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The Problem with Legal Education; or, Another Piece About the Aimlessness, Pointlessness, and Groundlessness of Law School

In Arts & Letters, Humanities, Law, Legal Education & Pedagogy, Pedagogy, Teaching, Writing on July 27, 2011 at 2:23 pm

Allen Mendenhall

The latest issue of Academic Questions (Summer 2011: Vol. 24, No. 2) devotes most of its content to legal education.  Published by the National Association of Scholars, Academic Questions often features theme issues and invites scholars from across the disciplines to comment on particular concerns about the professoriate.  (Full disclosure: I am a member of the NAS.)  Carol Iannone, editor at large, titles her introduction to the issue “Law School and Other Tyrannies,” and writes that “[w]hat is happening in the law schools has everything to do with the damage and depredation that we see in the legal system at large.”  She adds that the contributors to this issue “may not agree on all particulars, but they tell us that all is not well, that law school education is outrageously expensive, heavily politicized, and utterly saturated with ‘diversity’ mania.”  What’s more, Iannone submits, law school “fails to provide any grounding in sound legal doctrine, or any moral or ethical basis from which to understand principles of law in debate today.”  These are strong words.  But are they accurate?  I would say yes and no.

Law school education is too expensive, but its costs seem to have risen alongside the costs of university education in general.  Whether any university or postgraduate education should cost what it costs today is another matter altogether.

There is little doubt that law schools are “heavily politicized,” as even a cursory glance at the articles in “specialized” law journals would suggest.  These journals address anything from gender and race to transnational law and human rights.

But how can law be taught without politicizing?  Unlike literature, which does not always immediately implicate politics, law bears a direct relation to politics, or at least to political choices.  The problem is not the political topics of legal scholarship and pedagogy so much as it is the lack of sophistication with which these topics are addressed.  The problem is that many law professors lack a broad historical perspective and are unable to contextualize their interests within the wider university curriculum or against the subtle trends of intellectual history.

In law journals devoted to gender and feminism, or law journals considered left-wing, you will rarely find articles written by individuals with the intelligence or learning of Judith Butler, Camille Paglia, or Eve Sedgwick.  Say what you will about them, these figures are well-read and historically informed.  Their writings and theories go far beyond infantile movement politics and everyday partisan advocacy.   

Iannone’s final concern about the moral or ethical basis of law demands more than passing comment, but this is not the forum for lengthy analysis.  The problem, in short, is less with legal education than with legal scholarship, which often and in many respects resembles second- or third-rate scholarship in other disciplines as law professors expand their research agendas into areas in which they lack longstanding and requisite training or knowledge.

Which leads me to some of the roots of the problems with legal education as I see it:

(1) Law school lacks a defined purpose.  What is the point of legal education?  Is it to train lawyers how to practice law or to introduce students to the philosophies and histories that brought about our current legal order?  If the point is to train lawyers, then we need to do away with the second and third years of law school and limit legal education to the basics taught during the first year.  The first year provides the training necessary to equip students with the formative knowledge required to understand fundamental American legal concepts.  After the first year, an apprenticeship or clerkship would do far more to acquaint students with legal practice than would any simulated activity a law school could offer.  An apprenticeship or clerkship model of legal training would allow law schools to join the ranks of other departments in the university and teach enduring academic subjects such as jurisprudence, legal history, law & justice, constitutional law, or law & literature rather than courses on technical training, i.e., on how to file complaints or meet certain evidentiary standards in a court.  These latter topics are important, but they are better learned in the so-called “real world,” under the tutelage of experienced, practicing attorneys rather than tenured professors with little practical experience as lawyers.

I agree with Chief Justice John Roberts’s recent remarks that “there is a disconnect between the academy and the profession.”  “If the academy wants to deal with the legal issues at a particularly abstract, philosophical level,” Roberts said, “that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.”  Where I part with the Chief Justice is in his apparent belief that legal scholarship is about helping members of the bar or judges.  Some legal journals should address these concerns, of course, but those journals should be edited, written, and published by practitioners, for practitioners.  The more pressing concern, it seems to me, has to do with legal pedagogy: what, why, and how professors should teach and students should learn.  Medical education is instructive on this score.  Perhaps legal education might make the distinction that the medical community makes between research doctors and practicing doctors.  Perhaps law schools should allow students who want to practice law, and who have little interest in devoting their lives to research and writing, to complete one year of law school and then move on to an apprenticeship or clerkship.  Those students who are interested in what Roberts calls “legal issues at a particularly abstract, philosophical level” should be allowed to continue in their legal pursuits, perhaps eventually earning a Ph.D. or other doctorate in law such as those offered at many law institutions in other countries.

