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Making Legal Education Great Again

In America, Civics, Conservatism, History, Humanities, Jurisprudence, Law, Law School, Legal Education & Pedagogy, liberal arts, Liberalism, Pedagogy, Philosophy, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on August 30, 2017 at 6:45 am

This piece originally appeared here and was published by the James G. Martin Center for Academic Renewal.

Legal education has become a surprisingly regular topic of news media for several years now. Most of this commentary has focused on enrollment and matriculation problems, bar passage rates, accreditation standards, student debt, and the job market for recent graduates. These are pressing issues that raise vexing questions for law school administrators, and they warrant the attention they’ve received.

Little attention, however, has been paid to curriculum, except as it pertains to those issues. And not just curriculum, but subject matter within the curriculum.

There are certain subjects—let’s call them “the permanent things”—that always have and will interest scholars of the law because of their profound influence on legal norms and institutions: history, philosophy, literature, and theology. Whether they belong in law schools or some other department, whether they prepare students to become practice-ready or not, these topics will remain relevant to subsequent generations of jurists and legal scholars. There will be a place for them somewhere within the world of legal learning and letters.

Law school faculty and research centers have expanded over recent decades to include studies of these humanistic fields. As long as these fields populate law school, there’s a felt need for rigorous liberal education in them.

Ordered liberty in the United States has historically rested on a commitment to religious faith and pluralism, fidelity to the rule of law, and traditional liberties grounded in the conviction that all humans are created equal and endowed by their creator with certain inalienable rights. These values characterize the American experiment. Our society is built on them, and its continued vitality depends upon maintaining and promoting our commitment to them.

Yet these values are ridiculed and attacked in universities across the country. When they’re taught, they’re often treated as products of a morally inferior era and thus as unworthy of our continued respect. And because these values aren’t seriously or rigorously taught, students lack working knowledge about them and are therefore unprepared for the kind of civic engagement that young people desire and demand.

A decline in civic education has caused misunderstanding and underappreciation of our foundational norms, laws, and liberties. Religious liberty is mischaracterized as license to harm and on that basis is marginalized. Economic freedom is mischaracterized as oppression and is regulated away. Well-positioned reformers with good but misguided intentions seek to fundamentally transform the American experiment from the ground up. They work to limit foundational freedoms and increase regulatory power.

Without well-educated lawyers and civil servants equipped to resist these reformers, the transformation of America will result in the destruction of the freedoms enabled by our founding generation. We cannot allow this to happen. The Blackstone & Burke Center for Law & Liberty at Thomas Goode Jones School of Law, for which I serve as executive director, therefore seeks to educate the legal community in such areas as natural law, natural rights, religious liberty, economic freedom, freedom of speech, freedom of association and assembly, and other liberties that find expression not just in the American but in the larger Western jurisprudential tradition.

I define “legal community” broadly to include law students, law professors, public policy institutes, political theorists, judges, and businesses in addition to practicing lawyers. Because my center is housed in a law school, it’s well positioned to instruct future lawyers while bringing together faculty from different disciplines who are steeped in liberal education.

Numerous organizations promote these values in the political arena, but few attempt to reconnect foundational values with the law. The Blackstone & Burke Center aims to fill this gap by bringing together scholars and students committed to American constitutional government and the common law foundations of our cherished liberties. Our target audience will include law students, judges, and civics groups.

For law students, we offer the Sir Edward Coke Fellowship. We’ve accepted our inaugural class of fellows, who, beginning this fall, will study formative texts in Western jurisprudence in monthly seminars that supplement their core coursework. Next semester, we’ll read and discuss works by Aristotle, Grotius, Hayek, Alasdair MacIntyre, and Robert P. George. The center will be a key networking opportunity for fellows seeking careers at foundations, think tanks, universities, and public policy organizations.

