The Practice of Teaching, The Practice of Law: What Does It Mean To Practice Responsibly?
The Practice of Teaching, The Practice of Law: What Does It Mean To Practice Responsibly?
The Practice of Teaching, The Practice of Law: What Does It Mean To Practice Responsibly?
Volume 29
Article 2
Issue 1 Fall 2008
September 2008
Recommended Citation
Howard Lesnick, The Practice of Teaching, the Practice of Law: What Does It Mean to Practice
Responsibly?, 29 Pace L. Rev. 29 (2008)
Available at: http://digitalcommons.pace.edu/plr/vol29/iss1/2
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact cpittson@law.pace.edu.
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 1 20-FEB-09 13:39
I.
Whenever I begin to think about the word practice, in con-
nection with teaching or lawyering, I recall one of my favorite
cartoons. It shows a priest seated at a piano and a bearded man
wearing a skull cap standing behind him, looking at the sheet
music. The caption reads, “A practicing Catholic and an obser-
vant Jew.”
As a law teacher, I have to be sure you understand the
“holding” of the cartoon. The priest, who at the time in question
was “practicing” the piano, presumably also “practices” his re-
ligion; the “observer” of the piano-playing also presumably “ob-
serves” the tenets (indeed, the “practices”) of his religion.
We often think of practice in the first sense, as regular re-
hearsals, whether for a particular performance or for undertak-
ing the work of an occupation, as in the case of a high school
“practice teacher.” The maxim is “practice makes perfect,” and
sometimes that may be so. Maybe. A childhood friend, having
“observed” my piano playing over some years, once commented
that I was getting better. When I happily responded, “Do you
think so?” he replied, “For sure. You used to play easy pieces
badly; now you play harder pieces badly.” A less astringent un-
derstanding of the limited truth of the maxim is manifested in
29
1
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 2 20-FEB-09 13:39
http://digitalcommons.pace.edu/plr/vol29/iss1/2 2
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 3 20-FEB-09 13:39
II.
What are the human goods that we may realize through
seeking to meet appropriate standards of excellence in the prac-
tices of lawyering and teaching, and in the process systemati-
cally extend our capacity more deeply to understand and master
those goods? Looking first at law, I will identify five that seem
salient to me; of course, I cannot claim that my catalogue will be
definitive.
The first is that a lawyer stands with those in trouble. I am
not talking about “zeal” or “loyalty” in the reified sense that we
often use those terms in professional responsibility law. There
is some significant room in an ethical universe for withholding
one’s judgment of a client who is in more trouble than he or she
deserves or, desert apart, may have no one else standing be-
tween him or her and justice. Making an argument, or other-
wise advancing an interest that, but for your engagement on a
client’s behalf, you would not want to prevail, is at times a fine
thing to do. So long as these principles are not mindlessly in-
voked in cases where they are grievously inapt, or turned into
abstractions to which you must be committed because of your
role, they have, I believe, significant moral strength and a modi-
cum of nobility.
6. Id.
7. Id.
8. Id. at 187.
9. Id. at 190. Professor (and former Dean of Yale Law School) Anthony
Kronman has written of such goods provocatively, in my judgment, in the life of a
lawyer, in THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993).
3
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 4 20-FEB-09 13:39
10. PLATO, GORGIAS *515 (Walter Hamilton trans., New York, Penguin Books
1960) [hereinafter PLATO, GORGIAS].
http://digitalcommons.pace.edu/plr/vol29/iss1/2 4
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 5 20-FEB-09 13:39
5
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 6 20-FEB-09 13:39
much violence far worse than fists, clubs, and knives, verbal ag-
gression (even a Rule 11 motion) does not look quite so bad. Al-
though, as Robert Cover so arrestingly reminded us many years
ago, the ultimate power of law is its willingness to turn to vio-
lence;12 in many, many instances, it uses that willingness as an
unspoken means of calling disputants to account according to
non-violent procedures and to norms that to some significant
degree can claim to respond to the call of justice. From that
perspective, filing or moving to dismiss a complaint is a nonvio-
lent, albeit coercive, overture in support of a claim of justice.
Finally, practicing law is the pursuit of a craft that can be
endlessly challenging. Becoming better and better at tic-tac-toe
must lose its appeal at some point, while becoming better and
better at chess may remain, at least for some, perpetually re-
warding. Of course, there is a lot of law practice that is “the
same damned thing over and over,” but I think you will readily
know what I mean about its endlessly challenging possibilities,
however seldom they may be realized. Law practice, moreover,
has the great added value, which chess does not, of having a
social purpose for one’s skill. Although lawyers may be prone to
exaggerate their importance, law and law practice significantly
affect people’s lives, for better and worse, and that can be a ma-
jor validation of the satisfaction that comes from mastery of the
craft.
