McCarthy, David J., Jr.

English

University of New Mexico

Volume 16 
Issue 3 Summer 1986 
Summer 1986 
Some Brief Reflections on Johnson and Scales, An Absolutely 
Positively True Story: Seven Reasons Why We Sing 
David J. McCarthy Jr. 
Recommended Citation 
David J. McCarthy Jr., Some Brief Reflections on Johnson and Scales, An Absolutely Positively True Story: 
Seven Reasons Why We Sing, 16 N.M. L. Rev. 607 (1986). 
Available at: https://digitalrepository.unm.edu/nmlr/vol16/iss3/17 
This Article is brought to you for free and open access by The University of New Mexico School of Law. For more 
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SOME BRIEF REFLECTIONS ON JOHNSON AND
SCALES, "AN ABSOLUTELY POSITIVELY TRUE STORY:
SEVEN REASONS WHY WE SING"
DAVID J. McCARTHY, JR.*
Professors Johnson and Scales offer us "an impressionistic account of
the pedagogic transformation" which an Introduction of Law course pro-
duced in them. I am tempted to share my own impressionistic responses
or first blush reactions: The time devoted to reading the paper is valuably
spent if "cute" is your highest accolade, if as a teacher you enjoy watching
the "next generation" invent the wheel,' if rather amateurish but new
"pop psychology" intrigues you, or if you believe that students come to
law school devoid of life and educational experiences and of critical talent,
unequipped to place a variety of teachers and what may appear to be the
scientific certitude of the law in the proper perspective in their lives. I
shall resist the temptation, however, or shall at least distinguish the paper
from the more informative (though still unsatisfying) appendix.
This paper, like its generational progenitors, uses as a premise the
customary legal-education trashing, faculty bashing canards, coupled with
a rather one dimensional view of the law and a simply wrongheaded view
of (apparently all) lawyers as "hired guns, voyeurs, persons with no
noble missions of their own and liars about the missions of others." That
some of us must plead guilty does not support their apparently universal
conclusion.
Rational dialogue on improvements in legal education is impossible in
the world Johnson and Scales describe. Indeed, not surprising for those
who reject Descartes and Plato for Woody Guthrie and Tina Turner,
"rational" is a dirty word.
Beyond, critique cannot take us. We can't think our way out of our
puzzles because thinking (marking off the rational from the irrational)
is the reason we can't see beyond where we are. When we try to
think up a sane world, we crash into the walls of thinking. To go
further, we must break the rules of logic. We must put ourselves at
risk. We must dare, we must dream, we must act, We must sing.
What can I offer in response to this prescription from an EST Catalog?
Shall I sing? Those who hear me will surely conclude that they may not
know a lot about art, but they know non-art when they hear it.
Lest I be guilty of the total disparagement of which I accuse Professors
*Professor of Law, Georgetown University Law Center.
1. The authors specifically eschew reinventing the Legal Realists' wheel.
NEW MEXICO LAW REVIEW
Johnson and Scales, I should pan this stream of consciousness for any
gold that may enrich the future of legal education. While congratulations
are certainly due to the authors for student enjoyment of the law as a
celebration of their creativity, I do not think (there's that word again)
that several credits of such exposure coupled with that latest fad in courses
which celebrate the realization of "self," the personal journal, are sus-
tainable as a "meaningful" and popular augmentation of the traditional
first year. (It seems ironic, speaking of journals, that experiences designed
to break the shackles of imprisonment and disempowerment by opening
one's self up to the Muses and the creational auras involve the-to me-
inordinately high price of waiving the independence of one's personal
zone of privacy.)
Unquestionably, legal education can be improved, and the Johnson and
Scales experience, stripped of the unnecessary trashing and bashing, can
offer some insights. For example, it is important that we do much more
than we have done to develop in our students what a lawyer can be and
what one educated in the law and its methods can do. It is important to
remove the subtle value assessments that make one form of practice, one
geographic choice-the traditional treadmill effect-"better" than an-
other. I am not sure that the means of doing so are well modeled by
Johnson's and Scales' Introduction to Law.2 I am reasonably sure that
they correctly perceive our participatory role in this formation of ideas,
and that our "off the cuff" reactions in the classroom, our chats in the
halls, indeed our advice to students play a more significant part in the
formation of their choices than we would like to believe. Our advice is
often filtered through our mixed perspective of personal likes and dislikes,
of the market place, of what we did, etc., a perspective that we may not
adequately convey to our listener.
