February 09, 2013
Legal Scholarship, Objective Truth, and the Future of Legal Education
I am most grateful to Mike Moreland, John Breen, and Greg Sisk for raising and addressing challenging issues that pertain to the content of legal scholarship these days that consciously addresses the neuralgic issues from a perspective that is Catholic or aligned with views consistent with Catholic social thought. If publications in the law reviews and journals, which are considered the most prestigious, offer a one-sided view of the neuralgic issues, can we infer anything from the content of legal education that law students are receiving in this age of great and grave challenges to legal education?
Many years ago, another professor took strong issue with what I had to say in one of my earliest articles that addressed abortion. In that essay, I attempted to portray a sincere and serious dialogue between conversing partners about Roe v. Wade. In short, by use of this device, I thought I could present in an objective manner this critical issue, i.e., abortion.
Within a short time, I noticed that another professor, who was aggressively pro-abortion, took to task what I had to say in one of her footnotes in a published essay in a journal many would consider prestigious to this day. In today’s nomenclature, her essay would fall within the category of: reproductive rights and freedom. I did not mind her taking me on, but I did mind her using ad hominem methods in her critique which did not address in the least the substance of my arguments that undergirded my position which she was critiquing. In essence, the substance of her critique was that I did not agree with her position. The scholarly and practical reasons of for her critique that might have been proffered and explained were conspicuous by their absence. When I suggested to the editors of the law journal which published her essay and which is considered one of the more prestigious in the American legal academy as I have mentioned, they rejected my request to offer a reply. In short, it seemed that there was nothing more to say on the matter even though there was.
I know that there are law journals and reviews which will publish manuscripts that offer a pro-life or pro-traditional marriage perspective, just to mention two of the principal neuralgic issues of the day, but these periodicals, which I hasten to add provide a great service, are not considered “prestigious” because the law schools that sponsor them do not fall within the upper echelons of the U.S. News and World Report law school evaluations or similar surveys. But I wonder aloud whether these surveys do an effective job of evaluating with objectivity the nature of legal education today and what it is supposed to be about. The fact that a journal and its law school were once prestigious does not mean that this status will last forever. Moreover, as most law school faculties are pondering the future of legal education in this bleak period where the future of many law schools is a subject of question, shouldn’t the focus of their discussions concern the nature of legal education? It may be that the emphasis of these discussions is not on substance of legal education itself but on how to market a particular brand of legal education.
For those interested in Catholic legal theory and the education that is its natural companion, I suggest that this is a time of opportunity for those schools which are sincerely interested in their Catholic identity to consider the possibility that to be great institutions of legal education does not necessitate mimicry of institutions that were the prestigious institutions of the past.
The recent postings of Greg, John, and Mike demonstrate that if something is missing from legal scholarship and legal advocacy on the neuralgic issues of the day, there is likely something also missing from the education which these authors and practitioners have received. If nature abhors a vacuum, the time may well be now for those interested in Catholic legal theory and who teach at institutions which in some fashion rely on the moniker Catholic to ask the pressing question: what is missing from what we have to offer current and future students (without worrying about whether the “prestigious” institutions are doing the same). If some of us are willing to ask and respond to this question, we may not only be benefiting the institutions for which we labor but we could also be aiding our students—both existing and future, the profession, and the institution of the rule of law.
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