Bross, James L.

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Georgia State University College of Law: Reading Room

Georgia State University College of LawReading RoomFaculty Publications By Year Faculty Publications1-1-1978The Teacher as LawyerJames L. BrossGeorgia State University College of Law, jbross@gsu.eduFollow this and additional works at: https://readingroom.law.gsu.edu/faculty_pubPart of the Law CommonsThis Article is brought to you for free and open access by the Faculty Publications at Reading Room. It has been accepted for inclusion in FacultyPublications By Year by an authorized administrator of Reading Room. For more information, please contact mbutler@gsu.edu.Recommended CitationJames L. Bross, The Teacher as Lawyer, 53 N.Y. U. L. Rev. 648 (1978).NEW YORK UNIVERSITY LAW REVIEWtheoretical enough to force students to wrestle with the problems heand I were discussing.That troubled me because much of what he said seemed true andbecause I believe we can do better. If we do better, justice-a sub-stantive vision of justice-will have something to do with it. Themost important question to ask of the innovations and perspectiveJack Himmelstein offers is whether they point us in that direction.THE TEACHER AS LAWYERJAMES L. BROSS*Questions and comments during the SALT conference contained acommon theme: junior faculty believed that they had a humanisticapproach to law teaching that institutional obstacles often stifled, andthat even when the approach had been implemented, students oftenfailed to appreciate it. The chances for both implementation andappreciation can be increased if junior faculty take a fuller view ofboth lawyering and humanism. Lawyering does not assume the in-evitable triumph of virtue simply because it is virtuous; humanism isnot a gimmick to be used on students like an audio-visual aid.Comments at SALT were set in the imagery of the idealisticyoung faculty member as a Galileo whose ideas would triumph de-spite isolation and scorn. But while scientific revolutions may possessan inevitability that transcends the individual who institutes the rev-olution, the same expectation does not attach to approaches tohuman action. The structure of the solar system existed withoutGalileo; the pattern of human action depends on the presence of par-ticular human actors. The Galileo of the law school must be a livelyactor who uses effective advocacy and humanism.ITHE ADMINISTRATIVE SYSTEMThe lawyering task of the new faculty member begins with ananalysis of the decisionmaking system of the law school because the* Associate Professor, IIT/Chicago Kent College of Law. A.B., 1966 J.D., 1969, CatholicUniversity; LL.M., 1971, University of Pennsylvania.Imaged with the Permission of N.Y.U. Law Review(Vol. 53:592.LEGAL EDUCATIONhumanistic role requires a responsive understanding of the problemsof people functioning within that system. A look at the administrativesituations within the law school will reveal three sorts of committeeassignments:1. Positions that allow powerful results in proportion to tileamount of work required: the tenure committee exemplifiessuch positions. Committees in this category are often closed tonewcomers through institutional rules or practical lack of oppor-tunity.2. Positions that require immense effort to produce virtually im-perceptible results and that offer little institutional reward forthose results. Administration of affirmative action programs canfall into this category when faculty support is purely pro forma.3. Positions that have the potential to produce significant results atthe expense of prolonged, large-scale effort, if the effort is di-rected intelligently. Admissions work can fall in this ategory.Category 2 administrative work can be done for the good of soci-ety, for the sake of a higher justice, or as penance for past sins. It canalso be done in the context of a bargained-for exchange that can leadto other advantages. The faculty member can assume the role of An-drocles in dealing with the local lion, the dean. Deans have a nearlyinfinite variety of thorns in their paws; the filling of undesirable ad-ministrative positions constitutes such a thorn. With anl awareness ofthose thorns, a faculty member can almost always remove a thorn as aprelude to asking for a favor. The true humanist in this situation willresist the temptation to plant a thornbush outside the dean's office asa prelude to asking each favor.An additional reason to assume a role in a category 2 position isthe opportunity it offers to learn the system. The most junior facultymember should take such a position only if a more visible, seniorfaculty member is available to draw blame and opprobrium for aninherently unpopular administrative function away from him. The waythe senior faculty member handles such blame and opprobrium canbe a practical example of the much-heralded insulating function oftenure.Category 3 can be available to one who analyzes a system care-fully. The job of faculty secretary is almost always available for theasking. The rewards of the job are not self-evident, unless one con-siders that the secretary has the opportunity to "assemble" the legis-lative history of faculty decisions. As memories fade and the reasonfor a past action becomes disconnected from the action, the writtenrecord of faculty meetings can be the basis for interpretation of in-stitutional rules. Since the secretary has immense power of selectivityImaged with the Permission of N.Y.U. Law ReviewMay-June 1978]NEW YORK UNIVERSITY LAW REVIEWand wording in recording all but the precise motion passed, the sec-retary can effectively create the context in which individual facultychoices are placed.Admissions work shares with the job of faculty secretary the needfor a long-term perspective. The choice of a student body will deter-mine the curriculum in the long run more effectively than will anovert curriculum plan. No school can continually offer courses inwhich no students enroll while refusing to offer the courses de-manded by large numbers of students. The consistent willingness tomake dreary recruiting trips to colleges, to assist in creating the pub-lications that present the school's public image, and to wade throughpiles of applications can change the identity of the law school in thelong run.All of these administrative tasks share several characteristicscommon to legal work generally. They require a long-term perspec-tive on the accomplishment of goals, a willingness to submerge theego's desire for immediate gratification, effective oral and written ad-vocacy, and a moderating sense of systematic ethics to keep tech-nique from overpowering value.IITHE TEACHING SITUATIONA teacher who succeeds in bringing new approaches to the class-room may still find large-scale resistance among students and there-fore needs to understand the origins of such resistance. Some of thesefactors are related to the self-selection process that precedes applica-tion to law school; others relate to the law school's admissions choiceswithin that self-selected pool. The possibility of influencing the lattershould be clear. The greater impact on student resistance to new ap-proaches has to do with the method and message of traditional first-year classes.When law school entrants receive the message that "what youhave been doing for the last twenty years is not good enough if youwant to be a sharp lawyer in our complex society," it tends to pullthe rug out from under them. If one teacher sends out the additionalmessage that the method used in other law school classes is also "notgood enough," the already bewildered student is likely to move on tohopeless confusion. The easiest way for students to resolve the disso-nance of such conflicting messages is to assume that the majority oftraditional teachers are correct and that the minority of new-styleteachers are incorrect. A similar resolution of conflict in demands islikely to occur with regard to an unusual method of teaching, evenImaged with the Permission of N.Y.U. Law Review[Vol. 53:592650

The Teacher as Lawyer

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The Teacher as Lawyer

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Georgia State University College of Law: Reading Room