"A(nother)
Critique
of
Pure
Reason":
Toward
Civic
Virtue
in
Legal
Education
Angela
P.
Harris
and
Marjorie
M.
Shultz*
I.
INTRODUCTION
In
Patricia
Williams'
book,
The
Alchemy
of
Race
and
Rights:
Diary
of
a
Law
Professor,
Williams
mentions
"a
constitutional-law
exam
in which
stu-
dents are
given
the
lengthy
text
of
a hate-filed
polemic
entitled
'How
To
Be
a
Jew-Nigger'
and then told
to
use
the
First
Amendment
to
defend
it.",
Williams
makes
the
point
that
students
taking
such
an
exam,
in
this
case
especially
Jewish
and
African-American
students,
are
required
to
write
against
their
own
personal
knowledge
and
experience.
She
notes
that
a stu-
dent
who
refuses
to
do
this
will
receive
a lower
grade,
and
guesses
that
"eve-
ryone,
including
perhaps
the
students
of
color,
will
rationalize
this
result
away
as
an
inability
to
'think
like
a
lawyer.'
"2
In
this
context,
the
phrase
"thinking
like
a lawyer"
means suppressing
or
denying
one's
feelings
and
personal
experience
while
putting forth
a
"cold"
analysis
of
the
"facts."
Classical
legal
education
celebrates
reason
and
de-
values
emotion.
3
Seeking
to
remove
legal
reasoning
both
from
"the polit-
ical"
and
from
"the
personal,"
law
professors
traditionally
shun
openly-
expressed
emotions
in
the
classroom.
When
classroom
discussions
raise
deeply
emotional
issues,
students
who
are
able
to
dispassionately
discuss
*
Professors
of
Law,
University
of
California,
Berkeley,
School
of
Law
(Boalt
Hall).
1.
PATRICIA
J.
WILLIAMS,
THE
ALCHEMY
OF
RACE
AND
RIGHTS
84
(1991).
2.
Id.
at
82.
3.
In
this
article,
we
use
"reason"
and
"rationality"
interchangeably,
and
contrast
them
with
"emotion"
and
"feeling,"
also
used
interchangeably.
We
are
aware,
however,
that
the
labeling
of
human
subjective
states
is
a
complex
endeavor.
Reason,
rationality,
thought,
mind, and
logic
form
one cluster
of
related terms
in
common
parlance; emotion,
feeling,
passion,
and
sentiment
form
another.
These
clusters
are
also
terms
in
the larger
metaphorical
structures
of
hard
versus soft,
fixed
versus
fluid,
and
male
versus
female.
To
make talking
about
these
issues
more
difficult,
the
terms
within
each
matrix
are
not
fungible.
Thus,
"reason"
is
sometimes
a
larger
word
than
"rationality,"
used
to
include
spiritual and
emo-
tional
dimensions
of
experience
and
judgment.
"Feeling"
conveys
lesser
intensity
than
"passion,"
but
also
less
depth.
Few
words transcend
the
dichotomy
entirely,
although
"awareness"
(which
tends
to connote
perception
rather
than
activity)
and
"wisdom"
stand
above
the
polarity
to
some
degree.
We use
"reason"
and
"emotion"
as
mutual
opposites
because
we
think
this
is
a
common-sense
usage.
As
a
normative
matter,
we
would
argue
that
reason
properly
understood
should
involve
the
interweaving
of
all
available
data,
including
emotions,
perception,
intuition,
and
intellect.
But
in
practice, reason
tends
to be
treated
as
the
opposite
of
emotion.
1773
STANFORD
LAW
REVIEW[l
both
sides
of
the
argument
are
the
ones
admired.
4
It
follows
that
law
profes-
sors
often
write
examination
questions
asking
students
to
address
issues
that
touch
on
the
most
incendiary
aspects
of
American
social
life,
and
expect
them to
"think
like lawyers."
On
the
one
hand,
then,
there
is
the
view
that
nothing
is
objectionable
about
the
exam
Williams
describes;
it
simply
requires
students
to
be
"toughminded,"
an
admirable
goal.
At
an
opposite
extreme,
it
might
be
argued
(though
we
do
not
think
this
is
Williams'
position)
that
the
exam
is
outrageous
and
impermissible,
even
racist,
simply
because
of
its
"inflam-
matory"
content-because
it
touches
on
deeply
emotional
issues
in
a
blunt,
even
heavy-handed
way.
We disagree
with
both
positions,
and
this
essay
seeks
to
explain
why.
