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Legal Education

Marking 200 Years of Legal Education: Traditions of Change, Reasoned Debate, and Finding Differences and Commonalities

The full text of this Essay can be found by clicking the PDF link to the left.

What is the significance of legal education? “Plato tells us that, of all kinds of knowledge, the knowledge of good laws may do most for the learner. A deep study of the science of law, he adds, may do more than all other writing to give soundness to our judgment and stability to the state.”1×1. Roscoe Pound, The Work of the American Law School, 30 W. Va. L.Q. 1, 1 (1923), reprinted in 2 The History of Legal Education in the United States 678, 678 (Steve Sheppard ed., 1999). So explained Dean Roscoe Pound of Harvard Law School in 1923,2×2. Pound continued:
If we are to do our duty by the common law in the 20th century, we must make it a living system of doing justice for the society of today and tomorrow, as the framers of our polity made of the traditional materials of their generation an instrument of justice for that time and for ours.
Id. at 17.
and his words resonate nearly a century later. But missing are three other possibilities regarding the value of legal education:

  • To assess, critique, and improve laws and legal institutions;
  • To train those who pursue careers based on legal training, which may mean work as lawyers and judges; leaders of businesses, civic institutions, and political bodies; legal academics; or entrepreneurs, writers, and social critics; and
  • To advance the practice in and study of reasoned arguments used to express and resolve disputes, to identify commonalities and differences, to build institutions of governance within and between communities, and to model alternatives to violence in the inevitable differences that people, groups, and nations see and feel with one another.

The bicentennial of Harvard Law School prompts this brief exploration of the past, present, and future of legal education and scholarship, with what I hope readers will not begrudge is a special focus on one particular law school in Cambridge, Massachusetts.

Some call this a time of crisis in legal education; others emphasize innovation and renewal.3×3. On the present as a time of crisis, see Kyle P. McEntee et al., The Crisis in Legal Education: Dabbling in Disaster Planning, 46 U. Mich. J.L. Reform 225 (2012); and Steven J. Harper, The Intractable Crisis in Legal Education: To Understand Why the Crisis in Legal Education Persists, Take a Look at How Law Deans and Professors Are Wishing It Away, Am. Law. (Sept. 11, 2015), http://www.americanlawyer.com/id=1202736970724/The-Intractable-Crisis-in-Legal-Education [https://perma.cc/3GNN-JWDX]. On the present as a time of innovation, see Beverly Petersen Jennison, Beyond Langdell: Innovating in Legal Education, 62 Cath. U. L. Rev. 643 (2013); and Andrew Perlman, Innovation in Legal Education, Law Prac. Today (Jan. 2014), http://www.americanbar.org/content/newsletter/publications/law_practice_today_home/lpt-archives/2014/january14/innovation-in-legal-education.html [https://perma.cc/X36D-6WQE]. With new strains on constitutional democracies around the globe, serious chasms between the ideals and realities of justice systems in the United States and elsewhere, and perhaps unprecedented disruptive innovations in the ways legal knowledge is shared and law is practiced, Harvard Law School and legal education generally face significant questions and opportunities. This is a moment when many countries are creating new law schools, some following a model from the United States, which itself is much influenced by Harvard Law School.4×4. N.R. Madhava Menon, Harvard Law Sch. Program on the Legal Profession, The Transformation of Indian Legal Education (2012), https://clp.law.harvard.edu/assets/Menon_Blue_Paper.pdf [https://perma.cc/G9B2-FC5A]; Simon Chesterman, The Globalisation of Legal Education, 2008 Sing. J. Legal Stud. 58, 65. And institutions like Jindal Global Law School in India, the Peking University School of Transnational Law in China, new law schools in Italy and Brazil, and a revamped transnational program at McGill in Montreal, Canada, deliberately seek to invent new modes of legal education that treat law as global and beyond any one jurisdiction.

Some of the themes and issues for legal education have persisted for more than a century. Professor William Twining wrote in 1994:

In all Western societies law schools are typically caught in a tug of war between three aspirations: to be accepted as full members of the community of higher learning; to be relatively detached, but nonetheless engaged, critics and censors of law in society; and to be service-institutions for a profession which is itself caught between noble ideals, lucrative service of powerful interests and unromantic cleaning up of society’s messes.5×5. William Twining, Blackstone’s Tower: The English Law School 2 (1994).

These tensions persist and rightly so. They manifest the unique position of law schools as a bridge between theory and practice, between law and justice, between ideals and needs. Academic inquiry pursuing truth, engaged critique of law as it operates in multiple societies and times, and assistance to a profession that is itself caught between doing well and doing good characterize most law schools. Most law schools straddle theory and practice and also straddle service to the haves, who pay lawyers’ bills, and the have-nots, who often bear the weight of laws without influence to shape them.

Like law itself, law schools have the capacity to retain traditions and to enable change, to protect reliance on past practices and laws and also to inspire reform. Harvard Law School’s bicentennial follows what can be described as three periods of legal education and over a century devoted to debate and rational argument across an expanding range of issues, sources, and points of view. Even with shifts in the debate over what is open for debate, this history provides a foundation for grappling with profound challenges ahead.

 

The full text of this Essay can be found by clicking the PDF link below.


* Carter Professor of General Jurisprudence; until July 1, 2017, Morgan and Helen Chu Dean and Professor, Harvard Law School. Thanks to John Manning, Paloma O’Connor, Joe Singer, and David Wilkins for helpful comments and insight, and special thanks to the tremendous staff at the Harvard Law Library.