Barrozo: A Future for Legal Education

485

A Future for Legal Education: A Reaction to Huppers Educational

Ambivalence: The Rise of a Foreign-Student Doctorate in Law

PAULO BARROZO

INTRODUCTION

uppers Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law is the latest in a series of important studies on the doctorate in American law schools that she has authored.1 This

body of work makes significant contributions to the study of doctorates in law, and in particular distills some of the historical precursors of the more general problems of legal education in the 21st century United States.2

Huppers scholarship lays the foundation for what I expect will be a fruitful area of research and reflection by many others. In this response to her latest work, I do no more than comment upon or supplement a few of Huppers most interesting findings and conclusions, at the end sketching a way forward for legal education in the United States.

Following Hupper, I focus on U.S. legal education. However, the problems and solutions I discuss are universal or in the process of becoming so. The principal problem of legal education in the 21st century United States and beyond can be easily statedlittle of it is properly described as education, most of it is training, and the remainder is neither.

I. Practicism, Minimalism, and Parochialism

Trainingas opposed to educationis the result of a structural bias in law schools in favor of what I label practicism, minimalism, and parochialism. Further, each of these three problems reinforces and provides plausibility

Associate Professor, Boston College Law School.

1 See Gail J. Hupper, Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law,

49 NEW ENG. L. REV. 319, 322 (2015). 2 See id. at 32326.

H

486 New England Law Review v. 49 | 485

to the other two. There is, however, a way out of this situationwhich includes the doctorate in law and other changes.

It is important to note that this fundamental problem in legal education is not a function of the attitudes or preferences of law professors or law students. Rather, it is the institutional design and culture of law schools that have created a structural bias in favor of the destructive triumvirate of practicism, minimalism, and parochialism. This bias, of course, influences the attitudes of faculty and students.

Practicism is what an education designed to build a deep and wide foundation for professional achievement in law degenerates into under conditions of minimalism and parochialism. It stands for the view that the professions and zones of social, political, and economic engagement that legal education is supposed to prepare students to excel in are best understood as technical activities, the relevant know-how for which rests in skillfully operating a finite set of legal nuts and bolts in the performance of low to moderate complexity tasks.3 Of course, some legal work is of precisely that nature, and teaching how to do it could be delegated to programs in technical schools or community colleges. In any event, practicism is only intelligible and plausible if one also subscribes to minimalism and parochialism.

Minimalism is what high scholarly and professional aspiration in law degenerates into under the influence of practicism and parochialism. It is a multifold phenomenon. First, minimalism is an intellectual malaise. The view is that the learning ofand what is to be learned inlaw can be reduced to learning rules, precedents, and jargon. Thus stunted, the ontology of law and the primary object of legal learning become the series of legislative, judicial, or administrative choices governing a regulatory area and their respective basic technical notions. Psychologically, academics and students experience this dimension of minimalism as a reassuring type of training that allows them to derive straight answers to contained legal questions. Second, minimalism is the view that the paradigmatic professional setting for the use of legal learning is the law firm. This minimalism extrapolates the importanceboth in terms of the number of graduates employed in law firms as well as in terms of the social impact of law firmsof the kind of employment that only about a fourth to a third of

3 See Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. of LEGAL

EDUC. 591, 59195 (1982); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE

LEGAL PROFESSION 166 (1993); Catharine Pierce Wells, Introduction to American Association of

Law Schools Symposium: Bringing Values and Perspectives Back into the Law School Classroom:

Practical Ideas for Teachers, 4 S. CAL. REV. L. & WOMEN'S STUD. 1, 1 (1995).

2015 A Future f or Leg al Educat ion 487

law graduates in the United States end up pursuing. Finally, and crucially, minimalism is also a hedonistic approach to the study and teaching of lawit allows students and faculty to evade much of the exertion of learning. In this latter sense, any subject or approach that exacts a broad, deep, and sustained intellectual effort, by pointing to complexity of problems and to corresponding sophistication of knowledge and analysis is disparaged as non-law.