I’m disappointed in Roberts’s limited vision of scholarship. Doesn’t philosophy involve the direction in which the practical world moves toward future action?  Imagine the enormous extent to which, to name just a few examples, MachiavelliHobbesAdam Smith, Locke, Marx, NietzscheFreud, Foucault, or Derrida had on the quotidian operations of the workaday world.  It seems that, as Richard Weaver once declared, “ideas have consequences,” and that the workaday world unwittingly internalizes the ideas of profound thinkers.  The problem with law school is that its agents and organizers cannot decide whether it’s best to host and produce profound thinkers, or instruct in the precise mechanics of a profession that’s shaped and determined by profound thinkers.

(2) If the point of law school is the humanistic or philosophical study of law, then too many law school faculties are unequipped to do the teaching.  Let’s face it: as the current law school curriculum stands, a J.D. does not qualify you to teach Kant, Shakespeare, Albert Venn DiceyHayek, Carl Schmitt, Baudrillard, or any of the figures I’ve seen law professors undertake in recent law review articles.  Shakespeare scholarship has a long and fruitful history in the legal profession, and I consider Daniel J. Kornstein to be a brilliant commentator on the Bard.  There’s probably little difference between a law professor who has spent his entire life reading Shakespeare and a literature professor who specializes in Shakespeare, except that the latter might be privy to the latest academic trends in his discipline, since specialized peer-review journals are not made readily available to the public at large or even to independent scholars.  It’s not that a J.D. is inadequate to qualify someone to engage in humanities scholarship, but that this sort of scholarship is not something that can be dabbled in.

If legal education cannot endow one with the requisite knowledge for explaining the utilitarian jurisprudence of Jeremy Bentham or John Austin, it certainly cannot endow one with the requisite knowledge for reading Shakespeare in light of the centuries of evolving criticism on him.  If the point of law school is the humanistic study of law, then law school should teach Aquinas and Grotius and Hooker and Blackstone and Kent and on and on.  Most law students have never read any of these men, despite the growing trend of law professors claiming expertise in the humanities.  Law school should teach these thinkers if the mission of legal education is supposed to be humanistic in focus and scope, not if it is meant to train practitioners in workaday skills.

If law professors had a better grounding in the humanities, they might make the historical trends of law seem more comprehensible to students.  Many law students, for instance, are befuddled by the opinions of Justice Oliver Wendell Holmes, Jr., precisely because so many law professors attempt to pigeonhole Holmes as a “conservative” or a “liberal,” as if those signifiers bear the same meaning today as they did during Holmes’s long lifetime, and as if those signifiers have anything to do with Holmes’s habits of thinking.  Louis Menand understands Holmes better than all but maybe five law professors in the United States, in my view, because he appreciates and works out of the pragmatist paradigms of Emerson, C.S. Peirce, William James, John Dewey, and other contemporaries of Holmes. Stanley Fish is able to bring a sophisticated and unique perspective to bear on the First Amendment.  And Mel Bradford advanced the hermeneutic of orginalism.  Students are deprived of adequate instruction if their professors teach one of Holmes’s dissents without contextualizing it alongside works or passages by the so-called “classical” pragmatists.

You don’t go to culinary school to have a cook teach you calculus or astronomy.  Likewise, you don’t go to law school to have a law professor teach you about ChaucerMilton, Kafka—but you could go to law school for that purpose if the professors were trained and able to teach those subjects.  I have heard from professors that many instructors teaching law & literature have never taken a formal course in literature, nor even read the books on the course syllabus before assigning them.  A law student cannot be expected to get out of a law & literature course what a literature student would get out of that course, since the literature student will have been steeped in the history and drifts of literary theory and criticism, whereas the law student will not have been.  Because legal education is not designed to teach the humanities, law students who graduate and become law professors have never undergone the proper instruction to teach the humanities.