Fellows will also help to organize a judicial college for state jurists. Thanks to the Acton Institute, Atlas Network, and the Association for the Study of Free Institutions, the Blackstone & Burke Center possesses the grant money needed to host its first judicial college in October. Professor Eric Claeys of Antonin Scalia Law School at George Mason University will direct this event, the readings for which include selections from not only cases (old and recent) but also Aquinas, Locke, Blackstone, and Thomas Jefferson. The readings for judges are extensive, and the seminar sessions are meant to be intensive to ensure that judges get as much out of the experience as possible.

The center will also provide basic civics education to local communities. For several years, the Intercollegiate Studies Institute issued reports on the poor state of civic literacy in the United States. The National Association of Scholars recently issued a detailed report on the inadequacies and politicization of the “New Civics.” The current issue of Academic Questions, moreover, describes the sorry state of civics knowledge in the United States and the tendentious methods and institutions that teach political activism rather than deep learning.

Against these alarming trends, my center organized and hosted a reception featuring a U.S. Library of Congress interactive Magna Carta exhibit, which was displayed in the rotunda of the Alabama Supreme Court for three weeks and now remains in the possession of the Alabama Supreme Court Law Library. The reception included prominent judges, business and university leaders, lawyers, and the general public.

For example, Chief Justice Lyn Stuart of the Alabama Supreme Court and Judge William “Bill” Pryor of the Eleventh Circuit Court of Appeals delivered remarks about Magna Carta during the reception, and young people conversed casually with judges about the legal system, federalism, and the challenges and opportunities facing the legal profession in the 21st century. This fall, the center is cosponsoring an event with the Foundation for Economic Education on the campus of Auburn University to explore the relationship between law and markets, and I hope to see as many high-school students as college students in attendance.

Legal education is strikingly different today than it was when Thomas Jefferson apprenticed under George Wythe, or when Abraham Lincoln read law before receiving from a county circuit court certification of his good moral character, then a prerequisite to practicing law.

Nevertheless, legal education looks much the same as it did in the late nineteenth century, when Christopher Columbus Langdell, dean of Harvard Law School, instituted a curriculum, pedagogy, and case method that came to characterize “the law school experience.” If there’s been a paradigm shift, it’s been toward more practical aspects of legal education such as clinical programming. Yet many lawyers remain ignorant of the history and philosophical conventions that shaped their profession over centuries.

The Blackstone & Burke Center for Law & Liberty is a modest corrective in that it doesn’t seek to remake legal education or demolish longstanding practices and procedures in one fell swoop. Rather, it does what it can with the resources and tools available to strive to renew an America where freedom, opportunity, and civil society flourish. In the long run, I think, these reasonable efforts will have powerful effects and far-reaching benefits, both within the legal academy and beyond.

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On Judicial Concurring and Dissenting Opinions

In Humanities, Jurisprudence, Law on August 23, 2017 at 6:45 am

This post is adapted from a law review article that may be downloaded here (citations available in the original).  

A unanimous judicial opinion admits little doubt about its authority.  Yet a dissent, especially when it is joined by another justice, deprives a majority opinion of its full import, calling into question the soundness and quality of the reasoning that prevailed in the case.  Future judges may, after all, reclaim from obscurity the rationale of a dissent, thereby abrogating the majority opinion against which the dissent was situated.  Concurrences and dissents notify future readers of alternative grounds of argument.  Concurrences may complicate the interpretation of the leading or majority opinion, but the fact that they signal the need for closer scrutiny and inspection is, in my view, advantageous.

Each case in a common-law system represents a ratified principle or principles nested within a chain of other cases.  Patterns of precedent gain increasing authority the longer and more widely they are followed.  Dissents add to the population of principles within the total system of rules that govern society, but they chart a path away from the settled course if they attract adherents and gradually disturb consensus about what the operative rule should be.

