THE ROLE OF CRITICAL THEORY SCHOLARSHIP IN BEST PRACTICES

As law schools and law faculty engage in legal education reform, the question arises: What is the role of critical theory or theory-critique?    Some of our friends and colleagues in the critical race, feminist, post-feminist and other theory-critique schools may feel left out of the dialogue/teaching initiatives when,  in fact, such “theory-critique” skills are an important part of effective lawyering. 

Here at Albany, at a recent faculty luncheon conversation on Best Practice initiatives, one colleague noted that Brown v. Board didn’t just happen because of excellent “skills”  but because of a critical theory critique of the existing legal framework.  At first , I didn’t understand my colleague’s comment. It seemed intuitive to me that excellent lawyering requires the ability not only to manipulate and creatively work within an existing framework, but to  learn about and imagine  possible alternate frameworks, perhaps even advocate for their adoption.  However, as we engaged in good conversation, I realized that within law schools we often use shorthands to categorize courses which have become detrimental to communication.  What is a “Skills” or “Procedure” or “Substantive Law” or  “Theory” course?  Good lawyering demands that one address skill, theory, substantive and procedural law ,and professionalism as an integrated whole not as easily separated building blocks, “tasks” or component parts. 

Particularly when it comes to the history of clinical legal education and the effect that clinic cases and legal work has had on the U.S. legal system, it is clear that students and professors who worked collaboratively to integrate theory, substantive and procedural law, politics, current events, and exceptional skills forged new pathways just as in Brown.   I think of  the Gitmo cases, the immigration cases, the environmental cases, the violence against women cases and others.  (My apologies to my non-US colleagues for not knowing the good work done by your clinics in your countries).   In my own clinical teaching experience , I know that my students have benefitted from my collaboration with critical theory colleagues.  For example, a feminist theory colleague , Professor Donna Young, challenged my students on criminal law theories of agency, self defense, guilt and innocence in the context of violence against women.  From this, the students imagined some new ways to work on gubernatorial clemency petitions which resulted in the first battered women clemency in New York State.

So what does the Best Practice text have to say about all this? First of all, most of Best Practices applies to courses independent of their substantive, theory or skills focus.  For example, articulating teaching and learning objectives for students is as important in a theory class as in any other course.  Second, Best Practices includes a range of statements for “outcomes.”  I think Rogelio Lasso’s description quoted on page 52 includes good language about one of the  “competencies” that good lawyers possess

“….3. Perspective  which is the ability to consider the historical, political, ethical and moral aspects of a legal problem and its possible solutions.” 

It seems to me that “Pure Theory” (non-doctrinal) courses are a great way for students to learn perspective . When taught in a manner which requires students to apply new “perspective” to problem or “real lawyer” situations, teachers can assess better whether students have truly absorbed knowledge so to be able to apply it — ie, have truly “learned.”   Best Practices quotes the NYU Review of Law and Social Change (see page 99 and footnote 281):

” Legal education needs to be broad-ranging in its approaches to the analysis of doctrine as well as in its approaches to other tasks like counseling….. We therefore seek to develop a range of intellectual capacities and to teach students to integrate the use of those capactities across the various categories of legal work. ”

Although Best Practices doesn’t deny the importance of purely theoretical courses, my colleague is correct that it does not explicity advocate for the importance of purely theoretical courses in law school.  Perhaps it is time to create some more linkages and conversation between critical theory folks and Best Practices advocates.

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2 Responses

  1. Peter Knapp and I have created a course at William Mitchell called “The Practice of Theory: a critical theory course for clinic students.” It is a seminar open to students who are currently in a client representation clinic, or have taken such a clinic previously. The course is designed around four theory units — Critical Lawyering Theory, Narrative Theory, Feminist Legal Theory, and Critical Race Theory — each of which is paired with a practice unit — interviewing, case theory, counseling and persuasion. So we spend one week on, say, Critical Lawyering Theory (a reading or two), and then the following week applying that theory to a hypothetical client situation involving, say, interviewing.
    We just taught the course for the first time this past semester, and found it fun and exciting and challenging beyond our wildest dreams. The theory-practice spiral is a fascinating and rich tool to enhance students’ understanding of their power and role as lawyers, and therefore fits beautifully within the best practices framework.

  2. Great points about language use Mary! And,Carolyn, this course is a great illustration of what is described in critical race literature as “praxis”! What an exciting opportunity for your students! Clinics with a social justice focus provide a myriad of opportunities to be critical and to consider the theoretical framework for our client’s experiences. My colleagues Barbara Creel and Christine Zuni Cruz do a masterful job of this in the Southwest Indian Law Clinic!

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