“All sentiment is right; because sentiment has a reference to nothing beyond itself, and is always real, wherever a man is conscious of it. But all determinations of the understanding are not right; because they have a reference to something beyond themselves, to wit, real matter of fact; and are not always conformable to that standard.” – David Hume, Of the Standard of Taste and Other Essays
Two news stories have made many law professors eager to step into the public domain as self-proclaimed experts and provide guidance to the public: Supreme Court judgments they deem unfavorable, or even illegitimate, and the government’s case against a former U.S. president. In response to the latter story, many law professors have decided to become effective members of the prosecution and publish what amount to amicus curiae (“friend of the court”) briefs in major media outlets. This behavior prejudices any trial, distorts public opinion, and emboldens partisan judges, especially when law professors from the “elite” law schools like Yale and Harvard (where eight out of nine Supreme Court Justices are alumnae) fancy themselves a private back channel to the judiciary. It also violates the American Bar Association’s (ABA) Model Rules of Professional Conduct.
In both these instances, and many others, a number of law professors—especially from Harvard, Yale, Chicago, Stanford, NYU, and Berkeley—have arguably made a self-incriminating case against their professorship status, and against what authority they may have from the ABA.
Some readers may think that this is just more of the same. The academy is overwhelmingly liberal and progressive—so what? Others, particularly faculty and administrators, may think it is merely an exercise of academic freedom. In law schools, however, there are complications, and even regulations, that extend far beyond those in the rest of the university system. Consequently, such behavior by law school faculty must be stopped.
This is for two primary reasons: it undermines the core principle of legal objectivity, and, perhaps more importantly, it contaminates the standards of legal education, including the kind of role model that law professors will be for their students.1
The way in which many law professors have indulged their partisan passions—and have demonstrated intellectual confusion—in the pages of mass media, and in classrooms, constitutes a fundamental professional failure in their obligation known as “higher duty.”
What does higher duty mean? The ABA spells it out in the preamble to its Model Rules of Professional Conduct.2 These rules must be front and center for both lawyers and law professors. Unfortunately, there is a conflict of interest because the ABA issues rules, licenses lawyers and judges, and regulates law schools, but it also acts as its own policeman. This often results in the Model Rules being treated with a wink and a nod by members of the Bar and law school professors, because the very nature of how law is taught creates a culture where “working around” all the rules, as if they were potential roadblocks, and finding “exceptions” to legal interpretations are thought to demonstrate clever reasoning and rhetoric. But do they really?
[Related: “Law School Rankings and the Science of Belief”]
Many partisan and highly selective guest essays that can be read in the pages of the New York Times—by law professors from such institutions as Yale, Harvard, Chicago, NYU, Columbia, Berkeley, Georgetown, and others—act as if outright misdirection and misrepresentation, combined with mere opinion, somehow stand as law. They do not. Law professors should know better; many do, but an effective league of activist, “elite” law schools somehow thinks that it is entitled, or even called upon, to advance various “expert” interpretations of political events that are presumed authoritative. But is a law professor actually an expert?3
A law professor’s primary area of expertise should be teaching. Teaching is a profession that demands maturity and self-discipline—this includes knowing when to refrain from inserting oneself into non-university controversy that falls outside strictly academic work. Nobel Prize–winning economist George J. Stigler made it clear: “Professors believe they should be free to express their opinions and free of penalties for themselves and their institutions. That is asking quite a lot. If we could decrease our entanglement in contemporary policy issues, whether by anonymity or self-discipline, we would not invite the often-correct suspicion that professional knowledge was being used for partisan purposes.”4
As so many American law professors lean on “academic freedom” to justify their personal forays into political opinion, they call into question whether they are actually law teachers, and whether their institutions are actually law schools. Further, nearly all law school media statements by faculty come from the academic side of the school, from full-time tenured or tenure-track careerists, and not from the lecturers, clinical professors, and various adjuncts. Why is that? Because the non-academics are almost always practicing attorneys or current and former judges. They generally know better than to compromise themselves professionally and take sides in a law school setting.
This raises a larger question concerning university mismanagement. Saul Bellow, in his introduction to Allan Bloom’s The Closing of the American Mind, discussed what he called the “backflow” of society—namely, all its arguments, contentions, and divisions—which he thought must be kept off campus, as far as is possible, so that students can concentrate on developing discipline, including their own powers of mind.
