[H]appiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

—Oliver Wendell Holmes, Jr.

There are some people—and I am one of them—who think that the most practical and important thing about a man is still his view of the universe. We think that for a landlady considering a lodger, it is important to know his income, but still more important to know his philosophy. We think that for a general about to fight an enemy, it is important to know the enemy’s numbers, but still more important to know the enemy’s philosophy. We think the question is not whether the theory of the cosmos affects matters, but whether, in the long run, anything else affects them.

—G. K. Chesterton

Where there is no vision, the people perish.

—Proverbs 29:18

Holmes’s encomium to the law may strike us today as quaintly grandiose—and also deeply ironic, given Holmes’s own savagely nihilistic outlook on life and law. An “echo of the infinite”? A “hint of the universal law”? Seriously?

And yet through much of Western history, the statement might have seemed utterly sensible. In what is sometimes called the classical legal tradition, human law was understood to be grounded in the natural law, which was itself that part of God’s providential plan (or of the “eternal law,” as Aquinas called it) that was knowable through reason by human beings. Law was precisely the point at which the eternal truths studied in their abstraction by philosophers and theologians met up with the practicalities of everyday life.

No doubt legal education, whether it occurred in a school or an inn of court or a lawyer’s office, was still primarily devoted to learning rules and forms and techniques—to the nuts-and-bolts of legal practice. On the classical understanding, though, it would be accurate to say that in its “remoter and more general aspects,” law provides echoes of the infinite and hints of the universal law. And such echoes would reverberate through legal education, and would ensure that such education provides not merely technical training but also substance for an “intellect great enough to win the prize.”

For over a century, this sort of philosophy and vision have been mostly—but not entirely—missing from the American legal academy. And especially in recent years, the dominant forces of reform (or, depending on your perspective, of degradation) work to distance legal education ever further from “the infinite” and the “universal law.” Whatever remnants of the classical tradition survive are threatened from two different directions. On one side is an aggressive agenda of “social justice”—but of a social justice associated with a profound cynicism about law and humanity. On the other side is a program of pedagogical reforms based on empirical or pseudo-empirical research. The various reforms respond, sometimes sensibly, to what may be real shortcomings; but their overall product is an infantilization of the academy.

Law and Policy

So, how did this dispiriting transformation come about?

I hasten to emphasize what ought to be obvious: any answer to that question in a short essay like this one will necessarily speak in sweeping and simplified terms. Nuance is a luxury, alas, that this essay must forego. With that caveat . . . .

At any given time, the legal academy will be the scene of sundry pedagogical, political, and jurisprudential movements, agendas, and ideas; and any of us will likely view some of these with enthusiasm and others with disapproval or even dread. But is it all just a matter of “here’s a good idea, there’s a bad one”? According to Chesterton, even the most practical decisions and actions will reflect an underlying “view of the universe” or philosophy. (Perhaps an eclectic and largely inarticulate philosophy, no doubt.) If Chesterton was correct, his observation surely applies to law, and to legal education. And it will be this underlying view or philosophy that ultimately “affects matters.”

I have already sketched, in shamelessly simplified form, the view of the universe that underlay the classical legal tradition. The cosmos has been created according to a providential design and purpose. Human beings, nobly made in the image of God, have some ability—imperfect, to be sure, and corrupted—to discern that design and purpose. Law is an outgrowth of that ability operating to discern and implement the providential design in human societies. Positive law gains its validity, even its meaning, from participating in the natural law or providential design. On some such understanding, as Stuart Banner shows in his recent book, The Decline of Natural Law, American judges and lawyers in the eighteenth and nineteenth centuries routinely invoked a providentially-grounded “natural law” in their arguments about the human law.

If humans are evolved animals who seek their own interests, why would anyone expect these interest-seekers to pursue anything like the common good? 

By contrast, Banner explains, this understanding of law largely disappeared in the twentieth century, and law instead came to be seen as a purely human construction that seeks to satisfy human needs and desires as efficiently as possible. Instead of natural law, we had “law-and-policy.”

This newly dominant “law-and-policy” conception reflected an entirely different philosophy more beholden to Darwin—no offense intended, Charles—than to Christianity. Humans are not creatures in the imago dei but rather randomly evolved animals who through a developed rationality struggle to secure their interests. Positive law gains its value not through participation in any providential design but rather from its capacity to satisfy human wants and needs. Especially as the twentieth century unfolded, law schools—and hence law teachers and students—were saturated in this positivist and instrumentalist conception.

