Name: David S. Caudill

Title: Professor and Alumni Faculty Fellow

School: Washington&Lee Univ. School of Law

Mailing Address:

Lewis Hall

Lexington, VA 24450

Phone: 540-458-8514

Email: caudilld@wlu.edu

Home Page: http://law.wlu.edu/faculty/profiles/caudill.asp

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Summary Description:

LAW AND LITERATURE STUDIES FOR LAW ALUMNI AND STUDENTS: The program, which has two components (law students and alumni) described below, is based on the notion that literature about law and lawyers is a “source” of the “law” of professionalism. The program conceives of professionalism as something more than the rules of professional conduct – something above or beyond the disciplinary guidelines. The images of law in literature provide a self-critical point of reflection (i) on the way lawyers are trained, (ii) on how lawyers deal with clients, other lawyers, and judges, and (iii) on how lawyers make personal decisions in practice, including who to represent, how much work to do, and what role a lawyer’s values will play.

I. Professionalism through law and literature in the Professional Responsibility course. This component of the program was established by letting me organize one of the required Prof. Resp. courses each year. The course begins by distinguishing between the rules of professional conduct and higher notions of ethics and professionalism. Then the first phase of the course focuses exclusively on the rules of professional conduct. The second and final phase of the course is an introduction to law & literature studies as a source of the law of professionalism. I emphasize how the images of law in literature give us examples of things we want to avoid (e.g. the behavior of lawyers in Dickens Bleak House) or emulate (e.g., Atticus Finch in To Kill a Mockingbird). Next we watch film adaptations of three Shakespeare plays with the goal of applying the poethic method, i.e., asking what each play teaches us about professionalism. In Much Ado, Shakespeares representation of the police and of the law court as disorganized leads to the view that law promises nothing unless its participants are good people. The archbishop in the opening scene of Henry V is a figure of law, and we discuss his overly-technical reading of Salic Law to allow Henry to invade France; Henry wrestles with the notion of higher law, as a check on man-made law. Finally, in The Merchant of Venice, the law in Portias hands is highly manipulable, and the potential of law to exclude the outsider is clear. Each film is introduced by a lecture and followed by an hour-long discussion of professionalism themes.

II. Law and Literature Alumni Weekend

Every fall we invite law alumni for a weekend CLE ethics program that is based on one (or several) literary works. I have been the director of this program since it began in 1993. Attendees are sent a copy of the literary work before the conference, which begins with my own CLE lecture discussing the professionalism themes in the book. During the rest of the weekend, other members of the W&L faculty give lectures and lead discussions on the book. The program has become a fixture in our academic year, and is well-attended. In every year the goal is to explore the notion of professionalism above and beyond the rules of professional conduct.

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Program History:

Both the organized use of law-and-literature in my professional responsibility class and the alumni law-and-literature weekend began in 1993. The law school course was not particularly popular in the beginning, since students did not know what to expect (and some were critical of law-and-literature as useless), and the first alumni weekend only drew about 20 participants. However, over the next several years, the law school course became quite popular, and participation in the alumni weekend also increased. In 1996, we received the Gambrell Award, and made a representation in our application that the program was going to continue every year it has. Since 1996, both components of the program have flourished our biggest classroom has 85 seats, and every year the law-and-lit professional responsibility course is over-subscribed with a long wait-list (students are willing to bring in extra chairs to attend); I always use the three Shakespeare plays as texts. The law-and-literature alumni weekend draws the 50-person maximum easily, with quite a few repeat-participants and an overwhelmingly positive response from new attendees. We do a different text each fall; in the past eleven years, we’ve chosen several plays (Sophocles Antigone, Shakespeares Measure for Measure, and Ibsens An Enemy of the People), some famous novels (Conrads Heart of Darkness, Woolfs Orlando, Melvilles Billy Budd, and Forsters Passage to India), and crime fiction (by Paretsky and Turow). We have intentionally avoided some of the common or obvious examples of law-and-literature (e.g., Bleak House or To Kill a Mockingbird) in an effort to make the program more unique, challenging, and intellectually sophisticated. I would estimate that over 700 of our graduates have taken the law-and-lit professional responsibility course, and 150-200 of our alums (including W&L law alums and undergraduate alums who went to law school elsewhere) have attended the law-and-literature weekend. We generally have to apply to 4-5 state bars for CLE ethics approval for attendees.

This fall, I taught the law-and-lit professional responsibility course, which was oversubscribed with 87 students, and we held the alumni weekend on Oct. 3-4, reading Arthur Millers The Crucible and watching the recent film adaptation for entertainment. I have found that historical literature, whether Shakespeares Elizabethan context or Millers representation of 17th-century witchcraft trials, offers sufficient distance (from contemporary lawyering) to encourage reflection on the values in the legal profession.

