The European Court of Justice.

The New Legal Realism

President Trump’s recent executive order, suspending travel from seven predominantly-Muslim countries, together with the ensuing administrative and political chaos, and the subsequent (albeit interim) judicial orders enjoining the enforcement of the order, have highlighted the possibility that the American legal system might very well be on the verge of significant change — and of significant challenges. 

Responding with Integrity

If that prognostication proves to be true, then, as a colleague of mine recently noted, our students will inevitably question the value and stability of a number of legal doctrines that we all teach. In areas such as consumer protection law, for example, it may be that much, or even most of, the doctrine learned in class could be obsolete within a few months. 

Law faculty throughout the nation therefore need to think deeply about how to respond with integrity to the challenges that such a rapidly changing legal system and legal culture pose within the classroom. Such integrity requires, in my view, both the imparting of some knowledge or wisdom of true educative value and the avoidance of political sloganizing or indoctrination. 

Lessons from Abroad

In some ways, I have a big advantage over my American colleagues. Although, as an outsider, I don’t have the benefit of shared experiences, I do enjoy the benefit of points of reference and comparison that my colleagues do not have. 

In this case, in particular, I can say that I have actually been through this situation twice before: initially as a student and then as a professor. 

European Law

Although the UK joined what was then the EEC (now the EU) in 1972, that was an event that initially had limited legal impact. The problem was that the ECJ or European Court of Justice (the supreme court on matters of European law) had, until then, been comprised only of judges trained in the civil law tradition for whom the doctrine of precedent was totally alien. 

This meant that the courts in the UK (and in Ireland, which joined the EEC at the same time) were left baffled as to how to interpret what, to them, looked like extraordinarily Delphic pronouncements from the ECJ. 

It took several years of study (and the presence of a British and an Irish judge on the ECJ) before the British courts could even begin to develop an understanding of European jurisprudence. This was not until the late 1970s/early 1980s, when I was a law student. In a country where the constitution is unwritten anyway, trying to identify either Constitutional or Administrative Law at the time inevitably involved a continual journey into the unknown. 

Margaret Thatcher

Moreover, 1979 had seen the election of Margaret Thatcher’s administration and, after an initially quiet period, her government embarked on a long program of attempting to dismantle long-standing institutions and legal doctrines. One of its techniques involved making law in a wholly new manner, which brought a series of challenges in the courts. 

The English courts had never before shown much interest in such things, but the judges were so startled by the events unfolding before them that they had to create a whole new body of doctrine. Again, Constitutional and Administrative Law (and some other fields, like Employment and even Criminal Law) were being made up as we went along, sometimes by utilizing techniques that the judges had been learning from European law. 

Legal Realism vs. Legal Positivism

Obviously, all that had a significant formative impact on me but, for the moment, I’ll share just one thing that I think is important to bear in mind. It was, in fact, raised recently by a student in my Torts class. 

Some people like to say “we are all realists now,” but the truth is we aren’t. Most law professors I know are still legal positivists at heart, who cling to doctrine as if it were a life saver in the middle of the ocean, and who dismiss what we might call “non-doctrine” as a “public policy argument” not to be discussed in class. I have news for them: in a period of rapid change, those professors will get left behind. They will be ignored by their students as utterly out of touch. 

I saw that happen when I was a student: some professors went from hero to zero in terms of reputation almost overnight. Their depiction of the law simply couldn’t explain the events unfolding before the students’ very eyes. 

Identifying and Structuring Policy

On the other hand, those who made a point of including discussions of policy alongside discussions of doctrine literally became leaders of a whole school of thought. I was a student at the University of Sheffield, and this new school of thought even became known throughout the UK as “the Sheffield School,” as those professors created a new approach to English law which subsequently became the new orthodoxy. (Yes, I was very lucky to have been there then.) 

But those professors never allowed discussion of policy to dissolve into a political mish-mash. Instead, they gave such policy a structure or framework for interacting with doctrine, and that’s what made them so successful. 

So my advice to law teachers everywhere is this. Whatever label you like to give to “non-doctrine,” (a) you should not avoid discussing it, and (b) you should not leave it as one “blob.” There are, after all, many “public policy” arguments, and you should break them down, identify them, and explore their different ramifications. If you do (b), then (a) is very unlikely to dissolve into mere political sloganizing.