Tag Archives: Legal Education

Religious Literacy Training for Law Students?

When law professors grouse behind closed doors, one of their favorite topics is how law students lack fundamental knowledge and skills they were supposed to get in high school and college.  According to prevailing wisdom, law students don’t know how to write a proper sentence, are ignorant of the most basic historical facts, have no concept of economics, and couldn’t construct a syllogism to save their lives.

Much of this is curmudgeonly hazing of the young by the old that is a regularized and institutionalized rite of one’s transition from youth to age.  “In the good old days, we actually learned things in school.”  Having passed the forty-year mark and hence being an official curmudgeon, I shall indulge in a little whining of my own.  My complaint is the lack of basic religious literacy among law students. 

To be fair, this is not just a phenomenon of law students or the young more generally. A 2010 Pew survey found an appalling lack of religious knowledge in the United States, which is by many measures a highly religious country. More than half of Protestants could not identify Martin Luther as a leader of the Protestant Reformation. And about four in 10 Jews didn’t know that Maimonides was Jewish.  Forty-five percent of Roman Catholics didn’t know that, according to church teaching, the bread and wine used in the Eucharist becomes the body and blood of Christ.  (Interestingly, atheists and agnostics scored higher than religious adherents in the survey).

It’s my sense that the mainstream of the American educational system eschews teaching about religion, not necessarily out of hostility, but out of a fear that religion is too hot and divisive a topic to handle in polite company.  The demise of universal Sunday School or comparable religious training and the diminished rigor of such training even where it exists have contributed to a state of affairs where most people know little about their own religion, much less the religious beliefs of others.

This dearth of general religious knowledge is borne out in my own experience as a law professor.  Comments drawing on religious teachings or metaphors—Moses’ smashing of the tablets, the parable of the Good Samaritan, etc.—are often greeted with blank stares, uncomfortable silence, or nervous giggles, as if I were making oblique references to early 80s Swedish disco music.  The occasional student will tell me outside of class that they enjoyed my references since they were a religion major in college, as if the key tenets of the religions that shaped Western civilization are today the sorts of esoteric and specialized knowledge committed to a few nerdy academics.

Unlike early 80s Swedish disco music (which is catchy but insipid), religious literacy remains key to legal literacy.  One cannot understand the development of the common law, the American constitutional order, or even the rise of the modern regulatory state without some conception of the underlying system of religious beliefs. 

One wonderful example:  In The Origins Reasonable Doubt:  Theological Roots of the Criminal Trial, Yale legal historian Jim Whitman shows that our current assumptions about the reasonable doubt standard in criminal cases have the history exactly backwards.  Today, everyone assumes that the reasonable doubt standard is meant to protect the criminal defendant—to give him every benefit of the doubt and erect barriers to over-zealous prosecutors.  Whitman shows that, historically, this story has it absolutely backwards.  The reasonable doubt standard developed not for the purpose of making prosecutions harder but to make them easier.  To understand why requires a basic understanding of Christian doctrine.  In eighteenth century England, jurors took seriously Jesus’ command, “judge not or you will be judged.”  The jurors feared that if they passed a wrongful judgment of conviction—keeping in mind that Jesus himself was wrongly convicted—they themselves would be eternally damned.  The crown finally started telling juries that if they found guilt beyond any reasonable doubt, then surely they wouldn’t need to worry about damnation.  So the reasonable doubt standard came into being not to protect the criminal defendant but to facilitate convictions.

Similarly, when my Contracts students struggle to understand the seemingly arbitrary differences between legal and equitable remedies that persist to this day, it’s essential for them to understand that the early Chancellors were Anglican clergymen—and all that implies for the moralistic and religious qualities of equity.  Why the unclean hands doctrine bars a request for an injunction but not one for damages makes no sense unless one understands the role of Christian theology in the development of the English common law and legal institutions.

Alas, helping law students make sense of these subtleties requires introducing some remedial religious education to law school, a project that relatively few law professors have the willingness or capacity to carry out.  While law schools are finding ways to make up for their students’ educational deficits in such areas as writing, economics, history, and logic, religion is largely confined to specialized first amendment courses which are less about the substance of religious doctrines than the ways that the law can avoid touching them.  Legal pedagogy is largely a religion-free zone.

As I said, curmudgeonly whining is a time-honored rite of passage . . . 

Clark on What Legal Teachers Can Learn From Preachers

Sherman J. Clark (U. of Mich. Law School) has posted To Teach and Persuade. The abstract follows.

