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How to Fight the ABA’s Anticompetitive and Discriminatory Practices

In American History, Economics, History, Law, Legal Education & Pedagogy, Scholarship on September 13, 2017 at 6:45 am

This piece was originally published here by the James G. Martin Center for Higher Education.

Recently I urged top law schools to stand up to the excesses and abuses occasioned by the ministrations of the American Bar Association (ABA). These schools could band together and follow the lead of the journalism schools at Northwestern and Berkeley, which dropped their accreditor, the Accrediting Council on Education in Journalism and Mass Communication, earlier this year because accreditation standards were outmoded and not worth the cost of compliance.

But states can also fight the ABA and are arguably in a better position to do so.

The ABA is a nonprofit organization incorporated in Illinois that operates like a trade union for lawyers. Founded in 1878 by a small group of prominent East Coast lawyers, it has accredited law schools under the authority of the U.S. Department of Education (DOE) since 1952.

Why, exactly, would states want to push back against the ABA? There are two reasons, the first involving economics and the second involving racial diversity in the legal profession. In other words, both the Right and the Left have a standing interest in diminishing the ABA’s power.

The Economic Reason

The ABA remains the sole accreditor for legal education in the United States. Its onerous and in many cases outmoded regulations drive up the price of law school, forcing schools to reallocate resources away from students and education and towards regulatory compliance.

The high costs of legal education resulting from ABA regulations are passed off to ordinary consumers over time.

As one example, ABA Standard 701 states, “A law school shall have facilities, equipment, technology, and technology support that enable it to operate in compliance with [ABA] Standards and carry out its program of legal education.” To address this standard, law schools have furnished computer labs with fancy equipment to give the appearance of technological sophistication. But the labs and equipment often go unused.

The legal profession is notoriously behind the times on the technology front, and it takes advantage of anticompetitive restrictions regarding the unauthorized practice of law to push out innovative companies like LegalZoom that offer creative and inexpensive services. If the ABA were serious about technological innovation in law schools, it wouldn’t burden online and distance education the way it does in Standard 306. It bears noting, as well, that the ABA’s official interpretation of Standard 306 includes the “Internet,” “video cassettes,” “DVDs,” and “CD-ROMs” as examples of “technology.” Not exactly inspiring or pioneering. No wonder some analysts predict that computers and artificial intelligence will replace lawyers.

The high costs of legal education resulting from ABA regulations are passed off to ordinary consumers over time. They also prevent people with low to modest incomes from attending law school. According to Law School Transparency, the cost of legal education at private schools has risen from an average annual tuition of $7,526 in 1985 to $41,985 in 2013. The average cost of legal education for in-state students at public schools rose from $2,006 in 1985 to $23,879 in 2013 (for non-residents, tuition increased from $4,724 in 1985 to $36,859 in 2013).

These figures suggest that disadvantaged students do not have the financial means to delay or suspend a career to pay for legal education, or to take out student loans with an interest rate that exceeds that of the housing market. Thus, the ABA not only inadvertently drives up legal costs for all consumers, but also prevents many consumers of certain income levels from entering the legal industry to reform it from the inside.

The Diversity Reason

The ABA has an ugly history of targeting ethnic minorities who aspired to become attorneys. For most of the 20th century, it openly discriminated against African Americans, officially excluding them from membership for 66 years.

In 1912, the ABA ousted three African Americans from membership and issued a resolution proclaiming, “it has never been contemplated that members of the colored race should become members of this association.” Recent decades have seen the ABA attempt to make up for its racist past by instituting committees and programs aimed at racial diversity and championing what are widely considered to be leftist social causes.

These efforts, however, seem insincere—just another PR tactic—because the very purpose of the ABA’s accrediting arm (the Council of the Section of Legal Education and Admissions to the Bar) is to exclude people from legal education. To this day, the exclusionary policies and practices of the ABA disproportionately impact African Americans and other racial minorities. In other words, the ABA still does precisely what it was designed to do: keep African Americans, other minorities, and poor people out of the practice of law.

Law schools that are not ABA-accredited often offer inexpensive, part-time evening or night programs that enable students to work during their studies. Students who cannot afford to take off years of work to pursue legal education can complete these programs in four to five years. This affordable option provides needed access to legal education for low-income students who wish to become lawyers.

The ABA was formed, in part, to segregate the legal profession from ethnic minorities. It can’t be used now to the fix problems it caused and exacerbated.

Under present conditions, however, a graduate from one of these unaccredited schools can sit for a bar exam only in the state in which the school is located—and only if the state allows that. Unaccredited law schools also carry a stigma.

For these reasons, among others, ethnic minorities and disadvantaged students who are able learners with competitive test scores and academic records typically forego affordability and choose to attend ABA-accredited schools with a higher sticker price. These students thus take out massive loans and dig themselves deeper into a financial hole from which it’s difficult to emerge, even with good jobs coming out of law school.

