Canon and Currency in Jurisprudence Courses
by
Steve Sheppard

There are differences of both role and pedagogy among law school courses in jurisprudence: the first-year course like Dale Nance's Law and Justice, the traditional upper-class course like George Fletcher's Jurisprudence, the specialized topical course like Robin West's Feminist Legal Theory, and the courses like Contracts that are not necessarily jurisprudential but in which we hope to find it lurking at the margins.

I speak for the lately maligned traditional course even if, from time to time, we don't know exactly where the edge of the tradition is. It will surprise no one that, as a traditionalist, I make a strong and weak case of traditionalism. Of course, I defend only the weak case, which makes more sense.

The strong case of traditionalism is that we have a canon. Its books hold the great ideas of the law by Aristotle, Hobbes, Burtham, Hart, Dworkin, and Rawls. We use lots of long words that no one else knows. That's what we must teach, and it has no need to have anything to do with the student's world. It is a series of ideas that must be refined and understood with reference only unto themselves. This is, in many people's minds, what traditional jurisprudence is. It is a bad vocabulary of ideas that are very smug.

And then there is what I do, which is the weak traditional school. The primary difference is that in this school the ideas are not as important in themselves. They are more important for what the student can do with them. And what the student must do is use them in the practice of law and relate them to the judicial and legislative enterprise. In short, the weak case for jurisprudence is built not on the purity of the ideas of law but on the love of success in law. The lawyer who knows more of what the judge might do than does the judge will succeed before that judge. Now the question remains, are these ideas so consistent you can teach them? And from that, do these ideas reflect writings that can form a canon? Indeed, is there a canon?

I think there is a canon. I think the canon revolves around enduring questions of the roles of law and norms and the writings of those who have dealt with these questions.

My course is an upper-class elective survey course for people who, more than likely, have had no deliberate exposure to philosophical questions or reasoning before they come into the class. And it is for lawyers who are going to go into the courtroom and who, I hope, will be able to see the relationship between these ideas and their work.

My course is based on my continually reassessed views of what seems to be canonical in the writings of the day. Coke, Blackstone, Spencer, and Gray have all fallen from the canon, but some older folks, like Aquinas, have survived (although maybe with Finnis as his modern interpreter), and these things are open to change. In today's canon, I think it is important to include with the hoary writers of the strong traditionalist course contemporary writers such as West, Becker, and other voices that represent new answers to the eternal questions. From this list, students get good doses of positivism, realism, natural law, and utilitarianism. They get material on republicanism and perfectionism as well as race critical theory, feminist legal studies, and critical legal studies.

I do my best to give students a good ecumenical grounding in the ideas, as well as the nouns and verbs, of these schools. I try to present each school as an advocate for it, not to condemn any school but to allow the students to do their best to find the way for themselves.

I then give them some exposure to three substantive areas of the law, such as constitutional law, property, and crimes. There are some reasons for selecting those as representative of different forms of the problems attending each field of law.

The magic, I think, in my course is that I also make students write within each school. I let them pick one of two judicial opinions I assign on the first day of class, for which they must write Fullerian opinions. They must emulate Lon Fuller's Spelunkean Explorers opinions for every theory in deciding the set case. I often set Bowers v. Hardwick as one of the two cases. They then have to draft an opinion for the Supreme Court in Bowers as if they were a feminist, as if they were a crit., as if they were a formalist, as if they were a pure positivist, as if they were writing in the tradition of Aquinas and four others. And they have to present each one of these opinions with the internal perspective of someone who accepts those reasons.

The first time I did this I found it was very hard for students to write judicial prose neutrally and also reflect the ideas of the school. Now, I have them write 18 opinions. I have them write two for each school, the first one in the jargon of the school and the second one stripped of that jargon to represent the ideas in neutral judicial prose. This exercise helps them to take these ideas and use them not only to see and find these ideas lurking in the opinions of the courts but also to mount arguments for their clients based on these ideas. I want students to use these tools to persuade others to agree with an argument of law because that, I believe, is what I'm training people to do: To leave my institution, to go out and represent people in the world bounded by legal officials and to persuade those legal officials to act in a way that reflects their clients' needs. In teaching my course, I want to find as many ideas, as many ways, and as many tools as I can to enhance my students' ability to persuade.