Legal Commentary

I have been very fortunate to teach as a VAP this past year at The Catholic University of America, Columbus School of Law.  I will be forever grateful to the school and the wonderful people there -- Dean Miles, my colleagues and friends, and my students -- that gave me my first chance.

This spring I was asked to teach a course titled, "Social Justice and the Law: Introduction to Catholic Social Thought."  The course was, so I am told, the brainchild of Professor Douglas Kmiec when he was Dean of the law school roughly a decade ago, though it went by a different name that did not include the phrase "Social Justice."  When he was Dean, Professor Kmiec taught all sections of the course.  Since its inception, the course has had the following characteristics:

• It is a first year course
• It is a required course
• It is worth one credit (it meets 50 minutes a week)
• It is graded on a curve
• It meets in sections of about 40 students (this was the case for the two sections that I taught, though apparently it is not always the case)

Beyond that, and as the course stood when I taught it, there were no other fixed requirements.  I was free to create the curriculum from scratch or to use a tried and true approach (many colleagues were very generous in offering their materials and views).  I was free to include as much or as little Catholic material as I liked, provided that I included something.  I was free to give the course a guiding theme or not.  I was free to employ whatever form of student assessment I desired.  For someone in his very first year of teaching, this was both a fantastically unique opportunity (I am free to teach and talk about whatever I want.  Incredible.), and more unsettling than one might think (I am free.  I am alone.  I am uncomfortable).

As a general matter, the course - at least historically -- has been wildly unpopular with students, and this for a number of reasons that sometimes are combined in students' minds but can stand perfectly well on their own:

1.  More than a few students think that the course is a complete waste of time -- and perhaps oppressive to boot -- no matter the curriculum chosen.  The 50 minutes a week and the time spent to prepare for it would be better spent studying for core classes (or watching talk shows, getting beers, and so on).  If they were interested in the questions of philosophasters about human dignity, being nice to other people, and the like, they wouldn't have come to law school.

2.  The Catholic focus of the course is offputting to some, particularly if students feel that the line between teaching about Catholicism and teaching Catholicism is not carefully observed.  This is a concern for many students, but it is a special concern for non-Catholic students, of which there are a fair number.

3.  There is no unified curriculum.  Some students feel that it is not fair that the curriculum for a required course should vary so dramatically from one professor to the next.  In no other required course is there the potential for such wide disparity.

4.  The ambitions of the professors who teach the course are altogether unrealistic.  Too much reading -- of whatever sort -- is assigned given the numerical heft of the course.

These difficulties, in differing degrees, for different students, make the course challenging to teach and to take.

I want to set reason 4 aside.  Overly optimistic assessments about what students are capable of digesting from week to week are a problem that I was unable to negotiate with unfettered success, but there is nothing particular about them to this course. 

The essential difficulty with the course -- the overarching reason that it meets with consternation from students and faculty alike, but manages somehow to soldier on nevertheless -- is that the course simply cannot be all things to all people.  Assuming that it merits a place in the required first-year curriculum (and there may be good reasons to challenge that assumption), it is inevitable that a course like this must take some type of stand on more than its share of contentious issues -- issues which cut to the quick of the nature of legal education itself.  It borders on the impossible to approach the course neutrally (if that is ever possible), as there are irreconcilable conflicts of aims that the course brings into high relief.  A few of them:

-    If one makes it very much a Catholic course, what of the students who are sensitive about their own religious identities?  Does one include other religious and non-religious views?  Does one give each view equal time?  But then the course ceases to have a Catholic emphasis, and if such an emphasis is ever warranted, presumably it is warranted at the Catholic University of America.

-    What does it mean to make it a Catholic course?  Does it mean to teach the Papal Encyclicals?  Catholic Social Thought since Pope Leo XIII?  The Catechism?  The Bible?  Does it mean to focus on ethical concerns?  Church/State issues?  Something else?  Assuming that at least some of these matters ought to be included, in what context?  Historical?  Philosophical?  With an eye toward present political concerns?  With an eye toward present legal concerns?  Some mix?  Whatever choice is made not only gives the course a definite coloring but also, and more importantly, entails loss of a kind not easily measured.

-    How ought the term "Social Justice" be taken?  This is a particularly scorching topic.  Social Justice -- usually embodied in legal clinics and other good-works activities -- has been the welcome object of particular emphasis at CUA, thanks to the special attentions of Dean Miles and many of the devoted CUA faculty.  Yet in a course about ideas (and I am assuming that the course must be one in ideas) Social Justice can carry with it certain ideological presuppositions and valences.  How ought one to "study" Social Justice?  How ought one to handle the issue of ideological tilt that seems to drench the subject?  Should one ignore it?  Spell it out?

-    Related to the previous thought, Social Justice seems to accommodate a multiplicity of contested and internally incompatible ideas, moods, and predispositions.  In fact, it seems to me to be an excellent example of what Jeremy Waldron (following W.B. Gallie) has called an "essentially contested concept" -- a concept that is "present to us only in the form of contestation about what the ideal really is."  The idea of Social Justice is not only "hotly contested" -- with varying conceptions challenging one another for supremacy.  It is, as Waldron has said, "contestation at the core."  Should one take only one of these conceptions as the focus of a course like this, or many?  Should one be self-conscious about the choice made with one's students?  Should one try to promote or advance a favored conception?  If so, should one do so explicitly?  Does the course cease to be one in ideas if it is a course promoting a single idea?

-    What is the relationship of legal education or the practice of law to any of these ideas or conceptions of Social Justice?  Should a course that styles itself "Social Justice and the Law" take the conjunctive seriously?  Even if it aspires to say something about the relationship between the two, what should it say?  Should it take the full measure of the range of viewpoints about that relationship -- from the pessimistically skeptical to the cheerfully harmonized?  Should its surveying aims be more limited?

In a post to come, I will discuss what I decided to do with the course, what succeeded, and what failed.