A decision in a single case may seem inconsequential because it is plugged into a vast network of cases.  Yet each case is important in the aggregate because it contributes to the wide distribution of choices by purposeful actors (voters who elect legislators, legislators who enact statutes, lawyers who contextualize statutes and produce lines of argument, judges who interpret statutes and formalize lines of argument, and litigants who initiate cases that either adopt or challenge prevailing rules).  Each case thus contributes to the filtering processes by which sketchy correspondences develop between past and present holdings.  Principles become clearer as associative links between cases grow more noticeable and as like cases combine into a cumulative force that demands attention.  Each case is necessary as a practical test for some principle to win judicial recognition.  A judge considers the law of the case synchronically, as if the operative rule were fixed, because he or she is bound by statute or precedent or some other source of positive law at that moment.  But concurrences and dissents, when they challenge the operative rule, force future judges to consider the law diachronically, as if it were subject to change and perhaps derived from some other source of law (e.g., when a judge dissents even though a statute or constitutional provision leads seemingly inexorably to the conclusion reached by the majority).

There are millions of published cases from both federal and state courts across the United States; the relation between principles and rationale in each of these cases cannot possibly be based on factual resemblances alone.  Only slight factual affinities, for instance, may lead judges to label an activity “theft” or “murder” in one case but not in another.  Cases do not consist merely of facts that require naming and classification according to a fixed legal lexicon.  The facts of a case may square with a legal principle that can be named, but the precise application of the principle remains unknown until a judge articulates it in an opinion.  The judge differentiates between principles in light of facts that are specific to each case.  The principles represent, in this sense, theoretical concepts abstracted from facts in specific cases.  When several cases hitch up to announce similar principles derived from comparable facts, the principles accrue authority.  Textual patterns signal how judges will rule in like cases; they thus ensure the predictability of rules.

The heritability of principles through cases enables judges to construct genealogies for principles to reveal a common ancestry.  An opinion represents one operative resolution among a heterogeneous mass of decisions.  An opinion in isolation derives its clarity and meaning by linking its rationale to associated concepts in prior cases.  Only by linking itself to like antecedents can an opinion establish its authority as the apparent sum of a limited number of legal options.  Case precedent is thus a social and discursive institution, embedding principles within a system or network of citation and imitation.  Each opinion unites certain principles with facts until eventually several opinions merge to form a cumulative family of similar cases.  Each opinion thereby serves as a resource for future judges who need to find and assemble principles that will situate the facts of a case within a settled pattern of decision-making.

Dissents are corrective mechanisms that guide future judges and justices away from problematic precedents.  They also facilitate and instantiate the values of free expression, as well as competition among ideas, that the First Amendment enshrines.  Justice William Brennan suggested that dissents involve “the critical recognition that vigorous debate improves the final product by forcing the prevailing side to deal with the hardest questions urged by the losing side.”  He echoed Justice Holmes by invoking “the conviction that the best way to find the truth is to go looking for it in the marketplace of ideas,” and to this end he referred to opinions figuratively as “the product of a judicial town meeting.”  Melvin Urofsky argues that dissents facilitate a “constitutional dialogue,” a phrase that “includes not just debates justices on the high court have with one another in specific cases or over particular jurisprudential ideas but also discussions between and among jurists, members of Congress, the executive branch, administrative agencies, state and lower federal courts, the legal academy, and last, but certainly not least, the public.”

The constructiveness of concurrences and dissents is evident from those which later courts have vindicated.  Examples include Justice Brandeis’s concurrence in Whitney v. California (1927) and his dissent in Olmstead v. U.S. (1928),  Justice John Marshall Harlan’s dissents in the Civil Rights Cases (1883) and Plessy v. Ferguson (1896), Justice Wiley Rutledge’s dissent in In re Yamashita (1946), and Justice Hugo Black’s dissent in Betts v. Brady (1942).  Recently the Supreme Court of Alabama released Ex parte Christopher (2013), a case that overruled a quarter-century-old precedent established in Ex parte Bayliss (1989).  Chief Justice Roy Moore, who authored the majority opinion in Christopher, had urged the overruling of Bayliss in a special writing he authored in Ex parte Tabor (2002).  Reanimating his Tabor writing in Christopher, the Chief Justice and a majority of the Court demonstrated the mode in which non-binding dissents may express reasoning that courts later adopt, in effect turning dead-letter into living authority.