So, what has led to the degradation of our law schools? I offer five causes:
First, hiring. The liberal wing of the law academy has become too influential in operations, hiring, committees, and instruction. Ironically, there is very little “diversity” in law school faculty and administration, and even the few conservative-minded scholars who do exist are either overpowered by the majority or intimidated into silence.
Second, law students. Many law students are already ideologically biased when they matriculate, and they see law school as a way to act out their ideals. Many students shouldn’t be in law school, but between the faculty, administration, and students, an enormous, self-replicating bias escalation reinforces progressive ideology in the culture of the school.
[Related: “What They Don’t Teach You at Harvard Law School”]
Third, the larger university system, particularly its vulnerability to political influence and its eagerness to comply with federal interests in exchange for money, accreditation, and favors.
Fourth, the ABA. The ABA is a monopoly trade group that has been politically infiltrated to the same degree as universities and their law schools. Like the contention over “accreditation,” the ABA’s oversight and regulatory role does not improve the quality of legal education.
Fifth, a lack of leadership. Just what kind of leadership? Law school problems are ultimately industrial organization problems. As when companies get “fat, dumb, and lazy,” the best remedy for law schools is a hostile takeover by outside interests that forces structural changes in operations, costs, and product quality.
If it were an actual business, the modern law school would be bankrupt and subject to restructuring. It would especially be subject to outside management that isn’t tied to old ways of doing business and that brings modern management methods to the organization. And what are those methods? They include the measurement of asset productivity. Law schools, like universities, are among the most wasteful organizations in the service sector. Most university buildings are empty at least half the time, while labor productivity lags behind even threshold industrial benchmarks. This doesn’t mean that higher education is a commercial industry per se, but it also doesn’t mean that the academy can hide behind the privilege of being exempt from efficiency merely because “learning” is involved, or because professors need to do “research” (in law, there is no such thing).
All the baggage of law school culture—tenure, sabbaticals, summers off, light teaching loads, university-subsidized consulting, political activism, paid government service leave, and more—will ultimately be dismantled as the gap between law school operating costs and revenue widens further. Alternatives, including fast-track foreign undergraduate law programs, will wedge American law schools out of an industry that is already rapidly changing due to technological advances and process displacement. Larger macroeconomic effects, including price inflation, will take care of the rest.
1 Association of American Law Schools (AALS) Statement on Law Professors in the Discharge of Ethical and Professional Responsibilities: “American law professors typically are members of two professions and need to comply with the requirements and standards of both. Law professors who practice law are subject to the law of professional ethics in force in the jurisdictions in which they are licensed to practice. In addition, as members of the teaching profession, all law faculty members are subject to the regulations of the institutions at which they teach and to professional guidelines that are more generally applicable, such as the Statement of Professional Ethics of the American Association of University Professors. This Statement does not diminish the significance of these other sources of ethical and professional conduct. Instead, it is intended to provide general guidance to law professors concerning ethical and professional standards because of the intrinsic importance of those standards and because law professors serve as important role models for law students” (emphasis mine).
2 “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.”
3 Some of this problem can be attributed to marketing, in that law schools feel compelled to compete with each other. By showcasing their opinions in major media outlets, they are deemed by law school applicants, and their peers who rank them, as authoritative. I would argue, as Nobel Prize–winning economist George J. Stigler did, that restraint is often a better marker of academic competence.
4 George J. Stigler, economist, University of Chicago, Academic Freedom and Responsibility.
Image: Wikimedia Commons, Creative Commons Attribution-Share Alike 3.0 Unported license
In re, John Wilson, 8.11
I always admired your devotion to free speech, John, which might be called absolute or libertarian. Your comment, however, does not directly engage my argument or its implications. It challenges views I do not have about subjects I did not discuss.
The essay is not calling for self-censorship but rather self-discipline. It does not make a case for “suppression” of speech, or a speech right, but rather for speech leadership that provides an important model for law students: a global right in speech may exist but that right must be balanced with specific obligation, duty or guidelines for professionals conveying legal principles in a law school setting. That obligation is subject to free choice, but not a free lunch, as Stigler pointed out.
You object to the language “must be stopped” but you assume it means by external force; it rather stems from professionalism and self-control. Such discretionary control does not vacate a speech right but is merely one manifestation of it.
Faculty self-discipline serves the rights of the student—their right to free thought and self-learning, outside faculty ideological influence, which can itself be a form of suppression given the institutional setting in which students weigh obedience and cooperation. Faculty free speech right is not extinguished or suppressed merely because it is subject to selective judgement or self-discipline. Indeed, that may make it more powerful.
