Saturday, April 30, 2005
Back in January, several participants on MOJ began a thread which took up the question of what it means to be a Catholic law school. I very much wanted to participate in the discussion at the time but resisted doing so because I knew that I had an article coming out on the subject in the very near future. I thought that it didn’t make any sense to simply repeat on the blog what I was about to say in print. Recently, and perhaps providentially, a new but related thread has begun on the blog which discusses the place of a law school in a Catholic university, just as my article has come to print. I have collected the posts from these threads in a file Download catholic_legal_education.doc .
The article is entitled “Justice and Jesuit Education: A Critique” and it appears in the right column of MOJ under my name. The piece is part of special faculty symposium issue of the Loyola University Chicago
In the piece I note that Jesuit law schools seek to distinguish themselves from other schools by defining their special mission as “the promotion of justice.” References to this goal and the related goal of forming “men and women for others” litter the mission statements and other self-descriptions of these institutions.
The problem is that these schools almost invariably point to the clinical opportunities that they make available to students as proof of their commitment to justice and the fulfillment of their mission. As I understand it, clinical legal education is a necessary component of Jesuit identity, but not a sufficient one. Clinical education is in many ways peripheral to the academic enterprise. At most, only one of every three law students goes through some sort of clinical program, thus it cannot be the means whereby justice is promoted throughout the student body. Further, if clinical education is the defining feature of Jesuit legal education, then the identity of Jesuit law schools is in no way distinctive since every law school in the country offers some such program, and indeed, many secular schools are superior to their Jesuit counterparts in the clinical opportunities they afford to students.
Moreover, I argue, that to the extent that students do learn about justice in clinical settings they learn that justice is something to be felt and intuited rather than something which can be thought and reasoned and argued about. They learn either that justice is an emotional response to a set of facts or a collection of ad hoc preferences in favor of this case or that. Thus, judged by the very criteria for Jesuit identity that Jesuits set for themselves, Jesuit legal education must be judged a failure, not as legal education but as Jesuit education.
In its place, I argue that the one essential, non-negotiable feature that a Catholic and Jesuit law school must have in order to be deserving of the name is to bring the Catholic intellectual tradition to bear on questions of law and justice. This must be done both in the classroom through the law school’s curriculum and in the research and other intellectual work supported by the school. A law school is, after all, part of a university, and a university is an intellectual enterprise. Every academic unit which makes up the university must contribute to this enterprise through its particular discipline.
In this regard, it was surprising for me to learn in reviewing the curricular requirements for each of the country’s fourteen Jesuit sponsored law schools that none of them require a course in jurisprudence. Indeed, it is entirely possible for a student to graduate from a Jesuit law school without ever having thought seriously about the nature of justice and its meaning. One might argue that a thorough and rigorous encounter with these questions can take place even absent such a course, but such a claim strikes me as disingenuous: Like those law schools who claim that teaching a course in legal ethics is unnecessary because students learn legal ethics through the “pervasive method,” being exposed to it in every substantive course offered by the school.
Even better, I would suggest that we ask our students what their experience of Jesuit legal education has been and the role that serious discussions about the nature of justice has played in that experience. From my own experience, I strongly suspect that the answer will not be what the authors of Jesuit law school promotional literature want to hear.
I would, however, enjoy hearing from you what you think about the article.