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Confidential Items:

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Expanded Program Description (Optional):

1.Program goals, and objectives, and method

The goal of the program, in both its law student and alumni components, is to demonstrate that law-and-literature studies are a source of insights concerning professionalism. I have been active in the law-and-literature sub-discipline for 11-12 years, and I am aware of the criticisms that it is academically lite, that law students need more law and less entertainment, and that it is simply naive to think that a novel can make you a better person. Yet in my experience, law-and-literature works to get law students and lawyers to engage the abstract notion of professionalism. It takes strategic planning and an organized approach; before I settled on Shakespeares plays for my professional responsibility class, I tried a lot of books that were not as rich in their critical reflection on law, lawyers, and legal institutions. Because of that experience, we think long and hard about the book well use each fall in the alumni weekend the theme of legal professionalism needs to be particularly accessible. Methodologically, I think Richard Weisbergs use of the word poethics as a combination of poetics (or literary criticism) and ethics is compelling hence my students read a little Weisberg to get the sense that we do have a methodology. However, long before my prof. resp. students read Weisberg, during the first class period, we distinguish the rules of professional conduct from higher notions of ethics and professionalism. We read some philosophical texts (Kant, Mill) about ethics generally, and I explain that the rules are not a complete ethical system. Over the next 10 weeks as we study the rules, in preparation for the MPRE or bar exam ethics questions, we also identify the gaps in the rules, and the discretion that is available to lawyers. By the time we get to the law-and-literature phase of the course, I have mentioned civility codes, personal values, and the practicing bars perennial focus on professionalism. To introduce law-and-literature as a potential source, we begin with Weisberg’s distinction between law-as-literature (i.e., reading legal texts as literary texts, and using literary interpretive methods to analyze judicial opinions or statutory provisions) and law-in-literature (i.e., reading novels or plays about law). A novelist or playwright directs our sympathies, and represents law and lawyers and legal institutions as good or bad (usually bad) in particular context show is the client treated by lawyers, how is the accused treated by a judge, how is law interpreted against outsiders or minorities, how do lawyers help or hurt societal goals? Each image or representation of law and lawyers is saying something about the way we are or should be, and we can respond, perhaps by surprise or by agreement or by a commitment to change.

2.Assessment strategies and outcomes.

Assessment of the law-and-lit professional responsibility comes in two forms, student evaluations and the essay exam. As to the student evaluations (and I have included an example in my supporting materials), the vast majority of students not only seem to enjoy the Shakespeare/professionalism component of the class, but they understand what we are doing looking beyond the rules to reflect critically on our profession and to get a higher sense of our ethical duties. As to the examination, I generally give a one-hour essay exam which asks the students to describe how literature is supposed to work to encourage professionalism, to give examples from Shakespeare, and to critically evaluate the endeavor. I can honestly say that reading 85 of those essays in a row is an amazing experience I wish I could publish them, because they genuinely reflect an understanding on the part of most students of the goals of professionalism they really do want to be more than technicians, and they really do have professional ideals that are revealed or confirmed to them in their explanation of Shakespeare.

Assessment of the law-and-lit alumni weekend takes the form of written evaluations, and the response to our program is typically very positive. We read any criticisms carefully, but we are encouraged that the program is so successful in the eyes of attendees. The frequent repeat participants, and the enthusiasm of newer participants, confirms that the program will continue.

3.Relationship of Scholarship on teaching methods and identify formation

I am familiar with the literature on identify formation of law students, and I do think that law school is a process of socialization into a profession. Years ago, I was influenced by a study by two Australian sociologists of the law school classroom, and I think we do train students to talk and move and act like lawyers, and to assume a particular role. Professors correct students until they start sounding like lawyers. Bourdieu calls this a habitus, and I know that law students often lose their idealism and become cynical about ethics as they assume the role of zealous advocates, keeping confidences and learning the tricks of not revealing doubts or of aggressive cross-examination techniques. That’s not all bad, of course, but the professional responsibility course with a law-and-lit component (that looks beyond the rules) is an opportunity to critically reflect on that assumed role or habitus. Henry V is particularly relevant on that point, as Henry gives up his wild past to assume the role of king, but his self-doubts are apparent is he really very good, or just opportunistic? Merchant of Venice includes the problem of representing Portias legal-technical arguments as clever and successful she wins but viewers are left with the uncomfortable feeling that she went too far, she lost her own sense of mercy. I try not to lecture on these themes, but rather to let the students explore how they responded to such images.

As to the alumni law-and-lit weekend, we make sure that our lawyer-students are engaged by reading the assigned text before the weekend we want to avoid dry lectures, and encourage discussion by practitioners based on their experiences in the profession. As to scholarship on teaching methods, I know that students must be engaged, and lectures without discussion are less then engaging.

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Supporting Materials:

I.LAW AND LITERATURE ALUMNI WEEKEND

A.W&L Law Magazine article on the program

B.Example of lecture outline given to participants (from Oct. 98 law/lit weekend on Turow and Paretsky: Crime Fiction)

C.Example of extended CLE outline (from Oct 99 law/lit weekend on Shakespeares Measure for Measure)

D.Example of Program schedule (from Oct 03 law/lit weekend on Millers The Crucible), with excerpt from CLE outline attached (pp. 25-26 of CLE materials)

II.LAW AND LITERATURE IN THE PROFESSIONAL RESPONSIBILITY COURSE

B.Introductory reading on the poethics method [from Weisbergs book Poethics] to introduce the idea of literature about lawyers as a source of the law of professionalism

C.Fall 03 syllabus

D.Student Evaluation example Fall 2001; see additional comments regarding the Shakespeare plays