This
essay
is
part
of
a
larger
project
in
which
we
try
to
rethink
the
way
law
professors
approach
not
only
teaching
but
legal
scholarship
and
faculty
governance
as well.
We
are
critical
of
the
notion
that
virtue in
these
endeav-
ors
requires
that
emotion
be banished
from
them.
In
our
experience,
emo-
tions
can
never
successfully
be
eliminated
from
any
truly
important
intellectual
undertaking,
in
the
law
or
elsewhere.
Attempts
to
banish
them
succeed
only
in
ignoring
them
instead,
and
this
distorts
thought.
When
strong
emotions
are
considered
inappropriate,
participants
in
an
intellectual
exchange
may
miss
the
places
where
they
need
to
think
more
deeply.
More
powerful
participants
may
get
their
feelings
expressed
and
satisfied
through
their
control
of
rules
and
procedures,
while
less
powerful
people
must
sup-
press
theirs.
Or,
everyone's
emotions
may
be
so
stifled
that
the
significance
and
meaning
of
an
intellectual
debate
is
entirely
lost.
In
our
view,
acknowledging
the
role
of
emotion
in
intellectual
endeavors,
including
the
classroom
experience,
can enrich
debate.
Our point
is
not that
people
should
express
their
feelings
for
the
sake
of
self-expression.
Rather,
when
emotions
are
acknowledged
and rigorously
examined,
they
can
serve
as
a
guide
to
deepening
intellectual
inquiry;
they
can
make
participants
in
a
debate
more
keenly
aware
of
the
importance-or
unimportance-of
an in-
sight
or
dialogue.
Emotions
are
part
of
thought,
not
its
antithesis.
Thus,
the
attempt
to
stifle
rather
than
utilize
them
exacerbates
the
felt
thinness
and
irrelevance
of
much
discussion
in
the
law
school classroom.
In
Part
II
of
this
article,
we
outline
our
tentative
steps
toward
a
theory
of
reason
and
emotion
in
the
context
of
legal
education.
In
Part
III,
we
tell
stories
from
our
own
experience
to
illumine
how emotions
and
reason
can
enrich
one
another
in
the
classroom.
One
of
us
(M.S.)
is
an
experienced
teacher,
recipient
of
the
campus
Distinguished
Teaching
Award
but
continu-
ing
to
learn
from
the
challenges
of
the
classroom;
the
other
(A.H.)
is
a
journeywoman,
a popular
teacher
but
still
feeling
her
way
toward
a
critical
4.
See
Roger
C.
Cramton,
The
Ordinary
Religion
of
the
Law
School
Classroom,
29
J.
LEGAL
EDUC.
247,
250
(1978)
("The
law
teacher
must
stress
cognitive
rationality
along
with
'hard'
facts
and
'cold'
logic
and
'concrete'
realities.
Emotion,
imagination, sentiments
of
affection
and
trust,
a
sense
of
wonder
or
awe
at
the
inexplicable-these
soft
and
mushy
domains
of
the
'tender
minded'
are
off
limits
for
law
students and
lawyers.").
1774
[Vol.
45:1773
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1993]
TOWARD
CIVIC
VIRTUE
1775
understanding
of
her
own
practices.
We
hope
that
the
differences
as
well
as
similarities
in
our
perspectives
will
make
this
section
provocative
reading.
II.
THE
DOMINANT
IDEOLOGY
OF
LEGAL
EDUCATION
In
our
experience,
most
law
teachers
share
an
ideology
about
the
appro-
priate
roles
of
rationality
and
feeling
in the
classroom.
5
This
ideology
can
be
reduced
to
two propositions:
first,
that
rationality and
feeling
are
opposites,
and
second,
that
rationality
is
appropriate
in
legal
reasoning
whereas
feeling
is
not.
6
In
accordance
with
this
ideology,
law
teachers
tend to
treat
the
de-
velopment
of
logical
thinking
as
the
central,
even exclusive,
focus
of
legal
training, and
they
seek
to
suppress
emotional
expression
in
the
classroom.
This
ideology
harms
both
the
educational
process
and
the
understanding
of
legal
institutions
and
legal
thought.
In
this
section,
we
first
offer
some
speculations
about the
sources
of
and
reasons
for the dominant
ideology.
We
then
describe
the
dynamics
of
this
ideology-how
it
manifests
itself
in
the
classroom
and
in
the curriculum.
Finally,
we
describe
what
we
see
as
the
politics
of
the
dominant
ideology:
who
or
what
is
at
stake in
the
process
of
its
reproduction.
A.
