Tuesday, December 21, 2004

Special-Interest Law Schools

I mentioned this article earlier in passing. The link in the title leads to the relatively even-handed treatment of Jerry Falwell's new Christian law school in Legal Affairs. (The first class of students there must have completed their first set of final exams by now). I would not be interested in teaching there myself, and worry about their bar passage rate, etc., but most of the criticisms in the media have been overblown.

I like special interest law schools. They form a nice complement to the rest of our institutions, the 200 or so law schools that collectively graduate nearly 40,000 new but mostly generic practitioners every year. It enriches our legal system to have a subset of lawyers whose skills are devoted to and oriented around a particular social cause, instead of whatever case walks in the door and pays the bills. (My stint as a legal aid lawyer left me biased, though). It enriches social movements and NGO's to have lawyers who do more than take occasional pro bono cases, who instead reframe the movement itself in terms of interesting legal battles, and whose legal activities reflect the overall perspective of the movement they represent. The greatest assets of successful movements and organizations are not brick-and-mortar, but their brain trust. The leaders, planners, and communicators are the ones who turn beliefs into action and make the ideals comprehensible for potential recruits. I am glad I teach at a general-interest law school, but I support those who like to teach at special-interest schools, because I think we need more activist-lawyers supplying the marketplace of ideas.

Of course, many of the regular law schools have particular areas of strength, sometimes formalized into a "Center of ____ Research." (My own school, for example, is starting a Center for Corporate Legal Compliance; Vermont and Pace have great environmental law departments). These "centers," when done well, afford students enriched exposure to a specialized field within the law, besides hosting cozy little academic conferences and symposia. Of course, when done well they can also bring more national attention to a school, and more donations from corporate or NGO sponsors.

Special interest schools, naturally, go beyond that. Rather than simply offering extra seminars and electives in areas of special interest, their curriculum and school ethos centers around their religious mission. So far these seem to be religious; a few are affiliated with a denomination, like BYU, Pepperdine, Faulkner-Jones, Ave Maria, and St. Thomas (plus many others); while some, like Regent (formerly CBN University) and now Liberty, are vaguely associated with a religious movement (evangelicalism), and an individual religious personality (Pat Robertson or Jerry Falwell, respectively). There is no inherent reason that the idea needs to be limited to religion; it is easy to imagine a law school tailored to generate effective and specialized environmental advocates, election-issue litigators, civil libertarians, etc. The gambles involved are obvious- specialized professional training narrows employment options, for example - but some have already committed themselves to ideological advocacy. It is their choice. Adequate endowment or funding for the school is another huge issue.

Clearly these schools are not well-suited for every student, or even most law students. There are some students, however, who go to regular law schools (including my own) mostly to acquire the skills and professional credentials to be advocates for some important cause. They would be well-served by a school that offered specialized training and a sympathetic atmosphere for the intense personal commitment the student has made. There is undoubtedly a trade-off in well-roundedness for the graduates. Well-rounded advocates can be the best ones for certain tasks, but specialized lawyers have a clear advantage in other contexts.

Commentators on the “other side” of whatever cause frames the school are bound to feel especially threatened by the prospect of radical lawyers advancing the movement instead of the usual preachers and propagandists. This hopefully explains the vitriolic hostility many op-ed pieces have had toward Falwell’s new school. Conservative commentators would feel just as threatened if the ACLU created a place to train only civil libertarians or radical left-wing lawyers and judges (some conservatives will argue that this already describes most law schools, but this would be a huge overstatement). I fear, though, that many commentators really believe it is wrong to mix a particular ideology or religion with legal education, apart from being on the other side of the religion issue.

Having said all that – I really do like the idea of having some specialty law schools around us – it is all easier said than done, even apart from the overwhelming funding problems involved. There is a centuries-old debate about how to integrate faith and learning, which is a subset of the larger problem of integrating transcendental beliefs with the mundane aspects of our existence. Except for monks, nuns, and maybe the Amish, we all have facets of our lives that are consumed with our fleshly subsistence. Our jobs, our families, our meals, rest, and healthcare consume most of the hours of every day, even for the devout. Probably the shallowest way to integrate faith or ideology into these inherently secular areas is to baptize them by glibly throwing in a prayer or a Scripture here or there, akin to Christianizing one’s car by affixing a little stylized fish to its rear end.

For example, does teaching Torts from a “biblical perspective,” merely mean opening class with a short devotional? Or spending class time on the ancient tort rules in the Mosaic law? (See, e.g., Ex. 21:33 or Deut. 19:5 for negligence, or Ex. 22:10 for bailments.). I can magine instead forcing students to distinguish sharply between the Hand Formula (B vs. Lp) and the Golden Rule (“do unto others…”). Should the Golden Rule (GR) be applied to the tortfeasor’s duty to the victim (prevent/compensate the harm), or a jury’s duty to the defendant (excuse her from liability), or a jury’s duty to the plaintiff (award the maximum!). After all, if we put ourselves in the position of the “others,” we ourselves would want those things to be done unto us, but they are sometimes mutually exclusive. Or are the rules really the same thing- is the Hand Formula simply a more feasible or all-inclusive version of the GR? These are interesting questions if you’re committed to a religious approach to the law. It may be appropriate to have a place where students spend their whole JD program worrying about such things (in addition to mastering the material needed for the bar exam), and I hope they tell us when they figure out the answers. But I hope they are doing that instead of just having a cross in their school logo, a keg-free campus, or “rejected-everywhere-else” students who walk around quoting Rush about the “liberal media elite.”

I attended a decent religious undergrad and saw other potential pitfalls of special-interest education. There is a tendency for the faculty to manifest a schizophrenic inferiority-superiority complex; the desperation to be taken seriously as scholars by their counterparts at regular schools, and not dismissed as backward fundamentalists, sometimes bordered on the pathetic. On the other hand, I was constantly reminded that I was at the “Harvard of Christian Schools.” No other religious college could compare to our own. The school’s special mission meant it could forge ahead and ignore the lack of scholarly recognition from the rest of the academy; but when someone did get an honor or accolade from outside our faith circus, it was a celebrated as if the eschaton had come. The frequent institutional infighting was disillusioning for young, idealistic students. Certain professors shunned others as “the type of radical extremists who make the rest of us look bad. ” The shunning and backbiting was easily reciprocated for the “sell-outs” and “hypocrites.” We students quickly learned to use our newly-acquired intellectual skills to attack the perceived “bad leaven” in our own midst, instead of the challenges from outside. I was disillusioned at the time. I have since decided that these problems would probably arise in any school where an ideological agenda governs the educational mission, regardless of the merits of the ideology or faith itself. I can imagine a civil-libertarian law school being just as unhealthily divided over who were the loathsome sell-outs and who were the embarrassing extremists.

Specialized professional schools, whether religious or not, can be an act of courage or an act of cowardice. (A similar concern, of course, arises over an over again about monasteries and closed communities). The motivation may indeed be to encourage deeper personal commitment to service, to enhance the intellectual assets of the movement, and to equip formidable advocates for the cause. That’s courage. It could also be to hide from people with other viewpoints. Many people find it discouraging to engage people who strongly disagree, and the path of least resistance is to run away and shelter ourselves. If the specialty law schools are indeed the former rather than the latter, I hope the trend grows and expands.