Teaching Law, McLuahan-Style
by
Stephen M. Wexler

Marshall McLuhan, the great Canadian intellectual philosopher, said "the medium is the message." He meant that if you tell someone you love her while beating her up, the message is in the beating, not in the meaning of the words. McLuhan thought the meaning of a poem was the meat the robber brought to distract the rational watchdog while the poem, the medium, delivered its message to the reader. Books and TV are different media, and the difference between them as media is more significant than their content. What is on TV matters far less than the fact that it is on TV.

Duncan Kennedy once explained the medium of law school in an article called "Legal Education as Training for Hierarchy" (in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (D. Kairys ed., 1982)). I agree with everything he said, but he is negative about law school, and I refuse to be negative about my work. So I begin my description of the medium of law school by pointing out the obvious, non-political, non-moral fact that in law school a student is given far more to read than anyone could.

One message of law school, therefore, is don't read what you are given to read. Don't even think about reading it twice. You must "mine" the material, targeting the important bits that must be extracted from a mountain of sand. It's like digesting food or breathing air. You need only a tiny bit of what's there. You take in a tremendous amount of stuff, cull the little bit you need, and expel the rest.

This is a hard lesson to teach people who have, for 15 years, been schooled to read everything that has been assigned. Most schooling involves not only reading all you are given to read, but reading things more than once. The medium of law school makes that impossible and, hence, the message is don't do it. Could anyone read Plato or Shakespeare or the description of a scientific procedure the way law students must read cases? If you read the Theaetetus or Hamlet or the method for separating platelets from blood the way law students read cases, and you thought you could then answer questions on them, you'd be a fool. But that's exactly what students have to do in law school. Not only do they have to read more than they can read with comprehension, they have to retain it and answer complicated questions about it.

Law school teaches students to do this because, when they practice law, someone can walk in to the office late Thursday evening, put a foot-high stack of papers on the desk, and say, "Mary, Bob's got to take his kids to the dentist tomorrow morning. You have to go in for him at 10 o'clock on this file."

If you want to be a lawyer, you cannot say, "Ten o'clock? Tomorrow?! I can't read all that by 10 o'clock!" You have to be able to "read" it by 10 o'clock, and it is in law school that you learn, first, how not to read the foot-high pile of papers and, second, having not read it, how, at 10 o'clock the next morning (or at 9 o'clock or 8 o'clock, if that's how long you have) to act as if you had read it at least 20 times. In law school, we teach our students not to freeze up when they do not know everything they need to answer a legal question. We teach them to be satisfied with the best work they can do under the pressure of the situation. And to feel confident. A lawyer must be able to stand up in front of a judge, knowing almost nothing, and act as if he or she knew everything. As a lawyer you must know--and you must know this deep in your body and soul--that the position you argue need not make ultimate sense or be fully coherent or reflect all that could be said on the subject. All it must be is your client's position, put forward, when it is called for, as well as you can put it forward given the time and resources available to you.

To be satisfied with this is what students learn in law school. It's what they learn in their first set of exams and integrate for two and a half years, getting it into their bodies and souls.

Another important lesson in law school is never to ask yourself what you personally think about a legal issue. We all have an interest, a stake, a personal view about the law. As Thomas Aquinas said, law is "the business of the whole people." But when you act as a lawyer, nobody cares what you personally think about the law. People care what you think professionally, and the pressure of law school teaches you to think professionally by teaching you to treat your personal views about the law as a distraction. You can't be dumb and be a lawyer, but you can't be introspective either. You can't ponder things and try to get down to the bottom of them. In law, you have to work at the surface. As a lawyer, you never know everything you would need to know to seriously address the questions you must address. But you cannot admit that to yourself, and you must never admit it to anyone else.

A colleague caught me in the hall one morning as I was coming into school.

"Oh! Steve! Good, I was looking for you. You wrote a comment on B.G. Checo. What does it say? I have to be in class in 10 minutes."

I froze. I can recite the ratios of a great many cases off the top of my head, but B.G. Checo is not one of them. I wrote about the case four years ago, and even then I was interested only in a particular aspect of it. Luckily, my colleague added:

"Does it say that you can have an action in tort even when you have an action in contract?"

"That's it," I said.

My colleague left. I walked into my office and asked myself, "Is that really what B.G. Checo says?" I wasn't sure and I had to check. I remembered seeing the proposition that you could have an action in tort even when you had an action in contract in an article I had been reading with my torts class about Chief Justice Dixon and stare decisis. So I flipped the pages of it, looking for a citation to B.G. Checo. It wasn't there, but there was a citation to Rafuse and suddenly--SNAP!--I realized that the ratio I had approved as a statement of B.G. Checo was actually a statement of Rafuse.

Oh! Oh! I picked up the book where I keep everything I've published, found the comment on B.G. Checo, and read the first two sentences of it:

B.G. Checo says that a party that suffers a loss because it was induced by a negligent misrepresentation to enter into a contract may proceed in tort against the party that made the misrepresentation, even if the representor is the other party to the contract and the misrepresentation was included as a term of the contract. The fact that the representee has an action in contract against the representor does not necessarily deprive the representee of its action in tort.

I ran with this to my colleague's office. Mercifully, he had not yet left for class. "Here," I said. "Read the first two sentences." He did. Then he read them again, obviously impressing their meaning on his brain.

"Thanks," he said, and went off to teach. He was 100 percent satisfied, and I glowed with pride. Being able to give someone a concrete answer to a legal question under pressure gave me a great deal of pleasure. I'd have preferred to know the answer cold, but I was satisfied to know that I could find it quickly.

We are teaching our students a great many things. Among them are caution, conservatism, and a measured approach to things. But the three biggest lessons, the three distinctive messages embedded in the medium of law school are as follows:

1. Don't read things;
2. Don't think too deeply about things;
3. Feel pleased and grateful when you know a little law.