1986.01.00: Transforming Legal Education: A Symposium of Provocative Thought (Nova Law Journal)

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IN MEMORIAM: Martin A. Feinrider



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·~ Teaching First-Year Students: The Inevitability of a

Political Agenda

Leon Letwin

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

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 theyre 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.


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