Legal speech and religious speech inevitably do some of the same work. Both are vehicles through which we both talk about and become the kind of people we are. Granted, those of us who teach and argue about the law do not often conceive of our work in this way. That is part of what I hope to begin to remedy in this essay. While the construction of character is a more obvious aspect of religious than legal thought, law, including legal argument, can be constitutive in similar ways. If so–if our ways of talking about the law serve some of the same ends as do our ways of talking about religion–then we may be able to learn how better to talk about the law by thinking about how we talk about religion. I do not mean things like paragraph structure or argument organization or the proper use of headings, but rather something more subtle and more fundamental. One way to put it is this: legal speech can learn from religious speech how to be less small, and perhaps more ennobling.
More specifically, those of us who speak and teach about the law may be able to learn from religious ways of speaking and preaching how better to Continue reading

Proposed Christian Law School in Canada: A Response

A couple of days ago, I posted about the controversy surrounding a proposed new Christian law school in Canada. I questioned whether it’s a good idea to found a new law school in the current environment and wondered whether Canadian law would allow the proposed school, at Trinity Western University in British Columbia, to require its students, faculty and staff to adhere to traditional Christian sexual ethics. Over at First Thoughts, Dr. Janet Epp-Buckingham, a professor at Trinity Western and member of the group that developed the proposal for the new school, objected to some elements of my post, and I offered her the chance to respond more fully. Janet’s response follows below:

Mark Movsesian wrote a blog on January 22 questioning the wisdom of trying to start a law school at Trinity Western University. The university has a 50 year history and is located in a suburb of Vancouver, British Columbia. Mark based some of his concerns on the downturn for lawyers and law schools in the U.S. While legal education has had its issues in the last few years in Canada, the situation is much different in Canada than in the U.S. Actually, the whole university structure is much different, and more regulated, in Canada.

Trinity Western is the largest of only a handful of Christian universities in Canada. There are very few private universities. Most universities are public universities and subsidized by provincial governments. Before a new program can start at any university, public or private, it must be approved Continue reading

NY Times on Stanford’s New Religious Liberty Clinic

Yesterday, the New York Times covered the new religious liberty clinic at Stanford Law School. Nice to see the Times has finally caught up to us.

Liveblogging the RALS Conference

I’m posting today from the biannual Conference of Religiously Affiliated Law Schools (RALS), hosted this year by Sam Levine at Touro. The first panel this morning, on which I participated, was titled “The Place of Law and Religion Institutes in the Law School and University.” The panel made clear how many such institutes exist in American law schools and how diverse are their interests. I spoke about our Center for Law and Religion here at St. John’s. Our center focuses on religion as a legal and sociological phenomenon and treats the subject from a broadly interfaith and comparative perspective. Elizabeth Schiltz, director of the Terrence J. Murphy Institute for Catholic Thought, Law and Public Policy at St. Thomas, described her center as having a slightly different focus, rooted more specifically in the Catholic intellectual and legal tradition. Elizabeth Clark, associate director of the International Center for Law and Religion Studies at BYU, described her center’s primary concern as promoting religious freedom around the world. Of course, there is a lot of overlap in the matters the centers cover. Yet the diversity of focus is a great sign that law and religion is a growth area in American law schools and that there is plenty of work to go around.

Law and Religion Events at Touro

Courtesy of CLR friend Sam Levine, here are a few events at Touro Law Center which look terrific and may be of interest to readers.

First, Nathan Lewin will be giving a lecture on March 20 entitled, “The Legal Profession and the Orthodox Jewish Lawyer — Change Over Half a Century.”  Details here.

Second, on May 2-4, Touro is hosting the biennial Conference of Religiously Affiliated Law Schools, with the theme: “The Place of Religion in the Law School, the University, and the Practice of Law.”  The full conference announcement with speakers listed is here.  My colleague, Mark, will be speaking at the conference.

Strang & Breen on Catholic Legal Education at the Middle of the Twentieth Century

Lee J. Strang (U. of Toledo College of Law) and John M. Breen (Loyola U. Chicago School of Law) have posted The Road Not Taken: Catholic Legal Education at the Middle of the Twentieth Century. This article dovetails nicely with Ashley Berner’s recent article on the CLR Forum, Education and Belief: Ontology.  The abstract  for Strang and Breen’s article follows.

The Road Not Taken describes the history and animating themes of American Catholic legal education. The heart of The Road Not Taken is a now forgotten episode in the history of American legal education. In the late 1930s, a number of leading Catholic legal scholars issued a call for reform — a proposal which urged Catholic law schools to educate in a manner distinctive from their non-Catholic peers. While open to students from diverse faith backgrounds, the proponents of this reform argued that teaching and scholarship at Catholic law schools should be grounded in the Catholic intellectual tradition. As we demonstrate, however, this call for reform went unanswered. Had it succeeded, it could have profoundly changed both the landscape of legal education and the face of the legal profession.

In this Article, we accomplish three goals. First, we describe the founding and early years of Catholic legal education. Second, we detail the national effort to reform Catholic legal education that began in the 1930s and which was driven, in large measure, by the rise of Legal Realism at home and the threat of totalitarianism abroad. Third, we explore the social, institutional, and historical reasons that explain why the reform effort failed.

Stanley Fish, Intentionalism, and Law Teaching

Stanley Fish has an interesting column about teaching law with specific reference to learning about constitutional law and the religion clauses.  He says much that I agree with and that picks up on at least some of the themes in his entertaining, Save the World on Your Own Time.

A small but, I think, important feature of the column is the emphasis on (his variety of) intentionalism or purposivism to understand legal doctrine.  He writes: 

Continue reading