Free speech rights otherwise function bilaterally. Your position seems a unilateral, absolute academy speech privilege, which it cannot be, by definition. Bilateralism is otherwise the basis of the University of Chicago’s Article 21 and Principles. Regards.
“One can make a good argument that the entire bar licensing system exists not to produce quality lawyers, but to (a) place barriers on entry to the market of practicing attorneys, thus limiting the supply of attorneys in order to maximize income of existing practitioners”
That was the explicit intent of the ABA at the turn of the 20th Century…..
“Alternatives, including fast-track foreign undergraduate law programs, will wedge American law schools out of an industry that is already rapidly changing due to technological advances and process displacement. Larger macroeconomic effects, including price inflation, will take care of the rest.”
Sadly, this will not happen until the ABA’s monopoly is crushed — the ABA was founded at the turn of the 20th Century with the explicit purpose of reducing the number of lawyers so as to increase the earnings of the legal profession.
While they are not as cheap as they were thirty years ago, particularly now with the foreign student surcharge, Canadian law schools are still half to a third the price of American law schools. The only problem is that in order to take the bar exam, one must have graduated from an ABA-approved law school, which neither the Canadian schools nor the foreign undergraduate schools are.
I like to ask what law school John Marshall attended. Or John Adams or Abraham Lincoln or any of the great legal minds of the 19th and early 20th Centuries…
As late as 1954, there was a Supreme Court Justice who hadn’t graduated from law school — Robert H. Jackson served from 1941 to 1954, having previously served as both United States Solicitor General and United States Attorney General, and was also the Chief US Prosecutor at the Nuremberg trials. He didn’t need a law school degree to do any of this, and I argue that one doesn’t need a law school degree today, either — particularly when one looks at how biased the law school curriculum has become.
What we need to do — what Red State legislatures need to do — is permit *anyone* to take the bar exam. Let anyone take it and let anyone who has the knowledge to pass it practice law. That’s the only thing that is going to solve this mess.
And as to the ABA, one of their criteria for accreditation is the number of books in the law school’s library. Not law books but books about law — which no one is ever going to read, but which support the leftist professors who write them. The whole thing is a racket, a textbook monopoly, and letting anyone take the bar exam would end it all…
” Most university buildings are empty at least half the time”
I don’t defend higher education often, but that (a) isn’t quite true and (b) it’s actually cheaper to have them empty in the summertime.
First, the buildings are used a lot more in the summer than you might think. In addition to summer session classes, it’s when graduate students do most of their own schoolwork/research as they are teaching during the school year. There are a lot of enrichment programs for high school students, and a lot of new student orientations, along with sports camps and the like.
Notwithstanding this, having many of them empty really isn’t as much a waste as one might think because most campi are built with centralized utilities that are either not redundant (i.e. one steam plant) and/or are daisy-chained in a manner where you have to shut off all the buildings *beyond* the one you want to shut off. What a lot of people don’t realize is that steam is used for air conditioning as well as heat & hot water — and as to electricity, water and sewerage, yea, you kinda need it if you are going to be using the buildings.
Most steam plants have more than one boiler so they can (and do) shut individual ones down for maintenance (or when not needed) but the distribution lines aren’t redundant and as they are operating at 300 degrees (Fahrenheit), the pipes have to cool down before the guys can work on them. So you might have to shut off half the campus for much of the day just to replace one valve which would be a 30 minute job. Likewise if you wish to replace a transformer, it is only 13,600 volts (8,700 volts to ground) so of course you want to shut everything off before you start.
Ideally you schedule all of this stuff for a section of campus and shut off everything for a month and give the jobs to contractors who bid for them last winter. You can’t do this if the buildings are occupied.
And if a leaking steam pipe has compromised the insulation on your buried electric lines (I’ve seen it happen), you are looking at several weeks of work as one trade has to finish before the other can start. Yes, you can bring in a portable boiler (they are expensive, loud, and often unreliable) and you can install telephone poles and string temporary wiring to the building(s) — but it’s a whole lot cheaper just to have them empty…
It’s also a lot more efficient to clean an entire building at once, do all the floors at the same time, stack all the furniture in the hallways which you never could do if the buildings were occupied, etc. You do your paving projects when your parking lots are empty and no one is going to complain about the dust & noise. Likewise everything else that makes lots of noise or disrupts things.
