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Making Legal Education Great Again

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Part Two: Allen Mendenhall Interviews Mark Zunac about his new edition, “Literature and the Conservative Ideal”

In Academia, American Literature, Arts & Letters, Books, British Literature, Conservatism, Fiction, Humanities, liberal arts, Liberalism, Literary Theory & Criticism, Literature, Novels, Pedagogy, Philosophy, Politics, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on November 16, 2016 at 7:00 am
Mark Zunac

Mark Zunac

Mark Zunac is associate professor in the Department of Languages and Literatures at the University of Wisconsin-Whitewater.  Editor of Literature and the Conservative Ideal, he researches revolution, writing, and the rise of intellectual conservatism in Britain following the French Revolution. He received his Ph.D. from Marquette University in 2008.

AM:  In your essay “Conservatism, Liberal Education, and the Promise of the Humanities,” one of two essays you contributed to the edition, you state, “There is a broader philosophical conflict at hand between the very principle of academic freedom, encompassing the rights of individuals to engage in scholarly inquiry and espouse contrarian views, and policies currently governing campus discourse.”  What do you mean by this?

MZ: Quite simply, the state of campus discourse is, by its very essence, incompatible with the rights of faculty – and students themselves – to engage in the search for truth. When conduct, particularly verbal conduct, can be reported and penalized through mechanisms designed to “protect” students, we might sense that something much greater is afoot. If such fundamental rights as speech and due process are curtailed – as I feel they have systematically been on today’s campus – then we are no longer interested in educating an informed and responsible citizenry. The great irony in this is that even as faculty and administrators maintain the conceit that students must confront dissonant viewpoints, the viewpoints that qualify are limited and selective. Therefore, I think the fear of faculty to approach teaching or research from a conservative angle, or even to introduce conservative arguments in the context of intellectual debate, is very real. Some things are better left unsaid, especially when tenure, promotion, or funding are on the line.

On the other hand, the concept of academic freedom has been so narrowed as to apply almost exclusively to members of the faculty. The dearth of conservative faculty in the humanities and social sciences makes it difficult to determine the degree to which this privilege might be invoked as a defense against charges of offending progressive student sensibilities. The case of Marquette professor John McAdams that I discuss in the book is not promising. It is fortuitous that the demands of students to be protected from certain ideas are often in harmony with the ideological makeup of the faculty. Nevertheless, it can be argued that the freedom claimed by a largely progressive professoriate is not afforded to the student body, which labors more under the onerous regulations governing speech and conduct.

Aside from being able to report the utterance of harmful words, students have very little stake in academic freedom’s fundamental premise, and their rights have ceased to be part of the conversation on classroom conduct. I don’t count the imposition of trigger warnings and the creation of safe spaces as really striking a blow for freedom or the intellectual pursuit. Faculty might be able to proselytize under the banner of academic freedom, but students have little recourse when scholarly inquiry descends into partisan demagoguery. It speaks volumes that today’s campus will often charge conservative student groups for added security at their events in anticipation of disruption and unrest. The campus in this case is refusing to guarantee what is essentially the safety of free expression. It has been said that the greatest beneficiaries of a political and ideological monoculture are conservative students, who are consistently challenged to refine their arguments and confront opposing viewpoints. But that’s perhaps little compensation when those arguments are preemptively dismissed and delegitimized by an institution unwilling to entertain them. Some critics have been ambivalent about either the extent of curricular politicization that exists on today’s campus or its impact on students. I don’t think either can be overstated.

AM:  The question I hear a lot—and in different contexts—is “what can be done?”  Do you have an answer to that question in light of what you’ve just said? 

MZ:  To answer that important question I would probably qualify some rejections to otherwise bad ideas. Federal funding should not be tied to the amount of money students can be expected to earn upon graduation. However, at some point students must be expected to see some material returns from the meteoric rise of tuition and administrative costs. We have seen an intense regulatory push directed exclusively at for-profit colleges over the last eight years. The question of value in higher education is a good one, and perhaps it shouldn’t only be asked of these for-profits.

Also, while the idea has been floated, I do not believe in any kind of affirmative action for conservative professors. However, departments conspicuously lacking in conservative faculty members might take steps to acknowledge the intellectual costs of such insularity and promote viewpoint diversity, a concept propounded by groups like Heterodox Academy, the National Association of Scholars, and the John William Pope Center. These are not conservative organizations but rather ones that care deeply about the state of discourse on today’s campus and how it adversely affects learning.

