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Wednesday, February 22, 2012

Stanley Fish, "Failing Law Schools", and Institutional Pluralism

Here, in the New York Times.  Fish writes that "Tamanaha’s analysis pretty much tracks [David] Segal’s, but his book is more ambitious in its scope and puts statistical flesh on the bones of Segal’s polemic."  I'd be surprised, given what I've read from Brian, if the book really track's Segal's pieces, which I thought were burdened by the tired "law schools focus too much on theory instead of teaching really useful things, like _____" critique.  But, it seems to me that both Fish and Brian are spot-on in directing heavy criticism at the role played in legal education by the ABA and U.S. News (and on how these entities perform that role). 

This caught my attention:

And the solution? In a word, differentiation. Don’t let the A.B.A. and U.S. News call the tune. Instead, take a good look at the educational landscape, at the market, at the costs, at the demographics and come up with a flexible system that matches law school graduates to needs: “Research oriented schools will remain as they are. Practice-oriented schools will be staffed by experienced lawyers; … research institutions will be staffed by scholars mainly engaged in research; other schools will be staffed by both types.” Different strokes for different folks.

This strikes me as a good and important point, but maybe we can (channeling Paul Horwitz?) push the point further:  Not only the ABA, but also the AALS and the academy generally, should welcome and encourage what John Garvey a few years ago called "institutional pluralism" in legal education.  This would involve, among other things, appreciating the role and purpose of distinctively religious law schools.  A few years ago, Madisonian.net hosted a forum on law schools, and I contributed this post, also on "institutional pluralism":

. . . this might not be the forum for thinking-out-loud about what a “Catholic law school” should be, what precisely should be its distinguishing features, etc.  In my view, the project of building such a law school — an engaged, open, critical, and distinctively Catholic law school — is not an exercise in nostalgia, reaction, or retrieval.  The project is, in my view, a new one.

It’s also, I think, an exciting and worthy one, and I’m inclined to think that it should be regarded as such by the legal academy generally, not just by co-religionists and the like.   It is not just “not a bad thing”, it is a good thing, that there be distinctive law schools.  Our commitments to diversity need not, and should not, lead us to insist on homogenization at the level of institutions.  Quite the contrary — the same commitments that push us to respect and learn from diversity in many academic settings might also push us — and the AALS, and the ABA — to stay our hand from requiring that each institution look and act in precisely the same way.

Garvey fleshes out a number of reasons — reasons that I find persuasive — why we might think that institutional pluralism in the academy is a good thing.   It seems to me that we ought not to resist, but instead should welcome, not only law schools that have focused on serving underserved populations, or law schools with a particular strength in a specific subject-matter area (for example, Lewis & Clark in environmental law), or even law schools with a particular animating point-of-view (Law & Economics at George Mason?), but also law schools that are distinctive in being meaningfully animated by a shared — even if contested — religious tradition.

 

Posted by Rick Garnett on February 22, 2012 at 10:30 AM in Rick Garnett | Permalink

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And what degree would people trained at "Catholic Law Schools" earn? What title would they have, and how would they be licensed? Certainly, they can't be called lawyers, as that would be deceptive to the public and undermine the purpose for their distinctive education. Would there be special Catholic courts in which they would practice? Would they hold Catholic depositions, or defend against Catholic accusations?

Don't leave us hanging with only half an epiphany.

Posted by: shg | Feb 22, 2012 11:24:34 AM

Play "Go Fish" with Stanley and he comes up with feelings for Pat Buchanan, which makes it difficult to take Stanley seriously on a serious issue.

Posted by: Shag from Brookline | Feb 22, 2012 8:55:26 PM

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