III. Saturday Evening: Transforming Legal Education (I)

On Saturday evening, our focus shifted to transforming legal education. Peter took the modest risk of engaging with what needs to be transformed by teaching a contracts case as if the group were a typical first-year law school class. The case he chose was Mills v. Wyman, which everyone had read prior to the evening session. Interestingly, one of our attendees was Karrie Young, who is currently a student at Seattle Law School and working in Paul Lehto’s office as a law clerk. Karrie took the bait and responded to the inevitable request from Peter to give us the facts of the case. In brief, these facts were that in 1825, Levi Wyman, the 25-year old son of the defendant, fell ill aboard a ship near Hartford, Connecticut, and was cared for by the Millses, a Hartford family with no prior relationship to Levi. After considerable time and expense and care bestowed by the Mills family, Levi died. The father promised to pay the Millses for their care and expenses but later broke his promise. Thus, Mills v. Wyman.

Peter and Karrie dutifully walked the group through the conventional doctrinal analysis of the case—consideration requires a bargained-for benefit to the promisor and since here the benefit to Father Wyman was received prior to the promise to pay, the promise was unenforceable. As all the lawyers present knew so well, past consideration is no consideration, and this case did not come within any of the exceptions to the rule, such as debts barred by the statute of limitations or bankruptcy, where later promises to pay are enforceable without new consideration because there was originally a valid exchange or quid pro quo. As the “class” went on, Peter and Karrie also drew out the failure of the case to fall within the exception of unjust enrichment—since Levi was over the age of majority, the Millses had not performed a legal duty still remaining upon the father, and therefore the father had not been unjustly enriched by their services to the son. Had such unjust enrichment existed, the new promise would have been enforceable without additional consideration as another exception to the past consideration rule.

Following this doctrinal exercise, Peter sought to bring out several main points, starting with the observation that the community’s response to this young man’s tragic death and the generosity exhibited by the Mills family was to recognize neither the tragedy nor the generous impulse but rather to reinforce only one set of values: the individualism, materialism, and self- interest inherent in the consideration doctrine. All this can be summarized in the phrase, “You don’t have to keep your promise unless you get paid for it.”

The point Peter sought to make here was that the nature of the student learning process in law school inherently involved an unconscious indoctrination into a set of values that defined community members as strangers existing at “arm’s length” who are not bound to each other if their respective self-interests understood in a material sense are not served. The method by which this unconscious indoctrination takes place is suppression in the student of an intuitive emotional/spiritual response to the deep reality of the human situation occurring in a single community in 1825 in Hartford, Connecticut. This is accomplished by linking the legal response of the community to a detached analytical mode of rule application, as opposed to an empathic mode of social concern. Thus both the content of the substantive law and the method of learning it separate the student from the web of interconnectedness that our group seeks precisely to illuminate and foreground.

Peter then posed to the group a question difficult to answer, which was: how ought the community to respond to this situation if it sought to encourage families within the community to care for one another’s children in distress? He pointed out that everything about the case within the traditional doctrine encourages the Millses not to care for the child—indeed the inapplicability of the unjust enrichment exception because Levi was “too old” to remain someone whom his father had a duty to care for covertly conveys the message that upon reaching the age of majority, a child abruptly is excommunicated from the world of love and graduates into the world of strangers.

The answer to the question of what community response would encourage the loving impulse that the Millses actually exhibited toward another’s child does not lie in deciding to “enforce the promise” by the father, but rather by an entirely different vision of a community-based restorative process of reconciliation. As we began to discuss this, new ideas started to pop up, ideas that no current law school classroom would remotely be encouraged to think about. For example, why didn’t the father keep his promise? Mightn’t the father have been overwhelmed by tragedy at his son’s premature death, and mightn’t he have acted this out through anger at the Millses for failing to save him? And why did the Millses choose to bring a lawsuit at all? Was it really to recoup their expenses, which they almost certainly had never anticipated getting back since they didn’t know the Wymans and no promise had been made to them to pay these expenses? Mightn’t the Millses have brought this case because they were so hurt that the father had shown such apparent ingratitude for their acts of lovingkindness?

The point of this whole exercise was to help us imagine how a spirit/law/politics approach to legal education might immediately seek out the intuitive depths of the spiritual dimension of these human situations in pursuit of the realization of law fostering the creation of loving community. It was just a start, but the group as a whole felt it held promise for how we might build a more sustained cross-curricular critique of the existing process of law student indoctrination.

Peter raised the idea of analogizing the teaching and discussion of cases to Jewish Torah study—after all, the entire next generation of lawyers all read Mills v. Wyman in October of their first year, just as all Jews read the respective Torah portions (biblical stories) for October. Wouldn’t it be creative to propose to the Association of American Law Schools that a broader range of human values be introduced into the discussion of these human dramas and that the question of a what is a truly just response be made more of an open question than it is in the current indoctrination process? At a minimum, the discussion we did have brought forward the importance of bringing out the value-laden and non-neutral assumptions in both the substantive doctrine and method of analysis (or way of looking) of the existing educational process, and the discussion showed the systematic way that the spiritual/political dimensions of the cases are unconsciously shut out of the learning process.

An incidental aspect of this Saturday evening session was the general resistance felt immediately in the group to trying to walk through the conventional case method of teaching as applied to the Mills case. When Peter asked what was the matter in the face of the group’s silence, it became clear that many people in the room felt they had been instantly thrown back into their first year in law school and were traumatized by the memory, even though Karrie had taken on the burden of being the inquisitee and no one was really in danger of being called on. As we realized this we found it both awesome and sad and quite fascinating.