Critics of unaccredited law schools point to high attrition rates and low success on bar exams to rationalize increased restrictions and stricter standards. But if the ABA no longer accredited law schools, capable students would begin to populate what are now unaccredited law schools, if for no other reason than affordability. Expensive law schools that are currently ABA-accredited would be forced to find cost-cutting measures to remain competitive in the market and attract new students.

The prevailing justification for ABA accrediting authority is that such superintendence is necessary to protect consumers. But protect consumers from what? From a more diverse legal community? From black people? From poor people? That is the message the ABA is sending.

The ABA would never defend itself in these terms, nor purposefully discriminate with the goal of ensuring that the profession remain predominately white. Yet it can’t deny the realities that flow from its very purpose for existing. The ABA was formed, in part, to segregate the legal profession from ethnic minorities. It can’t be used now to the fix problems it caused and exacerbated. It simply lacks the institutional incentives and infrastructure to realize the objectives of diversity or inclusion.

Revising Standard 316

To make matters worse, the ABA is considering revising its Standard 316 to require law schools to maintain a 75 percent bar passage rate among its graduates in at least three of the last five years. Law schools failing to meet this standard face potential consequences for non-compliance, including loss of accreditation. The ABA House of Delegates rejected this measure in February, but the ABA has issued a questionnaire to law schools pending the possible reconsideration of this revised standard in 2018.

The ABA Council for Racial and Ethnic Diversity opposes the revised standard, which was proposed to address concerns that greedy law schools, faced with declining enrollments, were admitting unqualified students to generate tuition revenue. Although this criticism has merit, the revised standard is the wrong remedy. It will disproportionately impact schools in states like California, where bar passage rates historically have been low. Moreover, it could limit educational options for minorities who aspire to practice law by punishing schools with high minority enrollment.

You might be asking, “Why is the author advocating reform that would lower standards? Don’t we want better attorneys? And don’t we have enough attorneys already?” If the bar exam measured the ability to practice law, it might be a reliable indicator of a person’s legal skills. But it has little to do with actual practice; therefore, passing or failing it doesn’t measure one’s legal skills. It also delays what has already been delayed during three years of law school: the practical experience necessary to make a good lawyer.

If there were no law schools, no bar exams, and no barriers to entry, we could still figure out how to weed out the good lawyers from the bad. In fact, we might even see exciting new advances in the field of online reputation markets that could rank and assess lawyers, giving a feedback mechanism to consumers.

If there were no law schools, no bar exams, and no barriers to entry, we could still figure out how to weed out the good lawyers from the bad.

And sure, there are a lot of attorneys. But having a lot of attorneys is not necessarily a bad thing. If we were to roll back all the anticompetitive practices perpetuated by the ABA, state bar associations, and their lobbyists, which work together to solidify lawyers’ monopoly on the practice of law, the costs of legal services could be drastically reduced. An overabundance of lawyers would simply mean that hiring lawyers would be cheap. It’s unlikely, at any rate, that we’d ever see an overabundance of lawyers in such a competitive market because intelligent people would choose to enter a different profession where salaries are higher.

The ABA discusses the bar exam in several standards: Standard 315 (the official interpretation), Standard 316, Standard 504, and Standard 505. The unintended consequence of this emphasis is to unreasonably encumber students and schools with red-tape administrative measures that have no proven effect on the quality of legal services.

Conclusion

The economic function of the ABA is, as I’ve said, to serve as a barrier to entry. Milton Friedman once declared that “[t]he overthrow of the medieval guild system was an indispensable early step in the rise of freedom in the Western World,” adding that it was also “a sign of the triumph of liberal ideals.” Recently, though, there’s been what he called a “regression,” and the ABA is a case in point.

Combating the ABA isn’t easy. This organization is equipped with powerful lobbyists and enjoys longstanding relationships with influential politicians. Still the states, through their supreme courts and bar associations, remain in control over the admission of candidates into the legal profession in their jurisdiction.

State bar associations are typically corporations to which state legislatures have granted monopoly powers over the legal profession, subject to the oversight of state supreme courts. They are not affiliates or adjuncts of the ABA. If several state supreme courts and state bar associations allowed all graduates of non-ABA accredited law schools to sit for the state bar exam in their state, they could curtail the ABA’s authority and diminish the ABA’s credibility. To this end, they could also enter into reciprocity agreements with other states to allow graduates of non-ABA accredited schools in those states to sit for the bar exam.

State supreme court justices—or justices sitting on the highest court in their state—are elected in a majority of states. And of course judicial appointments are always political to some degree. Thus, these justices are likely attentive to the demands of an informed public. Citizens should press their state supreme courts about the ABA, especially during campaign season when seats are up for grabs. Moreover, citizens should urge their legislators to interrogate state bar associations about the ABA. After all, state legislators can undo legislation empowering state bar associations.

Citizens should press their state supreme courts about the ABA, especially during campaign season when seats are up for grabs.

