Legal Education - Contemporary
Teaching. I once met a parent who told me that her child’s teacher had one year of experience, and had had it thirty one times. I am that sort of teacher for I seldom did the same things twice although I taught the basic course in civil procedure forty times. I have taught four thousand law students. A few were enthusiastic about my presentations and a few were made hostile, but most were middling in their reactions. In part I suppose this to be in part a result of my reaction of disdain for the impulse I share with other teachers to seek student approval. The teachers I most respected and who best served me were not seeking my approval. While I have occasionally had a connection with a law student that might be described as a mentoring relationship, I have not thought of that sort of connection to be part of my job. I like to be helpful to students who need help, but I want students to be emotionally and intellectually independent, for the reason that moral independence is so important for good and honorable lawyering. My first aim as a teacher was always moral education of that sort. I have recently published an expression of this questionable sentiment rooted in my experience as a student 55 years ago. A Tribute to Bull Warren.
There is, to be sure a fund of knowledge of rules and doctrine that it is useful and sometimes indispensable for a lawyer to have. It is also important that such knowledge be kept in the larger perspectives of related disciplines and of common sense that inform and influence those who apply such knowledge. One of the charms of law is that so much human knowledge can be brought to bear on it. Students generally came to the study of civil procedure expecting to memorize some rules. It was many times my task to disabuse them and to enlarge their intellectual perspective as well as their moral judgment about the matters we considered. Teaching Civil Procedure: A Retrospective View,
The Economics of Law Study. I surely filled more pages of the Journal of Legal Education than any person in history. This was in part the result of my role as chair of the curriculum study finally published in 1971 that was done at the request of the Association of American Law Schools, with the support of the Ford Foundation. We had an elegant committee; among the most active members were Bill Klein, Maury Rosenberg, George Lefcoe, Preble Stolz, Ed Kitch, David Currie, and Allen Smith. Our report offered few new ideas about teaching methods or courses. We shared a concern for the already rising price of legal education, but did not foresee the precipitous increases that would come in the decades ahead. We resisted clinical education as costly, and even suggested that the basis law degree be reduced to a two-year program, with a one-year program available to those delivering special kinds of legal services to those in need. We were not surprised that our colleagues did not leap to embrace the report. I still think we were right.
The iconoclasm of that report did not exclude me from polite company. I did serve the AALS in other roles as chair of its membership committee and as a member of its executive committee. For the AALS I participated in numerous accreditation inspections. In those roles I served as advocate for minimizing external regulation of member schools. Often my allies on those issues on the executive committee were Roger Cramton, Mary Ann Glendon, and David Vernon. My position got me into trouble with my friends who were striving to use membership requirements as a device to compel schools to practice affirmative action and to exclude the military law offices from interviewing at members' placement offices.
Later events confirmed the problem of the rising cost of legal education, but that cost is only marginally affected if at all by the accreditation process. In 1995, the Wall Street Journal published an editorial decrying the ABA as a cartel for its reluctance to approve a school. I wrote a reply that the WSJ declined to publish, but I still like it. ABA as Cartel. The real problem is that law schools have become increasingly absorbed with the ranking system that has moved into US News & World Report. Everything a school needs to do to protect or improve its rankings cost money. Most of the money comes from students, who borrow much of what they pay. On Ranking. The result is that those entering the profession often lack even a modest measure of financial solvency. The secondary result is that graduates entering the profession often lack the independence needed to exercise strong moral judgment such as they may need to perform honorable professional services.
Critical Legal Studies. Around 1980, a group of law teachers began meeting annually to share their world view. They were mostly persons disaffected by the Vietnam War. In their anger, many became maximally suspicious of the integrity of their seniors. I was not much interested in their work. It seemed to me that their thinking was indistinguishable from that of Legal Realists whom I had studied as a law student in 1955. But Roberto Unger rang my bell by concluding that my generation of priests had lost their faith in law. Well, I have had always had moments of doubt, but it seemed to me too much for law teachers to profess not only that there is no law, but those guys who are saying that there is don’t really believe it. At the end of the day, law is a matter of faith in our fellow men. When we lose all trust, we lose not only law but the possibility of a civil society.
At the annual meeting of the AALS in January 1983, I was to speak at the plenary session. My dear friend Terry Sandalow was assigned to produce a manuscript for comment at that event. He was a little late in delivery, so I gave a paper that I had been using as a speech to entering law students. I still think it’s pretty good. Law and the River. When I published it, I dropped a footnote that was intended as a reply to Unger. A few months later, I circulated a dean’s report that celebrated the fact that we had no total cynics on the Duke faculty. About then, there was an explosion of hostility. I received an extraordinary number of letters, only some of them from “Crits;” many deplored my assault on academic freedom. A few were supportive. The press joined in. The Harvard Law Record was especially fierce. Many of the comments came from Harvard faculty. I offered to come to Cambridge to debate, but no one took up the offer. I wrote the Record a response and the editors deleted its substance. I wrote Dean Vorenberg to ask for equal time, but he denied that he had the wherewithal to provide it.
