The Ivory Tower at Ground Zero: Conflict and Convergence in Legal Education’s Responses to Terrorism
Journal of Legal Education, Vol. 60, p. 373, 2011
25 Pages Posted: 14 Feb 2011 Last revised: 25 Sep 2015
Date Written: February 9, 2011
As the tenth anniversary of the September 11 attacks approaches, the legal academy has eased into a consensus that masks underlying disagreements and pedagogical gaps. Most scholars now accept the need for constraints on government, including some form of judicial review, both to protect rights and to oblige officials to think beyond short-term solutions. However, debate continues on the need for new legislation on detention of alleged terrorists, with some arguing that a statute would clarify disputes among courts about the appropriate legal standard and the admissibility of evidence, while others argue that enactment of a statute will encourage a new round of government overreaching.
Consensus in the realm of pedagogy has been less salutary. Most scholars have settled for a doctrinal perspective, instead of engaging students in a conversation about how institutions work “on the ground.” This article suggests three steps to enrich this arid doctrinalism. First, law schools should enhance clinical education opportunities that illuminate the interplay of principle, affect, and habit in lawyering: a lawyer who would gain the trust of a detainee, or for that matter of a government official making difficult choices, needs more than abstract knowledge of legal doctrine. Second, we should teach that social phenomena, such as path-dependence, affect the path of law, as the Bush administration discovered when its early unilateralism triggered a loss of credibility with the courts that made subsequent concessions appear inadequate. Third, our pedagogy should focus on how the “political economy” of legal institutions affects outcomes, asking students whether the aggregation of counterterrorism and other responsibilities in an agency like the Department of Homeland Security makes us safer. Taking these steps will help lawyers of the future better address terrorism and its legal consequences.
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