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Posts Tagged ‘Law & Liberty’

Teaching Humbly and Without Malice

In America, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, Politics, Western Philosophy on September 4, 2019 at 6:45 am

The original version of this piece appeared here at Law & Liberty.

Russell Kirk has been dead now for over a quarter of a century, yet he remains the subject of student conferences across the United States and of the recent bestselling biography by Bradley J. Birzer. And, wonder of wonders, he’s out with a new book.

Actually, it’s a new edition of a 1957 book. Russell Kirk’s Concise Guide to Conservatism in fact was originally called The Intelligent Woman’s Guide to Conservatisma swipe at George Bernard Shaw’s Intelligent Woman’s Guide to Socialism and Capitalism (1928). This invigorating primer on the history and characteristics of American conservatism is of course suitable for female and male audiences alike, hence Regnery’s revision of its title.

In 12 brisk chapters, Kirk addresses the following themes: the essence of conservatism, religious faith, conscience, individuality, family, community, just government, private property, power, education, permanence, and change. He concludes with the question: “What is the Republic?” His answer: “a commonwealth in which as many things as possible are left to private and local management; and in which the state, far from obliterating classes and voluntary associations and private rights, shelters and respects all these.”

Anyone familiar with Kirk will recognize in the opening chapter the “chief principles” of conservatism that in The Portable Conservative Reader (1982) and The Conservative Mind (1953) he condenses into six “canons.” These involve a recognition of moral laws derived from God, a celebration of variety and diversity over coerced uniformity, the pursuit of justice, the protection of private property, a skepticism of power and centralization, a reverence for custom and tradition, and the rejection of utopianism or political programs predicated on a belief in the perfectibility of man.

Combining a Disposition to Preserve with the Ability to Reform

At a time when conservatism stands in need of definition and direction, this book remains strikingly relevant. “We need to undertake,” Kirk admonishes his readers, “the conservative task of restoring in our generation an understanding of that freedom and that order which have expressed and encouraged our national genius.” Decades have passed since he penned these lines, yet the task remains.

Freedom and order aren’t the only seemingly incompatible concepts that Kirk reconciles. He balances liberty with duty and charity, and clarifies how conservatives can be both individualistic and communitarian at once. He explains why conservatives may embrace permanence and change without contradiction: Progress—“genuine progress”—develops “within the framework of tradition.” Moreover, “grand principles endure” while “their application . . . alters.” A conservative thus “combines a disposition to preserve with an ability to reform.”

Kirk targets, as well, the canard that conservatism is the greedy defense of capitalism, that the man or woman espousing conservative views is “a monster of selfishness” who is “morally impure, ruthless, and avaricious.” This caricature is still with us, though few thinking people would accept it as true anymore. After all, the Left dominates corporate America, Silicon Valley, Big Tech, Hollywood, higher education, and the mass media—with certain obvious exceptions. Commonsense conservatism, by contrast, flourishes in rural, agrarian America, in the heartland, in Southern states, in flyover territory, among blue-collar workers—not among the wealthy elites or rich CEOs. The idea that a small group of Randian, egomaniac “fat cats” controls American society is simply ridiculous. Were he alive today, Kirk wouldn’t have needed to refute such silly stereotypes.

He warns that “very powerful forces are at work to diminish the influence of the family among us, and even to destroy the family for all purposes except mere generation.” If he only knew. His treatment of the family seems dated by current standards—not because he embraced old-fashioned views but because the threats to the family that he predicted turned out to be greater than he could have imagined. He could not, for instance, foresee the redefinition of marriage that occurred through judicial opinions.

What, according to Kirk, is the purpose of formal education? Is it to equip students with the skills they need to excel in the workforce? To ensure that a democratic citizenry is sufficiently informed to refine and improve governing institutions? To bring about opportunities for historically marginalized or disenfranchised peoples? No. “The purpose of education,” he says, “is to develop the mental and moral faculties of the individual person, for the person’s own sake.” One doesn’t need to attend a university or earn a degree to fulfill this goal.

He Teaches Humbly and Without Malice

In our era of shouting pundits and social media sniping, Kirk’s mild manner, Victorian prose, and relaxed tone are charming reminders that, even when the stakes are high, we can be civil and reasonable toward detractors. He eviscerates sacred cows—for example, the notion of equality that, if instantiated, would lead to a “boring” world “in which everyone was the same”—cleverly yet with goodwill. The most egalitarian among us would entertain his controversial argument about equality because he does not provoke, incite, or inflame the passions. He teaches humbly and without malice.

Equality and diversity—ideals commonly associated with the Left—are, Kirk reminds us, incompatible to the extent that equality requires an eradication of the beautiful and remarkable distinctions that make each human being unique. The conservative is the true advocate of diversity, he points out, for it is the conservative who “desires to see the rich, invigorating, interesting variety of a society,” not to “pull everyone down to a dead level of equality.” Our equality before God and the law admits of natural and inevitable inequalities between people. Any other form of equality is the enemy of diversity.

If you believe the chief end of inquiry is to cultivate “human dignity, human personality, and human happiness,” and to understand and appreciate “the relationship between God and man,” then you’re a Kirkian conservative. All the weight of history, the entire strength of civilized society, depends on these for the preservation of freedom and order, which complement rather than oppose each other. In them, with God’s grace and providence, we put our hope for the future.

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Qualifications of Judges and Law Professors: A Telling Mismatch

In Academia, Law, Law School, Pedagogy, Scholarship, Teaching on June 6, 2018 at 6:45 am

This piece originally appeared here in the Library of Law & Liberty. 

