Michael Townsend, Teaching Contradiction: A Case Study, 33 OKLA. CITY U. L. REV. 97 (2008), https://digitalcommons.law.uw.edu/faculty-articles/810
One of the most difficult realities confronting first-year law students is that American legal education is simultaneously theoretical and metatheoretical. At one moment students are at the "theoretical" level, by which I mean that they work "within" or "inside" the "black letter" in the context of various factual settings. In the next instant, students move to the "meta-theoretical" level, talking "about" the black letter from a number of "perspectives." That is, they slide between "learning law" and "learning about law." Many students find such transitions to be problematic, bewildering, and even stressful.
One response, for students and teachers alike, is to eschew metatheoretical discussions altogether. Indeed, to the extent that metatheoretical perspectives reflect the influence of other disciplines, concern about the backgrounds of students and teachers raises questions about how profitably such matters can be covered in law schools at all.
Another response is to confront the problem head on by providing focused discussions of various meta-theoretical perspectives. As some suggest, consideration of such perspectives in turn facilitates learning at the theoretical level. In particular, such consideration enriches doctrinal learning by providing a context in the Western intellectual tradition with which most first-year students have at least some previous experience. This article describes one attempt to provide such focused discussions in a first-year contracts course.
In my classroom, I use the phenomenon of contradiction to introduce three traditional meta-theoretical perspectives: mechanical jurisprudence, legal realism, and critical legal studies. For the purposes of this exercise, I tell students that the concept of "contradiction" in law refers to a situation in which the law provides two diametrically-opposed answers to the same legal question.
The purpose of this article is not to present any systematic or detailed overview of meta-theoretical perspectives. Indeed, meta-theoretical perspectives are more properly "experienced" than they are "learned." Rather, the idea here is to present a concrete and nuanced example of the introduction of perspectives into a typical first-year course. Section 20 provides a "case study" of what might be accomplished in the pedagogy of "teaching contradiction." In addition, this case study provides an example of the symbiotic pedagogical relationship between the theoretical and the meta-theoretical.