There is not very much written by Justice Antonin Scalia that has gone largely unnoticed. But thanks to Adam White (and this fine article of his), I recently read this obscure 1987 essay by the late Justice: “Teaching About the Law” in the Christian Legal Society Quarterly. As we are just over a month away from the beginning of the law school year, it is a propitious moment to share its ideas.
This site features an excellent Liberty Forum discussion this month on the future of legal education. If Ken Randall is right about a “blue ocean for law schools” (and he probably is), it looks like a lot of them will be traveling online, providing a needed service for those who only want a ticket to take the bar. As the profession gets more entrepreneurial, the argument for taking this route gets stronger.
The recent architectural addition to Northwestern Law School where I teach – a lovely, three-floor, glass-clad space with high ceilings – reflects a new direction of legal education. The first-floor has a café with fifty seats and a patio looking out on Lake Michigan. The next two floors are conducive to collaboration, consisting of study rooms and open spaces with comfortable chairs. The only classroom in this section has no rows of seats or even a lectern but is instead full of tables and audiovisual screens, suitable for negotiation and problem solving even at long distance.
The new space emphasizes an increasingly important part of elite education generally—the opportunity to network with other highly skilled individuals. One can think of higher education as providing three distinct services: transferring information and skills, signaling the quality of students to employers, providing professional networking opportunities for students.
Nothing better represents the decline of the first function than the plight of the university library.
In a speech at William and Mary Law School last weekend Justice Antonin Scalia rejected the idea of a two-year course of legal education and assailed at least some law professors as overpaid teachers of irrelevant material. He is wrong about the two-year path, but half right about some professors.
Scalia’s rejection of the two-year proposal is rooted in his view that three years are necessary to create “a legal professional,” but he provides no evidence for this claim. He does not consider the history of the requirement, which suggests that a three-year law course arose as a method of shielding incumbents from competition, particularly from immigrant families who would have difficulty affording lengthy legal education. Economists are generally wary of process requirements—like a three-year requirement for a law degree—as opposed to a performance requirement—passing the bar exam. The former tends to create a barrier to entry with no clear relation to improved output.
Scalia also does not take into account that law is a very variegated profession and that legal education should reflect this variety.
Comes now a discussion of an originalism that can sing! This month's Liberty Forum considers Mike Rappaport and John McGinnis's new book, Originalism and the Good Constitution. Rappaport and McGinnis offer their thoughts in a lead essay with responses from Richard Epstein and Ralph Rossum. The current Liberty Law Talk is with Mark Helprin on his latest novel In Sunlight and In Shadow. We also talk politics, war, and what's right and wrong in Mad Men. Walking The Wire and learning criminal procedure and constitutional law in the process. Tony Freyer and Andy Morriss: The structure and strategy of the Caymans as an…
The distinguished literary scholar Stanley Fish can teach one a great deal about argumentation. Lacking a law degree, he has also served on law faculties and even as an assistant dean in the Duke Law School. What business does this academic superstar, portrayed as lusty professor Morris Zapp in a David Lodge novel and derided by Camille Paglia as a “totalitarian Tinker Bell,” have teaching law?
I have seen this man of the political left outrage and delight audiences at scholarly conferences and venues, including a Federalist Society convention. A friend also reported to me that Fish once asked him the difference between a West and an East coast Straussian, and, upon hearing a brief explanation, Fish declared himself to be a West coast one. (See comment 2 below.) That is, I infer, Fish agreed with these Declaration of Independence conservatives on the vital importance of the political context for establishing the meaning of a text.
In Failing Law Schools, Brian Tamanaha, a law professor and legal theorist at Washington University at St. Louis School of Law, has written a timely, thoughtful, and provocative book about the state of legal education. Given the central importance of the rule of law to preservation of a society of free and responsible individuals, the future of legal education ought to be of interest to more than law professors, law students, and prospective law students. Tamanaha also writes extraordinarily clearly and precisely, and the book is a pleasure to read. The book is ultimately disappointing, however, because, despite a bold claim that talking honestly about the economics of the legal academy will “affront” his colleagues, Tamanaha ultimately pulls his punches both in describing the problems and suggesting solutions.
I just listened to the episode of Law Talk on Schools for Misrule. Richard Reinsch does a great job of interviewing Walter Olson on his new book. After the podcast, I will definitely be putting the book on my reading list. Olson covers the history of law schools and how they came to their present state, where so much of what goes on supports the progressive agenda. Some of the story I knew, but much I didn't, including the role of the Ford Foundation. (Alas, the Ford Foundation was very busy in those days, including doing its part to convince…