Of course, the Obama administration contemplated another alternative that would likely appeal to both President Trump and Secretary of Education Betsy DeVos: the DOE could strip the ABA of its accreditation authority altogether, in effect getting the federal government out of legal education. (Obama was motivated by animus against for-profit colleges, as reflected in his Education Department’s gainful employment rule, whereas Trump’s interest would be in scaling back federal meddling.) This solution would leave matters of accreditation and bar eligibility to the respective states. Stripping the ABA of accrediting powers, however, raises other concerns, given that, at present, a law school’s eligibility to receive federal funds is tied to accreditation.

In this period of political rancor, reining in the ABA should appeal to both the Left and the Right, the former on grounds of racial diversity and fundamental fairness and the latter on grounds of decentralization and economic freedom. Despite the vitriolic and malicious rhetoric emanating from our politicians and media pundits, I believe most Americans want to get along and facilitate constructive dialogue about pressing issues. Why not refocus our attention on matters about which there is critical consensus? Why not work together, as a start, to curtail or revoke the ABA’s ability to accredit law schools?

This move could reduce the costs of legal education and, hence, of legal services. It could go a long way towards restoring confidence in the legal profession and freeing up law schools to work more closely with state supreme courts and state bar associations to meet the needs of local markets, adapt to new industry technologies, and satisfy the changing demands of consumers.

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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.

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.”

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.

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.

The American Bar Association Stifles Legal Education

In Academia, American History, Arts & Letters, Economics, History, Law, Law School on June 28, 2017 at 6:45 am

This piece originally appeared here at the Library of Law and Liberty.

The Accrediting Council on Education in Journalism and Mass Communications is a nonprofit accrediting agency for journalism programs. Bradley Hamm, the dean at Northwestern’s Medill School of Journalism, has called the council’s accreditation-review process “flawed,” “superficial,” “extremely time-consuming,” and “sort of a low bar.”

So he’s gotten out. Northwestern University has effectively terminated its relationship with the council, calmly embracing its new status as unaccredited.

The online journal Inside Higher Ed, which points out that the Graduate School of Journalism at the University of California, Berkeley, has done the same, quotes Dean Hamm as saying that, “as we near the 2020s, we expect far better than a 1990s-era accreditation organization that resists change—especially as education and careers in our field evolve rapidly.”

This is a tremendous blow—when two of the most prominent and celebrated journalism programs in the country refuse to acknowledge the authority and legitimacy of an accreditor, it’s tough for the accreditor to argue that the resistant institutions are merely upset about their ability to maintain accreditation. If other journalism schools are frustrated with the council’s obsolete standards, and its tendency to micromanage curricula, more of them will likely follow the example of Northwestern and Berkeley.

The social and financial costs of burdensome accreditation standards and procedures are even more pronounced in the field of law. Small businesses and Americans of modest income struggle to afford the high costs of hiring an attorney or litigating a case. Access to justice or quality representation is a constant concern within the legal profession.

Meanwhile, the American Bar Association, which remains the only accrediting body for law schools in the United States, regulates legal education in a way that drives up costs for law students, and for the consumers onto whom those costs are eventually projected.

The ABA restricts innovation by fixing the number of credit hours necessary for law students to graduate, effectively eliminating the possibility of a shorter program than the standard three years. It discourages law professors from honing their practical skills by narrowing the designation of “full-time” faculty to exclude those who maintain an ongoing remunerative relationship with a law firm or business. Its requirements regarding equipment and technology mean, in practice, that many schools are buying expensive computers and furnishing computer labs that students may never use.

ABA scrutiny of attrition rates has also contributed to a change in law-school culture and practices. There was a time when law schools could accept a high percentage of applicants who, as students, had to prove their competence in the classroom and stand or fall on their academic merit. Those who couldn’t cut it flunked out. They didn’t incur three years of debt only to take and retake a bar exam they weren’t equipped to pass.

The ABA position penalizing schools for high attrition—the result of a new interpretation of Standard 501(b) that prohibits law schools from admitting applicants who aren’t “capable” of completing a Juris Doctor or passing a bar exam—now arguably causes law schools to seek to retain students who can’t cut it. To that end, it encourages grade inflation and heavier use of student loans.

Law schools recently came under criticism for hiring their own graduates as a way to boost their post-graduation employment statistics. In response, the ABA instituted procedures to prevent the spread of misleading data. What seemed like a good-faith effort to enhance transparency and accountability has led, instead, to flawed incentives. Law schools have taken to promoting “JD-required” and “bar-passage-required” jobs to their graduates more strongly than corporate or financial positions that pay higher salaries but don’t require either a law license or bar membership.

If you graduated from law school today and became the CEO of a large, multinational company tomorrow, you would skew your school’s data in an unfavorable direction.

This changed emphasis neglects the realities of a marketplace in which the availability of traditional law jobs remains stagnant. To best serve their students, law schools should feel free to guide them toward alternative careers based in new technologies and businesses that would benefit from the knowledge and leadership that legal education supplies.

