By John Sexton

(Editor?s note: The following is President Sexton?s speech before the AALS House of Representatives at the Annual Meeting in January.)

Members of the House of Representatives, colleagues, and friends. I am honored that you have asked me to serve you as the president of the AALS. The Association was founded in 1900. In the years since, some of the most distinguished men and women in legal education have occupied this office. I will not fill their shoes, but I promise you my best effort.

As I move to this assignment, I could have no better role model than President Wallace Loh, who has served with wisdom and grace. From his unique vantage point, he has helped us begin to think about the future. He has led us to the path we must walk, and he has caused us to begin charting the journey. As the years go on, our gratitude to him, which already is great, only will grow. Wallace, we thank you.

Shortly after I was named Dean at NYU in 1988, my Criminal Law professor, Jim Vorenberg, called to congratulate me. His words at the time give me some solace today—just as they should reassure you. He said: ?John, not even a person of your considerable potential will be able to sink a ship as mighty as NYU.? As I reflect on Jim?s wise words, I am certain that the Association is safe as well.

One very good reason we need not worry is that I can count on the wise counsel of my colleagues on the Executive Committee, on the contributions of the many committee and section leaders, on the extraordinary leadership skills of Carl Monk, and on the wonderful dedication and talent of the AALS staff. Over the past year, I have seen these folks at work; we can be proud of the collective effort that makes the AALS the great organization that it is.

It is customary for the incoming president to offer comments on legal education and on how the Association, as our profession?s learned society, might enhance our common enterprise. Yesterday, both in the plenary session and in Wallace?s remarks, serious attention was given to the broad trends that swirl around us; let me supplement that discussion with some views of my own.

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 the world?s most elaborate legal system; our 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 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 these 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 the 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 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. Saturday?s wonderful workshop on this subject gave us a glimpse at the possibilities inherent in/offered 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 rooms 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 are other general trends which, though less obvious, might impact legal education just as significantly as the technological revolution. I will mention two: first, our society?s pervasive sense of scarcity, with the concomitant (now instinctive) impulse toward belt tightening and cost shifting; and, second, our society?s deep need for immediate gratification, manifested particularly in a devaluation of long term advantages in favor of short term rewards.

There is no better example of the sense of scarcity than the national budget debate, including the propensity of the federal players in that debate to address the perceived need for belt tightening by shifting costs to others—in particular, to states and localities. Anyone who attended yesterday?s plenary session, or the meeting of the House, saw our own version of this phenomenon, including the propensity to shift costs. My point is not just that a real and perceived scarcity of resources will influence the shape of legal education in the years ahead. It will. And all of us should (and will) husband our resources carefully. We should (and will) develop cooperative efforts to bring down costs. We all know that, and we all are working at it. I raise the point for a different reason, however.

I want to note a tendency on the part of some in the bar to respond to their own real or perceived scarcities by shifting their responsibilities and costs to legal education. Such is the case with those who would forsake the traditional obligation of the practicing lawyer to educate and nurture the fledgling lawyer, and who would shift to the law schools the responsibility for the entire continuum of legal education described in Bob MacCrate?s authoritative report. Law schools never had such a broad mandate, they do not have it now, and they should not have it in the future. Legal education begins—but only begins—in law school. After three years of rigorous study in schools that are the envy of the world, our graduates are well prepared to begin their legal careers. But, inevitably they are novices. The true leaders of the bar (like Bob MacCrate himself) understand this, and they gladly accept their mentoring responsibility. Nonetheless, there are loud voices in the bar articulating an ill-conceived view which would foreswear the mentoring responsibility. And those voices are loud enough that they inevitably will influence what we do, if only by forcing us to expend effort in resisting.

The final general trend I mentioned—our cultural tendency to devalue long term gain in favor of short term reward—will impact legal education more subtly, but (in my view) more profoundly. 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 the Association and what it does? To answer this question, we must ask first 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 an Association.

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 180 or so member schools in this Association is that each school is an independent contractor. Rarely do we view our member schools as participants in a common enterprise.

What does that mean for us as an Association? We know that the Association is legal education?s learned society. The word ?learned? describes our core function: education and research. The word ?society? masks a lot. In other disciplines, the learned societies are collections of individual professors—to wit, they are aggregations of independent contractors. We are not only a society of professors but also a society of schools. This means that we can choose an identity for ourselves across a spectrum of possible identities. Let me offer a description of that spectrum.

We could choose a ?minimalist? model of the Association. In this model, faculty are independent contractors, and schools are independent contractors. In this minimalist version, the function of the Association is to facilitate the activities of these independent contractors, to the extent they independently choose to be involved in various activities. The Association's task is to provide a network, to run sessions people attend or ignore as they wish, to establish chat boxes. In other words, we 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 might use to define the Association. 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 Association would encourage cooperative effort with regard to consensus goals. The Association 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, focus groups in subject matter areas, Judith Wegner's magnificent Resource Corps. 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 collectively could resist those who inappropriately would shift responsibilities into legal education. We could use bully-pulpit to protect the research enterprise. We could send somebody up to the Hill to highlight the insanity of taxing loan repayment assistance. Or, in response to demands from the Bar that the academy adopt new and costly programs, we could urge Bar Associations to require each member to donate one percent of his or her income over fifty thousand dollars to his or her law school. 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 of 180 flowers blooms. The Association'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 contractors. 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 of our member schools might be different from that of the other member schools, but The Association 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 role of the Association is to press each of the constituent member 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 of the Association. This view goes well beyond anything we see today. On this view, the Association and its member schools 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.

One might even conceive a "metamaximalist" version of the story, which would bring us full circle to notice that the Association of American law Schools itself is but an independent contractor in an emerging world community. We could envision associations of law schools around the world as the rule of law spreads. And, there, the question of potential common enterprise must be faced yet again.

Each of the trends I identified earlier creates demands for enhancements in program -- be it clinics, or the smaller classes required for interdisciplinary study, or global initiatives, or new pedagogies. Present resources (or even moderately increased resources) cannot satisfy these demands. Thus, 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.

Judge Harold Leventhal, for whom I clerked, counseled us always to "seize the inch." So, as I close, let me just seize the inch. I will serve you as president for a single year. My goal for that year is to start a serious conversation about who we are -- in all the meanings of "we" as I've outlined them. And I hope that we can have that conversation within the context of some of the most important changes that will occur in our lifetime -- changes which we are in a position to affect. I hope that you will join me in that conversation, and I thank you for giving me the chance to suggest that we have it.

* This article appeared in the February 1997 AALS Newsletter