The Critical Legal Studies movement would soon implode. I don’t think I was a cause, but if I did contribute to that result, its OK. However, many years later as a member of a Visiting Committee, I dropped into a seminar at Harvard on legal education. I was asked to leave because the students were assigned to respond that day to something I had written, and it would be too much to ask them to speak in my presence!
Deaning. I did it for ten years, and mostly enjoyed it. I think I did reasonably well at supporting the faculty and getting the best out of most of them, in part by providing them with the sense that they shared responsibility for the governance of the school. This required that I sometimes stand up to student organizations, and some students warmly disapproved my performance. For most of my time, I had a good relationship with the university administration, in large part this was because they were generous in leaving me and the school alone. Toward the end of the decade that began to change. At no time did I form any taste at all for university administration. My weakness as a dean was in “development.” When he hired me, President Terry Sanford told me that this was not my concern, but it grew in importance during my time. I tried, and I raised some capital gifts, but not very many. My successors have done much, much better.
As a budget officer, I had no serious problems. The University allowed us to keep all tuition revenue, and even supplemented that to the tune of $300,000 a year. Many services were provided to the Law School by the University without charge. Because tuition rose so rapidly, there was always plenty to pay full market value for the services of those the school employed. I was also able greatly to increase the amount of financial aid for students, not only those in need, but those with credentials so admirable that it was important to attract them to the school. As a matter of principle I did not enlarge the administrative staff. I published the law school budget every year to assure faculty and alumni, and also to create disincentive for the University to impose tariffs on the school. I am appalled by the market price of legal education in 2007; even taking account of inflation, the price has risen about ten times over. The lawyers we are graduating are not ten times better!
The school internationalized itself on my watch. International Relations and Comparative Law. And I took the initiative in bringing into the school scholars working in related fields, even some from neighboring universities. I also did what I could to diversify students and faculty.
My writings on this subject are:
Training for the Public Professions of the Law (editor)(Association of American Law Schools, 1971) reprinted ALI-ABA Joint Committee, 1972; Packer & Ehrlich, New Directions in Legal Education (McGraw-Hill, 1972)
Paraprofessionalism in Higher Education, House Judiciary Committee Hearings (1974)
On the Pursuit of Competence, Trial Magazine, Dec. 1976
The Alienation of Law Students, 75 Mich. L. Rev. 887 (1977) (with James Conley)
Negative Attitudes of Law Students: A Republication of the Alienation and Dissatisfaction Factors, 76 Mich. L. Rev. 1036 (1978) (with James Conley)
The University Law School and Legal Services, 53 N.Y.U. L. Rev. 402 (1978)
Book Review, Allen: Law, Intellect and Education, 79 Mich. L. Rev. 1477 (1981)
Dedication Address, 1 Duke Law Magazine 6 (1982)
Cultural Narcissism in Law, 93 F.R.D. 734 (1982)
Call for A Profession of Truth, 34 J. Leg. Ed. 105 (1984)
Of Law and the River, 34 J. Leg. Ed. 222 (1984)
Correspondence, 35 J. Leg. Ed. 924 (1985)
The Dangers of A Graduate School Model, 35 J.Leg.Ed. 11 (1986)
Afterword: Why Deans Quit, 1987 Duke L.J. 342 (1987)
Law, the River and the Lamp (Occasional Paper of American College of Trial Lawyers, 1987)
Freedom and Community in the Academy, 66 Texas L. Rev. 1577 (1988)
David F. Cavers, 51-3 Law and Contemp. Problems xii (1989)
Aftermath, in Essays in Honor of Patrick Atiyah (Cane & Stapleton eds., 1991)
Preble Stolz, 80 Calif. L. Rev. 811 (1992)
Butterfly Effects: The Political Influence of Law Teachers, 41 Duke L. J. 741 (1992)
The Boalt Affair, 41 J. Leg. Ed. 263 (1992)
Why Deans Stay: A Quitters Response, 51 Md. L. Rev.505 (1992)
Diversity!, 1992 Utah L. Rev. 1105
Meaning and Professionalism in American Law, 10 Constitutional Commentary 297 (1993)
Comment on Derrick Bell's "Diversity and Academic Freedom," 43 J. Leg. Ed. 380 (1993)
Maurice Rosenberg, 95 Colum. L. Rev. 1901 (1995)
In Tribute to Editors of the Journal of Legal Education, 49 J. Leg. Ed. 2 (1999)
Fitness Training, 2 Green Bag 2d 131 (1999)
Teaching Civil Procedure: A Retrospective View, 49 J. Leg. Ed. 311 (1999) also published as Teaching American Civil Procedure since 1779, in Legal Canons (J. M. Balkin & Sanford Levinson eds, New York University Press, 2000)
Tanking the Rankings: Thoughts on Law Schools Rankings by The Media (The American Lawyer, April 2000)
A Christmas Thought for Children, 4 Green Bag 2d 139 (Winter 2001)
On Ranking: A Response to Mitchell Berger, 53 J. Leg. Ed 301 (2003)
Correct Speech and Incorrect Hearing: A Problem of Post-Modern Legal Education, 53 J. Leg. Ed. 404 (2003)
Reproducing the Right Sort of Hierarchy, in Duncan Kennedy, The Reproduction of Hierarchy 145 (2d ed., NYU Press 2004)