The ABA’s ministrations also help drive up the price of legal education, forcing law schools to direct time and resources toward ABA compliance that could be put toward student scholarships or improving the curriculum. And a higher price tag means that members of the legal profession, and young lawyers in particular, in order to pay debts or compensate for opportunity costs incurred during law school, pass these costs on to consumers in the form of higher legal fees.

The bottom line is that, when a substantial portion of the population cannot afford to hire an attorney, or at least feels that way, the legal system has failed in its chief purpose: to ensure that wrongs are righted and justice is served.

Unintended harm, however, is nothing new for the ABA.

Founded in 1878 by “leading” or “representative” lawyers who were selected by an elite group of men from states along the East Coast, the ABA sought to nationalize professional and ethical standards with these goals: “to advance the science of jurisprudence, promote the administration of justice and uniformity of legislation throughout the Union, uphold the honor of the profession of the law, and encourage cordial intercourse among the members.”[1]

Noble ambitions indeed. But the organization soon became a fraternal guild that sought to enforce rigid barriers to entry into the legal profession with the assistance of independent bar associations in the 50 states. “For many years,” explained legal scholar Philip J. Wickser in the 1920s, “the Association fought hard to retain its selective quality, and not to forget that a relatively small homogenous group could get the most done.”[2]

The ABA officially excluded African Americans for 66 years, according to Susan D. Carle in her 2013 book Defining the Struggle. Its ouster of three African Americans in 1912 on the basis of their skin color drew protests from the newly founded National Association for the Advancement of Colored People. That same year, the ABA issued a resolution stating that “it has never been contemplated that members of the colored race should become members of this Association.”[3]

Although the ABA has since sought to make up for its racist past by increasing the ethnic diversity of its membership, creating a commission on sexual orientation and gender identity, and strengthening its rules prohibiting racial harassment or discrimination, part of its purpose historically has been to regulate entry into the profession and decrease the number of low-income, immigrant, and minority lawyers[4] (though in recent decades such decreases have been a consequence, not the purpose, of ABA regulation).

No matter how hard the ABA attempts to distance itself from its origins, it cannot escape the fact that its function is to exclude certain groups from membership to enable a monopoly on legal services by its members. Such exclusion has tended to fall along racial lines. One law professor has thus complained that “all of the ABA’s diversity efforts ring hollow” because the ABA “caused blacks to be excluded from the profession in the first place.”[5]

Given its racially charged beginnings and racially dividing regulations and standards, it’s surprising that the ABA is still considering revising Standard 316, which addresses the bar-passage rates of law-school graduates. Compliance with the revised standard would require bar passage by 75 percent of the graduates of a currently approved (as opposed to provisionally approved) law school in at least three of the last five years.[6]

A few months ago, Lawrence P. Nolan, the president of the State Bar of Michigan, penned a letter to ABA delegates to point out, among other things, that minority organizations—and even the ABA Council for Racial and Ethnic Diversity in the Educational Pipeline—were against the proposed revision to Standard 316. “The collective judgment of those committed to [reducing] the . . . racial disparity in the legal profession,” he said, “is reflected in their unanimous opposition to this amendment.”

Nolan also stated that the ABA’s own data “confirms the large gap for African-American bar passage rates, which are lower than overall rates, particularly on the multiple-choice test.” Statistics cited by Nolan show that African Americans pass the bar exam at a lower rate than whites and that the percentage of white repeat takers of the bar exam is 3.2 percent whereas the figure for black repeat takers is 14.1 percent. If those statistics are accurate and predictive, then the effects of the revised standard would fall disproportionately on those schools with higher numbers of African American students.

Supporters of the proposed revision portray law schools as exploiters of racial minorities that have been admitting underqualified applicants to make up for diminishing admissions applications. There’s truth to this characterization. Law-school admissions standards have dropped precipitously as enrollment has declined.

But why trust the organization that caused or at least exacerbated many of these problems to fix them? We need imagination and rational risk to move forward constructively and creatively. Proposals as wide-ranging as abolishing the bar exam or developing non-JD curricula in law schools ought to be seriously considered. Another idea would be to strip the ABA of its accrediting powers altogether, something the U.S. Department of Education might consider.

During this moment of social unrest, when rancorous partisanship seems to permeate all fields of discourse, faculty and administration all along the political spectrum can agree on one thing: The ABA is systematically harming ethnic minorities and becoming as obsolete as its counterpart in journalism education.

It may well be time for top-ranked law schools to follow in the footsteps of the J-schools at Northwestern and Berkeley. Only if several leading law schools joined to seek an end to the ABA’s accrediting function would this reform stand a chance. Law schools with lower rankings may lack the credibility to resist, given their stake in the accreditation process. Their administrators already, in my view, avoid speaking out against the ABA due to their reasonable fear of retaliation. (My own trepidation almost prevented this piece from reaching print.)

