At Volokh Conspiracy, Will Baude brought up the coming “reforms” to the Multistate Bar Exam of eliminating four of the 12 subjects to be tested, conflict of laws, family law, trusts and estates, and secured transactions. Will asks whether conflicts will exist as a course of study after being excised from the MBE.
Many transactions and incidents involve at least glancing contact with multiple jurisdictions, and the legal principles for what state can govern those transactions are not at all intuitive. (See this earlier post on this year’s Supreme Court conflicts case.) Indeed, my experience is that lawyers who have no knowledge of the field of conflict of laws often do not even know that they have encountered a conflict of laws question.
Granted, it’s not particularly sexy, and there is a strong trend toward homogenizing state laws so as to moot the conflicts questions, although we’re still a ways off and, given the plethora of shockingly bad and unconstitutional laws being enacted to institutionalize ideology of late, there’s a good chance conflicts will become a significant issue in future litigation.
Whether conflicts floats your boat or not, Will’s point, that sufficient exposure to an array of law is critical for lawyers to recognize the existence of an issue, even if they lack the expertise to address it. We’re trained how to research unfamiliar legal niches, but we won’t know that a problem in need of research exists if we lack the breadth of legal knowledge to know that it’s an issue. And not to gild the lily, but any lawyer who makes it through their career without needing to know family law and T&E is very fortunate indeed. We all have friends and families who expect us to know stuff at parties.
One problem for law students is that if a niche doesn’t appear on the bar exam, and they have no plan to practice in that area in the future, they’re disinclined to take the course in law school. They’re too young and foolish brilliant to squander their very precious time on family law when they could spend it on Law and Sexual Justice.
But another problem is that while family law, T&E and conflicts are electives, what about foundational first year courses that no law student can do without?
At most law schools, the first few weeks of property law are spent on foundational cases of British common law. At Georgetown University, they are spent on structural racism and cultural appropriation.
Students in professor Madhavi Sunder’s mandatory first-year course learn on day one that the history of American property law is “the history of dispossession and appropriation,” according to videos of the course reviewed by the Washington Free Beacon. Lecture slides from the first month of coursework trace the “birth” of modern property law not to English courts, but to “Native dispossession and the enslavement of African Americans.” “Possession,” one slide asserts, “is a legal term of art for a settler capitalist society.”
These legacies of oppression “continue in contemporary doctrines” of property, Sunder said on the first day of class this semester. For example, her slides explain, “Intellectual Property has a cultural appropriation problem,” especially when it comes to black choreographers: Their dance moves were allegedly appropriated by the popular video game Fortnite, and by white influencers on TikTok.
Aaron Sibarium uses words with which I’m unfamiliar in this description, like “Fortnite,” but I’m very familiar with other words, like “Whiteacre” and “Blackacre” that don’t appear on any of the slides. If this were a debate about the efficacy of teaching the Fertile Octogenerian Rule or the Rule Against Perpetuities, that would be one thing. But what’s being taught isn’t first year Property, but ideology, which will make for a needlessly long closing when they’re asked to do a favor for a friend.
And this isn’t just about one law school having lost sight of what students are supposed to be taught.
Other law schools may have no choice but to follow Georegetown’s lead. In August 2020, William Treanor, the dean of Georgetown Law, was one of 150 law school deans to petition the American Bar Association to require that “every law school provide training and education around bias, cultural competence, and antiracism.” The association, which accredits nearly all U.S. law schools, subsequently adopted a requirement with almost identical language.
The motion came after a number of student groups demanded that the administration “mandate a critical race theory unit in all first-year criminal justice courses” and establish a “racial justice requirement.” In an email announcing the change, Treanor said the new curriculum was “yet another important step toward building an inclusive community.”
Will students who take crim law and go on to practice in the trenches know how to defend someone accused of rape or a hate crime? Will they be willing to do so, having been schooled in the immorality of defending the disfavored evils?
The line between instruction and indoctrination has become especially blurry in Georgetown’s mandatory “Criminal Justice” class. A syllabus for one section of the course asserts that “race, ethnicity, gender, socioeconomic status, and similar dynamics play a central role in shaping constitutional criminal procedure, policing, and our concept of public safety.” In another section, students were told that they would focus on “two big policy issues” throughout the semester: “mass incarceration” and the “discriminatory impact” of “race” and “poverty,” according to slides reviewed by the Free Beacon.
There is a place for discussion of these social justice issues in criminal law, but there is far more than a semester’s worth of law to be learned first, and these required courses invariably gloss over a great deal of critical law, the sort of law a defendant would actually want his attorney to know before being allowed to take responsibility for his life. If law school courses can’t manage to cover the real stuff that future lawyers ought to be aware of, to at least recognize an issue if not gain some minimal competency so they don’t unwittingly advise a client to commit a felony, the time used to indoctrinate students into social justice theories comes at the expense of learning law that might actually be used to help the oppressed.
While Will Baude rightly bemoans the demise of the study of conflicts of law, it’s not the only conflict of law arising in legal education. While a legal education should encompass more than the mere nuts and bolts of law, the space squandered on theory not only indoctrinates students into a politicized understanding of law, but conflicts with their future clients’ expectation that they have the minimal competence not to screw up their lives.
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