prayers at high-school graduations, andrnthe divorce of law and the public spherernfrom religion was nearly complete.rnWith the passage of the civil-rightsrnlaws in the mid-60’s and the anh-authorityrnanimus spawned by the Vietnam Warrnand Watergate, any legal philosophy thatrnstressed hierarchies and timeless truthsrn(as America’s Christian legal heritagerndid) seemed doomed. In recent years,rnthe moral failures of American societyrn(which led to events as diverse as the sullyingrnof the Oval Office by PresidentrnClinton and the tragedies at ColumbinernHigh School) have been encouraged byrnthe attitudes of American law professors,rnlawyers, and judges. Worse still, the utterrnindifference to the rule of law thatrnPresident Clinton showed at home wasrnreplicated in his administration’s andrnNATO’s policies in Yugoslavia, where inconvenientrnrequirements of the U.N.rnCharter and the pronouncements of thernU.N. Security Council were simplv ignoredrnas we made war—without the benefitrnof an express congressional declaradonrn—on a sovereign country which hadrnnever attacked us.rnIn response to Judge Edwards’ 1992rnjeremiad, a dismally few legal educatorsrnoffered the prospect of a return to thern”good old days” of the 19th century,rnwhen ethics, morals, and even Christianityrnwere a part of legal education. JudgernEdwards, who is black, demurred on therngrounds that, in the “good old days,” hernwould never have been able to practicernlaw, much less make it to the bench. Hisrnalternative is to encourage more clinicalrnlegal education and less theory, so thatrnlaw schools would begin to prepare studentsrnbetter for practice. He also seemsrndazzled by the efforts of New York UniversityrnLaw School, where he is an adjunctrnprofessor, to prepare its students forrnpractice not only in the United States butrnaround the world. N.Y.U. has billed itselfrnas the first “global” law school (which hasrnled some unimpressed legal academics torntweak its dean by suggesting that he hadrncreated the first “intergalactic” lawrnschool).rnI think that American legal educationrnshould pay more attention to the practicernof law in Europe and Asia; at Northwestern,rnwe are attempting to build a “global”rnlaw school without any risk, I think, ofrnhirning the classrooms into the bar scenernfrom the first Star Wars movie. Even so,rnI think there is something missing fromrnN.Y.U.’s approach; the globalization ofrnlegal education is not likely to supply thernethical dimension that Judge Edwardsrnwants and that the law sorelv needs.rnLike many other fanc’ American lawrnschools, N.Y.U. claims that it is trying tornpromote justice as well as law, but forrnmost current legal academics, “justice”rnmeans the redistribution of goods insteadrnof the Aristotelian, Platonic, or Christianrnconcept of ordering society according torna divine plan. The emptiness of the “redistribution”rnmodel has led to somethingrnof a resurgence in religiously based lawrnschools committed to producing Christianrnlawyers. Thus, Pat Robertson hasrnfounded Regent Law School in Virginia;rnPepperdine Law School in Californiarnhas flourished (almost bagging no lessrnthan Ken Starr for its dean); and a recentrnstart-up, Ave Maria Law School in AnnrnArbor, will offer a solidly Catholic legalrneducation.rnYou don’t have to be Christian to bernethical, although the Framers believedrn(and I think they were right) that the lawrnrequires a foundation in morality, andrnmorality requires a foundation in religion.rnMost of them—Jefferson is the notablernexception —believed that Christianityrnwas essential to that foundation,rnand even Jefferson, while eschewingrnChristian doctrine, embraced Christianrnmorality. If legal education in this countryrnis to be saved, it must return to itsrnphilosophical roots, which are deeplyrnplanted in Judeo-Christian notions andrnthe aristocratic responsibilities commentedrnon so favorably by Alexis de Tocqueville.rnJudge Edwards may not wantrnthe clock turned back because he remembersrnold injustices, but, as C.S.rnLewis reminded us, we ought to turn thernclock back if it’s showing the wrong time.rnMy solution for reforming legal educationrnis to return to a required curriculumrnwith a heavy dose of the history of Americanrnlaw. The connection between lawrnand morality, it seems to me, is necessaryrnand inescapable. Equally important,rnAmerican constitutional history castsrngrave doubt upon such 20th-century legal-rnrealist notions as a “living Constitution”rnor the recent infinite expansion ofrnthe 14th Amendment to prohibit thernstates from doing what they were meantrnto do. Legal realism’s greatest triumph —rnthe use of the Bill of Rights as a club tornbeat back state and local governments—rnwould be exposed as judicial usurpation,rnand perhaps the next generation ofrnlawyers might then be inclined to returnrnthe Bill of Rights to its original understandingrnas a limitation on the federalrnLeviathan.rnParts of the current first-year curriculumrnof common-law subjects still meritrntheir places of honor, particularly if thevrnare taught with attention to their origins.rnWe could dispense with much of the potpourrirnthat clutters up the second andrnthird years. Instead, those years could berncombined with legal internships, so thatrnmuch of the student’s education wouldrnbe supplied by practitioners themselves.rnCurrently, an oddity within the legalrnacademy is that fewer and fewer tenuretrackrnteachers have much experience inrnpractice. At Northwestern and otherrnschools, we have begim to recognize thatrnadjuncts who practice can often do a betterrnjob of training than can tenure-trackrnfaculty, and we are in the process of reorderingrnour curriculum accordingly.rnThe movement toward more ethical approachesrnto the study of management inrnthe nation’s business schools offers an opportunityrnto combine moral approachesrnto the law with moral approaches to business.rnThere is a tiirn at the University ofrnMichigan and Northwestern, for example,rntoward understanding that, sincernmost managers must deal with law andrnregulation, thev also need some legalrntraining—if only to discern when they dornor do not need to bring in the lawyers. Irnnow spend more time in the classroom atrnNorthwestern’s Kellogg Graduate Schoolrnof Management than I do at the lawrnschool, and I suspect economies of scalernand convergence of concerns will, in thernnext century, lead some universities torncombine law schools and managementrnschools into single entities.rnReforming law schools is not an easyrnundertaking, however, because of thernunwillingness both of individual professorsrnto alter what they teach and of accreditingrnassociations to permit changernfrom the standard three-year period ofrnstudent purgator’. Before long, though,rnsome brave institutions will likely experimentrnwith a different three-year patternrn—perhaps a vear to learn the fundamentalsrn(the liberal-arts aspects of thernprofession of law); another year of supervisedrninternships, clinical practice, andrnupper-level courses while the student remainsrnat the law school; and then two orrnthree years in practice, followed by a returnrnto the academy for at least a year ofrnfurther specialized training or preparationrnfor a teaching position or one onrnthe bench. As legal education nowrnstands in America, there is no particularrntraining for law-school teachers or forrn52/CHRONlCLESrnrnrn
January 1975April 21, 2022By The Archive
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