The
Sources
and
Function
of
the
Dominant
Ideology
The
sources
of
the dominant
ideology
are
not
hard
to
find.
Law
schools
operate
at
the
junction
of
the
academy
and the
legal
profession.
Both
realms
tend to
polarize
reason
and
emotion
and to
elevate
reason.
In
the
academy,
the
dichotomy
between
reason
and
emotion
is
linked
to
similar
dichotomies
between
mind
and
body,
"objectivity"
and
"subjectiv-
ity,"
and
science
and
art.
Emotion,
the
body,
the
subjective
and
personal,
and the artistic
are
devalued
in
contrast
with
reason,
the
mind,
the
objective
and
neutral,
and
the
scientific.
7
Academics
speak
of
themselves
as
living
"the
life
of
the
mind";
and
they
might
be
described
as
people who
are,
to
an
unusual
degree,
uncomfortable
with
bodies,
feelings,
and
persons,
as
com-
pared
to matters
of
intellect.
M.S.:
I
remember
a
history
prof
I
had
in
grad
school
who was
enor-
5.
We
use
the
word
"ideology"
here
as
a
descriptive
rather
than
critical
term,
referring
to
a
set
of
ideas
and
practices
that
are
followed
more
out
of
"common
sense"
than out
of
self-conscious
belief.
6.
We
thus
identify
reason
and
emotion
as
a
"hierarchical opposition"
prevalent
in
the
ideol-
ogy
of
teaching.
For
theoretical
explorations
of
dualisms
in
legal
doctrine
and
legal
reasoning
more
generally,
see,
e.g.,
J.M.
Balkin,
Deconstructive
Practice
and
Legal
Theory,
96
YALE
L.J.
743,
746-47
(1987)
(identifying
deconstructive technique
as
the
temporary
reversal
of
hierarchical
oppositions);
Gary
Peller,
The
Metaphysics
of
American
Law,
73
CAL.
L.
REv.
1151,
1155-56
(1985)
(comparing
rationality
and
passion
in
legal
discourse);
and Pierre
Schlag,
Cannibal
Moves:
An Essay
on
the
Metamorphoses
of
the
Legal
Distinction,
40
STAN.
L.
REv.
929
(1988)
(noting,
with
some concern,
the
prevalence
of
legal
scholarship
that
focuses
on
the
identification
and
examination
of
such
dichotomies).
7.
This
is
a
reading
of
the
Western
academic
tradition
that
many
feminist philosophers
have
produced,
noting
that
the
dualism
is
gendered
as
well.
See,
e.g.,
Susan
Bordo,
Feminist
Skepticism
and
the
'Maleness'
of
Philosophy,
11
J.
PHIL.
619,
622-29
(1988)
(discussing
the
work
of
Helene
Cixous
and
Luce
Irigaray).
STANFORD
LAW
REVIEW[
mously
knowledgeable
about
English
legal
history
but
for
whom any
human
contact
appeared
to
be
acutely painful.
He
lectured
three
hours
a
week
with
his
eyes
fixated
just
one
inch
above
the
tops
of
students'
heads.
The
only
variation
was
that
occasionally,
for
several
minutes
at
a
time,
he
would
close
his
eyes
entirely
while
he
continued
talking.
The
sad
thing
was
there
were
only
about
fifteen
doctoral
students
in the
course.
We
met
for
approxi-
mately
100
hours
during
that
year,
but
he
never
once
made
eye
contact
with
me
or
anyone
else.
The
dichotomies
of
reason
and
emotion,
subjective
and
objective,
have
powerful
practical
consequences
in
the
academy.
Disciplines
tend
to
rate
themselves
and
each
other
according
to
how
closely
they approximate
a
cer-
tain
image
of
the
scientific.
"Hard"
science,
which
is
the
best kind
of
sci-
ence,
is
thought
to
be
about neutrality,
objectivity,
empiricism,
fixedness,
and
reproducibility-qualities
which
emotions
lack.
8
Above
all,
"science"
stands
for
the
absence
of
the
personal,
subjective,
and
individual.
Because
emotion
is
viewed as
quintessentially
personal,
fluid,
and
unmeasurable,
affil-
iation
of
fields
or
individuals
with
emotionality
reduces
their
credibility
and
status
in
academic
circles.
9
Christopher
Columbus
Langdell,
the
father
of
modem
legal
education,
drew
on
this
science-envy
in
bringing
legal
education
into
the
university.