Practicism begets minimalism, and minimalism justifies practicism. Together, practicism and minimalism distort the nature and promise of legal education: (1) they figure prominently in explaining the lack of structural incentives to audacious and high caliber faculty scholarship and to student scholarly achievement; (2) they betray the social value of the many legal professions; (3) they help explain the way law schools react to rankings and law firm employment environments; (4) and they elucidate the resilient parochialism of initiatives in advanced legal education.

Parochialism in legal education is what cultural self-confidence decays into when combined with practicism and minimalism. Parochialism has spatial, temporal, and intellectual dimensions. What unifies those dimensions is shrinkage. In parochialism, the geographical, historical, and intellectual realms one inhabits are imagined smaller than they really are. For an example of how parochialism is manifested in legal education, turn to the latter part of the 20th century when the United States emerged victorious from World War II,4 with its growing cultural self-confidence and influence riding on its international military, economic, and geopolitical power. Domestically, the elected branches of government seemed unable to provide sufficient moral leadership in bringing transformations in areas of great injustice in American society. In these circumstances, the Supreme Court came to occupy an ever larger leadership position on important national questions and reforms.5 With this increase in the prestige of the Supreme Court came the emergence of the federal appellate clerkship as the high water mark of accomplishment for law graduates aspiring to a permanent place in the academic world.6 Practicism and minimalism met parochialism.

4 See Gail J. Hupper, The Rise of an Academic Doctorate in Law: Origins Through World War II,

49 AM. J. LEGAL HIST. 1, 57 (2007) (explaining that post-World War II, the contribution of

graduate work in law should be a broader and deeper study of the functioning of law in

society, with greater emphasis . . . upon making legal knowledge effective in implementing

social values.). 5 See, e.g., MICHAEL J. KLARMAN, BROWN V. BOARD OF EDUCATION AND THE CIVIL RIGHTS

MOVEMENT x (2007). 6 See, e.g., William E. Nelson et al., The Liberal Tradition of the Supreme Court Clerkship: Its

Rise, Fall, and Reincarnation?, 62 VAND. L. REV. 1749, 1756 (2009).


II. Practicism, Minimalism, and Parochialism in Operation

Huppers Educational Ambivalence traces the historical arc of the possibilities and limitations of doctoral legal education in the United States.7 I believe, as I mentioned, that the Articles insights can be generalized to the current predicament of all levels of legal education. In this Section I briefly point to four signs that legal education is in peril and connect those signs back to law schools structural bias in favor of practicism, minimalism, and parochialism.

I start with two claims that are obviously true. First, law is not rocket scienceit is much harder. Indeed, legal education well-understood is a most challenging and demanding endeavor. The second claim is that faculty and students joining law schools are selected from among the best intellectual talent available, typically holding high aspirations for themselves and for society. In law schools, intellectually gifted and ambitious individuals encounter one of the most resourceful departments of the modern university. The combination of intellect, high aspirations, and ample resources should lead to the best in true education.

And yet, legal education continues steadily on the path of decaying into the mere provision of technical training: the intellectual and social lions who arrive at the steps of law schools every year are routinely turned into intellectual and social lapdogs. Of course, there are exceptions everywhere.

Another aspect of the current situation of legal education is particularly telling with respect to its continuing degeneration into mere training. The academic study of law carries a double invitation. The first invitation is to join an extraordinary intellectual tradition with ancient roots;8 the second is to join one of the many professions and the respective zones of intellectual, social, political, and economic engagement that thinking well about law uniquely prepares one for. However, students joining American law schools in the 21st century have come to believe, as a result of the structural bias in legal education in favor of practicism, minimalism, and parochialism, that the academic study of law is about being trained, thus accepting only a narrow version of the second invitation.9 Faculty in those law schools are led, by similar institutional biases, to believe that intellectual minimalism with respect to their own scholarly projects and the practicism of coaching students into acceptance

7 See generally Hupper, supra note 1, at 32223 (summarizing the Articles purpose). 8 See DONALD R. KELLEY, THE HUMAN MEASURE: SOCIAL THOUGHT IN THE WESTERN LEGAL

TRADITION 15 (1990). 9 See Hupper, supra note 1, at 40809.


of the narrow version of the second invitation constitute their primary responsibilities.

