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Monday, February 24, 2014

American legal scholarship and legal education misconceived

Duke's Ralf Michaels has undertaken to celebrate Germany superiority in legal scholarship.  This is a peculiar venture, one that Rob Howse has skewered elsewhere on this blog, he focusing on the comparative aspects of the project.  This seems to me a good enough skewering, although I would have to leave to the experts in the comparative law & German elements to speak knowledably about Michaels' perspectives on this subject.  

Let me just say a few things about the depiction of contemporary American legal scholarship. 

Here, says Michaels, "faith in legal doctrine as a sufficiently exact tool to deal with social issues has been destroyed."  ???!!!  I suppose one can say that everything is embedded in the meaning of "succiently exact."  Here, as elsewhere, law in action is seen as a necessary supplement to law in books.  Legal doctrine doesn't enforce itself; the social elements of doctrine in, at the very least, framing fundamentally matters of implementation and administration of public policy are well understood.  This is not about the "here," after all. Max Weber understood this.  So did William Blackstone.  So, who does Michaels imagine believes that doctrine is sufficient or is exact?

The notion that American legal scholarship does not include foci in earnest on doctrine, its content and shape, is naive.  The work of the American Law Institute, on whose council I am proud and privileged to serve, illustrates powerfully the enduring contributions of essentially doctrinal work.  And the connection between doctrinal exegesis and analysis and social advancement has been embedded in the work of the ALI for decades.  Such work thrives in American law schools as well, as does interdisciplinary work of the highest order.

But here is where Michaels' essay takes a peculiar turn.  Here is what he says by way of framing the current critique of American legal education:

"The consumer model of legal education requires, ultimately, that law students are taught nothing other than skills. Doctrine itself has only instrumental value for students, but importantly, “mere doctrine” has no scholarly value for academics. The consequence for scholarship may be dire: interdisciplinary scholarship may decline, but doctrinal scholarship cannot take its place because academic understanding of doctrine has been thoroughly discarded."

The dots Michaels wants to connect are these:  American legal education is attacked because it is insufficiently skill-centered; law schools cannot advance skills-training under extant economic models; they have, as the only alternative, relentless interdisciplinary scholarship; attention to doctrine is impossible because it has been "descredited;"  Germans have figured this out and thus the future of German law schools is comparatively rosy.

This narrative is highly problematic.  Skills training is largely a product of American legal educators, especially clinicians, who have developed curricula and deployed resources to the salutary aim of improving the practical skills of (post-graduate) law students.  To be sure, this development is resource intensive and is challenging in the current environment in which costs of legal education loom large.  But the notion that this can be recast as a struggle between public and private modalities of financing education is seriously flawed.  With the public subsidy of European law schools, where is the attention to the sort of skills training and public service initiatives within law schools that would, presumably, advance salutary public purposes?

Moreover, the notion that American law schools will move further away from "discreted" doctrine in order to maintain their death grip on interdisciplinarity as an educational luxury in trying times seems patently absurd.  American law schools, highly imperfect and under serious strain, could be expected to adapt to currents of both legal pedagogy and legal scholarship, currents which see doctrine as a coherent and necessary element of advanced legal education and advancing professional competence.    Interdisciplinary legal scholarship need not and will not be abandoned in this quest.  Indeed, the building of bridges between law and other disciplines is a result (and not uniquely an American one) of an appreciation for the interconnectedness of academic explorations and the imperatives of solving society's central problems through combined, intersecting modalities of scholarship and knowledge.  I would have thought that Ralf Michaels, surely a scholar understanding the German conributions to the origins of the modern University, would appreciate this especially.

Michaels concludes:

"[T]he ABA report suggests that our culture of scholarship and education is untenable and must be, essentially, discarded. I hope they are wrong."

Two things wrong with this penultimate statement:  First, the so-called "culture of scholarship and education" is here misunderstood.  American law schools pursue scholarship in order to advance key purposes, including elucidating doctrine, bringing to bear insights and expertise from other disciplines in order to illuminate legal issues and ground public policy, and in order to advocate on behalf of central societal goals and initiatives.  Moreover, the best evidence -- along with a century-plus worth of experience -- suggests that American legal education, for all its flaws, does an admirable job at these ambitious ends.  Second, there is precious little reason to believe that Ralf Michaels "hope[s] they are wrong."  His essay advocates for a contrast that does not exist and an appeal for German superiority that is misguided.  Whatever the essay's merits as a depiction of contemporary German legal scholarship, is deeply flawed as it pertains to American legal scholarship and the nexus between such scholarship and trends in contemporary legal education in the U.S.

 

Posted by Dan Rodriguez on February 24, 2014 at 04:15 PM in Legal Theory, Life of Law Schools | Permalink

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