When William Rainey Harper, president of the University of Chicago, proposed to add a law school to the new university in 1902, he entrusted the project to Ernst Freund, a political-science professor, former practicing lawyer and well-known expert on police power and the free-speech rights of dissidents.
Freund argued that law students shouldn’t simply learn practical strategies (as in the old days when law was taught by apprenticeship) and the technical rules known as “black letter law.” Rather, they should have an education that also included economics, sociology, political theory and philosophy.
When Harper asked whether this curriculum wasn’t better suited to a “research department of jurisprudence” rather than to the worldly practitioner, Freund said absolutely not. Practitioners will go out into a society where all is not well, and they had better be equipped to think broadly, critically and independently about it. Otherwise, they would simply be tools in the hands of powerful interests, Freund said.
His vision of legal education gradually won out. Once Chicago was an outlier; now it is just one example of the dominant idea of legal education. Today, in addition to basic law subjects and a variety of practice-oriented courses, law students learn to see society through the lens of the social sciences and the humanities, primarily in elective courses taken during the second and third years.
Now that vision is under attack. What’s in the air -- among prominent legal educators and in numerous law schools around the country -- is the idea that the U.S. can’t afford the old three-year curriculum with its elective courses and interdisciplinary focus.
As the American Bar Association reassesses the nature of legal education, many are calling for drastic changes in the way lawyers are trained. One argument is that we need to offer a stripped-down, two-year degree aimed narrowly at legal practice. This would eliminate what Daniel B. Rodriguez, dean of the Northwestern University law school, and Samuel Estreicher, a New York University law-school professor, amazingly have called “the third year, those famous semesters in which, as the saying goes, law schools ‘bore you to death.’” Arizona recently became the first state to allow students to take the bar exam during their third year.
Electives typically are taken in the second and third years. Given the general courses that an accredited legal education must include, dropping the third year offers no time for interdisciplinary electives. The new wisdom is that this would be no loss. NYU has already made a third academic year optional, allowing students to substitute practical apprenticeships or foreign study for what they call a mere “hodgepodge of electives.” Well-known legal commentator David Lat has called for a return to the old apprenticeship model after the second year.
This zeal for change is inspired partly by rising fears about costs and student debt, a legitimate concern exacerbated by the shrinking market for law-school graduates. Part of the debt problem isn’t the fault of law schools: The cost of undergraduate education, particularly at state institutions, has risen rapidly. Students arrive at law school already shackled by debt in a way that rarely happened previously.
Because a law degree was thought to lead immediately to a remunerative career, law schools have been slow to make the commitment to financial aid that undergraduate institutions typically aspire to make. For some years, loan forgiveness and outright scholarships have helped law students who elect a career in public service. But other aid was largely absent until very recently.
All that is changing; law school deans today work hard (and often successfully) to raise money for scholarship aid. We believe the reason there is no trend toward a three-year undergraduate degree is that wise administrators have long been aware of the problem of cost and are addressing it creatively through aid. Law schools are behind the curve, and they must catch up, rather than diluting the quality of the education they offer.
That conclusion assumes the traditional model has merit, and it is this idea that the critics have challenged. Denigration of the third year is caused not only by economic panic, but also by a forgetfulness of Freund’s idea of a legal practice deepened, enriched and made independent of social control by the scientific study of society, or as Harper said, “the whole field of man as a social being.”
The general idea of the Freund model is that lawyers are influential members of a complicated and often troubled society. They need all the help they can get if they are to have enough understanding of social forces to operate effectively, rather than just deferentially or by rote. One size does not fit all, and there should be no list of interdisciplinary courses required of all students.
A perusal of examples will begin to show what such courses can offer the future practitioner. A student at Chicago (similar to other law schools) might take a class with a leading criminologist, studying philosophical theories of punishment and the history of prisons -- and then visit the maximum-security prison at Joliet, Illinois, the only surviving North American exemplar of Jeremy Bentham’s famous “panopticon” (where everyone is watched all the time). A future lawyer would gain an invaluable set of tools, philosophical and historical, for thinking independently and critically about a broken system of imprisonment.
Another student might select Public Choice with a leading legal economist, learning how interest groups interact and how attractive schemes are often derailed by paradoxical and counterproductive interactions of interests that economists have studied in depth. Such a student would have tools for thinking critically about the legislative process and interest-group advocacy.
Still others might take a seminar on Distribution, Taxes, and Social Justice, co-taught by a philosopher who works on justice (one of the authors) and a law professor who is a tax-policy expert. Their seminar juxtaposes philosophical accounts of basic justice with the literature on optimal tax policy. Such students are equipped to think broadly about taxation, which, after all, is supposed to aim for social justice.
These are just a few examples of the Freund idea at work, and students typically choose multiple electives that align with their career plans. Some of these students will go into government; others will work for nongovernmental organizations.
But lawyers who join firms also need to understand how society works if they aspire to be independent thoughtful leaders of their chosen profession, rather than passive followers of custom. In the life of the firm, a deferential model of lawyering (doing it because that is how it has been done) will further erode professional standards.
Ernst Freund wanted wide-awake lawyering, and he was right to say that it requires rigorous and scientific thinking about social processes. If we heedlessly jettison that vision, our whole society will be worse off.
(Martha C. Nussbaum is Ernst Freund distinguished service professor of law and ethics at the University of Chicago. Charles Wolf is a University of Chicago law-school graduate and is a shareholder at Vedder Price PC in Chicago, where he has practiced employee-benefits law since 1975.)
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