What, now, are the salient internal goods of teaching? I
can approach that difficult question only by beginning with
what, in my judgment, they are not. The prevalent notion of
teaching, I believe—and this is especially so with respect to pro-
fessional schools—is that we transmit to students some of our
acquired knowledge and skills, which will be useful to them
later in their careers. We have the knowledge (provided that we
keep up our scholarship), our students need it, and, in teaching,
we “impart” what we have to them and so render them more
proficient. In criticizing this instrumental use of knowledge,
Robert Bellah has turned to a metaphor that I find distressingly
familiar: it tends, he asserts, “to make of the university a kind
12. Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1601 (1986).
http://digitalcommons.pace.edu/plr/vol29/iss1/2 6
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 7 20-FEB-09 13:39
13. Robert N. Bellah, The New Religious Consciousness and the Secular Uni-
versity, DAEDALUS, Fall 1974, at 110.
7
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 8 20-FEB-09 13:39
14. PLATO, MENO *84d-85c (G.M.A. Grube trans., Indianapolis, Hackett Pub-
lishing 1976).
http://digitalcommons.pace.edu/plr/vol29/iss1/2 8
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 9 20-FEB-09 13:39
III.
In part, the credibility of the concept of internal goods is
undermined by the changing world of law practice. (I believe
that an analogous process has been increasingly at work in
teaching—making universities factories for the production and
marketing of knowledge—but I will not develop that thought
here.) Such fundamental factors as the endlessly increasing di-
vision of labor, bureaucratization, and hierarchy in the practice
setting make the individual lawyer a less and less significant
and informed cog in an increasingly large and complex set of
wheels. This phenomenon is hardly a recent development, but
the accelerating growth in size and complexity of law firms and
the runaway consolidation and rationalization of the business-
client world have made matters much worse. Legal representa-
tion is coming to be seen, within the bar as well as the corporate
world, as simply the production of a “product” delivered to the
client firm as a means of reducing its transaction costs in a se-
ries of complex bends in the corporate road and to be valued,
therefore, largely for its utility in quantitative monetary terms.
The clients’ desire for “one-stop shopping” not only fuels the
growth of multidisciplinary practice, it is gradually—and less
and less gradually—affecting the thinking of lawyers and uni-
versities, pressing to affiliate the corporate practice of law more
with the range of professional consultant services available to
9
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 10 20-FEB-09 13:39
15. James Boyd White, Meaning in the Life of the Lawyer, 26 CUMB. L. REV.
763, 765 (1995-1996).
16. Id.
http://digitalcommons.pace.edu/plr/vol29/iss1/2 10
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 11 20-FEB-09 13:39
11
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 12 20-FEB-09 13:39
http://digitalcommons.pace.edu/plr/vol29/iss1/2 12
\\server05\productn\P\PLR\29-1\PLR102.txt unknown Seq: 13 20-FEB-09 13:39
lives as they think best does not warrant assuring them, tacitly
or explicitly, that they are free of the necessity to choose or to
accept facile reassurances that their choices are not morally
freighted. The task is to engage the moral agency of the other,
to invite him or her to reflection and, perhaps, to dialogue.
I cannot here develop more fully the contours of a responsi-
ble approach to counseling in law practice or to the interaction
between responsibility and values in law teaching.24 I will close
with a passage from the classic study of contemporary America,
Habits of the Heart, by Robert Bellah and his associates:
“Perhaps life is not a race whose only goal is being
foremost. . . . There are practices of life, good in them-
selves, that are inherently fulfilling. Perhaps work
that is intrinsically rewarding is better for human be-
ings than work that is only extrinsically rewarded.
Perhaps enduring commitment to those we love and
civic friendship toward our fellow citizens are prefera-
ble to restless competition and anxious self-defense.
Perhaps common worship, in which we express our
gratitude and wonder in the face of the mystery of be-
ing itself, is the most important thing of all. If so, we
will have to change our lives and begin to remember
what we have been happier to forget.”25
To which I can only add, Amen. May it be so.
24. A very brief engagement with this question appears in Howard Lesnick,
The Integration of Responsibility and Values: Legal Education in an Alternative
Consciousness of Lawyering and Law, 10 NOVA L.J. 633, 641-44 (1986).
25. I owe appreciation of the salience of this passage to Professor and Dean
Emeritus Kenneth Penegar, who quoted it in his excellent critique. Kenneth L.
Penegar, The Five Pillars of Professionalism, 49 U. PITT. L. REV. 307, 391 n.263
(1988) (quoting ROBERT N. BELLAH ET. AL., HABITS OF THE HEART: INDIVIDUALISM
AND COMMITMENT IN AMERICAN LIFE 295 (1985)).
13