“If a belief guides practical actions, it works best if it is true, but if a ‘belief’ defines a group identity then it can still work, or even work better, if it is not true.” – Neil Van Leeuwen, “The Puzzle of Belief,” Cognitive Science Vol. 47 (2023)
The comments and reactions to a recent essay, “,” were more revealing about the nature of law school culture than I had originally assumed. I proposed that the traditional methods of assessing university law school programs are not only limited but are also misleading. I discussed a new set of filters including, first, a larger geographical ranking, followed by regional U.S. characteristics that affect legal teaching, and a “corruption” filter that assesses law schools according to their ability to resist political conflicts of interest, administrative cost escalation, and violations of neutral principles in how legal doctrine is presented to students, among other institutional factors.
I then created a new ranking of U.S. law schools that are making some progress in shortening the length of the degree (some are offering a two-year J.D. and blended synchronous–digital delivery) and using more consistent managerial methods regarding teaching standards, student trade preparation, and curriculum experimentation. Such experimentation includes mixed-degree programs in the arts and sciences, as well as applications of law in areas where programs have some natural advantage (such as the University of Montana in natural resources, the University of Illinois in engineering, the University of California, Los Angeles in media, or Texas A&M University in agriculture). One law school, St. Mary’s in San Antonio, Texas, recently became the first U.S. law school to offer a traditional, ABA-approved J.D. degree fully online in an efficient format that combines synchronous and asynchronous instruction, but that is also fully integrated with open access to all campus programs, faculty, and assets.
But something else became evident among many other law schools that have been in the shadows of the “elite” schools for decades: they seem to actually enjoy it, to prefer it, or, at least, to tolerate it. That seems counterintuitive until you start to unpack what motivations underlie many law school deans, and their larger university administration and faculty, including what conflicts of interest either keep their competitive instincts in check or purchase their obedience to the status quo: An unusual number of law school administrators graduated from Yale and Harvard Law, and this affiliation tends to overwhelm their allegiance to their own institutions.1 This helps consolidate traditional ranking hierarchy that is ordered around a small set of “elite” law schools, because elitism is believed to be a central element of prestige, and higher education markets itself on this metric, above all others.
So, it probably shouldn’t be surprising that some of the feedback I received viewed my re-ordering of the law school “caste system” as heretical, irreverent, or just plain incongruous, as it leads to a fundamental cognitive dissonance among many members of the law academy. (As one law dean put it, “If Yale or Harvard were suddenly re-ranked much lower, it couldn’t be legitimate.” He didn’t explain why.) The new ranking method that I proposed also came from “the outside.” It was not from the U.S. News & World Report, which is embedded in the legal scholar’s mind as a totem—that rank must be set on the visible altar of mainstream ritual, and that means a comforting consensus (which is also palatable to the academy’s collective political mind). It also shouldn’t be surprising to see some resistance to a belief system about law rankings, because the entire intellectual realm of law itself is organized into beliefs.2
There was something else that caught my attention, which I didn’t explicitly consider before: the entire U.S. legal academy, and not just its administration, is effectively “infiltrated” by law professors who either attended one or more of the “elite” law schools, especially Yale and Harvard, or who still aspire to have some affiliation with them as a visiting lecturer, to publish through them, or to hire their graduates so as to showcase “prestige” in their otherwise isolated regions of the country. This creates a systematic “incumbency advantage” that makes it difficult for the legal academy to switch or change its consensus viewpoints and take reputational risks by re-ordering the ranking hierarchy. In business it used to be said that “nobody gets fired for hiring IBM.” Law schools, likewise, are corporations—corporate culture dominates their behavior.
It is quite startling to measure the of law school deans and professors who went to Yale, for example.3 The deans, especially, reinforce solidarity with their . And if it isn’t Yale Law, then the other “elite” schools are often compared to them. Unfortunately, a reverential obedience to cultural consensus is precisely what the modern law academy transmits to each and every new cohort that comes through its doors—while often filling the young law school student’s mind with an effective ideological nihilism concerning , the Constitution, or any social practices and preferences that it considers a source of social injustice, including law and order.
Yale and Harvard cast a long shadow across America (the Coasian “smokestack” problem that I discuss ), not only among the academy but also in popular culture. They are a national brand mark of prestige that most institutions are desperate to claim. Like other manifestations of belief, however, they can have a deleterious influence on clear thought, and a corrupting influence on a larger American culture of mature defiance, reasoned perception, and individualism. Yale, especially, is the modern central symbol of progressive moralism that will bend with the political breeze into any shape necessary.4 This is among the reasons why Robert Bork, in his brilliant The Tempting of America: The Political Seduction of the Law, warned us of an intellectual surrender to ideological beliefs. Our elite law schools, including Berkeley, Stanford, Chicago, and NYU, are as much as they are schools that transmit basic legal information.
This means that law’s most central asset—its most vital quality that reinforces its integrity as a human social system—is objectivity. And in the modern American law school that trains our future lawyers, legislators, judges, and legal administrators, the political distortions that students have often been subjected to for seven or more years in a U.S. university law program (undergrad and graduate school) make that necessary objectivity a more distant ideal. Objectivity and neutrality are not phenomena that are consonant with belief, except to the extent that belief is a , and not a cause.
But here is the problem: the law academy has so co-mingled and corrupted law with ideology that it is assumed that legal matters are per se political, that they cannot even be defined, framed, and resolved except through a political prism, and that politics cannot be pursued .
We assume this is all OK, that it is merely the status quo, the natural way, even, by which law is reckoned. But the law school industry has gotten away with a terrible fraud, namely, that legal problems are intrinsically embedded in value philosophy. What it doesn’t want to admit, or bother to separate, is that social, political, moral, or ideological issues are indeed vital to wrestle with, but law, defined as law, is a totally separate issue.5 To act otherwise is intellectual dishonesty, and worse, intellectual corruption, especially as it influences legal pedagogy.
Law training’s highest learning objective is to promote intellectual independence, not beliefs through which law is operationalized or perpetuated.
1 See Bryant G. Garth, “Having it Both Ways. The Challenge of Legal Education Innovation and Reform at UCI and Elsewhere: Against the Grain and/or Aspiring to Be Elite,” UC Irvine Law Review 10, no. 0 (2020): 373.
2 See Gerald B. Wetlaufer, “Systems of Belief in Modern American Law: A View From Century’s End.” American University Law Review 49, no. 1 (October 1999): 49–80.
3 See Pierre Schlag, “The Empty Circles of Liberal Justification,” Michigan Law Review 96, no. 1 (1997).
4 See Neil Van Leeuwen, Kara Weisman, and Tanya Marie Luhrmann, “To Believe Is Not to Think: A Cross-Cultural Finding,” Open Mind: Discoveries in Cognitive Science 5 (September 2021): 91–99.
5 “The Pure Theory of Law undertakes to delimit the cognition of law against [other] disciplines, not because it ignores or denies the connection, but because it wishes to avoid the uncritical mixture of methodologically different disciplines (methodological syncretism) which obscure the essence of the science of law and obliterates the limits imposed upon it by the nature of its subject matter.” – Hans Kelsen, Pure Theory of Law, (Berkeley: University of California Press, 1967).
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