My glib reaction after reading this tweet from Northwestern Dean Dan Rodriguez, quoting Harvard Dean Martha Minnow, was, "I confess that I find reconsideration of a law school's commitments because of a presidential election to be a bit shortsighted." I thought I'd expand on my concerns about law schools adjusting their commitments based on the outcome of a presidential election.
It’s worthwhile to determine, ex ante, what law school commitments ought to look like. There are any number of responses to this. Law schools ought to be training lawyers how to engage in the critical thinking, problem solving, and writing necessary for success in the legal profession. Law schools ought to be transmitting some basic knowledge of the law to students, helping them understand why the law is what is and how it got there. Law schools ought to be equipping students for post-graduate activities, including meaningful career opportunities and professional development. Law schools ought to be engaging in academic scholarship to further knowledge and understanding about the law. (A good vision for a law school would then provide some fairly specific details on these or other commitments.)
There are things that law schools ought to also be doing to maximize some of these commitments (and perhaps they’re simply good things for law schools to be doing, anyway). For instance, keeping tuition affordable and debt loads low can increase opportunities for students to pursue meaningful career opportunities. So, too, can providing assistance for at-risk students who might not graduate or be able to pass the bar exam. Different modes of education, from externships to mid-semester assessment opportunities, might increase opportunities to understand the law more deeply.
Here we open with a couple of fairly basic items. First, law schools should identify what the commitments are; second, law schools should identify what means law schools can implement to best achieve the goals articulated in those commitments. Hardly remarkable stuff.
Understandably, the legal profession changes, and culture changes. As these changes arise, so, too, should those commitments be reexamined and, if appropriate, altered.
But there are other places where changes to the legal profession or the culture might not particularly call upon law schools to do terribly much to these ex ante commitments. The most common place to respond to those changes is not in the commitments of the law schools themselves, but within the academic events that are occurring within the classroom. It might be the case that, in the exercise of legitimate academic freedom, law professors may choose to emphasize certain elements of courses or add new courses on content they believe to be particularly relevant. Or it might be the case that law professors choose to emphasize particular areas of scholarly activity in response to current events. This happens all the time.
Sometimes it is direct response to current events, such as courses on executive war power or habeas corpus that bloomed between 2002 and 2008. At other times it is in response to a changing legal profession, such as courses concerning ethical lawyering and social media, e-discovery, or the law of autonomous vehicles. Some arise from perceived or actual needs for students, such as increased offerings or requirements of statutory interpretation or administrative law. And, I imagine, law professors’ course content coverage ebbs and flows with trends in case law, such as some recent bursts (and perhaps fizzles) in constitutional law on the Commerce Clause, the Takings Clause, the Second Amendment, and impeachment.
And, of course, there will likely be more “politicized” reactions by some law professors in some courses. Some of these reactions might be the typical kinds of reactions that would occur had any Republican won the presidency, and others might be the kinds of reactions particular to the election of Donald Trump. The reactions might be based in rather concrete promises he made, such as border security; others might respond to specific acts, such as an executive order; while still others might verge on the more abstract, even hyperbolic, projections of his presidency. (I confess I am not a great fan of this last strain of changes, regardless of the political environment, because it strikes me as somewhat near-sighted and reactionary.)
But what might it look like for a law school to reexamine its commitments in light of a presidential election? This is a much weightier prospect than the prospect of a few professors tweaking a few elements of their courses or their research in light of changed circumstances. Instead, it suggests that something fundamental has occurred in the world that compels law schools to change what they are doing.
Such events have occurred. Consider the fallout from Watergate, as law schools (or, perhaps, the accrediting arm of the American Bar Association) concluded that schools were insufficiently equipping students to handle the ethical dilemmas facing attorneys. Law schools introduced new commitments to that end throughout the law school curriculum. That was a response not to Watergate generally, but to the fact that lawyers in particular were involved in Watergate. The nexus between the practice of law and the training of future law students was fairly evident. While law schools and the legal profession had some understanding of ethics prior to Watergate, they sharpened their ethics codes and increased teaching surrounding those codes.
But the election of a new president is a political issue. It may result in particular legal issues that arise from a new administration. Even then, however, [ed.: in prophetic words sure to go wrong] it is unlikely that the legal issues will drive the legal profession to a crisis along the lines of Watergate. So any response from a law school is not to the specific needs of the legal profession, or even to legal issues generally, but truly to a political issue. And that is true even if one characterized the election of Mr. Trump has some extraordinary political event and not “politics as usual.”
Still, one might push back against my conclusion and say that changes to the political environment do require some law schools to take certain steps in response, and law schools might look at the election of Mr. Trump and choose to change. I worry, however, that such efforts, even if styled in neutral terms, fairly quickly illustrate that these newly-valued short-term goals do not address the major ex ante commitments that have been identified by schools in a more thorough and comprehensive consideration of commitments; and that such efforts may also provide rather clumsy efforts toward such short-term ends.
If a law school, for instance, articulates its need to shift commitments to teaching about the “rule of law,” however capacious that phrase might be understood today, does that mean law schools were not committed to teaching students about the “rule of law” before? That they were insufficiently committed? That there was little need for a serious commitment to teaching about the “rule of law” under the presidency of Barack Obama or George W. Bush?
Or consider changes to curriculum--if there are ideological commitments made in a new curriculum in reaction to decisions in the Trump Administration, would this diminish the ideological diversity that should be pursued in legal education? Might it drive the remainder of the legal education curriculum toward a singular ideological commitment historically typified in clinical education?
Now, it might be the case that such expressions of new commitments would attract 20-year-old humanities majors in college who are considering whether or not to take the Law School Admissions Test. But that, I think, is a fairly thin reason for pursuing such a recentering of a law school's commitments.
But, still, it may be that some would press back on the notion of law school as a fairly non-ideological endeavor. If law schools are merely tools of social change, an instrument of administrators, this analysis would surely look quite different. There may be a notion that law schools are a kind of catapult. Their students are some sort of ammunition, and law schools are pointing these students at targets in society and hurtling them at great speed toward them in an effect to smash those walls of, err, injustice (to belabor the metaphor).
This yields a great question about the purpose of legal education, which is a return to the questions outlined at the beginning of these thoughts. Are law schools about those things I listed at the outset of this essay, with fairly generic and neutral commitments that are often concerned with student outcomes and the increase of legal knowledge? Are they fundamentally about equipping students to do whatever such students want to do upon graduation, and about a broad commitment to the pursuit of knowledge in academic scholarship? Or are they instruments of social change in a particular fashion?
Granted, some students might choose to attend a particular law school because it is a kind of a catapult—the law school has had tremendous success in placing its graduates in Vault 100 law firms or the ACLU or judicial clerkships or investment banking or the Department of Justice. But a decision to reorient a law school's commitments toward a particular ideological commitment are, I think, something else--and something quite significant.
In the end, I expect that at least some law schools will change their commitments in light of the Trump administration. I also expect most of them will be fairly short-sighted and rather narrow in their responses. But I offer these thoughts as a more comprehensive way of thinking through law school commitments more generally. I think law schools too rarely consider the vision of their institutions and develop a purposeful plan toward achieving that vision. The fact that some schools are openly considering what their commitments ought to be is something of value--and it may result in serious reflection of commitments, and changes to commitments, unrelated to the present administration that may have prompted such reflection. What these discussions yield, of course, remains to be seen.