This reductionist understanding of the nature of legal education does not do justice to the talent and aspirations of legal academics and their students or to the resources available to them. For some time, this reductionism created the impression in many of its conscious and unconscious subscribers that all was well.

For students, while only a minority of those graduating from national law schools would end up in medium to large size law firms,10 there seemed to exist a deep psychological comfort in believing that they could, if they wished, become participants in the provision of legal services to corporations. Most career services departments seemed addicted to the ease of being the middleman between a fraction of their students and law firms.11

For legal academics, the rewards of reductionist understandings of the nature and promise of legal education were largely hedonistic. Exempted from the obligation of undertaking the hard work of gaining a thorough mastery of the intellectual traditions of law in general and of their fields of expertise, many seemed content with a couple of eureka moments per year. Each of these moments could easily be transformed into an industry-type law review article to be selected for publication and edited by students, usually insufficiently prepared to judge the quality of the scholarly contribution they were selecting and editing. Were law professors to master the intellectual tradition of law, I suspect they would have found that Aristotle, Cicero, Gaius, Aquinas, Accursius, Bartolus, Baldus, Bacon, Hobbes, Leibnitz, Vattel, Adam Smith, Rousseau, Blackstone, Savigny, Hegel, Holmes, or any of a host of others, had already stolen all their best ideas.12 Ignorance of the derivative or conventional nature of ones ideas is a form of bliss; although, following J. S. Mill, it may be said that the pleasure in question is not of the highest order.13

That state of bliss came to an end around 20092010 when changes to

10 See 2013 Law Graduate Employment Data, A.B.A., http://www.amerianbar.org/ (search for

2013 ABA-Approved Law School Graduate Employment Data, then click the first link to

open the pdf) (last visited Mar. 31, 2015). 11 See, e.g., Career Services Office, Shepard Broad Law Ctr., Employer Hiring Patterns and

Student Timetable, NOVA SOUTHEASTERN U. L. 1, 24 (Dec. 2002), https://www.nsulaw.nova.edu

/intranet/ students/career/documents/timetable.pdf. 12 See PHILOSOPHY OF LAW 13 (Joel Feinberg & Hyman Gross eds., 5th ed. 1995). 13 "It is better to be a human being dissatisfied than a pig satisfied; better to

be Socrates dissatisfied than a fool satisfied." JOHN STUART MILL, Utilitarianism, in ON LIBERTY

AND OTHER ESSAYS 140 (John Gray ed., Oxford Univ. Press, 2008).


the employment structure of law firms laid bare the flimsiness of the foundations on which that state of bliss had rested.14 Confused, students felt validated in their interpretation of high tuition fees as an additional sign that they were indeed in the market for a type of service: minimally challenging and entertaining legal training that culminates with bar eligibility certification and law firm employment placement if they so wished. Shell-shocked by changes in the law firm employment picture, law schools and their career services reacted by confirming and reinforcing the perception that students are clients of the services they were in the market to sell. And now the customers are unhappy. Legal academics dug the educational hole deeper and sought, more than ever before, to make customer-students as content and reassured of their practice-readiness as they possibly could be. Should they pose any serious intellectual challenge to students, legal academics were expected to apologize and rectify matters, fearing negative customer satisfaction reviews (known in contemporary education as course evaluations) at the end of each course. In sum, the economic recession led to deeper entrenchment of practicism, minimalism, and parochialism in law schools institutional and cultural identity.15 None of this would be the case if faculty, students, and law schools did justice to legal education. When that inevitably happens, and it will, the days of practicism, minimalism, and parochialism will be numbered, and legal education will at last flourish.