And yet there were still vestiges and remnants of the older tradition. Lawyers and judges and professors still talked—perhaps more than ever before, actually—about a sacred “human dignity,” even if that revered quality fit rather badly with the prevailing naturalistic worldview. Policy analysis at least purported to be concerned with promoting the public interest, which seems at least related to what the classical tradition called “the common good.” Moreover, the intricacies of “policy analysis” provided plenty of grist for the intellects of teachers and students to work upon. Legal education in the 1970s (when I was a student) and in the 1980s (when I began teaching) was an intellectually ambitious enterprise. Professors who limited themselves to teaching and writing about “doctrine”—rules and precedents and such—were widely viewed as substandard (a view that the doctrinalists perceived, and resented).

Within the more modern view of the universe, there were to be sure cracks and contradictions. The picture of humans as rationally pursuing their self-interest fit uneasily with other aspects of the modern view—its Freudian aspects, for instance—that were more skeptical about the role of rationality in human affairs. And if humans are evolved animals who seek their own interests, why would anyone expect these interest-seekers to pursue anything like the common good? Why wouldn’t those in positions of power or privilege—lawyers and judges, for instance—simply use that power to promote their own interests, at the expense of everyone else’s? Perhaps using the facade of “law” to conceal and legitimate their self-interested behavior?

Such suspicions, which seem entirely sensible on the “humans-as-interest-seeking-animals” conception, gave rise beginning in the 1980s to a series of related movements that were or at least aspired to be skeptical and subversive: Critical Legal Studies, Critical Race Theory, some kinds of feminist jurisprudence. In addition to the Darwinian and positivist influences, the Critical movements drew on other sources—Marx, Nietzche, Foucault, and company—whose combined influence worked to create an underlying picture of humans driven by a “will to power” and struggling endlessly, through force but also through devices like “reification” and “mystification,” to secure more power for themselves and the groups or classes to which they belong.

The Crits

In conventional circles, the “Crits” were sometimes disdained as an unwholesome and unwelcome element. The world would have been better off without them.

My own view was and is more mixed. I have my serious objections, to be noted shortly. But my first teaching job was as a Teaching Fellow—basically a legal writing instructor—at Stanford Law School, then a leading bastion for the Crits, and the lively debates at workshops between Crits and more conventional scholars were invigorating. I look back on those years with some nostalgia. The Crits were asking important questions, I thought, and identifying real problems in the conventional understanding of law. Their jargonistic probing (when it was comprehensible, as it often was not—to me at least) made the legal academy more intellectually interesting than it had been before, or than it has been since.

Although, on the surface, the Critical and more conventional approaches to law seemed sharply opposed to each other (as the vigorous debates at the Stanford workshops suggested), it might also be argued that the Crits were merely playing out the implications of the “humans-as-interest-seekers” philosophy that animated the law-as-policy perspectives. In Dostoyevski’s novel Demons, the nihilists Stavrogin and Pyotr Verkhovensky are the natural children (as well as intellectual and biological) of the idealistic but dissolute liberal Stepan Verkhovensky. In similar fashion, I think, Critical philosophy is not so much the nemesis of the last century’s more complacent conventional legal thought as its disruptive culmination.

By the early 1990s, the Critical Legal Studies movement was beginning to fade. But a number of offshoots have persisted and have, if anything, become more influential. Newer forms of feminist theory. Queer theory. Disability theory. Critical Race Theory is of course more prominent now than ever.

These various Critical movements may or may not be important in their own right. But together they convey a social philosophy (or what has aptly been called “Cynical theory”) in which history is viewed as a struggle for power—a struggle between the “haves” and “have nots,” or between the privileged and the oppressed. The legal or normative reasoning we purport to engage in serves as a strategy and cover for the maintenance of hierarchy and privilege by the “haves.” Sometimes the categories of privilege and oppression are defined in racial terms. Sometimes the differences are drawn along lines of sex, gender, sexual orientation, class, or something else.

Where this cynical philosophy (usually more assumed than articulated and defended) comes to hold sway, the effect is not merely subversive but anti-intellectual. If reasons are treated as rationalizations for power, and if people’s positions are to be judged not by their arguments but by their status as privileged or oppressed, what is the motivation for formulating, analyzing, or responding to rational arguments? Isn’t someone who tries to reason carefully just implicating himself or herself in the corrupt and corrupting enterprise of power legitimation?

Perhaps the most logical normative conclusion that would follow from this cynical philosophy would be nihilistic or Thrasymachean in character. Life just is a struggle for power, so how can anyone be blamed for adopting whatever tactics may seem to serve in that struggle? However, this is not the stance typically taken by the practitioners of the power philosophy; instead, they are severe and morally indignant critics of the privileged and of the structures that supposedly support such privilege. Diversity, equity, and inclusion are pursued with a fierce and puritanical zeal.

If there is no natural law, and if life is just a power struggle, then . . . life is just a power struggle.