Furthermore, while we must heed Michael Oakeshott’s warning not to “suspend conversationality for a politicizing counterrevolution,” a more robust rejection of identity’s preeminent place in in the classroom might restore some dignity to the learning process. It is not atypical for composition students, for example, to be assigned anthologies that are promoted as much for the racial, ethnic, and gender identifications of their authors as the dynamism of their prose or the enduring legacy of their ideas. No doubt many of the essays in these collections are worth modeling and are deserving of study, but not because of predetermined genetic variables. Having students read essays by Max Beerbohm, John Ruskin, or Evelyn Waugh – all the while ignoring their “privilege” – might inadvertently put the focus of the class on prose style, rhetoric, and stylistic precision.

Finally, it should remain up to students to choose their colleges carefully. There are a lot of alternative institutions that have placed the pursuit of knowledge above all else. The market for this kind of place is strong, and those charged with administering higher education could do very well to take notice.

AM:  At one point in the book you mention a “multicultural canon.”  I’m interested in this phrase because I’m interested in canonicity and the idea that there are certain works that are more influential and important than others within a given tradition, and even that certain traditions may produce works that are more influential and important than works produced by other traditions.  You often here people dismiss the idea of a canon but urge the reading of certain texts.  It seems that any support for a program of reading necessarily entails a view of the canon, however different that might be from prevailing consensus.  At a time when English departments are struggling to maintain stable and uniform curricula, and the notion of a canon has become unpopular, what does it mean for a work to be canonical? 

MZ:  While the idea of a canon has become unpopular, it still exists in every department that embraces the multicultural ethos of the university. And it is equally as narrow as the one it sought to replace and far more intransigent. Like so many revolutions, the spirit of canon reform was swept away by a radical zeal to destroy foundations necessary for, in this case, literature’s survival as part of a college curriculum. To me, literature is universal and it has the potential to speak to a common humanity. In short, it should be valued for its own sake and for its cultural status as an expression of artistic endeavor. It has intrinsic value, and its success lies in part on historical continuity – on its relationship to what came before it. In the book, I mention T.S. Eliot’s “historical sense,” the idea that tradition must be defended against forces that would destroy it out of hand. I think that in many ways this has happened. Today’s literature has become so balkanized as to render impossible the continuance of any sort of shared cultural value system. To that point, I would also argue that an English curriculum consisting predominantly of identity-based literature (African-American, Native American, Women’s, Latinx, etc.) can in no real way be considered diverse. As it is, those who might turn to literature for the truth it tells, for its contemplation of ideas, or for its linguistic execution have been in retreat.

I’m not sure anyone would make the case that the traditional canon was never fluid or that it hasn’t contained glaring omissions. It has, and they should be rectified. But whereas critics in the past denounced the traditional canon as the product of “institutional tastemaking,” today’s demands for courses that aim to represent some unique, singular experience are guilty of the same thing. A canon is necessarily foundational. It isn’t, however, necessarily exclusionary, and an inclusive canon should be exactly that. This is a very long way of saying that a canonical work might be one that embodies an idea or an epoch, or one that masterfully portrays the psychological depth of a character in crisis. There are many divergent opinions as to this question, and I don’t consider myself an authority. But my vision is this: surely others have treated the same subjects as, say, Edith Wharton, Ralph Ellison, and Saul Bellow. We just have to be able to say that few have perhaps done it better. The reader may take his (or her) pick as to what authors deserve special consideration. The point is that the literature’s function and its success as a work of art are what we consider first and foremost. I think that case can be made, and reinforcing the idea of great literature – asserting its very existence – may benefit our discipline greatly.

AM:  If a student were to ask you for 10 writers you believed every person must read before he or she dies, who would they be?

MZ:  This is a question every literature person longs for, and at the risk of inevitably short-changing some, here is my list, in absolutely no particular order: Ernest Hemingway, George Eliot, Martin Amis, Evelyn Waugh, Charles Dickens, Jane Austen, Fyodor Dostoevsky, Thomas Hardy, Saul Bellow, and Vladamir Nabakov.

 

Part Three coming soon….

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

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

Allen Mendenhall

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

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

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

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

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

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