A third debilitating consequence of the failure to comprehend the nature of legal education is found in the reaction of law schools to law school rankings. The attention, significance, and cooperation law schools extend to the rankings created by business media is puzzling.16 That law schools are held hostage to the rankings would seem unimaginable if an observer knew how much intellectual talent, personal and social aspirations, and resources law schools attract and command in the United States. Such an observer would hardly credit the idea that these schools resigned themselves to playing by the rules set by a rent-seeking and self-perpetuating business of producing and selling rankings without showing a modicum of self-respect or courage. A mitigating factor of law schools

14 See generally Jordan Furlong, The Disappearing Associate, LAW21 (Feb. 13, 2009),

http://www.law21.ca/2009/02/the-disappearing-associate/ (discussing the decline of law firm

hiring practices occurring during the years 2009 and 2010). 15 See Hannah Hayes, Recession Places Law School Reform in Eye of the Storm, 18 PERSP. 8

(2010), available at http://www.americanbar.org/content/dam/aba/publishing/perspectives_

magazine/women_perspectives_spring10_recession_law_school.authcheckdam.pdf. 16 See, e.g., Ben Taylor, Why Law School Rankings Matter More Than Any Other Educational

Rankings, FORBES (Aug. 14, 2014), http://www.forbes.com/sites/bentaylor/2014/08/14/why-law-

school-rankings-matter-more-than-any-other-education-rankings/.


faulty reaction to rankings is: once the nature of legal education is misunderstood, and practicism, minimalism, and parochialism take root, law schools, faculty, and students become easy prey for profit devices as simplistic as the current rankings.

Law schools rationalization of their prostration before the rankings rests on a series of interlocking fallacies. One can start anywhere in the chain of fallacies in order to unravel it. Here is one way to do it. First, law schools convince themselves by the persuasive force of repetition that law firms are not happy with the training law schools offer their students. Second, law schools conclude that as a consequence, they should import into the law curriculum the job training law firms are no longer willing to provide (often for jobs they no longer offer anyway). Step three, law schools convince their students that they ought to be practice-ready,17 as the mantra goes these days. However, coaching for practice-readiness is expensive, and is ideally inflicted on students who are quickly trainable. Fourth, attracting funds and easily trainable students is the first and most important task on which all else depends. Lastly, attraction of funds and trainability potential is predicated on doing well in the rankings, which metrics track trainability and employability. The outcome is a race to the bottomthe opposite of the direction that a proper understanding of legal education and of the value of educational excellence, together with institutional self-respect, would lead to.

This educational tragedy would be powerfully resisted and promptly overcome if not for the reigning minimalismperhaps especially of the intellectual kindin law schools. In 1834, the English translator of F. K. von Savignys manifesto against the codification movement in Europe preemptively wrote in his Preface that [a] modern English writer is expected to be so pellucidly clear, as almost to save his readers the exertion of thought . . . .18 He was right then and even more so now.

Intellectual minimalism is not the same as anti-intellectualism. The self-understanding of those who teach and study the law is that they are intellectually sharp, which is a source of pride and pleasure for them. Intellectual minimalismone aspect of minimalism as defined aboveis the view that the world, and the discourses that seek to explain it, cannot possibly be very complex. It is the view that the intellectual traditions we

17 See, e.g., Charlotte S. Alexander, Learning to Be Lawyers: Professional Identity and the Law

School Curriculum, 70 MD. L. REV. 465, 468 (2011) (noting Georgia State Universitys program

that gives students field work experience instead of lectures). 18 Abraham Hayward, Preface to FRIEDRICH CHARLES VON SAVIGNY, OF THE VOCATION OF

OUR AGE FOR LEGISLATION AND JURISPRUDENCE v (Abraham Hayward trans., Legal Classics

Library 1986) (1828).


engage in cannot possibly be significantly broader than what the twenty most cited authors have published in student-led law journals over the last twenty years.19 This attitude sees as optional the travails of the legal mind in mastering the traditions of thought it inhabits. In this atmosphere it is easier, and surely just as effective, to go straight to the paragraphs or pages in the tradition that ones research assistant points out as possibly relevant. This approach makes fragmentation of the tradition the price to be paid for invoking it in the process of scholarly lip service. The optionality of the tradition and its consequent fragmentation have a lethal effect on intellectual relevance in law.