Langdell,
the
renowned
popularizer
of
the
"case"
or
"Socratic"
method
of
legal
education,
explicitly
assimilated
the
study
of
law
to
the
practice
of
sci-
ence.
Legal
reasoning,
in
his
view,
was
a
deductive
process
by
which
one
derived
right
and
wrong
answers
from principles
inherent
in
the
written
opinions
of
appellate
judges.
10
His
exhortations
to
treat
law
as
a
science
had
the
practical
effect
of
encouraging
universities
to incorporate
law
schools
and
the
ideological
effect
of
reinforcing
educators'
convictions
that
emotions
were
irrelevant
to
legal
knowledge
and
learning.
1
'
The
notion
that
the
study
of
law
is
and
should
be
scientific
has
clung
tenaciously,
long
after
Langdell's
8.
Ironically,
developments
in
some
of
the
"hardest"
of
sciences
suggest
that
the
more
strenu-
ously
one
searches
for
these
qualities,
the
more
elusive
they
are.
In
explaining
the
fact
that
the
observer
is
inextricably
part
of
the
observed,
the
Heisenberg
Uncertainty
Principle
brings
physics
into
conversation
with
post-modem
philosophy
and
alters
cherished
notions
about
the
possibility
of
perfect
objectivity.
See,
ag.,
FRrr.oF
CAPRA,
THE
TAO
OF
PHYSICS:
AN
EXPLORATION
OF
THE
PARALLELS
BETWEEN
MODERN
PHYSICS
AND
EASTERN
MYSTICISM
(1975).
Thus,
many
academ-
ics
continue to
worship
an
image
of
"hard"
science
that
is
to
some
extent
obsolete
within
the
world
of
hard
science
itself.
9.
For
a
discussion
of
the
term
"objective"
used as
an
honorific
and
contrasted
with
"subjec-
tive,"
see
Jeanne
L.
Schroeder,
Subject:
Object,
47
U.
MIAMI
L.
REV.
1,
42
(1992)
("Really,
Really
True
Objectivity
v. Wishy-Washy
Subjectivity").
10.
For
a
discussion
of
Langdel's
view
of
law
as
a
science,
see
Thomas
C.
Grey,
Langdell's
Orthodoxy, 45
U.
PriT.
L.
REV.
1
(1983).
Langdell's
enthusiasm
for
viewing
the
law
as
scientific
was
shared
by
many
of
his contemporaries.
See
ROBERT
STEVENS,
LAW
SCHOOL:
LEGAL EDUCA-
TION
IN
AMERICA
FROM
THE
1850s
TO
THE
1980s
52-55
(1983).
11.
On
science as
a
passport
to
academic
respectability,
see
STEVENS,
supra
note
10,
at
51-52.
Interestingly,
Langdell's
method
was famous
for
being
profoundly
alienating
to
students.
See
2
CHARLES
WARREN,
HISTORY
OF
THE
HARVARD
LAW
SCHOOL
AND
OF
EARLY
LEGAL
CONDI-
TIONS
IN
AMERICA
373
(1908)
(reporting
that
"[m]ost
of
the
classes
could
see
nothing
in
his
system
but
mental
confusion
and
social
humiliation").
Perhaps
as
a
reaction,
the
image
of
law school
as
a
kind
of
intellectual
boot
camp
which only
the
"smartest"
people
could
survive
began
to
evolve.
See
STEVENS,
supra
note
10,
at
54.
1776
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TOWARD
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VIRTUE
narrow
view
of
legal
reasoning
as
something
like
geometry
has
been
abandoned.
1
2
The
dominant
ideology
is
also
reinforced
by
the
ideals
of
the
legal
profes-
sion.
The
prevailing image
of
the
law
is
of
blindfolded
Justice
balancing
the
scales
of
decision. Because
lack
of
bias
or
prejudice
is
essential
to
adjudica-
tion,
Justice
wears
a
blindfold
to
shut
out
persons
and
passions
that
might
inappropriately
influence
her
inward
deliberation. Even where
lawyers
are
advocates
or
advisors
rather
than
adjudicators,
the
profession emphasizes
"thinking
like
a
lawyer."
The
phrase
celebrates
thought
that
is
incisively
rational,
logical,
analytical,
and,
especially,
dispassionate.
One powerful
im-
age
of
the
ideal
lawyer
is
as
a
"hired
gun," able
to
argue
anything
on behalf
of
anyone.
13
Like
the
master
trial
lawyer
making
impassioned
speeches
to
the
jury,
he
or
she
can
marshal
emotion in
others
but
is
(ideally)
untouched
by
her
own fervor.
