Cardozo, the Canon and Some Critical Thoughts About Pedagogy
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Touro Law Review Volume 34 Number 1 Article 19 2018 Cardozo, the Canon and Some Critical Thoughts About Pedagogy Deborah W. Post Touro Law Center, [email protected] Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Judges Commons, Legal Education Commons, and the Legal History Commons Recommended Citation Post, Deborah W. (2018) "Cardozo, the Canon and Some Critical Thoughts About Pedagogy," Touro Law Review: Vol. 34 : No. 1 , Article 19. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol34/iss1/19 This Article is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. Post: Cardozo, the Canon and Pedagogy CARDOZO, THE CANON AND SOME CRITICAL THOUGHTS ABOUT PEDAGOGY Deborah W. Post* A few years ago, in an effort to link the right and left sides of the brains of my students, I had them make movies. They were told that they could dramatize any of the cases we had read that semester. A few of the movies were notable for their production values: before there was a LEGO Batman movie,1 my students used Legos to make a movie about a contractual dispute over the existence of a ghost in a house.2 Two students, one of whom had been an actor, dramatized the Baby M case.3 But the film that was the most fun, I think, was the dramatization of Jacob and Youngs v. Kent.4 If you view the beginning of this film,5 you will note that the student who plays Cardozo, Andrew Koster, begins with a tongue in cheek parody of Cardozo’s thought process while writing this opinion. In his role as Cardozo, he engages in self-criticism, noting that he “stayed up all night reading the dictionary” and that he was planning on writing a “verbose opinion” with “words no one can understand” 6 that will be “even more confusing than Palsgraf.” *Professor Emerita, Jacob F. Fuchsberg Law Center, Touro College. I would like to thank Professor Samuel Levine, Director of the Jewish Law Institute, who has organized several conferences over the years, for his invitations to attend and to participate in these conferences. I have enjoyed and benefited from the opportunities I have had to meet so many eminent scholars and hear their presentations. 1 THE LEGO BATMAN MOVIE (Warner Bros. Pictures 2017). 2 Stambovsky v. Ackley, 572 N.Y.S.2d 672 (App. Div. 1991). 3 In re Baby M, 542 A.2d 52 (N.J. Super. Ct. Ch. Div. 1988). 4 129 N.E. 889 (N.Y. 1921). 5 Ara Ayvazian, Ashley Haelen, Peggy Zabakolas, Larry Przetakiewicz, et al., Student film: Jacobs and Young Inc. v. George Kent (2010), http://works.bepress.com/deborah_post/4/. 6 See id. Mr. Koster was referring to a decision written by Cardozo in a tort case. That case, Palsgraf v. Long Island Railroad, 162 N.E. 99 (N.Y. 1928), is also part of the canon and is discussed in other articles in this issue. 321 Published by Digital Commons @ Touro Law Center, 2018 1 Touro Law Review, Vol. 34 [2018], No. 1, Art. 19 322 TOURO LAW REVIEW Vol. 34 For years I have persisted in teaching Jacob and Youngs, Inc. v. George Edward Kent, Wood v. Lucy, Lady Duff-Gordon,7 and Varney v. Ditmars,8 which features a dissent by Cardozo, in my Contracts classes, and Meinhard v. Salmon9 in the Business Organizations class. There has always been resistance by students. The students have always complained about Cardozo’s literary style. And while Cardozo is firmly ensconced in the canon, probably now and forever more, there is at least one faculty member at another law school who has developed a strategy for dealing with students who find Cardozo’s prose impenetrable. He posted a message on the Contracts listserv reporting that he simply “translates” Jacob and Youngs v. Kent into “plain English.” I did not reply online, but my immediate reaction was, “Why would you want to do that?” How close could he possibly have come to communicating the ideas that Cardozo expressed? More importantly, why shouldn’t students have to read difficult texts, even texts that on the first, second, or even third reading may seem incomprehensible to them? In response to Mr. Koster, as a representative of dozens of students I have taught over the years, and any contracts professors who feel it is necessary to translate Cardozo for students, I would simply say that these are not “words that no one understands.” And yes, one might need a dictionary to look up unfamiliar words, but what is wrong with expanding one’s 10 vocabulary? Of course, I recognize that these complaints are not 7 118 N.E. 214 (N.Y. 1917). 8 111 N.E. 822 (N.Y. 1916). 9 164 N.E. 545 (N.Y. 1928). 