Counterintuitively, a dissent may itself represent the plurality opinion.  In Ex parte Harper (2015), for example, Chief Justice Moore authored an opinion that drew only one concurrence as to the rationale.  Three other justices concurred in the result of the opinion but rejected the opinion’s rationale.  One justice recused from the case.  Justice Lyn Stuart authored a dissent that two other justices joined.  Thus, the dissent, with a block of three justices, had more support as to the rationale than did Chief Justice Moore’s rationale with which only one justice agreed.  Technically, then, the dissent carried more precedential weight than the opinion that disposed of the case.

The ideal of freedom of speech and expression is an inadvertent byproduct of the practice of dissenting, the primary function of which is to ascertain the proper legal argument, rationale, rule, or standard of review for a particular case.  A competition among values and ideas emerges inductively from the free play of clashing judicial opinions.  A variety or diversity of ideas embedded in case precedent enables a constructive flexibility in the rules that govern human activity.  By multiplying the options available to future judges, dissents ensure that courts have wider latitude to reach the right result in complex cases.  Dissents preserve in the textual record arguments that may in the long run seem more plausible, seemly, and correct.  They make it possible for future jurists to say, “This other argument is better and should be dispositive in the case before me.”

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Session Ten: Richard Bulliet on the History of the World

In Eastern Civilizaton, Historicism, History, Humanities, liberal arts, Pedagogy, Western Civilization on August 16, 2017 at 6:45 am

Here, in the tenth lecture of his course, The History of the World, Richard Bulliet discusses the Age of the Empires of Rome and Han China.

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A Brief History of Opinion-Writing Practices from Hale and Blackstone to the 20th Century

In American History, Britain, History, Law, Nineteenth-Century America, Oliver Wendell Holmes Jr. on August 9, 2017 at 6:45 am

This post is adapted from a law review article that may be downloaded here (citations available in the original).  

Sir Matthew Hale and Sir William Blackstone explained that judicial opinions in England traditionally were a source of unwritten law, or lex non scripta, derived from custom and read from the bench but not transcribed in official reports or indexed in a formal corpus.  Judicial opinions began as an oral medium, not a written record.  They were considered evidence of what the law was, but not the law itself.

From the thirteenth to the fifteenth century, opinions were often written down, in French, and compiled in Year Books.  Lawyers began citing opinions—some written, some unwritten—in their arguments before the courts, although there was no systematized mode of citation.  As early as the fifteenth century, lawyers produced abridgements, or digests, to review the state of the law across England.  These sketchy compilations summarized and classified opinions and could be referenced in the courtroom as authority for particular propositions.  During the fifteenth and sixteenth centuries, a comprehensive scheme of methodical and widespread adherence to written precedent emerged gradually by slow degrees.  However, not until the sixteenth and seventeenth centuries did judges and litigants treat opinions as authoritative and binding in a manner that resembled the modern sense of precedent.  The publication of Sir Edward Coke’s Institutes of the Lawes of England over the course of nearly two decades during the early seventeenth century provided direction for both jurists and attorneys who wished to substantiate their arguments with concrete holdings.  Still there were no certified court reporters or verbatim transcriptions; the enterprise of publishing reports or digests was often personal and selective, insofar as reporters often chose to record only cases they liked and to disregard cases they disliked.

From approximately 1600 to 1800, the British House of Lords enjoyed supreme appellate jurisdiction over cases in common-law and equity courts.  During that time, the House of Lords did not publish reports of its decisions, seriatim or otherwise.  Most cases were ultimately determined by intermediate appellate courts, including the Exchequer Chamber, the Court of Common Pleas, and the King’s Bench, which regularly issued seriatim opinions that were transcribed by reporters.  Prior to American independence from Great Britain, appeals from colonial courts went before the Privy Council in England.  The Privy Council reached decisions by majority vote but issued those decisions as unified pronouncements, regardless of dissenting views.  Because all decisions of the Privy Council were subject to the King’s review, and the King, the site and symbol of the law or body politic, could not articulate simultaneous, contradictory positions, the appearance of unanimity within the Privy Council was paramount.

