And not by eastern windows only,
     When daylight comes, comes in the light,
In front the sun climbs slow, how slowly,
     But westward, look, the land is bright.
“Say Not the Struggle Nought Availeth”
   —Arthur Hugh Clough

In “A Bleak Future for Legal Education?,” Professor Steven D. Smith examines developments in United States law schools over the past century and reaches the glum verdict that “at present, contemplating the future of legal education is more dispiriting than inspiring.” While there is much to admire and agree with in Smith’s trenchant essay, its conclusion is one of excessive melancholy. All around us, or so I will argue in this response to”A Bleak Future,” are signs that at least some of the problems with legal education that so trouble Professor Smith are becoming less acute, particularly with respect to the assaults on freedom of thought and inquiry that have in recent years so bedeviled academic life. In addition, the classical legal tradition Professor Smith reveres and has made important contributions to over the course of his highly distinguished career appears poised for a resurgence, one that has the potential to restore it to a prominent place in legal study, if not its former preeminence. In short, Professor Smith has more reason for optimism than he lets on.

What Has Gone Wrong

“A Bleak Future” contrasts the American legal academy of today with that of the early twentieth century. Professor Smith bemoans the collapse of the once near-universal consensus that law represents “the point at which the eternal truths studied in their abstraction by philosophers and theologians [meet] up with the practicalities of everyday life.” In its place, by Professor Smith’s account, are the tattered “remnants” of this classical tradition together with a grab bag of approaches to legal study that is “saturated” in positivism and instrumentalism and thus devoid of any positive, uplifting vision. Especially corrosive, Professor Smith believes, are “social justice” agendas grounded in “a profound cynicism about law and humanity” that reduce human interactions to power struggles. As Professor Smith points out, the insistence that participants in intellectual debates care only about power fuels the intolerance for different perspectives now endemic in colleges and universities. If power is all that matters to anyone, then nonconforming points and counterpoints can be dismissed as nothing more than amoral, tactical moves in a degraded and degrading game.

“A Bleak Future“ also argues that recent curricular and pedagogical changes have “produced some unfortunate consequences.” To be clear, Professor Smith shrinks from romanticizing the past. He does not endorse a return to a world in which hard-core “Socratic” law professors “asked questions but did not provide answers or tightly organize the materials” and floundering students went unaided. Rather, he expresses skepticism about a number of popular reforms. His chief targets are the shift toward more “user-friendly” teaching and skills-based learning (often with an emphasis on bar passage rates) and the creation of “whole bureaucracies of associate deans and special assistants” charged with supporting students “in every aspect of their education” and even “their psychological well-being.”

Professor Smith stands on firm ground when he highlights the scant or absent evidence that these costly measures have improved “legal pedagogy and, ultimately, legal practice.” But Professor Smith goes further, arguing that these initiatives do not just waste resources but inflict harm, holding them responsible for a growing infantilization of students, a “decline in the intellectual content and rigor of courses,” and a decreased likelihood that law courses will even try to inculcate a sense of the law’s “universal” and “infinite” essence. It is hard to evaluate the causal connections Professor Smith draws. At a minimum, it makes sense to disaggregate both the inputs and the outputs, which “A Bleak Future,” constrained by length, does not undertake to do. It is plausible, for example, that struggling students who get help will be better equipped and more inclined to grapple with the abstract concepts he sees as essential to a quality legal education. It is also possible, of course, that the help now offered by law school does, on balance, more harm than good. 

The Pendulum Swings Back

Smith’s wide-ranging catalog of the ills and suspected ills wrought by the past century’s transformation in legal instruction is illuminating and informative. Yet in key respects, his essay falls short in its analysis of the current-day legal academy. Professor Smith provides a detailed snapshot of the state of law schools right now but pays less attention to where things might be headed. That leads him to wrap up “A Bleak Future” with a fatalistic shrug: “Things may change—who knows how?” 

In focusing on the static at the expense of the dynamic, Professor Smith gives short shrift to a number of recent developments that provide a preliminary roadmap as to how change can be accomplished. Perhaps most strikingly, Professor Smith ignores the push-back elicited by the intolerant “group think” he so eloquently decries—and not just from the conservatives and libertarians at the highest risk of “cancellation.” Moderates and even some fervent leftists have become so concerned about the state of legal education that they are speaking up about the dangers of censorship (both self and externally imposed) and joining or supporting organizations such as the Heterodox Academy, created in 2015 to promote “principles of open inquiry” and “constructive disagreement.” Legal academics (including me) are also well represented among the membership of the Academic Freedom Alliance, which in its short existence has provided effective assistance to many faculty members, among them several law professors, whose rights were violated or under threat.

Recent statements from several deans of prominent law schools in support of principles of academic freedom, including this letter from Stanford Law Dean Jenny Martinez, provide further indication of a turning tide. Indeed, the Chronicle of Higher Education reports that Martinez’s endorsement of academic freedom played a significant role in her recent designation as the incoming Provost of Stanford University. None of this is to say that free speech and inquiry are no longer in danger in law schools or in the academy in general. But the speed and magnitude of the turnaround is remarkable and should dispel at least some of Professor Smith’s gloom.

A Renaissance of the Classical Legal Tradition?

In his enervated conclusion, Professor Smith identifies a need on the part of legal education for “some loftier conception of what law and hence legal education are all about.” He then goes on to dismiss the idea (“the prospects seem slim”) that law might “find some more ennobling view by rediscovering its roots in some form of the classical legal tradition.” To read these words from the author of Law’s Quandary, a stirring call, at least in my comprehension, for constructive reengagement with that very tradition, comes as a shock. After all, Professor Smith ends Law’s Quandary with an intimation—again, in my reading—that the classical legal tradition, or at least some portion of it, is inescapable when he writes that “there are richer realities and greater powers in the universe than our meager modern philosophies have dreamed of.”

Professor Smith justifies his pessimism with sharp criticisms (“belligerent” and “potentially dangerous”) of scholars who are making use of the classical legal tradition in ways he thinks so misguided as to risk discrediting it. The most prominent target of Professor Smith’s ire is Harvard Law School’s Adrian Vermeule, author of the bestselling (by the standards of the legal academy) Common Good Constitutionalism. But even if Professor Smith’s harsh appraisals hit their mark (which I do not believe they do, but that’s a subject for another article), they fail to explain his determination to abandon hope. It seems unlikely that a handful of books and articles can so corrode the classical legal tradition as to render it impossible for anyone today to make effective use of it.

In limiting his attention to Professor Vermeule and his close associates, Professor Smith ignores the lion’s share of a large, fast-growing scholarly literature that engages seriously with the classical legal tradition. This is a pity, for examples abound of works that can help provide a strong foundation for the “loftier conception” of law Professor Smith craves. In addition to Professor Smith’s own contributions, we have (to list but a small sample) R. H. Helmholz’s Natural Law in Court: A History of Legal Theory in Practice, Hadley Arkes’ Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, and Brian M. McCall’s The Architecture of Law: Rebuilding Law in the Classical Tradition. Even the work of Professor Smith’s bete noir Adrian Vermeule may prove useful to the project of revitalizing the classical legal tradition. For if nothing else, Common Good Constitutionalism’s meteoric success highlights that many are thirsting for more than what is now on offer from legal education.