"After The Final No There Comes A Yes": A Law Teacher's Report

Yale Journal of Law & the Humanities Volume 2 Issue 2 Yale Journal of Law & the Humanities Article 3 January 1990 "After The Final No There Comes A Yes": A Law Teacher's Report Margaret Jane Radin Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Margaret J. Radin, "After The Final No There Comes A Yes": A Law Teacher's Report, 2 Yale J.L. & Human. (1990). Available at: https://digitalcommons.law.yale.edu/yjlh/vol2/iss2/3 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Radin: "After The Final No There Comes A Yes" "After The Final No There Comes A Yes": A Law Teacher's Report Margaret Jane Radin For the past five or six years I have included six poems by Wallace Stevens in the readings for a required first-year law course. They are the only poems I teach in the course. Thomas Grey's thoughtful essay' raises a seemingly unlikely question. Should Stevens's poetry be considered part of the legal canon? Do his poems possess legal authority? That in answer some kind of a "yes" or "maybe" might seriously be considered may at first surprise even the Stevens fans among legal academics. Yet why do I have the firm intuition that the poems are useful, relevant, important for law students to know? Why do they strike me as somehow deeply law-related? Professor Grey's question about poetry and legal authority prompts me to reflect upon and try to clarify my intuitions about law and Wallace Stevens. I share these reflections because those whose interest is aroused by Professor Grey's question might possibly be interested also in one personal and partial answer: how one teacher has found Stevens essential in one practical legal context, the training of law students in the ways of legal thought. So I offer this report from practice. I. Let me first confess that the required first-year course I will talk about is not Contracts, Torts, or Property, but rather, Law, Language and Ethics ("LL & E"), a course that was introduced at the University of Southern California in the curricular reforms of the 1960's.2 Though LL & E does not fit any traditional pigeonholes, if it has to be labeled it is an unorthodox jurisprudence course. Now some traditional lawyers might think, "Aha! Of course, poetry is just as much related to law [by which they mean, the practice of law in the real world] as is jurisprudence: not much." But the point of LL & E 1. Grey, Steel Against Intimation: The Motive for Metaphor of Wallace Stevens, Esq., 2 Yale J.L. & Humanities 231 (1990). 2. My materials are M. Radin, Words and Values: An Introduction to Jurisprudence (unpublished manuscript 1988) (copy on file with the author). My materials owe a debt to the text of the course's founders, W. Bishin & C. Stone, Law, Language and Ethics (1972). I owe a debt as well to the unpublished course materials of Michael S. Moore. I brought Wallace Stevens into the LL & E canon. Published by Yale Law School Legal Scholarship Repository, 1990 1 Yale Journal of Law & the Humanities, Vol. 2, Iss. 2 [1990], Art. 3 Yale Journal of Law & the Humanities [Vol. 2: 253 is to show that jurisprudence broadly construed is the center of the law, not the periphery, to show that practical legal culture's traditional dismissal of intellectual culture is wrong. Rightly understood, and well practiced, law cannot do without an understanding of how it is permeated and shaped by its intellectual context. Law, language, and ethics are deeply linked. The education of practicing lawyers should include the problems of metaphysics, epistemology, and moral philosophy,' not just because it is desirable to ornament legal technicians with a veneer of humane letters, but because lawyers truly, practically, cannot practice law well without an understanding of these interconnections. Traditional legal education has often left students on their own to find these interconnections. The good lawyers, if they were indeed good lawyers, always did so, although mostly implicitly and tacitly. LL & E takes on the responsibility of teaching explicitly the intellectual interpenetration of law and philosophy and the practical importance of this interpenetration. Many law students begin as naive legal positivists and philosophical foundationalists. These students are predisposed to think they will function professionally as technicians bound by rules. ("Legal decision is following the rules authoritatively laid down; rule-application is self-evident when the rule and particulars are juxtaposed; we lawyers are not concerned with rule-creation.") Many other law students begin as naive legal realists and philosophical skeptics. These students are predisposed to think they will function professionally as manipulators of the system at their clients' wishes. ("Legal decisions depend upon what the judge had for breakfast; the justifying rhetoric is completely manipulable, and merely papers over decisions made on essentially arbitrary grounds or subjective political convictions; we lawyers are not concerned with the goodness of legal decisions.") The mission of LL & E is to show how both positions, naive legal positivism and naive legal realism, ironclad foundationalism and brute skepticism, are out of step with the intellectual tenor of our times. There are certainties (for here and now) and there is always a potential openness of meaning. Equally, the mission is to show why both naive positions are morally bankrupt. Neither the lawyer as rule-applying technical functionary nor the lawyer as crafty rhetorical manipulator conceives herself as a morally responsible actor. Each can say, "I only do what they tell me to." The lawyer as agent in this sense is not a moral agent. Students are perhaps superficially attracted to the amorality of these positions, yet their better selves are not. (I trust that they have better selves that are not.) The mission of LL & E is to make it possible for students to realize (to make real for themselves) that they must embrace moral responsibility for their actions in practicing and [reicreating the 3. See Bishin, Law, Language and Ethics, 38 S. Cal. L. Rev. 499 (1965). https://digitalcommons.law.yale.edu/yjlh/vol2/iss2/3 2 Radin: "After The Final No There Comes A Yes" 1990] Radin law, and that neither foundations and formal rules nor skepticism and cynical distance can insulate them from never-ending moral dilemmas. Moreover, this condition of ever-present moral dilemma and potential openness of meaning should be embraced, for unless we do, it is hard to see how we can lead unalienated lives as lawyers. As long as one is committed to moral agency as central to one's humanity, one cannot wholeheart (...truncated)