A fourth symptom of practicism, minimalism, and parochialism strikes at the center of law schools prestige and influence. Hupper opens her Article with Yale Law Schools recently created Ph.D. in Law.20 She quotes the programs announcement to show that Yales new doctorate has a constituency of J.D. graduates of American J.D. programs; an epistemological commitment of a broad foundation in the canon of legal scholarship;21 and a mandatethe provision of specialized training22 for the production of scholarship. This degree currently coexists with Yales J.S.D. degree.23 Of course, the impact of the separate-but-comparable doctorates in the same law school will be to reserve the Ph.D. degree to mostly American graduates of American law schools and the J.S.D. to foreign graduates of foreign law schools.24

It would be a mistake, though, to think that Yale is the only law school in the United States afflicted by a slip back into parochialism. In the grip of parochialism, even international exchange programs can lead to its further enshrinement. While it is sobering that an institution such as Yale Law School would develop a new way of separating students in the 21st century, that it did so is symptomatic of the cumulative effects of minimalism and the post-war sense of cultural self-sufficiency that rode on the back of American economic and military powerfactors which Hupper correctly identifies in her Article.25 Furthermore, if one fully understands the way practicism and minimalism operate, it is clear that a

19 Cf. Fred R. Shapiro & Michelle Pearse, The Most-Cited Law Review Articles of All Time, 110

MICH. L. REV. 1483, 150405 (2012) (listing the names of the top authors published in student-

run law journals). 20 See Hupper, supra note 1, at 319. 21 Id. 22 Id. 23 Id. 24 Id. at 320, 326. 25 Cf. id. at 32223, 395.


broad foundation in the canon of legal scholarship26 and the provision of specialized training27 for the production of scholarship will likely reflect and further enshrine the existing structural bias in law schools toward practicism and minimalism.

I end this Section by inviting the reader to take a step back to 19th century American philosophical pragmatism and early 20th century legal realism in order to explain the historical roots of the vulnerability of law schools design and culture to the influence of practicism, minimalism, and parochialism.

Pragmatism is a fruitful philosophical school that emerged in 19th century United States.28 In very general terms, pragmatism, at both the explanatory and normative levels, takes a functionalist approach to epistemology and action orientation. Also fruitful in its own way, legal realism is a school of legal thought that although not native to the United States, encountered here a reception unlike anywhere else in the world. Likewise in general terms, legal realism takes a functionalist approach to legal epistemology, legal practice, and legal policy.29 These two schools of thought were closely related in the work of Oliver Wendell Holmes, Jr., and are now mainstream in American culture, including in law schools.30

There exists in original philosophical pragmatism and legal realism a great ambition of the mind, but that aspect of those schools of thought is not what was mainstreamed in contemporary American law schools, despite the effort of several scholars. What came to prevail was an impoverished functionalist approach to knowledge, practice, and policy. Writing in the 1830s about the philosophic method of the Americans, Alexis de Tocqueville stated:

I think there is no country in the civilized world where they are less occupied with philosophy than the United States . . . . To escape from the spirit of system, from the yokes of habits, from family maxims, from class opinions, and, up to a certain point, from national prejudices; to take tradition only as information, and current facts only as a useful study for doing otherwise and

26 Hupper, supra note 1, at 319. 27 Id. 28 See generally LOUIS MENAND, THE METAPHYSICAL CLUB: A STORY OF IDEAS IN AMERICA x

xi, 75, 22627, 350 (2001) (tracing the development of pragmatism by philosophers William

James, Charles S. Peirce, and John Dewey during the 19th century). 29 See AMERICAN LEGAL REALISM 51 (William W. Fisher III, Morton J. Horwitz & Thomas A.