On the premises of the power philosophy, this intense moralism makes good sense (as Thrasymachus perceived). Just as law and its institutions and rhetoric are thought to be legitimating devices serving those in power, moral indignation may be tactically effective in obtaining more power for those who learn to deploy (and even to internalize) such zeal.

But from a more detached perspective, troublesome questions appear. If we accept the power-seeking philosophy, then is there any reason to suppose that the classes of the oppressed, however defined, will be any less power-seeking, once liberated or “included,” than their former overlords were? Why would they be? Why should they be? What is or would be the source of the normative criteria that might serve to constrain humans’ power-seeking propensities? So then, are we just trading one set of privileged overlords for a different set? Critical agendas today seem to trade on something like the old Marxist assumption that once class distinctions (or racial barriers, or sexual barriers, or whatever) are knocked down, everyone will just naturally live together in peace and contentment. Seriously, how plausible has that assumption ever been?

To be clear: my objection here is not to cynicism per se (of which I possess more than my fair share), or to calling attention to the role that power-seeking plays in society and in law. Those phenomena are real enough. The problem, I think, is the lack of any more encompassing positive vision. (At this point I need to reemphasize my initial caveat about the simplification required in a short essay. That said . . .) So as far as I can see, there is in the dominant cynical positions no vision of the fullness of human nature such as the Christian tradition offered—no vision recognizing humanity’s corruptions but also its benevolent and admirable and even divine qualities. There is no very positive vision of what a just and good society would look like (beyond the fact that it would be “inclusive”), or of how law might actually move us in the direction of such a society. There is no opposition to the demoralizing premise that “it’s ultimately all about power” so much as a tacit acceptance of that premise coupled with a protest that “we demand our share.”

Nor is it easy to imagine how any positive or uplifting vision could be developed from the Darwinian-Marxist-Foucauldian premises that ground current critical movements. If there is no natural law, and if life is just a power struggle, then . . . life is just a power struggle. That’s it. End of discussion. Back to the trenches.

The Consumer

I hope I have at least suggested how these cynical developments are detrimental to the intellectual life of the legal academy. But there is a different kind of ostensibly reformist movement that is more innocuous—it gets less attention, provokes less criticism—and that may seem more trivial, but that may actually pose an even more immediate threat.

Let me begin with some observations about legal education as it was when I began teaching four decades ago. I have already noted that professors were encouraged to be intellectually ambitious not only in our scholarship but also in our pedagogy. We were not supposed to just teach “the law,” or the doctrine. Rather, we were supposed to incorporate “theory” in our work, and to draw on learning from other disciplines—economics, literature, philosophy, history, psychology, sociology. And in pursuing this project of enhancing teaching and scholarship through theory and interdisciplinary work, professors operated with considerable freedom to teach and write—and grade—as we deemed best. Inevitably, some professors used this freedom thoughtfully and responsibly; some did not. Nearly all grades were based on one final exam (supplemented perhaps by “push points”), and some professors devoted more care to grading than others did: there were stories of popular professors who hardly looked at the exams but just gave every student an A.

Students, likewise, bore considerable responsibility for their own education. As one of my deans told an incoming class: “The primary responsibility for your legal education is yours. The faculty are not here to serve up a legal education for you; they are here to assist you as you pursue your own education.” That was surely an overstatement, but still . . . . Professors typically used a “Socratic” method—a euphemism meaning that they asked questions but did not provide answers or tightly organize the materials; it was for the students to figure out what the questions and cases added up to. There were few if any support staff designed to help struggling students; but students often formed study groups, which could sometimes carry on lively discussions of the legal issues and arguments.

Over the years, and while teaching at a variety of different law schools, I have noticed how all this independence and responsibility have dwindled. Deans’ offices now tell professors exactly what must be included in their syllabi, and when those materials must be submitted. Grading is now closely controlled by intricate mandatory curves. Teaching is typically much more user-friendly, as professors often use PowerPoint outlines to organize the materials for students and tell them what conclusions to draw. Deans’ offices regularly introduce pedagogical initiatives designed to enhance learning—through “interim assessments,” or “experiential learning,” or the mandatory formulation of disaggregated learning objectives and the supposedly quantified measurement of the achievement of such objectives. And whole bureaucracies of associate deans and special assistants have evolved to assist students in every aspect of their education—and often in their psychological well-being as well.

And although few law schools would want to think of themselves as “bar preparation schools,” emphasis on bar passage—and on designing teaching to improve bar passage—has escalated enormously. The subject is repeatedly stressed at faculty meetings. Faculty are urged to select their materials and their methods with the bar exam in mind.