Granted, it might give the law schools pause that in most states, admission to the bar (by authority of the state bar or the state supreme court) is conditioned on holding a degree from an ABA-accredited law school. Still, the journalism-school revolt demonstrates that a mass rebuff of the ABA’s accrediting legitimacy is neither extreme nor absurd. Prominent law schools are already experimenting in other areas, such as considering GRE scores (rather than just LSAT scores) for admissions purposes. Such experimentation is all to the good.

The legal profession is, in the words of Benjamin Barton, “facing a major retrenchment” and remains mired in outmoded tasks that artificial intelligence may replace. It’s stuck in a bygone period when lawyers felt threatened by entrepreneurial upstarts who breached longstanding protocols such as prohibitions on advertising or contingency fees. It’s time for an energetic rethinking of the goals and purpose of legal education and the legal profession.

Ending ABA accreditation authority would be an exciting first step. It would enable administrators to reallocate resources to lower the costs of legal education and, consequently, of legal services. And it would allow them to focus on their true mission: not lining the pockets of accreditation agencies and bureaucratic guilds but educating prospective lawyers and bringing justice and order to rich and poor alike.

The views expressed herein are solely the author’s, and do not reflect those of Faulkner University’s Thomas Goode Jones School of Law or its Blackstone and Burke Center.

 

[1] Simeon E. Baldwin, “The Founding of the American Bar Association,” The American Bar Association Journal 3 (1917), 659-62, 695.

[2] Philip J. Wickser, “Bar Associations,” Cornell Law Quarterly 15 (1929-30), 398.

[3] Susan D. Carle, Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford University Press, 2013), pp. 281-82, and 541-43.

[4] Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (Oxford University Press, 1976), p. 65: “During the second decade of the twentieth century the American Bar Association began to assert itself aggressively as a professional protective organization. Its purpose was twofold: to preserve its own exclusiveness (and the status that accompanied its preservation) and to exert professional leverage upon the political process.” For admission of minorities, see Auerbach, pp. 65-66, 71, 107, 131, 159-60, 200, 216, and 295.

[5] George B. Shepherd, “No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools,” Journal of Legal Education 53 (2003), 104.

[6] The ABA Council and the Accreditation Committee of the Section of Legal Education and Admissions to the Bar operate independently of the ABA pursuant to regulations of the U.S. Department of Education, which recognizes these bodies as authorized accreditors. For ease of reference and understanding, and because of the connection between these accrediting bodies and the ABA, the taxonomy I have adopted simply lumps these bodies together under the heading of “ABA.”

What Is the Rule of Law, Anyway?

In America, Civics, Economics, History, Humanities, Jurisprudence, Law, Libertarianism, Philosophy, Western Civilization, Western Philosophy on June 7, 2017 at 6:45 am

This piece originally appeared here in The Intercollegiate Review.

“Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.” So declared an ominous headline in the New York Times roughly one year ago. MSNBC likewise ran a suggestive interview in January entitled, “Will the ‘rule of law’ survive under Trump?”

Such alarming commentary presupposes the existence of the rule of law in the United States and appears designed to portray Donald Trump as a threat to that rule. In March, however, Reason republished and retitled a curious piece that first appeared in The Week: “The Immoral ‘Rule of Law’ Behind Trump’s Deportation Regime.” The implication of this revised title (the original read, “How today’s pro-immigrant activists are adopting the tactics of abolitionists”) is that Trump is staunchly committed, rather than antagonistic, to the rule of law.

So which is it? Does Trump jeopardize or safeguard the rule of law?

The answer, if we assume the rule of law is in full force and effect in the United States, is probably situational: In some cases, Trump undermines the rule of law, while in others he reinforces it. But to know for sure, and to appreciate the difference, one must first understand what the rule of law is.

The rule of law encompasses multiple legal principles, chief among them is that the rules that govern society apply equally to all individuals within the prescribed jurisdiction. No person, not even the king or the president, is above the law. Law, not the arbitrary commands or categorical dictates of human rulers, is supreme.

Thus, the opposite of the “rule of law” is the “rule of man,” or the idea that the formal, discretionary imperatives of a powerful sovereign necessarily bind his subjects and subordinates.

The rule of law is a philosophical concept and a liberal ideal that gained ascendency during the Enlightenment (think Locke and Montesquieu) but that can be traced to antiquity (think Aristotle). The British jurist Albert Venn Dicey listed as its prime characteristics:

  1. “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power”;
  2. “equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts”; and
  3. “a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.”

These suggest that the rule of law is a bottom-up rather than a top-down system of governmental ordering based on already enunciated and widely accepted precepts. The operative rules that regulate the normative order of human activity in a free society under the law are rooted in custom and tradition. A ruler or judge is, in such a happy jurisdiction, responsive to the controlling principles that are antecedent to his or her political election, appointment, or empowerment.

