10 Nova L. Rev. 2, Winter 1986
Teaching First-Year Students: The Inevitability of a Political Agenda
Leon Letwin has been a professor at UCLA School of Law since 1964, currently teaching Civil Procedure and Evidence and occasionally engaging in civil liberties litigation. He is deeply concerned about the under-representation of minorities in law school student bodies and faculties.
As I’m sure is true of most instructors, I have many teaching aims — some of which no doubt conflict and some of which I’m only dimly aware. But one central objective is this: I would like students (especially in their first year) to recognize that there is nothing necessarily right or inevitable about the agenda of issues presented for their consideration; and that the act of defining the issues (by myself, the casebook author, or whomever) expresses political choices as much as, or more than, the choice of solution to those issues.
I experience difficulty in achieving my goal because in large measure I am fettered by the very traditions that I want challenged. I find myself accepting, almost reflexively, the conventional definition of “the issue” and reserving my critical talents, such as they are, for the debate as to the best solution. On occasion — all too infrequently — I am able to come up with a challenge to the conventional agenda of issues myself. As a modest example, I offer the following: Erie v. Tompkins it will be recollected, is famous for its holding that federal judges in diversity cases are bound by the common law as announced by state judges. One can debate the pros and cons of this view, but the transcendent importance of the issue is widely taken for granted. Charles Wright writes, “It is impossible to overstate the importance of the Erie decision . . . . . [I]t returns to the states a power that had for nearly a century been exercised by the federal government.” And consideration of the Erie issue Class occupies many pages in most civil procedure case books.
But a contrary and more useful perspective might be that the importance of the decision is easily overstated; that Erie raises a fairly trivial issue of power allocation; that the case has been exaggerated out of all proportion to its significance; and that the truly vital allocations of power run along altogether different lines than the division of power between state and federal judges to fashion common law rules. For judges, whether they be federal or state, are overwhelmingly white, upper middle-class, male and drawn from a narrow stratum of society. Now that is a phenomenon the importance of which it is impossible to overstate. Indeed, the important fact about Erie is not the differences between state and federal judges (so that which group gets to proclaim the common law looms as a crucial issue) but the similarities between the two, given the narrow social base from which they’re both drawn. This doesn’t answer the question whether Erie is right or wrong, but it does deflate the importance of the issue; and it puts in issue which issues ought to be the subject of intense debate.
I would be pleased if I were able to identify and challenge more frequently than I do the systematic assumptions which underlie the teaching program.
1. 304 U.S. 64 (1938).
2. C. WRIGHT, FEDERAL COURTS 255 (West 1976).