Late last year, President Donald Trump took heat for nominating allegedly unqualified lawyers to the federal bench. As of February 16, 2018, a majority, substantial majority, or minority of the American Bar Association’s Standing Committee on the Judiciary has rated several of his judicial nominees “not qualified.” These evaluations purportedly assess professional competence, integrity, and judicial temperament, but have been accused, rightly, of improper politicization.

Would that an impartial and non-political set of ratings could be applied to aspiring law professors. Because of their lack of practical experience, academic training, and teaching record, entry-level faculty hires at many American law schools tend to be, as a class, unqualified to teach. They have not gained on-the-ground, learned-by-doing knowledge of legal practices and processes, yet in their new roles they will be expected to serve as gatekeepers into the profession, a profession that many of them have only barely participated in.

These days extensive practice experience is a disadvantage, not an asset, for the prospective law professor. It signals to faculty hiring committees a late interest in teaching and research, and a turn to academic work because of a disenchantment with the everyday work of lawyers. Faculty are sensibly turned off by candidates who believe, or seem to believe, that life in the academy is free from stress and responsibility.

No one wants a colleague who views the professoriate as a breezy backup plan, or whose only animating desire is to trade in a life of hourly billables for the supposed tranquility of the Ivory Tower. Hating law-firm culture is not a good reason, by itself, to seek a job in a law school. The last thing law professors need to impart to young students facing a competitive job market is deep cynicism about the practice of law. These legitimate concerns, however, should not preclude faculty from admitting into their ranks those who are best able to familiarize students with the practice of law.

The conventional path to law teaching runs something like this: attend a prestigious law school (ideally, one ranked in the top 15 by the U.S. News and World Report), obtain a federal clerkship (one with the U.S. Supreme Court, if possible), and then apply for open faculty positions, either directly through a law school or through the recruiting conference of the American Association of Law Schools (aka “the meat market”). The chances of securing tenure-track positions diminish measurably the longer one waits to enter the meat market.

No step along this path to becoming a law professor involves teaching. The longer you go down the path, the more practical skills you acquire, but the less desirable you become as a candidate for teaching.

A law degree is not a reliable proxy for the suitable or successful characteristics of a good teacher. A federal clerkship does not necessarily cultivate the traits necessary to excel in classroom instruction. So why does the system disincentivize not only the acquisition of practical skills, which most students are hoping to learn, but also teaching skills, which law professors are expected to have?

One reason is that there’s little agreement about what makes a good law professor.

How do you even quantify the effectiveness of law professors? Vocational outcomes and earning differentials among graduates say more about a law school, in particular its career services office and market reputation, than they do about the aptitude of individual faculty members. Bar-passage rates correlate with admissions standards and selectivity and reflect, perhaps, the overall educational experience of the graduates.

But there’s no measurable connection between those figures and the instruction methods of individual professors. Student evaluations suffer from drawbacks and deficiencies in law schools (such as biases, unreliability, grade inflation to win popularity, etc.) just as they do elsewhere in universities.

Without pedagogical consensus (i.e., without widely agreed-upon teaching philosophies, practices, or methods) within the legal academy or established standards for law-teaching achievement, hiring committees in law schools look simply to narrative, subjective data (e.g., the prestige of a candidate’s alma mater and recent employer, the candidate’s fit with subject-matter needs, etc.) that do not demonstrate a commitment to teaching or an ability to teach. The assumption behind these hiring decisions is, I think, twofold: that individuals who have earned prestigious credentials can translate their accomplishments to the classroom and that the Socratic Method allows them to disguise their “greenness” by deflecting difficult questions back on students.

Most Ph.D. programs in humanities disciplines involve some degree of classroom training and pedagogical coursework. Law school, by contrast, does not equip students with teaching or introduce them to pedagogical schools and approaches. Teaching expectations for law professors remain ill-defined and unpublicized, in part because they vary from school to school. With rare exceptions, aspiring law professors possess no pedagogical preparedness when they begin teaching.

Law schools should not continue hiring faculty with little to no practical experience, little to no record of scholarship, and little to no teaching experience. The ideal faculty candidate should have a substantial record of success in at least one of those three areas. The fact that a candidate graduated from Harvard Law and clerked a year or two for a federal appellate court may suggest the promise of future scholarship, but it doesn’t demonstrate proven merit as a scholar or teacher. Nor is that clerkship alone sufficient to familiarize a lawyer with the ins and outs of legal practice.

An emphasis on the readiness and qualifications of judges should be matched with tangible benchmarks in law-faculty hiring. Analogizing the qualifications of law professors and judges is reasonable, even if their jobs differ: both have attained high offices that superintend the profession, both are involved in the administration of the legal system, both should understand the nexus between theory and practice, both should possess exemplary character and enjoy good standing in the community, both should model the conduct and professionalism expected of all lawyers, and both should be researchers and writers with deep knowledge about the history of the law.

Redirecting ire and scrutiny away from judicial nominees and toward law-school faculties may not fully resolve ambiguities about the proper, requisite experience for judges. But it may lead to a rethinking of the minimal qualifications of law faculty, raising questions about whether the standards governing judicial nominees should extend to the legal academy, which trains future judges.

The growing chasm between law professors and the practicing bench and bar is not a novel subject. Media restlessness about President Trump’s judicial nominees, however, provides a clarifying context for reconsidering the optimal qualifications of law professors. The ABA’s evaluations of judicial nominees may be flawed and nefariously politicized, but at least they value practical experience in a way that hiring committees in law schools by and large have not.

If a prospective law professor lacks extensive practical experience, he or she must have an extensive record of scholarship or teaching. We should expect as much from our law schools as we do from our federal judiciary.

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