Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, May 12, 2014

Bailing out law schools…


Sunday’s print edition of the Boston Sunday Globe has an interesting article by Professor Paula Monopoli who teaches at the University of Maryland’s Carey School of Law. The complete essay is entitled “Bail out law schools, but only with strings attached.” The online edition of her essay is here. For readers of the Mirror of Justice, I point out that the print edition of this issue of the Globe has many challenging articles on the evolution and status of tertiary and post-tertiary education of the present age.

In commenting on the current state of legal education, Professor Monopoli opines that law schools as the one-time “cash cows” of many universities are now dependent on their mother institutions for economic survival. She notes, and I largely agree with her on this point, that the dramatic modifications of legal education over the last several decades which have moved from large classroom courses to small seminars and clinical instruction have clearly increased expenses. While I am not opposed to seminars and clinics, I do not think that large courses should have been dispensed with as they have been on many fronts in today’s legal education. Moreover, I think that there is a Catholic take on what legal education could and should still be doing that has an influence on the problems which Professor Monopoli brings to light.

First of all, many if not most law schools have abandoned the fundamental core curriculum of year-long 1L courses of property, contracts, torts, civil procedure, and Constitutional law or criminal law. Most have been abbreviated to semester-long courses. Considering the nature of the law and the time needed to think about the law’s essence—to say nothing of learning something about good legal reasoning—is much harder to do in the abbreviated courses. Similar things have happened to core courses in the second and third year which may be highly recommended today but not necessarily required.

I hasten to add here that I am not endorsing the traditional curricula simply because they were traditional. My endorsement of the traditional curricula goes deeper. No matter how bright, how eager, and how zealous to serve humanity, law students need both skills, intellectual development, and the cultivation of moral bearings that can come from a well-administered traditional legal education. To be called on at random in order to address issues and postulate about how far a judicial opinion, statute, or regulation can be interpreted is a life-long skill that was too easily and quickly dismissed. To do these things in front of one’s teacher and a class of a hundred, more or less, students was not intended to be a form of humiliation but, rather, a technique to explain and advocate a well, objectively reasoned principle that could serve the common good. Moreover, the fact that a student has already recited once does not mean that the same person won’t be called on again. In their practicing lives, lawyers must always be prepared to learn, think, explain, and serve.

Professor Monopoli says in her article a few words about the development of faculty, too. She opines that there is a need for something beyond the JD degree for a prospective law teacher. While she does not offer much detail in this regard nor does she mandate that all faculty must have a Ph.D., she argues that there is a need for some kind of increased intellectual development. In this context, she suggests the development of “academic research skills like empirical methods.” This or other work in “statistical analysis would add intellectual rigor.” These are particular ways of training legal academics, but I suggest that there are other important, perhaps even vital, formation attributes that she does not mention.

These would include faculty who are well-read in the history and philosophy of law. Why do we have laws for civil society? What should they be promulgated to do? Are they merely a means to control, or are they methods for bringing the indispensable order to the liberty we all desire? Too many lawyers, judges, legislators, administrators, and law faculty argue or suggest that law and morality are separate institutions. With this last proposition I disagree. The law is, first and last, a moral enterprise that helps people, in spite of their differences, to live harmoniously, peacefully, prudently, honestly, charitably, and fraternally. When the law, its making, its administration, and its adjudication do this, the common good is near.

Another challenge for legal education which claims to be Catholic is the pressing need to ask the big question of “what’s it all about?” By not being timid to raise this issue, teachers and students who will enter some aspect of the legal profession will realize that the human person has a destiny other than the secular good-life, nirvana-on-earth which is often the standard offering found in today’s legal academy. If this question is pursued with regularity, such a legal education would be worth offering and pursuing. If it is not, the attraction of going to law school becomes less evident and, therefore, less appealing in the present climate.

A lot more can and needs to be said about these and related matters, but I shall stop here for today.

Alas, the advance of my cancer has necessitated my departure from the post-tertiary education tasks of the work and duties of American and Catholic law school and the accompanying university life, but perhaps there are those who find merit in what I have said and are willing to give it another try. If they do, perchance there will be no need for bailing out their schools.


RJA sj



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