View in searchable PDF format: 1986.Winter – Letwin, Transforming Legal Education – A Symposium.OCR
NOVA LAW JOURNAL
IN MEMORIAM: Martin A. Feinrider
TRANSFORMING LEGAL EDUCATION:
A SYMPOSIUM OF PROVOCATIVE THOUGHT
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·~ Teaching First-Year Students: The Inevitability of a
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,1 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. “2 And consideration
1. 304 u.s. 64 (1938).
2. C. WRIGHT, FEDERAL COURTS 255 (West 1976).
646 Nova Law Journal [Vol. 10
Oass bias of judges
of the Erie issue occupies many pages in most civil procedure
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