Complexity and Pluralism

By John Garvey

In my last column I wrote about institutional pluralism and its benefits – how there are many different kinds of law schools in the United States, and how this can be a good thing for consumers of legal education and the progress of legal thought. I want to speak here about the inevitability of pluralism – or if that is too Hegelian, about some strong forces that push law schools in the direction of difference.

The first such force is this: the world is becoming a more complicated place, and it is impossible to teach all about it. If we go back two hundred years we find commentaries on the laws of England (Blackstone) and America (Kent) that comprise just a few volumes. In the first part of the last century the ABA required law school libraries to have 10,000 volumes. Today our libraries routinely have 50 times that number. Course catalogs and faculties have grown at the same rate. This is not, as the popular press sometimes suggests, an epidemic driven by its own force. Society demands that the government make laws about the environment, health care, digital piracy, and trade. Law schools teach people how that complex system works.

Thing is, it’s so complex that no one can grasp it all. Perhaps Blackstone could comprehend all the laws of England in 1769. But when I was in law school I had a friend who tried (and failed) to read every case about Rule 10b-5. On a larger scale no faculty of 50 can pretend to cover the whole field of American (and now foreign) law. My own school does not offer Admiralty, Agriculture Law, and Insurance.

The second force is intertwined with the first: building larger faculties to provide better coverage drives up tuition costs. 100 students can comfortably pool their resources and pay Blackstone’s salary. They can’t support a faculty of 50. In the modern world every school needs to decide how many faculty it can afford, and build a program around them.

This is where our differences start to emerge. Imagine a crowd shopping at the grocery store on Saturday morning. Suppose each person wants to provide balanced meals for the week, on the same budget. Though they have similar objectives, their shopping carts will look very different at the checkout counter – vegetarian, Italian, Thai, macrobiotic, meat-and-potatoes. The menus law schools opt to provide from the corpus juris of American (and other) law are like this. And as our grocery store gets still bigger and more diverse the range of variation will increase.

The ABA and the AALS, in their standards for approval and membership review, have accepted this view of the world. The ABA allows “a law school [to] offer an educational program designed to emphasize certain aspects of the law or the legal profession.”1 It has confined its specific prescriptions to skills training.ii The AALS says only that a curriculum should be “broad and deep,” planned by the faculty, and periodically reviewed for content and pedagogical effectiveness.iii

The institutional pluralism that results from this state of affairs is not random variation. We create law schools in response to social imperatives. Maine creates a public school because it has no private institutions, the state needs lawyers, and it wants to encourage research on marine law and policy. The Church of Jesus Christ of Latter Day Saints creates a law school because it wants its members to have the opportunity to integrate their faith and their professional lives. The New York State Board of Regents creates a law school at CUNY to train lawyers to serve the public interest. The faculties of these schools plan courses of study that will promote the missions of the institutions.

The surprising thing about contemporary legal education is not that law schools are different from one another, but that the differences are not more marked. Why is there not the same degree of variety as there is among RISD, Cal Tech, and St. John’s College? Perhaps that’s expecting too much. The field of law, though growing, is narrower than the field of human knowledge. The pool of faculty candidates is shallower, and we tend to hire from the same places. External actors (bar examiners, accreditors, ranking agencies) play a standardizing role. And we are all professionally accustomed to adhere to precedent, so change in the legal academy happens slower than it does elsewhere. To take the most obvious example, the first-year curriculum has evolved little in the last hundred years. The supermarket variety I describe has all been imported into the second and third years. Still, it’s worth bearing in mind that colleges once taught the trivium and the quadrivium in place of the abundance we see now, and that the transformation of higher education resulted from the fact that, to put it simply, there is more stuff to learn.

i American Bar Association Section of Legal Education and Admissions to the Bar, 2007-2008 Standards and Rules of Procedure for Approval of Law Schools, Interpretation 301-2.
ii Id., Standard 302.
iii Bylaws of the Association of American Law Schools 6-1.b(iii), 6-7.b.