F. A. Hayek identified the rule of law as a defining attribute of the common-law system, which, in his view, stood in contradistinction to the civil-law system that instituted vast codes and complex administrative agencies to superintend the unvigilant populace. Legislatures, of course, are accountable to the people through elections; thus, their enactments must reflect extant social practices and beliefs to satisfy voters. Administrative agencies, with their extensive rulemaking powers, are not so accountable. They are by design removed from legislative procedures and thus isolated from voters.

Hayek saw the common law as a decentralized form of social organization, and civil law as centralized planning and design. The rule of law, he thought, inhered in the former system but not in the latter. “The possession of even the most perfectly drawn-up legal code does not, of course, insure that certainty which the rule of law demands,” he warned, “and it therefore provides no substitute for a deeply rooted tradition,” which the common law embodied.

The rule of law encapsulates other seminal concepts as well: the predictability, consistency, reliability, neutrality, and clarity of working rules, for instance. These, however, are in some way derived from the principal teaching that, in Hayek’s words, “all rules apply equally to all, including those who govern.” By any appreciable standard, the United States has not lived up to this high ideal in light of the growth of sovereign immunity and qualified immunity for government officials, the disparate treatment of individuals based on their political power and connections, and, among others, the rapid rise of the administrative state.

Lately the rule of law has become associated with a law-and-order mentality that emphasizes punishment, severity, and rigidity as touchstones of the legal system. The rule of law, on this view, is the instantiation of brute force or the execution of raw power, or perhaps an ideological construct meant to condition the populace into servile submission to government authority.

This understanding of the rule of law has some merit: John Hasnas’s article “The Myth of the Rule of Law” explains how rule-of-law rhetoric indoctrinates people into casual acceptance of the harmful government monopoly on the institutions of law. He decries the gradual acquiescence of ordinary people to, in his words, “the steady erosion of their fundamental freedoms” in the name of the rule of law.

But the rule of law as an ideal, rather than a felt reality, aims to preserve rather than imperil fundamental freedoms. Perhaps there are those with ulterior motives who champion the rule of law to achieve concealed goals; perhaps government in its current form cannot actualize rule-of-law ideals. When rule-of-law discourse does serve the repressive function that Hasnas describes, it is unduly coercive and abusive. In its proper form, and as it was originally understood, however, the rule of law aspired to restrain government power.

In the minds of yesteryear patriots like Thomas Paine, the United States epitomized the rule of law. He averred that “in America the law is king,” whereas “in absolute governments the king is law.” He said, as well, that “in free countries the law ought to be king; and there ought to be no other.”

If the law is no longer king in America, it’s not because of Trump. That he enjoys immense and immeasurable power is evidence of the extent of the decline of the rule of law in this country.

Having flouted and subverted the rule of law for decades, the radical elements of the progressive left in the United States now face the inevitable consequence of their concerted activity—namely, that their coercive methods and institutions may be turned against them, and the authoritarian structures they created may service policies at odds with their own.

We can all learn a lesson from this revealing irony.

The Challenge Facing Law Schools

In Academia, Law, Law School, Legal Education & Pedagogy on May 10, 2017 at 6:45 am

This piece originally appeared in the February issue of The Addendum, a publication of the Alabama State Bar.

Many law school administrators have begun the new year anxious about the future. Since the financial crisis of 2008, the number of law-school applications and LSAT takers has plummeted, while tuition costs have continued to rise. Faced with the probability of heavy student-loan debt, a saturated legal market, and stagnant starting salaries for attorneys, some aspiring attorneys have decided that law school is simply too risky an investment and are looking elsewhere to begin their careers.

The decrease in applications for admission and low matriculation rates have hit lower-ranked law schools particularly hard. These schools have struggled to compete for applicants and have decreased the size of their classes to maintain competitive admissions data. Even Ivy League schools have been forced to find creative solutions to contracting enrollment. Harvard Law School, for instance, has accepted more transfer students—whose entering LSAT scores do not have to be reported to publications that rank law schools—presumably to make up for shrinking tuition revenues.

Law schools face a dual threat: the American Bar Association (ABA) and the Department of Education (DOE).  The DOE is cracking down on law schools for allegedly deceptive enrollment practices just years after a string of lawsuits across the country claimed that certain law schools misrepresented employment statistics for their recent graduates.

Last year, the DOE recommended that the ABA lose its accreditation powers for one year. Under pressure from the DOE, the ABA has grown more aggressive, demanding that law schools come into compliance with ABA admission standards or suffer potential reprimands, sanctions, probation, or worse. The ABA imposed a remedial plan on Ave Maria School of Law to improve the school’s admissions practices and bar-passage rates. Then, in November of 2016, the ABA publically censured Valparaiso University School of Law and placed Charlotte School of Law on probation.

Despite the fact that Charlotte School of Law remains accredited by the ABA, the DOE announced in December 2016 that it was terminating that school’s access to federal student aid. In response, students there have filed a federal class-action lawsuit alleging, among other things, that the school and InfiLaw—its parent company—misled them and misrepresented the scope and degree of the school’s problems.

