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One Lawyer’s Take on “Experiential Learning”
(Brandeis University, March 17, 2010)
when I was asked By BrandeIs to speak aBout “experIentIal learning” (a term that I admit I had never previously heard), I went directly to Wikipedia, and lo and behold, it was defined there in great detail. An example of experiential learning provided there is “going to the zoo and learning through observation and interaction with the zoo environment, as opposed to reading about animals in a book.” For me as a lawyer, what immediately came to mind was the difference between reading about law in a textbook, as against spending time in court, which on occasion does have a zoo-like atmosphere, including the presence of an occasional predator. Indeed, as Justice Oliver Wendell Holmes Jr. said in The Common Law: “The life of the law has not been logic; it has been experience.”
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When thinking about Justice Holmes, I recalled an incident in which he taught an experiential lesson to President Lincoln. You will remember that in July 1864, which was late in the Civil War, Confederate General Jubal Early (a Virginia lawyer by trade) and
his troops attacked Washington, D.C., from the north. They got within five miles of the Capitol, at Fort Stevens on Georgia Avenue, where a five-day battle ensued. The cannons are still there as a memorial. President Lincoln came by carriage to watch the fighting from a parapet at the fort, and when he stood up to get a better view, Holmes, then a young Union captain who had been wounded at several earlier battles (and later a mentor to Louis Brandeis, and even later his fellow justice on the Supreme Court), shouted to President Lincoln: “Get down, you fool!”40 Having been fool enough to spend a half century practicing union and worker-side labor law in Washington, D.C., I, too, have done a lot of learning by doing, including learning to duck.
My sojourn in Washington began in the summer of 1960, right after law school, when I began an internship at the legal department of the then million-and-one-half-member International Brotherhood of Teamsters. I got that internship with an earnest, carefully crafted letter expressing my devotion to the cause of the working class, and the recommendation of my pro-management labor law professor, Bernard Meltzer, with whom I had fought throughout law school. Without any reservation, he told the Teamsters: “He’s your man!”
My Teamsters internship was the beginning of a seven-year apprenticeship there, during which I worked with the cream of the labor law bar as my mentors. They all were men. Sad to say, this was a period unlike today, when few women attended law school or practiced law. Indeed, the Harvard Law School had long been closed to women, including Louis Brandeis’s daughter, Susan.
Many of my mentors had been labor lawyers going back to the late 1920s and early 1930s, before the enactment of modern labor legislation. This was a time when unions were likened by the law to
40. Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon & Schuster, 2005), 643.
being criminal conspiracies. Thus, I was exposed to and benefited from the guidance of a group of very profound, experienced, and caring mentors who exhibited great qualities of scholarship, ingenuity, integrity, and character in defense of unions and their members.
The Teamsters headquarters, known then, and to this day, as the “Marble Palace,” is a few blocks from the Supreme Court, and one of the favorite occupations of many union lawyers was to attend oral arguments at the Supreme Court in every labor case that it heard. During my seven Teamsters years, there were about seventy Supreme Court labor cases that were argued, and seven of them were Teamsters cases, which we briefed and argued. Regrettably, I did not do any of the arguing. Nevertheless, we won them all!
The justices then included Chief Justice Earl Warren and William Brennan, both appointed by President “Ike” Eisenhower. He later claimed these two appointments were the two biggest mistakes of his presidency. Also included were Justices Felix Frankfurter, Hugo Black, and William Douglas (all appointed by President Franklin D. Roosevelt), Arthur J. Goldberg (appointed by President Kennedy), and Thurgood Marshall (appointed by President Lyndon Johnson). This was a relatively friendly forum for labor advocates. From the point of view of experiential learning, this was not surprising.
Earl Warren grew up in Bakersfield, California, and worked summers on the Southern Pacific Railroad as a “call boy,” rounding up train crews. He once said that his work showed him the power exercised by large corporations over their workers. And he told one of his Supreme Court law clerks that the railroads “used up the men and then cast them aside.”41
As for William Brennan, he came from an immigrant Irish family, and his father had been an organizer for the brewery workers’ union in New Jersey. Felix Frankfurter came from a Lower East Side
41. Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court, a Judicial Biography (New York: New York University Press, 1983), 9.
Jewish family, and as a Harvard Law School professor, he co-wrote a book entitled The Labor Injunction, challenging anti-worker court judgments. During his career he had represented the Amalgamated Clothing Workers Union and was a friend of its renowned president, Sidney Hillman.42 Thurgood Marshall was the greatgrandson of a slave and the son of a waiter at a restricted club for whites only in Baltimore, Maryland. Hugo Black had represented workers in court in Alabama against employer interests. Arthur J. Goldberg had been counsel to the United Steelworkers and many other unions. And finally, William O. Douglas, who grew up in poverty in the state of Washington, told The New York Times that as a youth he “worked among the very, very poor, the migrant laborers, the Chicanos and the IWWs who I saw being shot at by the police. I saw cruelty and hardness.”43 He viewed law as a means of correcting injustice.
The contrast of these justices with today’s Supreme Court members is marked in many ways. All the present justices, including that “wise Latina,” Justice Sonia Sotomayor, were federal appellate judges prior to their elevation to the Supreme Court bench, whereas of the six I mentioned earlier, neither Warren, Black, Douglas, Goldberg, nor Frankfurter had ever been a federal judge of any kind. Only Thurgood Marshall had served as a federal appeals court judge, and then only briefly. His career at the bar was as a civil rights lawyer. And just as a reminder, in 1916 Louis Brandeis went directly from being a private practitioner in Boston to being a Supreme Court justice. And he long had been an advocate for workers’ rights.