Reed eds., 1993); JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL

SCIENCES 1516 (1995). 30 See Justin Desautels-Stein, Pragmatic Liberalism: The Outlook of the Dead, 55 B.C. L. REV.

1041, 108788 & n.308 (2014); Wells, supra note 3, at 347, 353.


better; to seek the reason for things by themselves and in themselves alone, to strive for a result without letting themselves be chained to the means, and to see through the form to the foundation: these are the principal features that characterize what I shall call the philosophic method of the Americans.31

De Tocquevilles account of the defining feature of the American mind is far from complete, and it was not entirely accurate even for the 19th century. That said, it does seem to capture the functionalist orientation that would in our own time render American law schools vulnerable to the hold of practicism, minimalism, and parochialism. Functionalism offers cognitive and practical insights that ought to be welcome among the intellectual and practical concerns of jurists and lawyers.32 However, when a diluted functionalist orientation becomes sovereign, it sabotages education and thought. Once law is defined as a means-to-an-end and legal thinking is measured against the benchmark of expediency, and the tradition of legal thought is considered valuable only to the extent that it provides prt--porter33 solutions to real or perceived problems, then the tradition of thought is conceived as an (optional and fragmentary) intellectual band-aid. Fragmentation of the intellectual tradition tends to lead to fragmented thinking.34

Now, history is not fate. The United States has neither more nor less appetite for intellectual ambition and sophistication than any other country I know of. Furthermore, legal education seems to be in as much trouble in the United States as it is in almost any other place. It is, however, important to acknowledge that the malaise of contemporary legal education in the United States has its own distinctive historical roots in addition to the more universal causes that it shares with legal education elsewhere.

The picture I draw of the current state of legal education in the 21st century United States is obviously incomplete, and I only highlight some of the aspects that Huppers work touches on or provokes one to think about. But even this incomplete picture raises the question of why so much intellectual talent, ambition, and resources settle for so little in education.

31 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 403 (Harvey C. Mansfield & Delba

Winthrop trans., Univ. of Chicago Press 2000). 32 See Elizabeth F. Emens, Intimate Discrimination: The States Role in the Accidents of Sex and

Love, 122 HARV. L. REV. 1307, 1365 (2009) (explaining a functional approach to analyzing

relationship issues within the employment domain). 33 Defined as ready to use/wear. MERRIAM-WEBSTER, available at http://www.merriam-

webster.com /dictionary/prt--porter.com. 34 See generally Paulo Barrozo, The Great Alliance: History, Reason, and Will in Modern Law, 78

LAW & CONTEMP. PROBS. 235 (2015) (providing a detailed explanation of the intellectual roots

of current legal thought).


Far from providing a complete answer to this question, in this response I identified one fundamental characteristic of contemporary law schoolsthe structural bias in favor of practicism, minimalism, and parochialismand how this characteristic shapes law schools interactions with select elements of their intellectual, economic, social, and cultural environments.

I turn now to a possible path out of the current predicament.

III. Three Proposals for Legal Education in the United States

If legal education is to replace legal training, law schools must reconnect to the mission of gaining clarity about law and its possibilities without sacrificing complexity, understanding, and sophistication. They must, in short, expunge from their institutional design and culture the bias in favor of practicism, minimalism, and parochialism, replacing it with a deep commitment to high scholarship and to provide students with the foundations to excel in any and all of the zones of professional engagement in the law. Unless and until that is accomplished, law schools will fail to do justice to the talent they bring together, the resources they command, the tradition of thought they have the fiduciary duty to critically cultivate and expand, and the full range of legal professions that they serve.

However, the structural bias toward practicism, minimalism, and parochialism appears to be both resilient and growing. With that in mind, and inspired by Huppers Article, I focus on three proposals I believe may start to change the structure of law schools and transform legal training into legal education. The proposals are relatively modest and not too difficult to implement.