The authors also provide or prompt the following questions: Why can
we not convey to our students a more expansive view of the role of
the lawyer? Why cannot their heroes include the lawyers who created
solutions which enhanced and improved the society in which they lived,
which reoriented laws and societal thinking about race and gender, which
saved the city financially, which created the concept of landmark pres-
ervation, which patented inventions, which extended remedies to large
classes of those in need of them? Some have a dream and, sometimes,
others help make the dream a reality.
The Introduction to Law course, itself, was intended to do more, and
the appendix, therefore, has more of value in it. The course appears to
2. Indeed, the authors do not profess to have done more than illustrate possible directions for
change. "Critique by itself can never show conclusively what to do next. To impose a requirement
that it must (that we can't 'tear down' anything until we know what to put in its place) is self-denying
nihilism that leaves us eternally thinking and never doing."
[Vol. 16
l SOME BRIEF REFLECTIONS
have prompted its participants to go beyond traditional premises, to search
for new solutions, to challenge popular theories, to accept the ethical
burden of personal responsibility, to strike out on uncharted waters. Per-
haps the real gold lies not in the impressions captured in the paper, but
in the objectives of the course. We do too little of this in the classroom
and thus may signal that it is not the thing to do.
There's the rub, the dilemma that the Johnson-Scales experience high-
lights. It is one thing to have an experimental course. It is another to
have to meld these objectives with those of a traditional first year course,
for it would ill serve our students to enjoy the exploration of what can
be but to ignore the need to master what has been and what is. Moreover,
we are professional schools. Our work product is, while not absolutely
predetermined, nevertheless somewhat encompassed by professional,
societal and client expectations-not of hired guns, but of the capabilities
and knowledge of those whose expertise is sought. More of us have
struggled to solve this dilemma, with varying degrees of success, than
our critics will admit.
I am much less troubled by the directions for change which the authors
proffer than I am with the methods, some of the readings, the decon-
structionist underpinnings of the theory of the course, and, as stated
earlier, the incorporation of pop psychology.3 Too much dross surrounds
the gold. It is unnecessary and Johnson, Scales and McCarthy are not
alchemists.
Professors Johnson and Scales have set forth their impressions and
ideas for critics to snipe at. It behooves those of us who have sniped to
explain what we do and why we do it-and even why we like it. I shall
limit my explanation to the relevant year, the first year, and to the pertinent
size of class, large. What I am about to demonstrate is that, probably
like most veteran teachers, I prefer my brand of "pop psychology." I do.
I believe that the communicative strengths and weaknesses, personality,
"presence," quickness, organizational capacity, memory, and sense of
humor of a law teacher should play a determinative role in the teacher's
design, choice of course objectives and methodology. In short, after
honest self-appraisal, each teacher should play to his or her strengths.
Where such choice is possible, reinforced by another Stone, Alan,4 I
believe that in a large class, it is important for the teacher to maintain
3. The authors apparently feel that the deconstructionist technique is justified by the unbending
resistance to such ideas. "It's not only that there are remarkable parallels between the intensity of
emotions that swirled about the Realists in their day and the equally visceral reactions that today'sIradical' professors provoke .... It's also that the debate is the same." Dare I suggest that the
generational resurgence may not be the result of entrenched power's recalcitrance. Rather, the fact
that the same ideas come and go with unsatisfying numbers of converts and levels of acceptance
may say something about the questionable value of those ideas.
4. A. Stone, Legal Education On the Couch, 85 HARV. L. REV. 392 (1971).
Fall 1986]
NEW MEXICO LAW REVIEW
control, to channel the students' competitiveness, anger, anxiety and
aggression by allowing it to vent, by drawing it upon himself or herself
(the teacher).
The classroom is an opportunity to stretch minds, to challenge, to
permit challenge, and to serve such ancillary objectives as improved oral
communication by students. The learning ambience, the vicarious par-
ticipation by the students not actually involved in the give and take of
the moment, and the application of the most senses and learning and
development skills, are all enhanced by formality, coupled with the dom-
inance of the teacher, the "discomfort" of the unexpected, a frisson of
fear or anxiety. Thus, for example, in first year, I retain the requirement
of random, formal "recitation." (What, stand? Egad! Woody Guthrie
meets Alley Oop!) Such pressure, if unrelieved, would be intolerable and
counterproductive, however. It must be-and is-relieved by a silly and
unpredictable sense of humor, out-of-class informality, unremitting efforts
to be sure to know each of the students by name as soon as possible, and
periods of "relaxed" volunteerism in the class. Perhaps the most effective
antidote to incipient "Paper Chase," other than the humor, is my effort
to explain to the students what I do, why I do it, and what benefits I
believe they may expect from the method.