These differences, as well as many others, have had a profound influence upon how the current Supreme Court thinks about many
42. Leonard Baker, Brandeis and Frankfurter: A Dual Biography (New York: Harper & Row, 1984).
43. The New York Times, January 20, 1980, p. 28.
issues, including unions and workers, a subject that is illuminated in United States Court of Appeals judge and University of Chicago law professor Richard Posner’s book How Judges Think (Cambridge, MA: Harvard University Press, 2008).44
One might say that the “experiential learning” of the Supreme Court justices of the 1960s had a significant impact on their judicial philosophies and their decisions. Needless to say, many of their successors grew up in different experiential soil. And amazingly, today the thought of appointing a justice without judicial experience surely would be out of the question.
During my early years as a labor lawyer and up until today, I have mentored many interns and young lawyers in their introduction to
44. As American Federation of Labor President Samuel Gompers said in a debate with Louis Brandeis in 1903, in which Brandeis was arguing in favor of the incorporation of unions: “What chance has labor, the laborers, for fair play when the whole history of jurisprudence has been against the laborer?” See James J. Brudney, Sara Schiavoni, and Deborah J. Merritt, “Judicial Hostility toward Labor Unions? Applying the Social Background Model to a Celebrated Concern,” Ohio State Law Journal 60, no. 5 (1999): 1675–1771.
An example of a recent expression of a judicial attitude toward workers is provided in comments of Justice Stephen Breyer, supposedly a liberal justice, during oral argument in Black v. United States, No. 08-876, on December 8, 2009, involving the constitutionality of a statute making criminal the “deprivation of honest services”:
JUSTICE BREYER: . . . I think every agent has a duty of loyalty to provide loyal and honest services to the master, master agent. Every worker is an agent of his master, the employer. . . . I think. . . perhaps there are 150 million workers in the United States. I think possibly 140 of them would flunk your test. (Laughter.) JUSTICE BREYER: I mean, that’s what’s worrying me. Now, why? Because— I—“do you like my hat?” says the boss. “Oh, I love your hat,” says the worker. (Laughter.) JUSTICE BREYER: Why? So the boss will leave the room so that the worker can continue to read the racing form. Deception? Designed to work at reading the racing form instead of doing your honest work, and therefore, violation?
the practice of law. For them this was “experiential learning.” I have viewed this task first as payback to my own mentors for their caring efforts on my behalf, next as meeting an essential professional obligation, and finally as a way to help new lawyers avoid the inevitable pitfalls and frustrations of law practice.
At the moment I have two interns, one a third-year law student at Georgetown and the other, who is in her third year at Catholic University Law School. I have thrown both into researching difficult legal issues, and I spend substantial time helping them find their way through the brambles of the endless legal thicket.
There are several principles that I have tried to impart to interns from the outset:
1. Expect to make mistakes. This is inevitable for many reasons, including the fact, as Justice Holmes said, logic is often inapplicable where law is concerned. Intuition, or what is often called “elephant feel,”45 is required. And this kind of judgment may take years to develop. It clearly is the result of experiential learning. Further, no one knows everything.
So do not panic, and don’t take my corrections personally.
It is simply about learning and getting it right. I am here in order to help you get there. 2. Learn not only from your mistakes but also from your defeats. Do not be discouraged. As in baseball, in law there always are winners and losers. So you must get yourself up, dust yourself off, and get back onto the field. 3. Do not hesitate to ask questions because you believe you will expose your ignorance. I have on occasion said to a judge, “That is an excellent question, your honor [thinking
45. As was the case with the elephants who moved to high ground when they felt the tsunami coming. See Maryann Mott, “Did Animals Sense Tsunami Was Coming?” National Geographic, January 3, 2005 (online).
to myself, why didn’t I anticipate it?], but I do not have an answer at this time. However, with your permission I will submit my answer in writing this afternoon.” Better this than a half-baked response, even if it is to a half-baked question. Innocent questions from interns have frequently led to profound insights. In law as elsewhere, two heads are better than one, and so on up the scale. 4. Be dogged in doing research. There may be a case right around the next corner that will change your entire perspective. Do not think that your first answer is the ultimate answer. Be prepared to change your mind. Test your conclusions carefully. And try to see and understand the other side’s case better than it does, so that you are fully prepared to meet it head on.
These are a few of many such principles that I have tried to impart as a mentor. Let me say that I consider myself fortunate to have had mentors who were caring enough to “show me the ropes.” Hopefully, those of you who are similarly situated will be as fortunate. And these insights are not limited to law.
Let me offer one concluding comment:
The impact of experiential learning is life-lasting. For the most part, younger people are trying to look to their futures and are working on creating their lives and themselves. The lessons of experiential learning are important building blocks in this process. For older folks, we have a different task. We often spend our time looking back at our lives, trying to understand what happened and trying to make sense and find meaning in our experiences. This requires honesty, courage, and insight. To conclude, experiential learning is an essential element of lifetime learning and must be respected and applied as such. Finally, it may serve as the source of insights and perceptions not previously imagined.
