Sunday, February 2, 2014
This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.
Critics claim the law school course catalog contains too many specialized seminars. They sneer at offerings that seem especially obscure. Their contentions are wrong. They are dangerous.
To begin with, laypeople likely misunderstand the usefulness of technical subjects not only within law but also throughout academe. The extraordinary biologist J.B.S. Haldane, asked what he had learned about religious faith from his scientific investigations, remarked that God seemed to be inordinately fond of beetles.
He was at least half serious. There are thousands of species of beetle.
A research university that strives to rank among the best will feature much more than an introductory survey course in biology. It may well boast an upper-level class on beetles.
An observer who wonders why the school is so devoted to the order coleoptera of the animal kingdom mistakes what the institution is about.
Everyone realizes that very few students will become professional entomologists. A few may be inspired, and that is well and good.
But a course about beetles in name is about much else as well. Students who are not enamored with bugs will take away research techniques applicable to other specimens.
And a course about beetles is the beginning of the campus commitment. The teacher who is fascinated with the weevil deserves support in order to advance knowledge on behalf of humankind -- that is a perforce hyperbolic corrective to the contempt directed at professors nowadays.
It is easy enough and perhaps tempting to make fun of these intellectual pursuits and the intellectuals too. Any observer can beat up the egghead who wants funding to dedicate a lifetime to looking at insects. Everything that has happened since high school should persuade reasonable people that bullying nerds is not commendable.
We need information about insects to control pestilence. Theorists even propose we can comprehend our own behavior from ants and bees if not beetles. These zoological matters come back to law eventually in the form of sociobiology and evolutionary psychology, which, it is argued, generate recommendations for regulating personal conduct and passing public policy.
On top of that, classes turn out to be practical to a greater extent than people expect. Internet law is the latest example of a field that when it was initially identified was ridiculed as more or less a joke or at best an indulgence. The details of jurisdiction on the web, dispute resolution, privacy, and the other issues that would hardly have been recognized much less deciphered a generation ago are doubtless worth studying now and have exploded into glorious complexity. It isn't clear a lawyer would even be competent, whatever their practice, if they were unaware that commerce on the internet has its own characteristics.
Many of these "crazy" classes are the direct result of student demands. People want choices. They judge the quality of a school by the breadth of its curriculum. They compare it to competitors.
Some students, or earlier generations of them anyway, sought exactly what other students, or their successors, then disclaim as worthless.
Ethnic studies, for example, has typically been established thanks to protest movements. Ethnics studies would be unnecessary if the experiences of everyone in this great democracy had been integrated into its history, but that has not happened without struggle. Animal law similarly is a student favorite. It is not as if university administrators have been eager either to open centers dedicated to empowering minority communities or to liberating laboratory test subjects.
The same element of student interest is often what motivates the addition of Indian law and Islamic finance. Both of those classes lead to areas of practice where supply is not sufficient for demand. It also is true of sports and entertainment law. Neither of those classes lead to realities of practice that will satisfy the expressions of interest.
But some students -- as anyone else would -- react angrily to administrators who want to dissuade them from their dreams. They may perceive advice about maximizing their job prospects, however well-meaning or based on fact, as both disagreeable and patronizing.
The expansionist tendencies are not necessarily restricted in political terms. There can be agitation to bring on courses about the economic analysis of law or the history of gun rights. The reading of the classics has been encouraged to justify the war against terrorism. Western philosophy has been asserted to be the basis for battlefield victory.
Other classes are the indirect consequence of student expectations. People want renowned scholars on the faculty of their school. A customary negotiating point in recruiting a professor is the teaching assignment.
The big names usually want to teach less and to concentrate on what they are expert in. Almost all professors whose research has a specific emphasis are quite capable of teaching a class that is general in scope if they must do so. So to fill the endowed chair in criminal law requires accommodating the occasional class on the culture of dueling.
Ultimately what is at risk in the hue and cry is the idea that has made American higher education the envy of the world. The Johns Hopkins University, the first modern research university in the nation when it opened in 1876, was based on its German peers, which themselves had only been set up as such.
The model emphasized, above all, the value of original research in an academic context. It was formal, organized by department, with a hierarchy of credentials. The core of the concept is as vital as ever: practically by definition, developing societies must foster the development of new ideas or at a minimum the new application of old ideas. Education is deficient if it consists solely of the memorization, recitation, and re-interpretation of old ideas; it does not deserve to be designated as "education."
From its inception, the ideal of the research institution included mentoring. Professors were supposed to share their findings with their pupils. They were expected to enlist them in their endeavors.
American success in this regard is unrivaled. The most prestigious English institutions, Oxford and Cambridge, collectively "Oxbridge," were not as enthusiastic about the grimy work of natural philosophers ("scientists" in our modern terminology). The finest Chinese schools, like those throughout Asia, have sought to copy our spirit of free thought and the resulting innovation (ignoring the irony of trying to copy these traits).
What came out of the quantitative fields has inspired the liberal arts. In law, academic research ascended along the lines of two movements. The realists who sought to describe the law as it functioned in society were applying the insights of social scientists. The positivists who drafted restatements of doctrine were relying on the scientific method.
The threat to legal education extends beyond an attack on legal educators. It constitutes nothing less than an ideological challenge to the promise of the research university.