In its early years, after the adoption of the Judiciary Act of 1789, the United States Supreme Court (“the Court”), following the practice of English common-law courts—specifically the King’s Bench—typically rendered decisions in the form of per curiam and seriatim opinions.  The near obligatory practice of rendering written opinions was an American innovation and a departure from the English custom of residual orality.  The fact that the United States Constitution was written perhaps necessitated the textual documentation of judicial opinions in books, digests, and reports.

During the tenure of Chief Justice Oliver Ellsworth (1796–1800), the third Chief Justice of the Court, seriatim opinions became less common and were abandoned during the tenure of Chief Justice John Marshall (1801–1835), who orchestrated consolidated opinions among the justices, much to the chagrin of Thomas Jefferson.  Justices who concurred with the prevailing rationale no longer authored a separate opinion to express their agreement.  Justice William Johnson, a Jeffersonian Republican, was the notable exception, authoring nearly half of the dissents that were produced by members of the Court during his tenure on the bench.  Chief Justice Marshall, for his part, authored most of the Court’s majority opinions, which were issued with the phrase “opinion of the Court” to lend the impression that the justices spoke with one voice.  Collegiality and consensus-building must have been a high priority because, after work hours, the justices resided and dined together in a small boardinghouse on Capitol Hill, away from their families, where court conflicts could have incited personal quarrels.  Abandoning the seriatim mode and dissenting opinions also quickened the publication process; over a quarter of the cases decided by opinion between 1815 and 1835 were published in no more than five days.

The period late in Chief Justice Marshall’s tenure to approximately 1905 involved the rise of dissenting justices.  Chief Justice Marshall himself began to author dissents as the Court increasingly decided cases through majority rather than unanimous opinions.  Dissents proliferated during the mid-nineteenth century and into the twentieth century.  Justice John McLean and Justice Benjamin Curtis authored memorable dissents in Dred Scott v. Sandford.  Forty-eight years later, Justice Oliver Wendell Holmes Jr.’s three-paragraph dissent in Lochner v. New York became one of the most influential legal writings in American history.  Blackstone’s conviction that opinions were evidence of law but not actually law continued to some extent throughout the nineteenth century, yet it had been diminishing since the mid-eighteenth century.  The notion of “caselaw,” or the idea that judicial opinions constituted law, did not gain currency until the twentieth century.  Today it is mostly accepted without question or qualification.

The twentieth century ushered in the era of the “Great Dissenter,” a label that has been conferred on Justice Holmes and Justice John Marshall Harlan.  By the 1940s, most cases involved separate opinions.  Dissents and separate writings are now common.  A jurist’s reasoning and argument typically enjoy precedential effect, but historically, under the English tradition of the common law, the judgment of the opinion was authoritative, and later courts could disregard the analysis from which that judgment followed.  The results of an opinion, in other words, took priority over its reasoning.

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Review of Brent J. Aucoin’s “Thomas Goode Jones: Race, Politics & Justice in the New South” (University of Alabama Press, 2016)

In America, American History, Arts & Letters, Book Reviews, Books, History, Humanities, Law, liberal arts, Politics, Scholarship, Southern History, The South on August 2, 2017 at 6:45 am

This review originally appeared in the Spring 2017 issue of the Journal of Faith and the Academy.

Brent J. Aucoin’s new biography is a probing treatment of the neglected figure of Thomas Goode Jones. To some, Jones is discredited because of his ownership of slaves and military leadership in the Confederate Army; to others, he’s a wounded war hero, distinguished jurist, and revered governor who sought reconciliation with former slaves. The truth, as always, is more complex.

Jones does not fit neatly into simplistic categories; he defies the trite labels of current political vocabulary. He even cut across partisan divides in his own day. His story is not a crude morality tale, nor does it contain clear lessons for posterity. Aucoin calls Jones “enigmatic.”  He seeks to consider Jones “holistically.” His studied reflection on Jones reveals a complicated man who’s both congenial and flawed, ahead of his time and yet a definite product of it.