Substantive objectives are important, of course, whether they be framed
in terms of the various traditional coverage-depth, skills-substance or
consumer-expectations-teacher-preference dichotomies. For me, it is im-
portant to introduce the students to sufficient coverage to relate well to
the other first year courses and to the upperclass curriculum. It is equally
important to allocate some time to policy, value and ethical considerations
and to do so in flexible ways that allow some responsiveness to the
differing chemistries of particular classes, and some exposure of my
opinion to student criticism.
Like most teachers, I certainly engage in occasional "legal realist,"
"judge-breakfast" analysis, and sometimes focus on result-oriented ar-
gument construction. I strongly believe, however, in the law as a reflection
of fundamental principles, rights and order. I believe further in the com-
municative, policy, stability, flexibility, desired ambiguity, and sometime
clarity of the law's Esperanto, the terminology with which we talk with
one another. I suppose that, on the whole, one of the great "Esperantists,"
Justice Cardozo, has said it most completely:
The law has its formulas, and its methods of judging, appropriate
to conservation, and its methods and formulas appropriate to change.
If we figure stability and progress as opposite poles, then at one pole
we have the maxim of stare decisis and the method of decision by
the tool of a deductive logic; at the other we have the method which
subordinates origins to ends. The one emphasizes considerations of
uniformity and symmetry, and follows fundamental conceptions to
[Vol. 16
SOME BRIEF REFLECTIONS
ultimate conclusions. The other gives freer play to considerations of
equity and justice, and the value to society of the interest affected.
The one searches for the analogy that is nearest in point of similarity,
and adheres to it inflexibly. The other, in its choice of the analogy
that shall govern finds community of spirit more significant than
resemblance in externals. "Much of the administration of justice,"
says Pound, "is a compromise between the tendency to treat each
case as one of a generalized type of case, and the tendency to treat
each case as unique." Each method has its value, and for each in
the change of litigation there will come the hour for use.'
Among additional important goals is that of creating in the students
the substantive instincts that will never leave them, even after they "have
forgotten what they learned," the intellectual "electric eye" that will
trigger its alarms when combinations of facts suggest to litigator and
counselor the necessity or wisdom of further research, the presence of
an issue or consideration important to the resolution of a problem. In my
opinion, this goal is well served by the classic examination process. These
instincts are "branded," Professor McCormick's piecrust is formed, by
the pressurized mastery of a whole course in expectation of examination
on any part thereof, with the results to be of galvanizing consequence.
While I can describe in more detail and be introspective in more depth,
I suppose that I have said enough to be recognizable to colleague and
critic. Professors Johnson and Scales and my students would write a
different set of impressions in my class from those formed in the pro-
fessors' Introduction to Law, and all of us would strongly defend our
conclusions drawn from our experiences. On one thing we might agree:
What I have described is not to be discarded as "the past," and what
they have proffered is not a vision of "the future."
What then is the future? It has been my experience that curriculum
changes that have intentionally introduced into the first year courses
designedly different from the classic formula, both in objective and in
method, have failed in their purpose, have been poorly received by par-
ticipants, and have consequently been short lived. Such experience prompts
the conclusion that the success of the Johnson-Scales experiment may be
due more to them and the unique chemistry they were able to achieve
with their students than to any methodological breakthrough signalling a
sea change in legal education. Indeed the temptation for us troglodytes
is to reject out of hand the application of literary method (e.g., decon-
structionism), the "law is in the eye of the beholder" premises of critical
legal studies adherents and fellow travelers.6
It must be remembered, however, that the ideas of the Legal Realists
5. Benjamin N. Cardozo, The Paradoxes of Legal Science, 8 (Columbia University Press 1928).
6. See, e.g., Frug, Henry James, Lee Marvin and the Law, The New York Times Book Review,
Feb. 16, at 1 (1986).
Fall 19861
NEW MEXICO LAW REVIEW
and the "Sixties Suggestions" of Savoy7 and Kennedy' in fact synthesized
in varying degrees with their targets to produce subtle, yet unmistakable,
changes in analytical and classroom methodology-some good, some
bad. It is more realistic than "pollyannish" to predict that if respective
proponents meet one another with respect and humor9 a similar (lower
case) dialectic synthesis will occur between this generational resurgence
of ideas and the thus modified classical techniques and objectives of legal
education to produce changes-some good ° and some bad."
7. Savoy, Toward A New Politics of Legal Education, 79 YALE L.J. 444 (1970).
8. Kennedy, How A Law School Fails: A Polemic, I YALE REV. L. & SOCIAL ACTION 71 (Spring,
1970).
9. Applying thus the asserted openness of the classroom to the faculty exchanges.
10. For example, motivation of students to expand their analytical and professional horizons.
11. For example, removal of rigor from the classroom: the "no-hassle pass."
[Vol. 16


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