“Legal Reasoning” or Why Learning History from a Distance Harms Us

Law students are in a vicious cycle of cognitive dissonance in the classroom. As movements like abolition gain traction, there appears to be a parallel growth of information overload. The result? Failure to link the present moment to the past. This is not new, but rather the very definition of “education” in the United States of America and unfortunately, law schools—full of future advocates, litigators, legislators, and judges—play a critical role.

Part of the problem is the IRAC formula law students are all too familiar with, which ignores history, experiences, and morality. IRAC leaves no room for sensibilities or critical analysis of bad historical implications. In fact, law schools push students to put aside all non-legal considerations and laud students who are able to do so.

The vicious cycle begins none other than with law professors who assign reading and initiate classroom discussions. Some professors are conscious about their learning objectives and encourage students to seek additional information on topics of law either through directed research projects or just on their own time. But these are empty gestures that do not challenge the laws and principles that have shaped jurisprudence. In reality, these recommendations to other resources function as an information overload for students who are barely keeping it all together, especially during the stressful 1L year.

Additionally, these extra-curricular recommendations have the chilling effect of implying law students know the history of the law and its consequence and have reconciled that past with the present moment. For example, a criminal law class might dive into a discussion of McCleskey v. Kemp and the implications of the Baldus Study. The conversation might begin with the facts, the holding, and the disposition. More importantly, the conversation will likely veer left, restoring the human element of the defendant and analyzing defense counsel’s weighty argument. Up until this point, students have received a lot of information and perhaps some students have even shared their personal experiences with punishment. But what happens next is crucial and tends to undo the progress of a “well-balanced debate.” The professor and students move on, falling back into the comfort of “legal reasoning,” devoid of any historical significance and acknowledgement of racism in our current legal system. They move on and accept legal precedent as it is, with no intentions of undermining the court’s painful reasoning, just a goal of memorizing it and regurgitating it for exam purposes.

Perhaps you are thinking this seems fair, given stare decisis and the burden of proving elements in a legal claim. However, there is direct link between “legal reasoning” and dreadful decisions that have deprived marginalized people of basic human rights and dignity. We cannot view egregious legal precedent, including overturned decisions, as isolated incidents. Furthermore, when we do this, we are actually continuing the practice of distancing ourselves from history which enables us to pretend the present moment is free of racism. This is cognitive dissonance and a disservice to activists who have spent decades fighting for liberation.

With information at our fingertips, especially in the toolbox of legal educators, it seems careless to sit with information (read: history) and refuse to utilize it to effect change. In fact, it is harmful. This is especially true in Nevada, where the legal community is still growing; change is actually possible. Law students are doing a disservice to their future clients, constituents, and citizens when they go through the motions of law school, without question. But professors do a disservice to law students when they ask them to flush the historical context of a case and stick to the law.

It is often said that the colonizers who founded this country crafted our Constitution in a manner that allows for change. On paper, we do not have unamendable provisions, so why not teach law so as to encourage future lawyers, judges, and legislators to help our country right the wrongs of the original sin of slavery and ongoing white supremacy? If we are seeking to make the practice of law one that respects the American ethos, whether this is a faithful claim or not, we need to incorporate the bad decisions into our vision for a better future. What we need are uncomfortable conversations about how the system functions, never forgetting its origins, but also weaving those origins into equitable solutions.