"Whether or not any of these "harpoons" find their marks in the students’ minds is a matter of some luck as well as skill (or so I tell myself). . ."-- University of Tulsa Law Prof. Tamara Piety.
Why should someone enroll at 82nd-ranked University of Tulsa School of Law, where students graduate with an average interest-accruing debt load of $100,000, not counting undergraduate debt? Because at Tulsa, as at no other law school, the law student will read a chapter from Herman Melville's classic Moby Dick in Civil Procedure class-- specifically Chapter 89, "Fast-Fish and Loose-Fish." This is due to the inspired pedagogy of University of Tulsa law professor Tamara Piety. Through Ishmael's brief discourse on aquatic fair game and imperialism, the Tulsa legal fledglings will learn one of the most profound secrets of our profession, namely that [lock the doors, draw the shades, send the children to their rooms, speak in shocked whispers] the law is often fashioned, interpreted, and applied to favor the powerful.
Naturally, Professor Piety wrote a law review article extolling the merits of her innovative class assignment. See Something Fishy: Or Why I Make My Students Read Fast Fish And Loose Fish, 29 VT. L. REV. 33 (2004). She also scored a trip to New York City to give a presentation on the article at a "Law, Culture & Humanities" conference. (See Piety's CV, Item No. 72 under "Presentations/Conferences). No wonder Professor Piety holds such a lofty opinion of "the utility of [legal] scholarship." (See here and here). Indeed, not only is this particular article useful, but its fortunate readers, probably consisting mostly of other law professors, will surely take sympathetic enjoyment in the droll little wisecracks of a much put-upon legal scholar trying to drag her chowderheaded students into the light.
In the article, Piety mocks the stupidity of her students, noting that they often fail to realize that Melville meant "fast" in the sense of "fastened," rather than in the sense of "speedy." See e.g. Something Fishy at 37 ("Alas, the students come to us with little refinement in the use of their principal tool—the language. Thus, they greet this reading with the misconception that it has something to do with fish racing or racing fish."); Id. at 37 ("[A]lthough they might well think "racy fish" if they thought of yet another alternative for "fast" and "loose"").
However, Piety does not mention that part of the problem might be that her institution, the University of Tulsa, accepts students with appallingly mediocre scores on the LSAT-- a test which, for all its faults, provides an assessment of reading comprehension and logic. Tulsa's most recent entering class had a median LSAT of 154 and a 25th percentile score of 151.
As well, Professor Piety uses the article as a platform to engage in some understandable bragging and name-dropping "by way of background" (Id. at 35) as to the intellectual road that led her to such unorthodoxy in the civil procedure classroom. The story can be summarized as follows: Piety went to Harvard for an LLM to help her get a job in legal academia after reluctantly embracing her professors' belief that she was well-suited to teach law. At Harvard, she read Moby Dick after hearing it praised by her favorite professor, Cornell West, in a seminar that West co-taught with Roberto Unger. Maybe not the most compelling anecdote, but the Piety still managed to milk it for 2½ pages of her 17-page article.
In "Fast-Fish and Loose-Fish," Melville finds universal applicability in the whaler's code: "A fast fish belongs to the party fast to it. A loose fish is fair game for anybody who can soonest catch it." Tamara Piety hopes, and so do I, that her students "may dimly begin to grasp the concepts therein and be enriched thereby." Id. at 34.
For instance, what is an idealistic but naive high school or college kid to a scamming law professor or law dean, but a loose fish? And what to that same scamming law professor or law dean is a class, even one filled with students of "little refinement," but fast fish-- or, shall I say, an all-you-can-eat fish fry?
1. "After I’ve explained myself more fully in these pages, you, dear Reader, may also come to see my way of looking at it. After all, if clarity of purpose and intelligibility of the materials were the touchstones of "present-ability" of the readings we give to students, we should end by giving them nothing at all! Or so it often seems in reading legal materials (particularly late-twentieth-century statutes). So I am not surprised when I’m reading exams and I come across yet another illustration that some central piece of information in the course has slipped by the student almost in its entirety." Something Fishy at 34.
2. "Thus, one answer to the question, "Why do I make them read this chapter?", is "Because it’s good for them!" Besides, there is always the chance that one or two of them, or perhaps a whole crew, may dimly begin to grasp the concepts therein and be enriched thereby. At least that is my hope." Id.
3. "At any rate, I find there are several pedagogical purposes to be served by this reading, purposes which I set before you so you can judge for yourself. Whether or not any of these "harpoons" find their marks in the students’ minds is a matter of some luck as well as skill (or so I tell myself), so I cannot promise that your results will be any better than mine. But it will enliven the process of this Sisyphean task we call law teaching. At least I have found it so." Id. at 34-35.
4. Still, when I am reading exams and I come across some reference to how such and such agrees with "the rule of fast fish and loose fish" or why Melville would "hold" such and such, I feel no special remorse that I’ve burdened them with some reading that they obviously didn’t understand. Such observations tend to join with many others of a similar ilk, drawn from the more traditional materials, in a veritable "school" of malapropisms and misstatements with which exams are generally filled." Id. at 34.
5. "It so happened that some years after graduating from law school I came around to the belief offered by my professors, and promptly ignored by me at the time (in the time-honored tradition of youth), that I might, after all, like teaching law. . . I took the plunge and found myself in amongst a school of young strivers known as Harvard Law School. What exhilaration! What terror! Yet despite the many moments of self-doubt and self-examination (which I discovered I shared with most of my young colleagues), it was thrilling. Just the tonic to blow the cobwebs from the brains and banish morbid thoughts! A bracing intellectual breeze blows there at all times and if you are standing in it you can’t help but be swept up. And I was. Gladly. One particular breeze, hurricane more like, was the venerable Cornell West, from whom I took a class called "American Democracy...In this course, West was wont to refer to Melville as the "greatest American author" and Moby Dick as a "masterpiece." Id. at 35-36.
6. "Alas, the students come to us with little refinement in the use of their principal tool—the language. Thus, they greet this reading with the misconception that it has something to do with fish racing or racing fish, (although they might well think "racy fish" if they thought of yet another alternative for "fast" and "loose"). Id. at 37.
7. "One of the first challenges for my students in grasping the meaning of this reading is a seemingly trivial one at first glance, but upon closer inspection is revealed as a harbinger of a key skill to be learned—the enlargement of one’s vocabulary and the necessity, in this pursuit, of looking things up!" Id. at 37.
8. "However, despite their general belief that the law professor’s job is to mystify not to clarify, I agree that I do want to shed light on the subject for my students. However, I also view it as my responsibility to challenge them, to push them to, and then past, what they previously thought were their intellectual limits." Id. at 34.