She
should
at
least
always
be
capable
of
having
a
drink
with
the
other
side
after
the
trial
is
over.14
Despite
these
roots,
a
dichotomy
between
reason
and
emotion
may
seem,
from
other
vantage
points,
surprising.
Similar dichotomies,
notably
the
di-
chotomy
between
objectivity
and
subjectivity,
are currently under
attack
in
the
academy.
15
More
significantly,
law
and
legal
institutions
seem
deeply
and
inevitably
infused
with
emotion.
Law
legitimates
official
coercion.
It
designs
institutions
and
processes
for
the
resolution
of
conflict.
It
prescribes
12.
See,
ag.,
Richard
A.
Posner,
Volume
One
of
The
Journal
of
Legal
Studies-An
Afterword,
I
J.
LEGAL STUD.
437,
437
(1972)
(describing
the
aim
of
the Journal
as
"to
encourage
the
applica-
tion
of
scientific
methods
to
the
study
of
the
legal
system").
13.
For
one
statement
of
this
view, see
Murray
L.
Schwartz, The
Professionalism
and
Account-
ability
of
Lawyers,
66
CAL.
L. REv.
669,
672-74
(1978).
For
a
more
recent
discussion
of
the
appro-
priateness
of
the
"amorality"
of
lawyers,
see
generally
Stephen
Pepper, The
Lawyer's
Amoral
Ethical
Role:
A
Defense,
a
Problem,
and
Some
Possibilities,
1986 AM.
B.
FOUND.
RES.
1
613.
Robert
Post
reflects
on how
this
view
both
absolves
the
lawyer
of
moral
blame
for
her
actions
on
behalf
of
her
clients
and
makes
her
accountable
for
zealous
representation
of
the
client.
The
public
both
values
and
loathes
lawyers
because
of
this characteristic.
Robert
C.
Post,
On
the
Popular Image
of
the
Lawyer
Reflections
in
a
Dark
Glass,
75
CAL.
L.
REv.
379, 380, 385-86
(1987).
14.
The status
hierarchy within
the
profession
also
reflects
the
preference
for rationality
over
emotion.
The
highest-paying
and most
prestigious
jobs
in
the
legal
profession
are
those
having
the
least
to
do
with
handling
people
and
emotions
and
the
most
to
do
with
pure
intellect.
Thus,
appel-
late
judges
have
more
prestige
than trial
judges,
and corporate
lawyers have
more
prestige
than
family
lawyers
or
tort
lawyers.
One
study
found
that
"fields
serving
'big
business' clients
such
as
securities,
corporate
tax,
antitrust,
and
banking are
at
the
top
of
the
prestige
ranking
while
those
serving
individual clients
such
as
divorce,
landlord and
tenant,
debt
collection,
and
criminal
defense
are
at
the
bottom." Stewart
Macaulay,
Law
Schools
and
the
World
Outside
Their
Doors
IZ"
Some
Notes
on
Two
Recent
Studies
of
the
Chicago
Bar,
32
J.
LEGAL EDUC.
506, 509
(1982)
(summarizing
findings
in
JOHN
P.
HEINZ
&
EDWARD
0.
LAUMANN,
CHICAGO
LAWYERS:
THE
SOCIAL
STRUC-
TURE OF
THE
BAR
(1982)).
Another
study
found
that
"high
prestige
specialties
seemed
to
be
associ-
ated
with
analytic
skills,
while
low
prestige
specialties
seemed
to
rely
more
often on
interpersonal
skills."
AMERICAN BAR
ASSOCIATION,
LAW
SCHOOLS
AND PROFESSIONAL
EDUCATION:
REPORT
AND RECOMMENDATIONS
OF
THE
SPECIAL
COMMITTEE
FOR
A
STUDY
OF
LEGAL
EDUCATION
OF
THE
AMERICAN
BAR
ASSOCIATION
47
(1980)
(citing
F.
ZEMANS
&
V.
ROSENBLUM,
THE
MAKING
OF
A
PUBLIC
PROFESSION
ch.3).
This
is
interesting
in
light
of
the
general
market
phenomenon
that
jobs
involving
caring
for
persons
and
managing
emotions
are
filled
predominantly
by
women.
See
ARLIE
RUSSELL HOCHSCHILD,
THE
MANAGED
HEART:
COMMERCIALIZATION
OF
HUMAN
FEEL-
ING
app.
C
at
234-35
(1983).
15.
See
Schroeder,
supra
note
9,
at
2 (describing
the
academic
assault
on
objectivity).
July
1993]
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