Review: Theory Saved my Life

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By Rory Bahadur from Washburn University School of Law

In her 2005 New York City Law Review article, “Theory Saved my Life,” Kris Franklin concludes, “Students need to be passionate about learning in law school in order to excel.” Her article describes creating student passion through the development of legal theory rather than thinking of legal theory as an antipositivist, valueless, ivory tower, recreational endeavor anathema to the teaching of actual law.

Rather she views theory as involving “critical reflection on legal doctrine” and as an essential element of effective legal education. She states,

“Ideally, theory elucidates through connection rather than obscuring through complexity. Theory helps us consider, reflect and communicate ideas. That is not to say that theory cannot be complex (God knows) but rather that its goal is ultimately to untangle, to lay out the various strands of a phenomenon. With theory, details are more than just episodic, unrelated chunks of fact. They form a constellation in which theory connects the stars and constructs the image. The specific story a theory tells sometimes matters less than that it tells a story at all–that it turns otherwise random-seeming elements into larger structures that carry meaning that comments on those elements and makes sense out of them.”

She then suggests that the traditional case method involving the parsing of individual cases devoid of a bigger theoretical framework for the doctrine actually hampers the learning and interpretation of the law. Kris identifies this interpretation as the essence of the clich√©, learning to think like a lawyer and an essential component of teaching law. In her own words, “Law students must be able to see, construct, deconstruct and use legal theories, even though it does not immediately follow that they must be able to describe or theorize about the theory.”

As evidence of this Kris points to the frequent law professor refrain which demonstrates that the difference between the A’s and the B’s is both doctrinal and theoretical. Doctrinally the most successful students are able to carefully able to apply law to facts for example. On the theoretical side however, law professors often describe the A student as “understanding the questions being asked and “getting” the subject.”

Developing and understanding theory or theorizing is what we are asking students to do when we ask them to synthesize or arrange cases yet we spend very little time teaching our students how to theorize because it is often said that this ability cannot be taught. Kris disagrees and in this article describes using art and distinguishing between paintings in her law school class to facilitate the process of theorizing. She describes students going from saying the three pictures are similar simply because they involve individuals wearing stripes, to discussing why the wearing of stripes is significant. Stripes begin to invoke larger meaning to her students, such as feminist entrapment in the domestic sphere.

Theory is what makes students passionate about the law, because,

“it allows a student to think about why something might be a problem in the first place, or how to rethink it as a different kind of problem (or not a problem at all). Theoretical analysis is substantial–when students create or pose theoretical questions they feel like they’ve gotten somewhere. Being able to make and sustain connections between ideas is far more satisfying than simply being able to repeat doctrine. Students need theory not only because it helps them understand doctrine and do well in school, but also because it makes law school an intellectual experience. Without theory, law school graduates are not lawyers, they are, in [a] sense, legal technicians, fiddling with unwieldy machinery but never imagining they can invent a new gadget altogether.”

Maybe it is time we begin to see legal theorizing as something our students are capable if we take the time to create environments where students internalize this teachable aspect of legal education rather than reflexively portray it as an acontextual, higher order skill which we need to fictionalize to protect our egos from realizing we are in a classroom of our intellectual equals.

Institute for Law Teaching and Learning