10 One of my first jobs after graduating from college was a secretarial position. I worked for Robert Rahtz, Executive Editor of the school book division at Macmillan Publishing Company. While I was there I witnessed what I would characterize as the “dumbing down” of grade school and high school textbooks. Competition among publishers for adoptions by various states was intense. As part of an effort to compete, publishers asked authors to respond to declining reading levels. The effort to make textbooks easier to read (smaller words required—no three syllable words allowed), as some scholars at the time noted, had unfortunate consequences. As experts noted: Textbooks had become too easy for the optimal development of reading, particularly for students reading at grade level and above. The analysis of textbooks published during the 1970s showed that many for the eleventh and twelfth grades were written at ninth or tenth-grade reading level, while the reading passages on the SATs were written on the eleventh or twelfth- grade level. Although easier books may lead to better comprehension, they also, if too easy, lead to slower reading development. REBECCA BARR, DAVID PEARSON, MICHAEL L KAMIL, PETER B. MOSENTHAL, HANDBOOK OF READING RESEARCH, VOL. 2, 133 (1991). https://digitalcommons.tourolaw.edu/lawreview/vol34/iss1/19 2 Post: Cardozo, the Canon and Pedagogy 2018 CARDOZO, THE CANON AND PEDAGOGY 323 simply about vocabulary. They are a symptom of a problem that is much more serious. A very important part of legal education in the first year is, or should be, an introduction to the history and traditions of the profession. Cases read in the first year provide a template for legal analysis and an introduction to legal doctrines. They also introduce students to the great minds that have shaped the law, decisions that have transformed the law, and with a little effort, to the events in the lives of people whose disputes become jural dramas, the performance of which might be a first world version of “normative communitas.”11 Judge John Noonan, in his book, Masks of the Law, notes that law had been taught in the past using “presentations to students of imaginary characters, ‘hypotheticals’ in which imaginary characters get into the legal difficulties the teachers wants to explore . where depersonalized actors illustrate the issues.”12 This method, he notes, is “an excellent one for exploring doctrinal alternatives with strict impartiality.”13 Noonan’s criticism extends to the case method when the people who are parties to the dispute are completely depersonalized. He argues that judicial opinions are not “concrete enough” and the parties “lose personal identity.”14 The problem with this approach, he suggests, is that decontextualized cases do not “contribute to the moral education essential to the professional preparation of lawyers.”15 Students fail to develop the “sense of responsibility of those who by their thought and action make the system exist.”16 I will simply note that this is not a matter of historical interest, a criticism of contemporary jurisprudence or casebooks from which we teach, but also a description of a methodology currently used on the essay portion of the uniform bar exam and especially on the multiple choice questions. Of course, depersonalized and oversimplified 11 VICTOR TURNER, THE RITUAL PROCESS: STRUCTURE AND ANTI-STRUCTURE 131-65 (1969). 12 JOHN T. NOONAN, JR., Forward, in PERSONS AND MASKS OF THE LAW: CARDOZO, HOLMES, JEFFERSON, AND WYTHE AS MAKERS OF THE Masks IX (1976). 13 Id. 14 NOONAN, supra note 12, at xix. 15 NOONAN, supra note 12, at xix. 16 NOONAN, supra note 12, at xix. Published by Digital Commons @ Touro Law Center, 2018 3 Touro Law Review, Vol. 34 [2018], No. 1, Art. 19 324 TOURO LAW REVIEW Vol. 34 hypotheticals are often used in law school assessments as well as the bar exam.17 The accrediting body for law schools, the Council on Legal Education and Admission to the Bar, places a great deal of weight on bar passage rates for schools.18 The response by faculty at many schools has been to adopt teaching techniques that emphasize doctrinal competence. Among the most pernicious is the strategy of 19 “flipping the classroom.” Notably, “flipping” is all about doctrinal competence and features exactly the sort of hypotheticals Noonan criticized.20 Flipping the classroom is billed as “experiential learning” but apparently the “experience” of reading, dissecting, translating, and 17 Examples of some of the hypotheticals used in the bar examination can be found at the website for the Uniform Bar Exam, http://www.ncbex.org/exams/ube. 18 The fight over bar passage rates is one of many issues precipitating the crisis in legal education.