(3) Regardless of the aim of law school, the legal curriculum needs to incorporate legal scholarship, or at least reflect the methods and objectives of legal scholarship.  Put another way, law reviews should have something to do with what law students learn in class.  Law students rarely if ever read law review articles in their core curriculum.  That’s because law review articles are considered “theoretical” or don’t address practical matters that train students to become working lawyers.  This disconnect between legal scholarship and legal pedagogy is striking and reveals something about the structural failures of legal education.

(4) Law reviews and legal journals should reconsider editorial boards and processes if they are not going to address the concerns of practitioners, judges, and the bar.  Most law reviews are student-edited.  So much has been written about the benefits and burdens of student-edited journals that I will not go into that issue. If legal education is supposed to train lawyers—rather than educate citizens or cultivate virtue or whatever else the humanities are supposed to do—then law reviews should be about training lawyers.  It makes little sense to have so much humanities scholarship appear in journals edited by students who are getting trained to practice day-to-day law.

I’ll close by citing some of the abstracts that appear in this issue of Academic Questions.  I hope that I’ve piqued your interest in this issue.  (Note: these abstracts appear in the first two pages of the issue and are reproduced here verbatim.)

The Growth of Originalism

Robert H. Bork, Hudson Institute

Judge Robert Bork succinctly considers the rise and embattled state of originalism, “which holds that the Constitution should be read as it was originally understood by the framers and ratifiers.”  The fate of originalism, he avers, depends on the character of judges and professors.  Will they uphold the precepts established by our democracy’s founders—or succumb “to the allure of power to do good as they see the good”?

Originalism in the Classroom

David F. Forte, Cleveland State University

David F. Forte provides a detailed legal history of originalism and investigates whether, and to what extent, originalism is a part of law school teaching on the Constitution.  He shares the results of an examination of the leading constitutional law textbooks used in the top fifty law schools and a selection of responses gathered from constitutional law professors.  Prof. Forte concludes that love it or loathe it, orginalism is alive and kicking in the law school classroom.

American Legal Education and Professional Despair

David French, Alliance Defense Fund

David French asks why “lawyers are among the most unhappy, least respected wealthy people in America,” and in answering that law school is in part to blame, he discusses how law school not only fails to prepare students to practice law, but also “often actually sets them up for defeat and disappointment.”  He ends with some suggestions to change matters around.

The Coming Law School Bubble

Michael I. Krauss, George Mason University School of Law

Michaeil I. Krauss continues the thread introduced by David French, and explains how forty years of politicized hiring in the law schools has left its destructive mark.  The results, according to Krauss and other experts, are potentially catastrophic: “Market forces and internal law school policies may be combining to produce a legal education bubble the likes of which the country has never seen.”

Bricks without Straw: The Sorry State of American Legal Education

Charles E. Rounds, Jr., Suffolk University Law School

Charles E. Rounds, Jr., delves deeper into law school education to explain how “great swaths of core legal doctrine have been scythed from the required law curriculum, a process of misguided reform that began in the 1960s.”  This has left law students trying to make bricks without straw.  Rounds exhorts “seasoned” law practitioners to become once again “fully engaged in the affairs of the legal academy” and “take a good hard look for themselves at the doctrinal side of the law school curriculum.”

High Costs and Misdemeanors

Lino A. Graglia, University of Texas School of Law

When Lino Graglia entered Columbia Law School in 1951 the first-year cost was $600.  Today it costs $50,000 a year to attend Columbia Law.  Gaglia offers some thoughts on how law school costs skyrocketed—and kept going.

The Official Ideology of American Law Schools

George W. Dent, Jr., Case Western Reserve University School of Law

George W. Dent, Jr., describes the seemingly all-powerful Association of American Law Schools and the negative effects of its single-minded obsession with “diversity.”  Dent suggests ways in which true diversity of viewpoint might be injected into law school education.  The key is to raise awareness and apply the same standards to all political persuasions.

 

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