Some of these measures may be sensible. They are to be sure responses to real shortcomings in legal education, which of course will always exist (and the measures may be sources of other shortcomings and injustices, as the mandatory curves surely are). But has their overall effect been to improve legal pedagogy and, ultimately, legal practice?

I can’t say for sure. I haven’t heard reports indicating the lawyers today are notably more competent than in former times. Older alums I occasionally talk with seem to think the opposite, but maybe that is just standard curmudgeonism. And although such evidence is impressionistic, my colleagues commonly complain that, notwithstanding credentials that supposedly improve with each entering class, law students today are less capable than they used to be. (I myself haven’t noticed any such decline, but I haven’t noticed any discernible improvements either.)

If you have no loftier vision of what law is, and hence of what legal education should aspire to impart, you will naturally tend to focus on the more measurable factors. Rankings. Bar passage rates. Dollars.

I am confident, however, that the overall campaign for pedagogical reform has produced some unfortunate consequences. First, the reforms have a tendency to infantilize students. (And faculty as well, but that is another discussion.) Students who were once taught that they bore primary responsibility for developing a knowledge and understanding of the law are now led to expect their professors to serve up that education. This propensity varies among students, obviously. But where a student who didn’t understand something in the class or the notes once used to do further reading or engage fellow students about the question, many students will now simply ask or email the professor requesting further clarification. The assumption (and not just on the part of students) seems to be that if a student has failed to understand something, that lack of understanding reflects a failure on the part of the professor—a failure that the professor should act to correct.

Second, the new measures and particularly the increased emphasis on skills training and bar passage tend to produce a decline in the intellectual content and rigor of courses. This change is apparent, I think, in the attitude toward “doctrinal” courses. At one time, as I have noted, “doctrinal” was a pejorative term; it meant that a professor or his course was intellectually shallow. (That judgment could be unfair.) In recent years, however, I have more than once heard deans assure listeners—a public audience or an incoming class—that although we now offer much more in the way of experiential or practical learning or skills training than we once did, the law school still has professors who teach in a doctrinal way. Apparently, “doctrinal” is now a mark of intellectual distinction.

More vaguely but more importantly, the practice- and bar exam-oriented direction of legal education makes it less likely that law courses will attempt to educate students in the “remoter and more general aspects of the law . . . which give it a universal interest.” Or, a fortiori, that they will impart anything that might help students “catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.” Students are less likely to encounter “theory” in their classes, and if they happen to run across theory it will likely be some sort of cynical social philosophy that teaches them to understand the law, and the world, in terms of a relentless struggle for power.

The two kinds of challenges to an intellectually rich legal education that I have mentioned—social justice cynicism and infantilizing pedagogical reforms—are different in nature, and in some sense in tension with each other. Skills orientation aims to enhance students’ abilities to use precisely the devices that the cynical view sees as tools for the maintenance of hierarchy and privilege. In a different way, though, the two developments may be akin. If you lack any more ennobling vision of law, and hence of what legal education is for—of how it might connect students and laws with “the infinite”—you might well choose to emphasize training in the mundane matters you do understand. Namely, legal rules, legal doctrines, and legal techniques.

Indeed, the skills training orientation in one sense fits nicely with the power philosophy that informs the cynical social justice agenda. Life is a struggle for power, and it is through sometimes arcane lawyerly skills, techniques, and vocabulary that lawyers exercise power in society.

Actually, though, I doubt that the deans and administrators who push pedagogical reforms think in these cynical terms. Their motivations are more mundane. They are interested in improving their schools’ numbers on factors measured by the U.S. News & World Report’s rankings—bar passage, and percentage of grads who are legally employed nine months after graduation. Many of the changes in legal education are driven by U.S. News & World Report’s rankings, which students use in choosing where to go to law school, and with which many administrators and faculty accordingly have a near obsession.

And yet that obsession may itself reflect the loss of a higher purpose in the legal academy. If you have no loftier vision of what law is, and hence of what legal education should aspire to impart, you will naturally tend to focus on the more measurable factors. Rankings. Bar passage rates. Dollars.

What law schools desperately need, it seems to me, is some loftier conception of what law and hence legal education are about. Social justice agendas seek to fill that need, but for reasons I have discussed, they may actually aggravate the problem.

Might law find some more ennobling view by rediscovering its roots in some form of the classical legal tradition? I have for years been attempting, in my inevitably puny and idiosyncratic way, to promote some such rediscovery. But the prospects seem slim, and the conspicuous movement currently advocating such a revival has adopted a stance so eccentric, belligerent, and potentially dangerous that there is a risk that the classical tradition will be further discredited.

Things may change—who knows how? But at present, contemplating the future of legal education is more dispiriting than inspiring. Where there is no vision, the people perish.