lawyering history did for me I think it can do for other legal historians who find themselves in institutional distress or who are simply looking for a unique, comprehensive and timely intellectual challenge to enrich their lives. Maybe lawyering history is a lifeboat that can save our own souls.


Well, that's it for me this month. I'd like to thank Dan Ernst for the opportunity to guest blog on the LHB; it's been a privilege, and it's been fun to talk about so many different aspects of my current work. I'd also like to publicly thank my wonderful McGill-based research assistant, Megan McKee (Pitt Law '12), who managed to proofread (and sanity check!) my posts as fast as I could bash them out. If anyone would like to learn more about my lawyering history course here at Pitt Law, would like to talk more about the pedagogical potential (or pitfalls) of the area, or would like to share their own work or perspectives on any of the subjects I've discussed (or on subjects I didn't discuss!), please feel free to get in touch. My contact information is available via the guest blogger links provided in the right-hand margin of this blog.