A. First Proposal

Law schools should endow a foundation to rank them according to standards designed to capture the quality of their contributions to both the grand traditions of legal thought and to the many legal professions. Call this The Legal Education Peer Quality Assessment. Columbia, Harvard, Stanford, Yale, and the Association of American Law Schools have an obvious special responsibility to launch the initiative, but no law school (and I feel particularly strongly so in relation to my own, Boston College Law School) is excused from leadership in the endeavor.

The Legal Education Peer Quality Assessment would have only five or so tiers, and each law school would be placed in one of them. There would be no maximum or minimum number of schools in each tier. Ideally, over time all law schools would end up in the first and second tiers.

The foundation producing the assessment would reflect the highest standards of professionalism, integrity, and knowledge in the discharge of


the mandate to serve both the traditions of legal thought and the many legal professions.

However, law schools should not wait until The Legal Education Peer Quality Assessment is established in order to stop providing data to feed the metrics of current business owned rankings which perpetuate the malaise of legal education.

B. Second Proposal

Law schools should reform their curricula to create a required six-credit year-long course on legal thought. Call this the Foundations of Legal Thought course. The talented and ambitious minds arriving every year at law schools should be given an opportunity to accept the invitation to partake in the traditions of legal thought. This may well be the most important initiative to start immunizing new generations of students against the structural bias in favor of the practicism, minimalism, and parochialism that, very early in their law school years, start to weigh down on their talents and aspirations.35

Naturally, schools and scholars would possess different conceptions of what should be included in Foundations of Legal Thought. For example, some may emphasize canonical works selected from the ages of legal thought, while others may focus on groundbreaking contemporary works. The important task to keep in mind is connecting students to true intellectual greatness in law before they are pigeonholed by curricula compromised by the structural bias.

Wide adoption of a required course like Foundations of Legal Thought would likely send tectonic signals throughout the system of legal education showing that students are not customers and law schools are not service providers. Law schools are communities of scholars and exceptionally talented lawyers receiving and educating new generations of scholars or lawyers. This community is grounded in the traditions of legal thought and the varied forms of intellectual, social, political, and economic engagement that the study of these traditions exceptionally prepares one for.

C. Third Proposal

Relatively modest as the first two proposals are, the prevailing bias in favor of practicism, minimalism, and parochialism may have already severely undermined the sense of possibility in legal education and simultaneously created bureaucratic incentives that will prove difficult to

35 See Anthony Niedwiecki, Teaching for Lifelong Learning: Improving the Metacognitive Skills

of Law Students Through More Effective Assessment Techniques, 40 CAP. U. L. REV. 149, 153 (2012).


deprogram in the short run. Furthermore, J.D. programs will continue to labor under constraints that limit their role in the study and renewal of the traditions of legal thought. How then can these two problems be addressed while keeping alive a model of what legal education can be at its best?

My answer is that law schools should turn, as almost every other department of the modern university has, to doctorates as institutional islands of scholarly ambition and excellence. These islands should be sufficiently insulated from the structural biases that plague law schools so they may eventually disseminate the will and ability to truly learn and educate about the law to the rest of legal education.

Law schools should aim to recruit a critical mass of scholars and to create or reform their existing doctorates to reflect a commitment to high scholarship. The new doctorate in law should tap the global pool of talent for doctoral students unafraid of intellectual challenges without regard to place and language of initial legal education. The new doctorate should discard the parochial requirement that applicants have completed an LL.M. in the United States. Schools that fail to do so should at least abandon the hyper-parochial requirement that applicants have completed their own LL.M. Again, that is what almost every other department of the modern university does.

The new doctorate in law should be designed to hold students accountable for learning the foundations of legal thought in general and of their particular fields. The students should understand that whatever else the doctorate is about and wherever else they will employ their learning, they are the critical and inventive keepers of a long tradition of thinking about society and self in grand and complex ways.

Barrozo: A Future for Legal Education

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