March 23, 2011
The Future of (Catholic) Law Schools and Catholic Legal Theory
Over the past several months, a good deal of public discussion has appeared in various media sources, including web logs, about the perceived surplus of lawyers, the present cost of legal education, and the declining applicant pools of would-be law students who are reassessing the economics of investing large sums of money on legal education. I would think that most of the contributors to the Mirror of Justice have heard and participated in discussions about these topics formally and informally at our respective institutions.
I, for one, do not view any form of higher education as a market-driven economy. I often respond negatively when education is passed off as the equivalent of some product or merchandise in which the purveyor, i.e., the educational institution, needs to find its “market” in order to be successful. I realize that there are important economic elements of education in general and of higher education, including legal education, in particular. But I think it unwise to make important decisions about education as if it were a market only seeking to survive, especially in difficult economic times.
I also realize that many educational institutions, including law schools, like to portray themselves a filling some kind of niche in the world of higher education. As a member of a religious order that founded over several dozen institutions of higher learning in the United States, over half of them with law schools, I often hear my confreres in the order and my lay colleagues assert that “our” schools have the niche of meeting the needs of “social justice,” and it is “social justice” that is the raison d’être of and for these law schools. If this line of reasoning and justification is to be followed, then it is “social justice” which enables these institutions to attract students and faculty to join their ranks. I find a similar justification offered by other institutions that were founded by other religious orders or dioceses and choose to use the moniker “Catholic”.
But is “social justice” really the element that makes Catholic legal education distinctive and attractive to future students and faculty? What is “social justice”—what constitutes it? While I am at it, are there law schools which are for “social injustice”? Frankly, I find the term “social justice” being susceptible to many different, often conflicting definitions and thus realize it difficult to justify the distinctiveness of a law school that identifies itself as Catholic by relying on this nebulous term. Moreover, I have seen definitions of “social justice” that would include practices or beliefs which are antithetical to the Church’s teachings, e.g., abortion, same-sex marriage, euthanasia, some kinds of bio-medical experimentation. No, I don’t think “social justice” is the real element that makes a law school one that can call itself distinctively Catholic.
If there is, in fact, a declining interest in attending law school these days, is there something that can make a law school Catholic in fact knowing that it must also prepare students to become good practitioners of what is supposed to be a noble profession?
Indeed there is. Of course it would be found in an institution that is not ashamed of Catholic teachings, many of which have a direct or indirect bearing on the law. As laws and legal education deal with many of the same issues—e.g., labor-management issues, regulation of economic markets, the use of force, the role of sovereignty in the international order, just compensation in wages and in reparations (damages), criminal matters, health care regulation, etc.—why should a law school that relies on the modifier “Catholic” not be motivated to allow these great teachings to inspire the direction in which its curriculum is formed and taught?
Or is the temptation really to be just like everyone else? If this is the case, then there really is nothing that makes a Catholic law school really distinctive. And if there is nothing distinctive about it in regards to the substantive content of its curriculum and its outlook, then is there any reason to think it will fare better than other law schools given the current climate of the decreasing interest in obtaining a legal education?
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I so rarely find myself agreeing with Robert that I feel compelled to comment, if for no other reason than to second his remarks.
Of course I think Catholic law schools should promote social justice (although I agree we need to talk about what we mean by that term and acknowledge we don't all mean the same thing). But one doesn't have to be Catholic to be in favor of social justice; plenty of secular institutions claim that as part of their mission.
If there is a reason for Catholic law schools to continue to exist - and if there is any hope some of them will continue to exist given various external pressures, it must be because they do something distinctive that is worthwhile...something more than promote social justice. My own school is a good example - the only justification for opening a fourth law school in the Twin Cities was its mission as a Catholic institution. (It wasn't that the Twin Cities was in dire need of an additional law school.)
So I think all of us who teach at Catholic law schools need to think about what it means to call ourselves Catholic. I think there tends to be some hesitation about openly discussing this question; knowing that people have different views, there is a fear that the discussion will lead to some unpleasantness. But if we can't articulate to ourselves what makes a Catholic legal education distinctive - what it means to say we are a Catholic law school - we can't effectively convey that to prospective students.
Posted by: Susan Stabile | Mar 24, 2011 9:50:49 AM
I am not a lawyer - let alone a professor at a Catholic law school. However, it seems fairly clear to me that the purpose of a Catholic law school is not to promote "social justice" when no one can even agree on the definition of social justice. Perhaps, if Catholic law professors could come to an agreement of what social justice means in light of Catholic teaching and, then, teach Catholic social justice as an adjunct to the law, it would make some sense.
Lacking that, it seems that the main benefit a Catholic law school could provide law students is the imparting of legal ethics as seen through the prism of Catholic teaching. In my experience, the understanding of ethics (let alone Catholic ethics) by lawyers, generally, is pretty dismal. Granted, there are the model rules, disciplinary rules and ethical opinions to which lawyers can refer. But how many really care about them except as to how they may indicate a conflict of interest; bear on a legal malpractice case; or cause the Bar to impose disciple up to and including the loss of an attorney's "ticket."
A Catholic law school education should impart more than a perfunctory understanding of ethics to its students. It should provide a view of ethics from the view of Catholic teaching. Should this be on the Law School's curriculum or should it be a prerequisite to admission? I don't know but the end result should be that the Catholic law school graduate should be able to recognize an issue he/she can ethically argue and a client that he/she can ethically represent. Otherwise that lawyer can easily become a "gun for hire" merely following the money or some business or social interest group.
I believe a "Catholic lawyer" should be someone a Catholic person could trust to represent his interests in view of Catholic teaching. A Catholic lawyer would not have represented Roe and would have been honest enough to tell her why.
Posted by: Donald Brayer | Mar 25, 2011 2:31:16 PM
I agree so strongly with both Fr. Araujo and Susan Stabile. Distinctly Catholic legal education is under extreme pressure today as the economic forces move professional education toward the production of skilled practitioners and away from liberal learning and core values. Research and teaching for economic productivity is becoming the guiding principle at many schools. Catholic education has always viewed the search for meaning in Christ, who is Truth, as the axis that brings unity to the university. The drive for productivity tends to dissipate the university, fragmenting it into separate departments that are united by a common administration, finding shared meaning and community in sports teams rather that a common intellectual vision. And, the full range of human reason gets reduced to the set of discursive practices that favor technological application. Hermeneutical and aesthetic reasoning are driven from the field in the relentless search for certainty and clarity. Mystery--wherein lies the imagio dei--is sacrificed to precision and control. Catholic institutions offer a counter to that sort of reduction that is useful--even necessary for lawyers in a democracy--but is becoming difficult to sustain.
Posted by: Kevin Lee | Mar 27, 2011 10:18:54 PM
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