The blogosphere abounds with rumors about law-school closings. Indiana Tech Law School is, in fact, shutting down this June, and in 2015 the William Mitchell College of Law merged with Hamline University School of Law to offset costs and avoid shutting their doors.

In light of the foregoing, law schools should be transparent about the condition they are in and the difficulties they face, lest they find themselves the target of lawsuits like the one filed against Charlotte School of Law. The future of law schools and the legal profession remains uncertain. We are in a transitional—and perhaps unprecedented—moment. How legal administrators deal with it may test not only their patience, courage, and leadership, but also the long-term viability of legal education as we know it today.

 

Civics Education and the Blackstone & Burke Center for Law & Liberty

In Academia, Civics, Conservatism, Humanities, Law, Law School, Legal Education & Pedagogy, liberal arts, Libertarianism, News and Current Events, Pedagogy, Philosophy, Politics, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on April 26, 2017 at 10:49 am

A version of this piece will appear in Faulkner Magazine. 

Our country has suffered a decline in civic literacy.  From 2006 until 2011, the Intercollegiate Studies Institute (ISI) conducted annual studies that evaluated the civic literacy of students and citizens.

The results were discouraging. Most Americans were unable to pass a basic test consisting of straightforward, multiple-choice questions about American heritage, government, and law. One of the ISI studies suggested that students knew more about civics before they began college than they did after they graduated college.

It’s not just students and ordinary citizens displaying civic ignorance. Our political leaders have demonstrated that they lack the understanding of law and government befitting their high office.

Judge Arenda Wright Allen of the U.S. District Court for the Eastern District of Virginia recently began an opinion by stating that the Constitution declared that “‘all men’ are created equal.” This line appears in the Declaration of Independence, not the Constitution.

Senator Chuck Schumer told CNN that the three branches of government were the House, the Senate, and the President. He not only failed to mention the judicial branch, but also treated the bicameral legislature in which he serves as if it were bifurcated into separate branches of government.

Congressman Sheila Jackson Lee, while criticizing the alleged unconstitutionality of proposed legislation, claimed that the Constitution was 400 years old.

These anecdotes suffice to show the extent to which Americans no longer respect their founding principles or the framework of government established in our Constitution.

That is why the Blackstone & Burke Center for Law & Liberty was founded at Thomas Goode Jones School of Law. We seek to promote the principles of the common-law tradition and American constitutionalism so that the next generation of civic leaders will make informed, thoughtful decisions about the future of our country.

Ordered liberty in the United States has rested on a commitment to religious faith and pluralism, fidelity to the rule of law, and ancient 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 upon them, and its continued vitality depends upon maintaining and promoting our commitment to them.

Therefore, the Blackstone & Burke Center will educate students, teachers, judges, and political leaders in the areas of religious freedom, freedom of association, freedom of speech, and economic freedom. We will coordinate educational programs, research initiatives, and judicial conferences that examine the norms and nurture the institutions of ordered liberty.

We believe that the principles and ideas of the American Founding are worth conserving and celebrating. Our vision is to help renew an America where freedom, opportunity, prosperity, and civil society flourish.

The Blackstone & Burke Center has recruited of board of advisers consisting of internationally recognized thought-leaders such as Judge Andrew Napolitano, Senior Legal Analyst for Fox News; Dr. Robert P. George, McCormick Chair in Jurisprudence at Princeton University; Dr. James R. Stoner, Hermann Moyse Jr. Professor and Director of the Eric Voegelin Institute for American Renaissance Studies at Louisiana State University; Professor F. H. Buckley, George Mason University Foundation Professor at Antonin Scalia Law School; Dr. Don Devine, former Director of the U.S. Office of Personnel Management in the Reagan Administration and Senior Scholar at the Fund for American Studies; Dr. Ingrid Gregg, past president of the Earhart Foundation; and Dr. Daniel Mark, Vice Chairman of the U.S. Commission on International Religious Freedom and Professor at Villanova University.

In our first few months of operation, we organized and hosted a reception featuring a Library of Congress traveling Magna Cart exhibit, which was displayed in the rotunda of the Alabama Supreme Court for three weeks.  Judges, business and university leaders, lawyers, students, teachers, and the general public attended the reception to commemorate and learn about Magna Carta, and Acting 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.

The Blackstone & Burke Center received a grant from Liberty Fund, Inc., to gift the entire Liberty Fund book and media catalog to the law library, as well as a grant from the Association for the Study of Free Institutions to bring a prominent speaker to our campus next fall.

