The Academic Calling: To Global Common Enterprise

John Sexton, New York University, United States

 

 

 

 

            At the broadest level, we can be certain that over the next century the world will become smaller and increasingly interdependent; and we can be sure that law will provide the basis of economic interdependence and the foundation of human rights.  The rule of law will permeate an emerging global village -- touching societies it never has touched.  And the success of this new community will depend in large part upon the integration and accommodation of disparate traditions through law. 

 

            American law and its lawyers already are playing a pivotal role in the unfolding process.  The United States has developed one of the world's most elaborate legal system; the American Constitution is an important model for compacts governing the relationship of governments to their citizens; and, American commercial law is providing a reference point as others develop their own legal regimes. 

 

            It would be wrong, however, to assume that the development of the rule of law will - or should - consist simply of replicating American law.  Even the casual observer of America’s domestic debates about reforming its legal system, whether at political conventions or at bar association meetings, will find the world’s thirst for knowledge about our system a bit ironic.  Just as the world is turning to American law as a model, we in America have come to see the flaws in our system. 

 

            Bring these broad trends closer to home.  While seismic changes have been happening in the world around us, we in America’s law schools have been engaged in a conversation over the shape and content of legal education.  We have seen modifications in our traditional curriculum, a greater reliance on clinical instruction, increased reference to other disciplines, and new pedagogies.  As the proper blend is found, such changes will have a profound effect on the competence and values of the men and women our law schools are preparing for the profession.  But, in my view, the sweeping world trends we are observing command even more than these important innovations.  Inevitably, American legal education - and, I believe, legal education around the globe - will undergo a change of kind, one that will recognize that law must be viewed today through a global lens, and that the way we think about and teach law must embrace that perspective. 

 

            In this context, the fact that American law is being used as a model by others at the very time that we in America are reexamining its premises is more fortuitous than ironic.  As we are called upon to consider the serviceability of American legal ideas and institutions in a range of settings, and for peoples of diverse cultures and values, we will be forced to question premises of our system that have escaped scrutiny until today.  With the collaboration of colleagues from around the world, we can probe more fundamentally not only whether our legal rules may be acceptable for others, but also how acceptable they have proved for us -- how well are we doing when we are tested by much broader standards of effectiveness and durability, and by more encompassing concerns and aspirations.

 

            Thus far, I have described trends which implicate explicitly the law and legal education.  There are, however, other observable trends which, though more general, will impinge upon and shape legal education in the years to come.

 

            The most obvious is the technological revolution.  In my view, this revolution will transform the way we teach, the way we research, and even the way we relate to each other as colleagues.  We are just beginning to glimpse the possibilities posed by a world liberated from traditional constraints of time and space -- a world in which access to research materials will be comprehensive and instantaneous; in which national and international chat boxes among professors, students and practitioners will be commonplace; in which conversations will begin in the classroom and will continue around the clock.  To say that these developments will transform legal education is, in my view, to state the obvious.  But it is equally obvious that separating the fashionable from the truly useful will be difficult, and that a learning community in cyberspace is different from (and in some ways inferior to) the learning community we have known.

 

            There is another general trend which, though less obvious, might impact legal education just as significantly as the technological revolution: our increasing tendency to value immediate gratification, manifested particularly in a devaluation of long term advantages in favor of short term rewards.  The best external example of the deleterious impact of this phenomenon is medicine.  As the economics of medical care develop, basic medical research and research hospitals are being compromised in the rush to lower short term costs.  This is dangerous and short sighted.  And, I see an analogy in law.

 

            Legal research -- by which I mean serious thinking about the “ought” of the law, not the parody of serious research evoked by the phrase “yet another law review article” -- legal research has no tangible payoff obvious to those whose lives are most affected.  Consequently, it has no broad based powerful constituency defending its necessity.  Yet, at a time when law is spreading as it is, and when the fundamental premises of our laws are being challenged, serious thinking about the law is vital.  The place where such thinking occurs is the academy.  In these times of belt-tightening, we must beware of the tendency to sacrifice the long term gain of research for the short term gratification of cost reduction.