Another factor is that academic buildings tend to be old — the historic ones from the 19th Century will last forever, but have *lots* of problems, things that can’t be fixed when classes are in session. Then as higher ed expanded in the 1960s, they built a lot of buildings with a 30-40 year life expectancy as they were tearing down smaller WPA buildings that had been built 30 years earlier — a lot of the summer work involves renovating and often essentially rebuilding these buildings.
Go to any campus a month before school opens and you will see organized chaos, folks working 12-14 hour days as they rush to get everything done by “opening.” Is it well managed and efficient? — no, but that is a fight with the unions, and management, and a whole other story.
It’s just that it really is cheaper to have the buildings empty in the summer, it really is….
It’s shocking that anyone thinks law professors “must be stopped” from commenting on Supreme Court decisions. Aside from the fact that law professors in this field are, in fact, often experts on the Supreme Court, everyone in a free society should be free to criticize the government, including judges. There is absolutely no professional obligation to the profession, students, or the public for self-censorship on this topic. To the contrary, demanding that professors “must be stopped” from having free speech is the unethical position to take.
The mental health profession has the so-called “Goldwater Rule” which was necessitated by members of the profession pontificating that Goldwater was mentally ill during his 1964 campaign for President. It was politically motivated, everyone knew it as the same things could have been said about Lyndon Johnson, and it was established that this demeaned the profession.
So too here. The problem with Robert Bork, other than people disagreeing with him, is that he lacked “judicial temperament.” Judges should NOT comment on legal matters and this is part of the argument against popular election of judges, which some states have.
As to law professors — a balanced debate between professors of differing political perspectives would be valuable — it’s what law review articles initially were. The problem is that there aren’t any law professors to the political right of Vladimir Lenin….
So if we had true diversity in law schools — if, perish the thought, we had a true balance between the far left and the far right — it’d be quite entertaining to have law professors pontificating on political trials. We’d not only have the current “Jail Trump” but “Jail Merritt Garland” along with arguments for the incarceration of the entire Biden, Obama, and Clinton families. All of this would be countered by other law professors pointing out the holes in the logic for each argument, and if it could be kept on a level above “your mother wears Army boots”, there would be a benefit to the profession.
But the problem is that the legal profession has swung way to the left of society…
Experts in what sense? They are rarely attorneys who actually PRACTICE before the Supreme Court. Maybe they are experts in the same sense most English professors are “experts” – they criticize others, but are not in fact themselves involved in actually producing product in their field. Law professors, like English professors, are a prime example of Shaw’s aphorism that “Those who can, do. Those who can’t, teach.”
To some extent, it is a widespread issue in ALL of academia. When I was a public health policy and management professor at Purdue, I was CRITICIZED by colleagues because my research was carried out in collaboration with agencies who approached me to help them with real-world problems: skill gaps between rural and urban emergency medical staff, developing guidance for healthcare surge capacity for respiratory epidemics, working with DoD on guidelines for humanitarian and medical civil affairs threads of stability operations, etc. Many of us in the new program were typical for our field – mid-career PhD grads with experience in managing and implementing programs in public health agencies. Such experience was completely dismissed by the powers that be in the department – my chair called me ‘a young guy just starting his career” at a time when I had 20 years experience in the field, more than some of the tenured FULL professors – the experience did not count, because it was not in the Ivory Towers. Likewise, while a PhD student at Minnesota, I overheard two chemical engineering faculty members discussing a candidate in the hallways while I was waiting for a statistics class to begin. One wondered what was wrong with the candidate, who had numerous publications and patents, because he had gone t work in industrial research instead of academia after finishing his doctorate.
That attitude is the problem with law schools. Few of the faculty have a connection with the actual practice of law and thus a real feel for what the law actually is in the real world outside of law review articles. Honestly, you could produce just as high a quality of attorney with a one-year program including a summer semester – the elective courses often have no connection with the needs or experience of a successful practicing attorney. Those courses often tend, however, to be the ones taught primarily by the tenure track faculty. One can make a good argument that the entire bar licensing system exists not to produce quality lawyers, but to (a) place barriers on entry to the market of practicing attorneys, thus limiting the supply of attorneys in order to maximize income of existing practitioners and (b) to justify sinecures for law professors better suited to criticizing than practicing law. An apprenticeship program where potential lawyers “read the law” while working as paralegals with practicing attorneys could potentially produce attorneys as qualified to practice law as the law schools – but as in any profession, academic faculty have the time and leisure to dominate professional organizations, and unwisely our system tends to delegate to the ABA and affiliates the determination of how one can enter the market for the profession.