Born in precarious circumstances in what today is Macon, Georgia, Jones had family roots in Virginia. His father, Samuel Goode Jones, worked for the railroad and moved the family from place to place, trying to earn an honest living. They settled in Montgomery when Samuel took a job there as an engineer. Thomas Jones was five at the time.  He and his family attended St. John’s Episcopal Church, downtown, where the pew in which Jefferson Davis worshipped remains intact, the other rows of pews having been replaced long ago.

A romantic childhood it was not. Jones was sent to Virginia to study at academies that fed into the Virginia Military Institute (VMI). He was groomed to be a soldier. By the time he enrolled at VMI, the Civil War had broken out, and he joined the ranks of his professor, Major General Thomas J. Jackson. Jones transferred units and worked his way up the chain of command, barely avoiding death on more than one occasion. Legend has it that, while riding horseback, he saved a wandering child during the heat of battle. This and other tales of heroism earned Jones the reputation as a valiant warrior. General Robert E. Lee himself selected Jones, among others, to deliver the flag of surrender to General Ulysses S. Grant at Appomattox Courthouse.

After the War, Jones returned to Alabama to begin a new career, or careers.  He married, sired 13 children, and enjoyed a rapid rise to fame and distinction, first as an editor of The Daily Picayune and later as a speaker, lawyer, and Democratic politician.  Believing it was God’s will for the South to fully reintegrate into the Union, he championed reunification, receiving honors and awards for his efforts to this end.  His celebrated 1874 Memorial Day Address was a reconciliatory precursor to that of Oliver Wendell Holmes Jr. a decade later.

Jones is known, in our day, mostly as a legislator, judge, and governor—and indeed the bulk of Aucoin’s book is dedicated to these periods of Jones’s life. Aucoin pays close attention to Jones’s often contradictory, always multifaceted, and sometimes disturbing views on race and race relations. Following Booker T. Washington, Aucoin says, “Jones eschewed the idea of a political solution to the so-called Negro problem—namely, the passage and enforcement of civil rights legislation—but also . . . opposed the political effort to disenfranchise blacks.”

Jones supported segregation of the races under a separate-but-equal scheme, yet he backed the creation of Alabama State University, a black college founded in 1867. He advocated the education of blacks to varying degrees, but his rhetoric on this topic can sound paternalistic and hollow to the modern ear. That he opposed educational prerequisites to voting, however, suggests he was willing to risk clout and status to take an unpopular stand on behalf of former slaves. He also, quite controversially at the time, sought to abolish the exploitative convict leasing system that carried with it the residual features of slavery.

Aucoin describes Jones’s politicking in great detail, from probable election fraud to campaigns for higher taxes. As governor, Jones decried the mob violence that had become common in Alabama. Later, as a judge, he attempted to charge a lynch mob under federal law.

Jones’s popularity waxed and waned. An economic crisis befell the state during his governorship, and workers from different industries began to strike. This once gallant soldier grew tired and frustrated and lost much of his charisma.  During one ceremony as governor, suffering from “cholera morbus,” he fell from his horse as he tried to dismount. Word of this clumsy incident spread quickly, and Jones was humiliated.

Yet he always drew admirers. His work on race relations, if not always courageous, was at least a step in the right direction. When he died, an unexpected number of blacks attended his funeral, watching solemnly. “Jones may not have been a hero,” Aucoin submits, “or someone on the good side who was unfaltering in his fight against evil, but there appears to be cause for concluding that he distinguished himself from the more rabid racist leaders of the South.”

The institution I work at bears the name of this curious man, whose bust is displayed prominently at the top of the stairs of the entry rotunda, looking down on the busy law faculty and students who come and go without the slightest concern for, or even knowledge of, his life. I’ve placed my copy of Aucoin’s biography beneath that bust with a short note: “Free copy. Learn about a fascinating person.”

It seemed like the right thing to do.