 

            So, you now have my sense of some of the overarching trends which will operate in the years to come.  How, you might ask, do these trends affect how we think about the structure of legal education around the world - and, in particular, how we think about creating alliances and associations of law professors and law schools?  To answer this question, we first must ask who we are.  And, the word “we” is an ambiguous one.  First, “we” are law professors; second, “we” are law schools; and, third, “we” are legal education as an enterprise.

 

            We as law professors are people called to the vocation of teaching and research.  That deep calling governs -- or ought to govern -- our professional lives.  But a  psychological profile of us would reveal that most of us -- not all of us, but most of us -- manifest an extreme tendency towards viewing ourselves as independent contractors; and the trappings of academe tend to foster that view of ourselves.

 

            There is, I submit, an interesting analogy between the way most legal academics view themselves and the way most law schools view themselves.  Specifically, I believe that the dominant model that we employ to define the relationship of the 200 or so law schools in America and the thousands around the world is that each school is an independent contractor.  Rarely do we view our schools as participants in a common enterprise. 

 

            What does that mean for us in the context of this conference?  In other disciplines, if there are “associations,” they tend to be collections of individual professors; they are aggregations of independent contractors.  In law, there are some well established associations (such as the Association of American Law Schools) which move toward a more collective model; but the most dominant motif at this point still simply aggregates individual actors. 

 

            Against this backdrop we can view the possibilities presented by this conference across a spectrum of possible identities.  Let me offer a description of that spectrum.

 

            We could choose a “minimalist” model.  In this model, faculty are independent contractors, schools are independent contractors, and whatever national or regional associations that exist are independent contractors.  In this minimalist version, the function of an umbrella entity would be to facilitate the activities of these independent contractors, to the extent they independently choose to be involved in various activities.  The entity’s task is to provide a network, to run sessions people attend or ignore as they wish, to establish chat boxes.  In other words, it would foster independent activity with no intrusion at all upon the autonomy of professors or schools.

 

            But, this minimalist model is not the only available model.  We could move along the spectrum to what I’ll call a “low intermediate” model.  In this version, the faculty member is still an independent contractor; and so is the school.  But, the entity would encourage cooperative effort with regard to consensus goals. It could serve an important role, for example, by seizing economies of scale.  Everybody wins, nobody pays.  Libraries are a good example.  Technology might be another.  Training sessions for new teachers, sessions on pedagogy for senior teachers, and focus groups in subject matter areas.  All these are win/win situations. 

 

            On this low intermediate consensus model one might even get more aggressive by envisioning collective advocacy in the service of goals we all embrace.  Consider the trends of which I spoke earlier.  We could use bully-pulpit to protect the research enterprise.  None of these collective activities would compromise the autonomy of any school or professor.  Each is consistent with an independent contractor model both as to faculty and as to law schools.

 

            Not surprisingly, there is a “high intermediate” part of the spectrum.  Here, each law school remains an independent contractor; each flower blooms.  The organization’s role would be to insist on more collective action by the faculty within each school.  We could underscore that no person truly drawn to the vocation of teaching should view himself or herself as an independent contractor.  Each of us is a fiduciary in the common enterprise of education.  And, we must consider constantly -- at least at the institutional level -- the ratio studiorum which stands at the core of what each school offers its students and the profession.  The ratio studiorum of each school might be different from that of other schools, but we would insist that each school be able to articulate a considered ratio studiorum, which is the product of ongoing reflection of that school’s community.  And, the school ought to be able to justify each course, each requirement, and the activities of each professor against that norm.  On this view, the collective role is to press each of the constituent schools to engage in a process of deliberation, articulation and implementation with regard to its core values.  Such would be a role of membership review.

 

            Finally, one could move farther along the spectrum to a “maximalist” version.  This view goes well beyond anything we see today.  On this view, we would seek to act as a symphony orchestra -- some strings, some brass, some winds, even some percussion.  We would view legal education as a common enterprise.  We would take seriously what we are doing collectively, and articulate an overall ratio studiorum with accompanying roles for particular schools.  Thus, the Association of American Law Schools, for example, would come to view itself not as an independent contractor, but as part of an emerging world community of legal educators.

 

            Each of the trends I identified earlier creates demands for enhancements in program.  Present resources (or even moderately increased resources) cannot satisfy these demands.  Still, I submit, the farther we move along the spectrum from the minimalist to the maximalist version I have described, the more likely we will acquit the responsibility entrusted to those given the treasure of teaching the law.