November 22, 2004

Those religion-oriented law schools.

The NYT reports on the new religion-oriented law schools.
"The prevailing orthodoxy at the elite law schools is an extreme rationalism that draws a strong distinction between faith and reason," said Bruce W. Green, Liberty's dean.

The claim that professors at the leading law schools tilt to the left is supported by statistics. According to a forthcoming study of 21 top law schools from 1991 to 2002 by John McGinnis, a law professor at Northwestern University, approximately 80 percent of the professors at those schools who made campaign contributions primarily supported Democrats, while 15 percent primarily supported Republicans.
Hmmm.... that seems to equate "tilting to the left" with "extreme rationalism." What's needed are law schools that expose law students to the full range of professional debate. It doesn't make much sense to counter one law school with another law school: the poor student has to go one place or another!
But where mainstream law professors tend to ask questions about judges' fidelity to precedent and the Constitution, Liberty professors often analyze decisions in terms of biblical principles.

"If our graduates wind up in the government," Dr. Falwell said, "they'll be social and political conservatives. If they wind up as judges, they'll be presiding under the Bible."
Try saying that at your confirmation hearing!

But that's Jerry Falwell, the school's chancellor. What are the lawprofs really like? The Times makes the civpro teacher's class sound much weirder than perhaps it should:
In Professor [Jeffrey C.] Tuomala's civil procedure class, the topic on Wednesday morning was a law school warhorse: the Supreme Court's 1938 decision in Erie v. Tompkins, a case that has baffled generations of law students. Judging by the halting Socratic dialogue, Professor Tuomala's natural-law critique of the case did not immediately clarify matters.

The Erie decision, which is viewed as uncontroversial in much of the legal academy, represented a disastrous wrong turn, Professor Tuomala said. In ruling that federal courts may not apply general principles in some cases but must follow state laws, he said, the Supreme Court denied the possibility of "a law that's fixed, that's uniform, that applies to everybody, everyplace, for all time."
The "natural-law critique" of Erie is not just some quirky angle Tuomala cooked up! Erie overruled Swift v. Tyson, an 1842 case, written by the great Justice Story, which did in fact rely on principles of natural law. Any lawprof teaching Erie would need to talk about natural law. Erie is the one civpro case where you have to talk about natural law. And nearly any civpro lawprof (myself included) when attempting to teach Erie in the Socratic mode would seem "halting" and unclear much of the time. A good civpro lawprof would not polish Erie off as "uncontroversial," even though it must be seen as well-settled law, but would vividly present the different jurisprudence underlying Swift and the case that overruled it. It is the most interesting question to be found in Civil Procedure!

Tuomala isn't a bad lawprof if he happens to think Swift was right and Erie was "disastrous." That's a perfectly sensible thing to think. What would be wrong would be to teach students that they ought to go out into the world as lawyers and attempt to do legal work without understanding that they have to function in a system that accepts Erie as settled precedent. Lawprofs at all law schools are likely to convey to the students their opinion that key cases were wrongly, even disastrously, decided. There is nothing abnormal about that. What is important is to equip your students to work within the existing legal system (which, of course, includes working to change things).

1 comment:

ForLife said...

So let me get this straight. There's nothing abnormal about law profs imposing their personal beliefs pertaining to either the approval or disapproval of any given court ruling. This is to be expected, and is somewhat necessary, unless, of course, their views lean toward the right. In that case, the profs are not equiping their students for the juducial system? Now, is anything leans left, it's that statement right there. Opinions are necessary if they're liberal, and insufficient if they're conservative. Hmm... We'll see about that.