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Etienne Toussaint, The Miseducation of Public Citizens, 29 Geo. J. Pov. L. & Pol’y 287 (2022), available at SSRN.

In The Miseducation of Public Citizens, Professor Etienne Toussaint argues that, although the ABA’s Model Rules of Professional Conduct call for lawyers to be “public citizens” with a special responsibility to promote justice and protect the rule of law, the way that law is typically taught undermines these public goals. Specifically, he argues that the formalistic approach to teaching legal rules hides their role in creating and sustaining structural inequality in the legal profession and the broader society.

To counter this problem, Toussaint proposes new pedagogical principles designed to advance a justice-oriented conception of the lawyer’s public citizen role. In his words, for law schools to “engage the moral tensions between the lawyer’s professional role morality and the lawyer’s individual moral compass,” they must teach “public citizen lawyering” as a “countercultural vision of practice-readiness grounded by the normative responsibilities enshrined in the Model Rules.” (pp. 293-94.) These principles derive from the ethical rules—on candor, competence, legal reform, and communication—yet Toussaint reinterprets these ethical mandates to unlock the potential to equip students to fulfill their public citizen role.

To arrive at these principles, Toussaint first lays out deficiencies of the current approach, starting with his own story as a law student encountering the case of Bernard Goetz, a white man who shot four unarmed Black teenagers on a New York subway in the 1980s. His elegant and powerful treatment of his personal reaction as a Black student in a mostly white classroom sets the stakes for his subsequent analysis, which suggests how pedagogical reframing might yield more critical and inclusive conversations.

To build the case for this reframing, he begins by canvassing the existing literature on the lawyer’s role as “public citizen” in a synthetic and authoritative review. Spotlighting the crucial debate over whether lawyers owe loyalty to system values beyond client interests, Toussaint proposes law teachers should seek to overcome the tension between role and ordinary morality through a new pedagogical vision in which lawyers are trained to maintain fidelity to “legal integrity” defined as practical judgment in service of the public good (p 306). His key contribution is to present a new pedagogy of public citizenship designed to prepare law students to occupy their role with justice in mind.

This pedagogy consists of four critical elements, which Toussaint illustrates by suggesting how their application might have changed the conversation he experienced in the Goetz case.

First, Toussaint calls for “deconstructive framing,” premised on the ethical duty of candor, according to which law professors should “disclose to their law students the full scope of legal authorities that purport to clarify the meaning of a case’s material facts” (Pp. 316-17). Following this principle, Toussaint advocates for teachers to analyze the role of lawyers in perpetuating injustice, while using critical outsider jurisprudence, democratic theory, and other theoretical frames to evaluate cases like that of Goetz.

The second principle is “ethical reposturing” grounded in the duty of competence that guides professors to engage the moral, economic, political, and social dimensions of cases, highlighting the limits of zealous advocacy and the role of social movements in shaping law (p. 323).

Third, “reconstructive ordering” demands that lawyers seek improvement of law through redefining professional identity, highlighting how identity-based difference influences the rule of law, and pushing lawyers to develop a critical posture to better frame clients’ worldviews (p. 327).

Finally, Toussaint advocates that law schools teach “liberatory lawyering” focusing on aspects of law practice that transcend “strictly legal questions” (p. 331), prioritizing collaborative thinking and creative problem solving with clients, and assessing nonlegal solutions with a critical lens. Applying this principle to the Goetz case, Toussaint suggests, for example, that professors could assign materials giving more context about the communities in which Goetz’s victims lived.

Professor Toussaint is a cogent and powerful writer. He weaves personal narrative, legal theory, and doctrine with confidence and mastery, deftly using his experience to frame the disconnect between the lawyer’s public duty and routine participation in a system in which “law seemingly facilitates injustice” (p. 302). The major contribution of the piece, which is unique and important, is to theorize new teaching principles that foster inclusion and justice, while demonstrating through examples how they can make a difference in the real-world learning environment. His move to connect these principles to underlying professional values is original and innovative, using the values as a strong foundation for a broader—and necessary—reordering of legal education that moves toward a deeper encounter with how law functions to sustain structural inequality and how that inequality can be addressed through a richer conception of the lawyer’s public role. The article effectively shows how abstract teaching principles could be operationalized to guide different types of conversations in the Goetz case. Toussaint’s ethical reframing of legal pedagogy should gain wide attention and spark robust conversation.

The article does leave open some important questions. Professor Toussaint frames his contribution as a critique of legal formalism, but it is not clear that formalism is the root problem—as opposed to other types of pedagogical approaches that obscure the race, class, and other dimensions of cases. Toussaint focuses so much attention on debates about lawyering role and ethical rules, I was left wondering how his principles would apply to teaching those rules in relation to the course on professional responsibility itself—or if he thought that course was not the right vehicle to advance his project.

The concerns Toussaint raises about the “intellectual violence” of law school’s “objective, apolitical, and so-called ‘colorblind’ jurisprudential stance” (p. 292) are not specific to legal ethics, but Toussaint reaches into ethical rules to ground his “countercultural” pedagogical proposals on the theory that the rules present a vision of social responsibility that law teachers could leverage to engage critical perspectives. This makes sense to me, though his focus on application outside of the domain of professional responsibility (focusing on criminal law) kept me coming back to the question of whether his proposal required a more fundamental rethinking of how professional responsibility is taught. And I was not sure that some of the ethical principles he reaches for—like candor and competence—matched his ambition to fundamentally rethink teaching practice.

Indeed, his use of those principles was more rhetorical than actual: he adapts them from their specific meaning in legal ethics to frame broader points about teachers’ obligations to be honest and thorough vis-a-vis students in presenting the sociopolitical aspects of cases. Finally, I left the article still pondering over how many alternative frameworks (e.g., outsider jurisprudence, democratic theory, social movement theory, etc.) to use in teaching and whether and how to draw limits given practical constraints of time and pedagogical focus. I was hungry for more guidance here and perhaps more drilling down into the Goetz case as an exemplar.

In the end, Toussaint has succeeded in laying down an important challenge to legal educators in this moment of reflecting upon and reconsidering how to teach “law” in a time when its democratic foundations are under threat. The Miseducation of Public Citizens is sure to have a broad impact on crucial debates about how law schools need to change internally to better reflect the world that we seek to create outside its walls.

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Cite as: Scott Cummings, A Critical Approach to Legal Pedagogy, JOTWELL (February 1, 2023) (reviewing Etienne Toussaint, The Miseducation of Public Citizens, 29 Geo. J. Pov. L. & Pol’y 287 (2022), available at SSRN), https://legalpro.jotwell.com/a-critical-approach-to-legal-pedagogy/.