The Blackstone & Burke Center also established a formal affiliation with Atlas Network and, through Atlas Network, partnerships with such organizations as the Acton Institute, American Enterprise Institute, American Legislative Exchange Council, Becket Fund for Religious Liberty, Cato Institute, Center for Competitive Politics, Claremont Institute, the Federalist Society, the Foundation for Economic Education, the Foundation for Individual Rights in Education, Freedom Foundation, the Goldwater Institute, the Heritage Foundation, the Hoover Institution, the Hudson Institute, the Independent Institute, Institute for Justice, Intercollegiate Studies Institute, the Law & Economics Center at George Mason University, Liberty Fund, Mackinac Center for Public Policy, Mont Pelerin Society, National Review Institute, Pacific Legal Foundation, the Philadelphia Society, the Pope Center for Higher Education Policy, Reason Foundation, State Policy Network, Students for Liberty, the Fund for American Studies, Young Americans for Liberty, and more.

Finally, the Blackstone & Burke Center received a grant from the Charles Koch Foundation under the auspices of the Philadelphia Society to direct a professional development conference on academic freedom at a meeting of the Philadelphia Society in Pennsylvania. Attendees included graduate students and university administrators from across the country who shared an abiding interest in the meaning, purpose, and characteristics of intellectual exchange in university settings.

We at the Blackstone & Burke Center look forward to a promising future as we inspire and educate new leaders in the principles and foundations of ordered liberty. To learn more about the Blackstone & Burke Center, visit our website at www.blackstone&burke.com.

Book Review: “Historic Alabama Courthouses,” by Delos Hughes

In American History, Arts & Letters, Book Reviews, Books, History, Humanities, Law, Southern History on April 12, 2017 at 6:45 am

Julia Jordan Weller, a native of Montgomery, Alabama, attended Hollins University and obtained her undergraduate degree from the University of Alabama in 1985. She obtained her Juris Doctorate from Cumberland School of Law in 1988. Since that time, she has served as a law clerk to the Honorable Joel F. Dubina on both the United States District Court and the United States Eleventh Circuit Court of Appeals. Mrs. Weller practiced law with firms in both Montgomery and Birmingham where, in addition to handling litigation throughout the State, she also served as an Administrative Law Judge for the State Health Planning and Development Agency. In 1998, Mrs. Weller became an Assistant United States Attorney, eventually becoming the First Assistant United States Attorney (Chief of Staff) in the Middle District of Alabama. She later worked as the Chief Administrative Law Judge for the State Personnel Board and thereafter as the Chief Administrative Law Judge for the Office of Attorney General. She became the Clerk of the Supreme Court of Alabama on July 16, 2013. Mrs. Weller is married to Christopher W. Weller, Sr., a shareholder with the law firm of Capell and Howard in Montgomery, Alabama. The Wellers have two children, Christopher Weller, Jr. and Florence Weller, and attend St. Peter Catholic Church.

If the walls of courthouses could talk, they would whisper the experiences of those who worked, litigated, and governed over the last 150 years or more.  Some courtrooms have evolved from open air forums, such as those held in Wedowee until 1836, to some of the grand domed buildings that seem to radiate the authority of the court.

Author Delos Hughes escorts the reader through a journey stopping in each Alabama County, beginning from the outset of Alabama’s judicial history.  Hughes explores Alabama’s earliest architectural expressions of justice, ranging from log cabins to Neoclassical Revival.  He notes that courthouses often reflect through their architecture a sense of presence and the ideals of the communities which built them. These elements not only demonstrate the artistic preferences of the county, but also tell stories about the county’s politics, economies, class structures, and ethnic backgrounds.

Hughes writes, for instance, that the courthouse built in Baldwin County in Daphne, Alabama, and designed by the famous architects Frank Lockwood and Benjamin Bosworth Smith, “conveyed permanence, stability, seriousness—just the message that Bay Minette wanted to convey.”  Of the Bibb County 1902 Courthouse, Hughes states, “the building conveys an impression for ecclesiastical rather than governmental or administrative or political.”

Interestingly, in Centre, Alabama, in Cherokee County, fire consumed two courthouses: one in 1882 and, later, the successor that was built in 1895.  Thus, “befitting a facility so prone to burning, the commanding architectural feature” of the 1896 Cherokee County Courthouse included a bell tower to alert citizens of any further fire dangers.

A photograph of the Wilcox County Courthouse of 1859 depicts a grand Greek Revival building with fluted Doric columns and exterior iron stairs to the second floor courtroom.  In contrast, a simple white board fence surrounds the majestic building, apparently for the practical purpose of keeping the livestock, which roamed freely through the streets, from wandering into the courthouse.  The image creates an ironic contrast between the community ideals and perceptions against the backdrop of the county’s practical economic realities.

With witty dialogue and interesting insight, this collection of history and photographs is a must for any individual involved in litigation throughout this great state.  Having handled litigation in nearly every county, I can say what a treasure this book would have been in my earlier years of law practice.

Hughes’s book provides a new set of viewing glasses to observe the personality and expressions fused into Alabama’s earliest judicial architecture.  These historical backdrops shed both a serious and whimsical light on the buildings, some of which still exist, as well as on the tales of Alabamians—their roots, experiences and growth. Historic Alabama Courthouses is a delightful necessity for any Alabama lawyer and a guilty pleasure for lovers of the courtroom.

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